THE LIKE OF DEFT.'S CHRISTIAN NAME AND SURNAME. "In the K. B. (or C. P. or Exchq.) John Hall, sued by the name of James Holt, ats. Thomas Fell. Term, 8 Geo. 4. [12] (Vide suprà.) And John Hall, against whom the said plaintiff hath exhibited his said bill (or if by original or in C. P., hath sued out his said writ, and declared thereon), by the name of James Holt, in his own proper person comes and says, that he is named and called by the name of John Hall; to wit, at, &c., and by that name and surname, from the time of his nativity, hitherto hath been called and known; without this, that he the said John Hall now is, or ever was, called or known by the name of James Holt, as by the said bill (or writ and declaration thereon founded) is above supposed. And this he is ready to verify. Wherefore he prays judgment of the said bill (or writ and declaration thereon founded), and that the same may be quashed, &c. (Add affidavit, ante, 8.) MISNOMER OF PLT.'S SURNAME. In the K. B. (or C. P. or Exchq.) William Bowen, ats. Sarah Shipcott. Term, 8 Geo. 4. (Vide suprà.) And the said William Bowen, in his own proper person, comes and defends the wrong and injury, when, &c.; and prays judgment of the said bill (or if in C. P. or by suing by the name of Sarah Shapcoll. ) original, say, of the said writ and declaration thereon founded), because he says that the said Sarah now is, and before and at the time of exhibiting the bill aforesaid (or suing out the said writ and declaration thereon, as aforesaid), was called and known by the surname of Shipcott; to wit, at, &c. (Concluding as in the last precedent but one from the asterisk.) REPLICATION THAT DEFT. WAS KNOWN AS WELL BY THE ONE NAME AS THE OTHER. In the K. B. (or C. P. or Exchq.) Thomas Fell, V. James Holl. Term, 8 Geo. 4. (Same term as plea.) And the said plt. saith that his said bill (or if by original or C. P., the said writ and declaration thereon founded), by reason of any thing by the said James Holt in his said plea above alleged, ought not to be quashed, because he saith that the said James Holt, long before, and at the time of the exhibiting the said bill (or issuing of the said writ and declaration thereon), was and still is called and known as well by the name of James Holt as by the name of John Hall; to wit, at, &c. aforesaid. And this he, the said plt. prays may be inquired of by the country. (See form of replication of matter of estoppel, 3 Chit. Pl. 1143.) Notes on Form of Plea, &c. The preceding notes, as to the forms of pleas, &c. in abatement in general, will be here applicable. In pleas of misnomer of deft.'s name, the plea must not begin, "And the said C. D." &c. or "He who is sued,' &c.: 5 T. R. 487; 5 Taunt. 653; 2 Saund. 209, b. These pleas are generally pleaded in person, or by a special warrant of attorney, 2 Saund. 209 b.; but it is doubtful whether the not doing so is demurrable: 1 Raym. 509; 10 East, 85. Where an infant pleads, it must be by guardian, and not by attorney or prochein amy, even when sued in autre droit, as administrator, &c.: 1 Moore, 250; 7 Taunt. 488. The plea should, in strictness, be without defence: 2 Saund. 209, c.; 8 T. R. 631; Carth. 220; ante, 3. It is better to state the party was "named and called," instead of "called and known:" 3 Chit. Pl. 901, n. g. *Some [*13] precedents state the deft. was "baptized," &c.; but this imposes a difficulty in proof, and is therefore objectionable: 1 Camp. 479; Rep. temp. Hardw. 286; 6 Mo. 116. Where deft. pleads a misnomer of Christian name, he must give both his Christian and surname, though his true surname is used. in the declaration: 3 T. R. 185; 8 T. R. 515. It must be averred that the party was named and called by the real name at the time of purchase of the writ, or exhibiting the bill: Goldsb. 86; Skin. 620; 1 Salk. 6. And the plea must conclude with a special traverse of deft.'s having ever been named or called by the name in the writ or bill: ib. A mistatement in traverse of the name by which the deft. is called in the declaration will be fatal on demurrer: 1 Chit. R. 705. In a plea in abatement of deft.'s peerage, the plea should show how he derived his title, and that he is a peer of the united kingdom: 4 D. & R. 592; 2 B. & C. 871. Replication.] The usual replication is that the party was named and called by one name as well as the other, or the misnomer may be denied. If the defendant has appeared by the name to which he was sued by, it may be replied by way of estoppel: 2 N. R. 453. Evidence in Misnomer. As to which party begins: ante, 8. Proof for defendant.] Where the party alleges that he was "named and called," it is sufficient for him to prove that he was generally known by that name. "But it is not sufficient to prove that he has been called SO once or twice:" Mestaer v. Hartz, 3 M. & S. 453. Where deft. alleges that he was "baptized" by a name, he must adduce some direct proof of his baptism from the register, or by parties present at the ceremony; and letters of denization, commissions in the army by that name, and proof that he had been known in other countries by that name, are insufficient: Weleker v. Peletier, 1 Camp. 479. A plea of peerage must be proved by letters patent under the great seal: 2 Salk. 509. Deft. must be prepared to prove his plea promptly, as the court will not delay the trial for the attendance of witnesses: 2 Chit. R. 6. Proof for Plaintiff.] Plt. should be prepared to prove his damages, in event of verdict being found for him: ante, 9. The plt. should be prepared to disprove the deft.'s plea, the evidence for which purpose may be collected from the preceding notes as to when this plea is pleadable. NONJOINDER. When it may be pleaded, 13 to 15. Notes on Form, 16. Evidence, 16, 17. Of Plaintiffs.] When a joint contractor, parcener, tenant in common, or a party who has received a joint injury, and is jointly interested in the thing which was the subject of the action, is not, when he ought to be, joined as a plaintiff, the deft. may plead such nonjoinder in abatement, Com. D. Abt. E. 12, 1 Saund. 291, g.; and this is the only *mode of deft.'s availing himself of the objection in an action for [*14] a tort: 1 Saund. 291,g.; 6 T. R. 766; 7 T. R. 279. In an action on a contract, however, unless the party is suing in autre droit, the objection, if, it do not appear on the pleadings, is available as a ground of nonsuit at the trial under the general issue, 1 Saund. 153, n. 1. 291, f. g.; 2 Str. 820; and for which reason it is best not to plead in abatement. If the plt. is suing in autre droit, as executor or administrator, the objection, if it do not appear on the pleadings, can be only taken advantage of by plea in abatement after oyer of probate, or letters of administration, 1 Saund. 291, g. h., 2 Bing. 177, and though plt. be a married woman, 3 T. R. 631; but this is not so in the case of assignees of a bankrupt suing: 2 Stark. 424. If the objection appear on the pleadings, deft. may demur, 2 Str. 1146, 1 East, 497, 1 Saund. 153, n. l. 291, f., or move in arrest of judgment, or bring error: ib. But, in such case, on account of costs, it is best to demur: Cowp. 407.; Tidd, 983. If one of several partowners of a chattel sue alone for a tort, and the deft. do not plead in abatement, the other part-owners may afterwards sue alone for the injury to their undivided shares, and the deft. cannot plead in abatement to such action: 7 T. R. 279. As to nonjoinder in case of marriage, ante, 5, 6. Of Defendants.] If a person be omitted as deft. who ought to be joined in any action founded on a joint contract, whether on a specialty or not, the objection can only be taken advantage of by a plea in abatement, 1 Saund. 291, b. n. 4, 5 T. R. 651, 1 East, 20, 4 T. R. 725, 3 Camp. 50; and, though the joint obligation be in writing, and the same appears to have been made by the party not joined, it is no variance at the trial: 1 B. & A. 224; 1 Saund. 291. If, indeed, it appears on the face of plt.'s pleadings, that another who is living, jointly contracted with deft., the deft. may demur, or arrest the judgment, or bring error, but it is no ground of nonsuit: 1 Saund. 291, b. 154; South v. Tanner and others, 2 Taunt. 254; 5 Bur. 2614; 2 East, 313; 2 D. & R. 439. In actions for torts, the nonjoinder of a party who was jointly concerned in the tort cannot be pleaded in abatement, or otherwise taken advantage of, as the plt. may in such action join all the parties who committed the tort, or not, at his elec tion, 1 Saund. 291, e. & g. and cases there cited, 6 Taunt. 29, 35, 42; and this though it appear on the pleadings there were other wrong-doers: ib. In an action on the case against a common carrier, for not safely car rying a passenger, deft. cannot plead in abatement the nonjoinder of a coproprietor: Ansell v. Waterhouse, 2 Chit. R. 1; 6 Moore, 154, 7 Price, 408; Bretherton v. Wood, 3 B. & B. 54. But though plt. change his form of action to tort, he is still liable to a plea of abatement for nonjoinder of any joint contractor, &c. if the action be substantially founded on a breach of contract, and so appear from the declaration, and it is not maintainable without proving a contract between the parties: Powell v. Layton, 2 N. R. 365; Green v. Greenbank, 12 Marsh. 485; 2 Carth. 454. And actions which concern real property materially differ in this respect from mere personal actions of tort; for, if one tenant in common only be sued in trespass, &c. for any thing respecting the land held in common, as for not setting out tithe, &c., he may plead the tenancy in common in abatement: 1 Saund. 191, e.; 5 T. R. 651. Misjoinder.] If persons join as plaintiffs in an action who should not, the deft. may plead the misjoinder in abatement, Cro. E. 143, 473, 12 H. 4, 15, 54; or, if the objection do not appear on the plt.'s pleadings, it will be a ground of nonsuit at the trial, 3 B. & P. 235, Co. Lit. 197, b., 3 East, 62; for which reason it is best not to plead in abatement. If the objection appears on the plt.'s pleadings, deft. may demur, or move in arrest of judgment, or bring error: 2 Saund. 115, 6; 3 B. & P. 150; 1 Roll. Ab. 31, pl. 9; Sty. 156; 3 Lev. 352. If too many persons [*15] be *joined as defendants in an action on a contract or specialty, if the objection do not appear on the plt.'s pleadings, the plt. may be nonsuited at the trial, 1 East, 52, 1 Lev. 63, 3 T. R. 662, 1 Chit. P. 34; or, if the objection appear on the pleadings, deft. may demur, move in arrest of judgment, or bring error: 7 T. R. 352. If several persons be made defts. jointly for a tort, where the tort could not, in point of law, be joint, as in slander or the like, they may demur, or if a verdict be taken against all, move in arrest of judgment, or bring error: 2 N. R. 454; 2 Saund. 117, a. Forms in Nonjoinder. PLEA IN ASSUMPSIT OF NONJOINDER OF A CO-CONTRACTOR. In the K. B. (or C. P.) Term, 8 Geo. 4. John Stiles ats. (Term of declaration or subsequent term, with a special imparlance: ante 7.) And the said deft. in his own proper person (or, if by an attorney, say, and the deft. by his attorney, comes and defends the wrong and injury, when, John Nokes. &c., and prays judgment of the said bill, or, if by original or in C. P., of the said writ and declaration); because he says that the said several promises and undertakings, in the said declaration mentioned, if any such were made, were, and each of them were, made by Joseph Brown and John Bell jointly with the said defendant, and which said Joseph and John are each of them still alive; to wit, at, &c., aforesaid. Wherefore, because they are not, nor is either of them, named in the said bill (or writ), the said defendant prays judgment of the said bill (or writ and declaration), and that the same may be quashed, &c. (Add affidavit, ante, S. See a form in covenant, Lil. Ent. 7.) PLEA THAT ANOTHER PERSON SIGNED THE BOND WITH DEFT. In the C. P. John Stiles ats. And the said deft. by Term, 8 Geo. 4. his attorney, comes and defends the wrong and injury, when, &c., and prays oyer of the said writing obligatory, and it is John Nokes. read to him in these words (here set out the bond, but not the condition), which being read and heard, the said defendant says that the said George Thompson, in the said writing named, duly sealed and executed the said writing, and thereby became jointly bound with the said deft. to the said pltf. to wit, on the same day and year aforesaid, at London aforesaid; and that the said George Thompson is still alive; to wit, at London aforesaid; and this he is ready to verify. Wherefore, inasmuch as the said George Thompson is not named in the said writ, the said defendant prays judgment of the said writ, and that the same may be quashed, &c. (Add affidavit, ante, 8.) REPLICATION DENYING THE JOINT CONTRACT. In the K. B. (or C. P.) Term, 8 Geo. 4. (Same term as plea.) John Nokes And the said plt. saith that the said bill (or the said writ and declaration, if V. by original or in C. P.), by reason of any thing above by the said deft. in pleadJohn Stiles. Sing alleged, ought not to be quashed, because he saith that the said several promises and undertakings were not made by the said defts. jointly and together with the said Joseph Brown and John Bell, in manner and form as the said deft. hath above, in his said plea in that behalf, alleged; and this the said pit. prays may be inquired of by the country, &c. Notes on a Form of Plea, &c. [*16] The preceding notes as to the form of pleas in abatement in general, ante, 3, will be here applicable. This plea may be pleaded by attorney Lutw. 696. It is not necessary to plead in abatement both of the declaration and writ, when the plea is to the whole declaration; but, where the abatement is only to part of the writ, and the cause of abatement arises from some of the counts of the declaration, the deft. must plead in abatement of both; 2 Saund. 210. n. c.; and precedent, 2 B. § P. 420; 2 M. & S. 484, n. The deft. in his plea must name all the joint contractors, for the pur pose of giving a better writ, or he will fail; and the plt. will recover, if it appear at the trial that the contract was made by another, not named: Pasmore v. Bousfield, 1 Stark. 296; 2 Bl. R. 591; Godson v. Good, 2 Mar. 299; 6 Taunt. 587, S. C. The plea must expressly state, the party omitted is living; 1 Saund. 291, a. Also, in debt on a bond, &c. that the party sealed and delivered it: ib. In the case of executors or administrators suing, deft. should crave oyer of probate, or letters of administration to plead a nonjoinder in abatement: see form, 1 Went. 13, 58. It is not, in such a plea, necessary to state the will is proved: 2 H. 5, 8, b. 9; Co. 37, b. But it should state, that the executor not named administered the goods of testator: Bro. Exrs. 20, 88; 1 Lev. 161; 1 Saund. 291, g. Where the deft., having pleaded in abatement that four others were jointly liable, the court compelled him to deliver particulars of their residences and additions, Taylor v. Harris, 4 B. & A. 93, 1 Y. & J. 257; but, in another case, the court refused to compel the plt. to deliver to the deft. a copy of an agreement to enable him to plead that the agreement was jointly made by himself and others: 1 D. & R. 419. VOL. I. 3 |