TIES IN THE RE- WANT OF PAR- purchase and service of faid writ were and now are all in full life, viz. at, &c.; and that if the Plaintiffs have in her right, any right of action to recover poffeffion of any undivided part of the two lots of land aforefaid, with their appurte nances, against the faid D. they at the time of the purchase and fervice of faid writ had and now have it jointly with the faid F. G. and H. I. and K. children of the faid L. as aforefaid, who ought to have been named in the fame writ together with the Plaintiffs; without that, the faid writ fhould have been brought by the Plaintiffs alone; and this the faid D. is ready to verify; Wherefore because the said F. G. and H. I. and K. children of L. as aforefaid, are not named in faid writ with the Plaintiffs, the faid D. prays judgment of the faid writ, that the fame may not abate, and for his costs. Plea. Jointenant, not named. Plea. Hamed. Tenant NOTE. This plea would not be good now under Stat. Massachusetts, March 9, 1786. 1 Maffa. Laws. 296. PLEA. And the faid D. comes, &c. when, &c. and prays judgment of the writ aforefaid, because he says that the Plaintiff at the time when the faid trefpafs is supposed to be done, or at any time afterwards, or before, had nothing in the closes aforefaid in which the faid trefpafs is fuppofed to be done, unlefs jointly and undivided with A. B. and C. F. who are both ftill alive, to wit, at, &c.; and this he is ready to verify; Wherefore inasmuch as the faid A. B. and C. F. are not named in said writ, he prays judgment of faid writ, and that the fame may be quafhed, &c. 1 Mod. En. 21. NOTE. This plea is now only good in perfonal actions. 1 Maffa Laws. 297. PLEA. And the faid D. comes, &c. (as before) because in common, not he fays that the Plaintiffs neither at the time when, &c. nor ever fince had nor have any thing in the faid close in which, &c. or in the faid trees and underwood, mentioned in the faid writ and declaration to have been growing there, nor in any of them nor any part thereof, nor in the faid goods and chattels in the fame writ and declaration mentioned, nor any part thereof, but in common and undivided with A. B. and C. F. who are both alive, to wit, at, &c.; and this he is ready to verify: Wherefore inafmuch as the faid A. B. and C. F. are are not named in faid writ, he prays judgment of faid writ, WANT OF NOTE. This plea was never good in real actions, but only in perfonal. Co. Litt. 198.a. Litt. fect. 311. Tenancy in common with Plaintiff, pleaded by tenant in common, is in bar REPLICATION. And the faid Plaintiff fays, that the writ aforefaid, by reason of the above allegations of faid D. ought not to be quafhed, because he fays that the clofe and house, and the places in which the trefpafs whereof he complains, was done, are and at the time when, &c. were three meffuages, and 140 acres of land, fituate in, &c. called, &c. other than the said three meffuages, and 60 acres of land in the plea of the faid D. above specified; and this he is ready to verify: Wherefore because the said D. hath not answered to the trefpafs in the fame meffuages and 140 acres of land above newly affigned, the Plaintiff prays judgment and his damages occafioned by the trespass aforesaid, to be adjudged to him, &c. REJOINDER. And the faid D. fays that the Plaintiff at the time when the trespass aforefaid in the fame meffuage and 140 acres of land newly affigned is fuppofed to be done, had nothing therein except in common with A. B. who is yet alive, to wit, at, &c.; wherefore because the faid A. B. is not named in faid writ, the faid D. prays judgment of said writ, and that it may be quafhed, &c. TIES IN PAR THE RE Plaintiff fole feif ed. SURREJOINDER. And the Plaintiff fays, that the writ Surrejoinder. aforefaid ought not to be quashed, because he says that he is, and at the time of the trefpafs aforefaid, he was fole seised of the fame meffuages and 140 acres of land newly affigned, with the appurtenances in his demefne as of fee; without this that the faid A. B. then had any thing in the faid meffuages and 140 acres of land, with the appurtenances newly affigned; and this he prays may be inquired of by the country. 3 Inf. Cler. 100. 103. NOTES ON PLEAS TO THE REALTY. With refpect to actions founded on tort, fuch as trefpass quare clausum, or for taking goods, trover and cafe for misfeafance, &c. jointenants, tenants in common, parceners, &c. fhould all join; but if they do not, it can only be pleaded in abatement. 1 Saund. 291. When coheirs, &c. where poffeffion of the inherit- When not. WANT OF PAR ALTY. ants were partners with Plaintiffs.) But in perfonal actions, coheirs, jointenants and tenants in common, fhould join, as in trefpafs, cafe for nuifance, &c. Co. Litt. 198. 1 Salk. 4. 2 Cro. 231. And in mixt But where coheirs fue in feveral rights, they ought to have feveral actions; as if two coheirs be disseised and both die, their heirs ought to fue feverally; for each has a feveral right. Co. Litt. 164. a. Ali heirs may fue together, or actions, it is prefumed, that ter, where an ancestor is dif feised and one coheir die, the other and the children of the first coheir should join, for the right defcends to them from the fame ancestor. PLEA. And the faid D. comes and defends, &c. when, TIES IN PERSON- &c. and fays that the faid feveral promifes in faid declaration Plea. Partner not mentioned, if any fuch were made, were, and each and every named, (Defend- of them was made by the faid D. (a) together with one A. B. jointly and not by the faid D. feparately, from and without the faid A. B.; and that the faid A. B. at the time of the purchase and service of this writ, was and ftill is living, to wit, at, &c.; and this the faid D. is ready to verify: Wherefore inafmuch as the faid A. B. is not named in faid writ and declaration, the faid D. prays judgment, and that the faid wit and declaration may be quashed. I Went. 17. the Plaintiff leparately, from and without the faid A. B. &c." () his plea in all ces where Plain tiff and Defendant are not partners, fhould go on thus, to the Plaintiff, and one A. B. jointly, and not to NOTE. This plea was drawn where Defendants we e partners with Plaintiff; but Mr. Gibbs being of opinion, that it was good in bar, withdrew this plea and pleaded in bar, V. GIBBS. which though the matter pending was £20,000, was conceded to be peremptory. So decided in another cafe. Moffatt v. Van Millinger. 2 Bof. 124. PLEA PLEA. WANT OF ALTY. PARPERSON Plea. One obligee And the faid D. comes, &c. when, &c. and craves oyer of the aforefaid bond, and it is read to him in thefe TIES IN words, "Know all men, &c. ;" which being read and heard, the faid D. prays judgment of the writ aforefaid, because not named. he avers that A. B. and C. F. were then partners with the faid Plaintiff in his trade of a mercer, at, &c. and that they are now actually alive, to wit, at, &c.; and this the faid D. is ready to verify: Wherefore inafmuch as the faid A. B. and C. F. are not named in faid declaration, he prays judg ment of faid writ, and that the fame may be quathed, &c, NOTE. This was on a bond to "William Sherrard and Company, mercers," co nomine. 1 Mod. En. 20. The Defendant might on oyer demur, PLEA. where there are two obligees and And the faid D. comes and defends, &c. when, &c. Plea. Part owner and prays judgment of the writ aforefaid, because he fays not named in tort. that at the time when the faid lofs and injury of said ship is above supposed to be done, the faid Plaintiff had no interest or property in faid fhip Sally, unless jointly and undividedly with one J. A. who is ftill alive, to wit, at, &c; and this the faid D. is ready to verify: Wherefore inafmuch as faid J. A. is not named in faid writ, the faid D. prays judgment of the fame, and that it may be quashed, &c, REPLICATION. And the Plaintiff fays, that his faid writ ought not to abate by reason of the allegations aforefaid, because he fays that the faid J. A, at the time of the injury and lofs aforefaid, was owner of one fourth part of the faid ship Sally, and the Plaintiff was then owner of the remaining three fourth parts thereof; and that after the lofs and injury aforefaid, of said ship, and before the commencement of this fuit, to wit, at the Court of Common Pleas, begun and held at, &c. on, &c, within and for the county of, &c. the faid J. A, impleaded the faid D. for the damage aforefaid sustained by him as owner of the faid one fourth part of faid fhip; and thereupon fuch proceedings were had, that afterwards, to wit, at a Court, &c. held on, &c. at, &c., the faid J, A. by the confideration of the fame Court, recovered judgment against faid D. in that behalf, in the fame writ for the fum of, &c. damages, &c. and cofts of fuit, as by the record, &c. ; wherefore, &c. Sedgeworth y. Overend. 7 T. R. 279. NOTES Replication. Recovery by faid part owner. NOTES ON THE PLEA OF PARTNERS, &c. In all actions brought by der the general iffue, to nonfuit the Plaintiff. Rice v. Shute. 5 Burr. 2611. and fo is the law in all actions, quafi ex contractu. 1 Bof. 71. So in action by Carriers. Semble. Buddle v. Wilfon. 1. 291. note 1.2; 6 T. R. 369. 3. 4. Williams' |