be careful to use such language as plainly includes all the cases to which they mean it to apply, for a court of law will not go beyond the words of an act unless the meaning of the legislature very clearly justifies it in doing so. Therefore where a private act of parliament, entitled "an act to enable a certain Insurance Society to sue and be sued in the name of their secretary," enacted that they might commence all actions and suits in his name as nominal plaintiff; it was held, that this did not enable the secretary to petition, on the behalf of the society, for a commission of bankruptcy against their debtor (a).

Actions ex delicto, or actions arising out of some wrongful injury committed by a stranger affecting partnership property, are of less frequent occurrence than those which result from a breach of contract. The rule, however, which in actions on contracts requires the joinder of all the parties, appears to be equally applicable to actions founded upon a tort; although, as will be seen hereafter, it is less rigidly enforced. It is laid down, as clearly established law, that for an injury to the joint property, all the partners ought to join (b); but, if too many persons be made co-plaintiffs, the objection, if it appear on the record, may be taken advantage of either by demurrer, in arrest of judgment, or by writ of error (c); or, if the objection do not appear on the face of the pleadings, it will be a ground of nonsuit at the trial. If one or more of the partners die after the injury is committed, the action must be brought in the name of the survivor, and the executor or administrator of the deceased cannot be joined, nor can he sue separately; and therefore, to an action of trover brought by the survivor of three

(a) Guthrie v. Fisk, 3 B. and C. 178. And see Ex parte Guthrie, 1 Glyn and James, 245. (b) Bac. Abr. Tit. Joint Tenant, K. Sedgworth v. Overend, 7 T. R. 279. Co. Litt. 198. a. Bloxam v. Hubbard, 5 East, 407. (c) Cook v. Batchellor, 3 Bos. and Pul. 150. Coryto v. Lithebye, 2 Wnis. Saund. 116. a. Cro. Eliz. 473.

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partners in trade, it cannot be objected that the two deceased partners and the plaintiff were joint merchants, and consequently that, in respect of the lex mercatoria, the right of survivorship did not exist; for the legal right of action survives, though the beneficial interest does not (a).

It remains now to be inquired, what are the consequences of a nonjoinder of the parties, in relation either to an action ex contractu, or an action ex delicto, and in what manner, in each case, advantage is to be taken of it by a defendant. Where the right of action is joint, as founded on a joint contract, the objection that the action is brought by one of several parties, who ought to have sued jointly, may be made available, either by demurrer, or on motion in arrest of judgment, or by writ of error, if it appear on the record; and, though the objection do not appear on the pleadings, yet, if the contract is alleged as several, the defendant may plead in abatement, or may avail himself of the nonjoinder at the trial, as a ground of nonsuit upon the plea of the general issue (b). In the event of a death, the declaration by one partner must show the death of the other, which cannot be presumed (c). And if an action is brought by the executors of the survivor, it is necessary to aver that their testator survived the others; it not being requisite, as it is in the case of persons jointly liable, that the exception should be taken by plea in abatement. In this, however, there seems some incongruity; and Mr. Serjeant Williams, in a note (d) to his very valuable edition of Saunders' Reports, at the same time that he has admitted the rule to prevail, has observed, that "as to assumpsit by one only, at the time when most of the cases upon this subject were decided, the same rule extended as well to defendants as to plaintiffs. The rule in

(a) Kemp v. Andrews, Carth. 170, S. C. 3 Lev. 290. 1 Show, 188. (b) 1 Chitt. on Plead. 7, Douglas, 4 B. and A. 374. (d) Cabell v. Vaughan, 1

(c) Scott v. Godwin, 1 Bos. and Pul. 67. Jell v. Eccleston v. Clipsham, 1 Wms. Saund. 154, n. 1. Wms. Saund. 291. (g).

both cases was founded upon the same reason, that the contract proved was not the same with that in the declaration (a). But as soon as it was decided, in the case of Rice v. Shute (b), and the other cases. which followed it, that leaving out one of the joint contractors did not vary the contract, one would have thought that the same principle would be applied to the case of persons with whom the contract was made. If the contract be still the same, notwithstanding one of the persons, who ought to be joined, is omitted, upon what principle is it, that the contract is not the same, if one of the persons who ought to join be omitted? Perhaps it may be objected, that, by this means, the plaintiff and the defendant are not upon equal terms; that in an action against one only, he necessarily knows all the persons liable; but in actions by one only, the defendant may often not know, nor be able to know, what persons ought to join. But in answer to this, it should. always be remembered that the rule is founded upon the supposed variance between the contract proved and the contract laid, and not upon any convenience or inconvenience to the parties. As to the knowing of the persons, the cases respecting defendants have decided that this circumstance is immaterial, and as to the convenience or inconvenience of the thing, it should seem more convenient that the parties should, after issue joined, proceed upon the merits, than that the defendant should be allowed to nonsuit the plaintiff upon a mere matter of form." However, the rule is general, not applicable solely to actions of assumpsit on parol contracts, but affecting alike every species of action bottomed on contract, such as debt or covenant. In an action of debt upon a bond or a covenant for payment of money, or in an action of covenant brought to recover damages for the nonperformance of a covenant, if it appear, for the first time, at the trial, that in the

(a) Skinn. 640. 2 Stra. 820.

(b) 5 Eurr. 2611, S. C. 2 Blacks. Rep. 695.

former instance, the bond or covenant, or, in the latter, that the covenant only were delivered and entered into in favour of the plaintiff, jointly with another person, and the nonjoinder of that person is not avoided by the plaintiff by an averment of his death, the defendant may, under a plea of non est factum, avail himself of the objection, and the plaintiff will be nonsuited; but, if the objection is apparent, otherwise than at the trial, as if the pleadings themselves disclose it, the defendant, as in actions of assumpsit, may take advantage of it, either by demurrer, in arrest of judgment, or by writ of error (a). A defendant may, likewise, avail himself of the objection, by pleading in abatement (b).

With respect to actions ex delicto, or actions of trespass, or of tort, brought by partners, the rule is different from that which prevails in actions founded upon contract. Notwithstanding all the several parties who are jointly concerned in interest ought, when a joint injury is sustained, regularly to join in an action for its redress, still, if all of them have not joined, the defendant must plead the omission in abatement (c), and cannot otherwise take advantage of the objection (d). This rule has been long established; for so far back as the time of Lord Hale, we find this doctrine laid down by him: “ If a tenant in common bring a personal action without his fellow joining in the suit, the defendant ought to take advantage of it in abatement; but if he plead not guilty, it shall be good; but then he shall

(b) Com. Dig. Tit. Abate

(a) Cabel v. Vaughan, 1 Wms. Saund. 291. f. ment, E. 12. (c) A plea in abatement is that which, without denying that the plaintiff has such a cause of action as is alleged, asserts, that in some incidental respect the action is improperly brought and the object of it is not to defeat the claim, but to delay the prosecution of it. The character generally ascribed to it is, that it must give the plaintiff a better writ; but this, although generally, is not universally true: for sometimes the right of delaying the claim by a plea in abatement is founded on a temporary disability of the plaintiff to sue, as, that he is an outlaw or an alien enemy. There are several rules by which these pleas are held to much greater strictness than those which go to the merits of the action; but a more particular exposition of their nature and effects would be foreign to the present purpose.

(d) Bloxam v. Hubbard, 5 East, 420. Cabell v. Vaughan, 1 Wms. Saund. 291. h.

recover damages only for a moiety (a)." The opinion of Lord Ch. J. King is in perfect coincidence with Lord Hale's: "If one tenant in common of a personal indivisible chattel bring trover against a stranger, if the stranger doth not plead the tenancy in common in abatement, he can have no benefit of it in evidence under the general issue (b)." Neither can it, according to modern decisions, avail a defendant who neglects to plead the nonjoinder in abatement, that the defect appears on the face of the declaration, although consistently with the older authorities (c), if the defective title were disclosed by the record, it was a ground to arrest the judgment (d). The law upon this subject was very fully and ably considered in the case of Addison v. Overend (e), in which the Court of King's Bench determined, that if one of several part-owners of a chattel sue alone for an injury done to it, the defendant can only take advantage of the objection arising from the nonjoinder of the other by a plea in abatement, and that the circumstance of the defect in parties appearing on the face of the declaration does not form a ground for arresting the judg ment. So, in a later case (f), it was held, that if one of two assignees of a bankrupt sue in trover, the omission of the other as a coplaintiff can only be pleaded in abatement. And if a defendant does not avail himself of the opportunity afforded to him of pleading in abatement of the action first brought by a single partner, or part-owner of a chattel, he is precluded from taking the same objection to an action brought by the other partner or another part

(a) 1 Mod. 102. See also Skinn. 640.

(b) Barnardiston v. Chapman, cited 4 East, 121. See also Brown v. Hedges, Salk. 290. Cro. Eliz. 554. Evidence of a joint tenancy, or tenancy in common, between the plaintiff and a third person, cannot be received under the general issue in bar of the action; but as the plaintiff can only recover damages for the value of his share of the property, such evidence is admissit le for the purpose of ascertaining the amount of damages. Nelthorpe v. Dorrington, 2 Lev. 113. Bull. N. P. 35. (c) See Hamon v. White, Sir W. Jones, 142 S. C. Latch, 152. (d) Cabell v. Vaughan, 1 Wms. Saund. 291. h. (e) 6 T. R. 766. (ƒ) Snellgrove v. Hunt, 1 Chitt. Rep. 71. S. C. 2 Stark. N. P. C. 424.