livered at a proper time; the jury, however, found for the defendant, and the court refused to set aside the verdicta. The defendant is not, it seems, precluded from the benefit of the court On court of requests' acts. of requests' acts, by paying money into court. But where, in an action to recover a sum of 8l. 2s. (as claimed by the particulars of demand,) the defendant paid 17. 18s. into court, under the rule of Hil. T. 4 W. IV. reg. 19, which the plaintiff took out, in full satisfaction of the action; the cause of action arose, and the parties lived within the jurisdiction of the county court of Cardiganshire; and by order of a judge, the defendant was allowed to enter a suggestion on the roll of these facts, and that the action was brought for a sum under 40s., and further proceedings were stayed, with a view of depriving the plaintiff of his costs; the court set aside the order, on account of the form of the rule for paying money into court, the lateness of the application, and it not clearly appearing that the action was brought for less than 40s.c In the King's Bench, where the defendants in several actions on a policy of insurance, paid money into court, which the plaintiff took out, without taxing costs at that time, and afterwards the defendants entered into the common consolidation rule, and the plaintiff was nonsuited in the action that was tried; the court held that the latter was not entitled to costs in any of the actions, up to the time of paying money into court 4. But, in the Common Pleas, where there was a consolidation rule, and money paid into court, although the cause tried followed the general practice, and the defendant, if he succeeded, was entitled to the whole costs of that cause, yet the plaintiff was entitled to the costs of the short causes, up to the time when the money was paid in e. And, accordingly, by a general rule of all the courts", "where money is paid into court in several actions, which "are consolidated, and the plaintiff, without taxing costs, proceeds to "trial on one, and fails, he shall be entitled to costs on the others, up to the time of paying money into court." 66 a Evans v. Lewis, 3 Dowl. Rep. 819. 10 Leg. Obs. 332. S. C. Turner v. Barnard, 5 Dowl. Rep. 170. 1 Meeson & W. 580. S. C. Farrent (or Tarrant) v. Morgan, 3 Dowl. Rep. 792. 2 Cromp. M. & R. 252. 5 Tyr. Rep. 790. 1 Gale, 156. 10 Leg. Obs. 221, 2. S. C. d Burstall v. Horner, 7 Durnf. & E. 372. e Twemlow v. Brock, 2 Taunt. 361; and see Wilton v. Place, 2 Bos. & P. 56. Muller v. Hartshorne, 3 Bos. & P. 558. accord. f R. H. 2 W. IV. reg. I. § 104. 3 Barn. & Ad. 389. 8 Bing. 304. 2 Cromp. & J. 197. Costs, where money is paid into court, in actions which are consolidated. CHAP. XXVI. Non-joinder of parties, in actions upon contracts. In actions for wrongs. Against common carriers. Of PLEAS in ABATEMENT, &c. : IN actions upon contracts, when there are several parties, the action should be brought by or against all of them, if living a; or, if some are dead, by or against the survivors ; and if an action be brought by one of several parties, on a joint contract made with all of them, the non-joinder may be pleaded in bar. But if an action be brought, upon a joint contract, against one of several partners, he can only plead in abatement; though the plaintiff knew, and even contracted with the other partners d. In actions for wrongs, as they are of a joint and several nature, the plaintiff may proceed against all or any of the parties who committed them; and it is no plea in abatement, or ground of nonsuite, that there are other parties not named. In an action on the case, therefore, against a common carrier, for the loss of goods, or for not safely carrying a passenger, the defendant cannot plead in abatement the non-joinder of a copartner. And by the common carriers' act, 11 Geo. IV. & 1 W. IV. c. 68. § 5, any one or more of several mail contractors, stage-coach proprietors, or common carriers, shall be liable to be sued by his, her "or their name or names only; and no action or suit commenced "to recover damages, for loss or injury to any parcel, package or person, shall abate for the want of joining any co-proprietor or co 1 Wms. Saund. 5 Ed. 291. b. (4.) b2 Wms. Saund. 5 Ed. 121. c. (1.) and see the cases referred to in Tidd Prac. 9 Ed. 6. Post, Chap. XXVII. 1 Chit. Jun. Pl. 361. (d.); and for the form of such plea, see id. 361, 2. 4 Darwent v. Walton, 2 Atk. 510. Rice v. Shute, 5 Bur. 2611. 2 Blac. Rep. 695. S. C. Abbot v. Smith, id. 947; and see Mitchell v. Tarbutt, 5 Durnf. & E. 649. 1 Wms. Saund. 5 Ed. 291. c.d. Tidd Prac. 9 Ed. 6. And for the forms of pleas in abate ment of the nonjoinder of a joint contractor, and replications thereto, see 1 Chit. Jun. Pl. 197, &c. 442. Tidd Prac. 9 Ed. 635. Ansell v. Waterhouse, 6 Maule & S. 385. 2 Chit. R. 1. S. C.; and see Mitchell v. Tarbutt, 5 Durnf. & E. 649. Govett v. Radnidge, 3 East, 62. Bretherton v. Wood, 6 Moore, 141. 3 Brod. & B. 54. 9 Price, 408. S. C.; but see Buddle v. Wilson, 6 Durnf. & E. 369. Powell v. Layton, 2 New Rep. C. P. 365. semb. contra; and see Tidd Prac. 9 Ed. 635, 6. "partner in any mail, stage-coach, or other public conveyance, by land "for hire." Also, by the late act for the further amendment of the law, &c. no plea in abatement, for the non-joinder of any person as a codefendant, shall be allowed in any court of common law, unless it "shall be stated in such plea, that such person is resident within the jurisdiction of the court; and unless the place of residence of such "person shall be stated, with convenient certainty, in an affidavit 46 thereto, of a discharge by certificate, &c. b verifying such plea." And it having been holden that joint con- Replication tractors must all be sued, though one of them had become bankrupt, and obtained his certificate, or if not, that the parties sued might plead in abatement; it was further enacted, by the same statute a, that "to any plea in abatement, in any court of law, of the non"joinder of another person, the plaintiff may reply that such person "has been discharged by bankruptcy and certificate, or under an "act for the relief of insolvent debtors." By Lord Tenterden's acte, "if any defendant or defendants, in 66 any action on any simple contract, shall plead any matter in abate"ment, to the effect that any other person or persons ought to be "jointly sued, and issue be joined on such plea, and it shall appear "at the trial, that the action could not, by reason of the therein re"cited acts, or that act, or of either of them, be maintained against "the other person or persons named in such plea, or any of them, "the issue joined on such plea shall be found against the party plead'ing the same." 66 And, by the law amendment acts, "in all cases in which, after such "plea in abatement, the plaintiff shall, without having proceeded to "trial upon an issue thereon, commence another action against the "defendant or defendants in the action in which such plea in abate"ment shall have been pleaded, and the person or persons named in "such plea in abatement as joint contractors 1, if it shall appear, by "the pleadings in such subsequent action, or on the evidence at the "trial thereof, that all the original defendants are liable, but that a 3 & 4 W. IV. c. 42. § 8; and see 3 Rep. C. L. Com. 10, 11. 72. For the form of an affidavit in support of a plea of non-joinder, before the above statute, see Dobbin v. Wilson, 3 Nev. & M. 260. Bovill v. Wood, 2 Maule & S. 23; and see Noke v. Ingham, 1 Wils. 89. Hawkins v. Ramsbottom, 6 Taunt. 179. Tidd Prac. 9 Ed. 682. d § 9. e 9 Geo. IV. c. 14. § 2. f 21 Jac. I. c. 16. and Irish act, 10 Car. I. sess. 2. c. 6. 8 3 & 4 W. IV. c. 42. § 10. h For the form of the commencement of the declaration in this case, see Append. post, § 1. Effect of such plea, by Ld. aet. Tenterden's Where subsequent proceedings are had against the per sons named therein. Misnomer not pleadable in abatement. Parol demurrer. Abolished, by 66 66 one or more of the persons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting "party or parties, the plaintiff shall nevertheless be entitled to a "judgment, or to a verdict and judgment, as the case may be, against "the other defendant or defendants, who shall appear to be liable; " and every defendant who is not so liable, shall have judgment, and "shall be entitled to his costs as against the plaintiff, who shall be "allowed the same as costs in the cause against the defendant or de"fendants who shall have so pleaded in abatement the non-joinder of "such person: Provided, that any such defendant, who shall have "so pleaded in abatement, shall be at liberty on the trial, to adduce "evidence of the liability of the defendants named by him in such plea in abatement." 66 Before the late act for the further amendment of the law a, &c. if the plaintiff had declared against the defendant by a wrong name, the latter, if not estopped, might have pleaded the misnomer in abatementa: But now, by the above actb, "no plea in abatement for a “misnomer, shall be allowed in any personal action; but in all cases "in which a misnomer would, but for that act, have been by law "pleadable in abatement in such action, the defendant shall be at liberty to cause the declaration to be amended, at the costs of the 66 plaintiff, by inserting the right name, upon a judge's summons, "founded on an affidavit of the right name; and in case such sum"mons shall be discharged, the costs of such application shall be "paid by the party applying, if the judge shall think fit." It has been made a question, whether the words of this statute are peremptory and where a judge had made an order for amending a misnomer in a declaration, on payment of costs, the court granted a rule to shew cause why the judge's order should not be amended, and for a stay of proceedings in the mean time c. Formerly, when an infant was sued as heir, on the obligation of his ancestor, though the defendant could not have pleaded in abatement of the suit, the parol might have demurred, or proceedings thereon been stayed, till he came of age d. But now, by the statute 11 Geo. IV. & 1 W. IV. c. 47. § 10, a 3 & 4 W. IV. c. 42; and see 3 Rep. C. L. Com. 22, 3. 75, 6. Tidd Prac. 9 Ed. 636 And as to the misnomer of parties, and how taken advantage of, and when and how a mistake in their names was cured, and when not, see id. 447, 8, 9. Finch v. Cocken, 2 Cromp. M. & R. 196. 3 Dowl. "where any action, suit or "other proceeding, for the payment of debts, or any other purpose, "shall be commenced or prosecuted by or against any infant under "the age of twenty-one years, either alone or together with any "other person or persons, the parol shall not demur; but such ac❝tion, suit or other proceeding, shall be prosecuted and carried on " in the same manner, and as effectually, as any action or suit could, "before the passing of that act, be carried on or prosecuted, by or "against any infant, where, according to law, the parol did not de"mur." Pleas to the jurisdiction of the court a, and in abatement, must formerly have been pleaded within four days inclusive after the delivery, or filing and notice, of the declaration d; unless the declaration were delivered or filed after term, or so late in term, that the defendant was not bound to plead to it in that term; in both which cases the defendant, in the King's Bench, might, within the first four days inclusive of the next term, have pleaded to the jurisdiction of the court, or in abatement, as of the preceding terme. In the Common Pleas, however, the defendant could not have pleaded in abatement, within the first four days of the next term, without a special imparlance, which was granted by the prothonotaries. Afterwards, by a general rule of all the courts 8, "if the declaration were filed or delivered so late, that the defendant was not bound to plead until the next term, the defendant might have pleaded as of the preceding term, within the first four days of the next term, any plea to the jurisdiction, or in abatement, or a tender, or any other similar plea." And now, as proceedings, we have seenh, may be had on writs, except at certain times, in vacation as well as in term, pleas to the jurisdiction, or in abatement, &c. must be pleaded, except at those times, in four days inclusive after the delivery, or filing and notice of the declaration. Time for pleading to the juris diction, or in abatement, &c. Y |