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- PLEAS—DILATORY
- DEFENSIVE PLEADINGS
- DEFENDANT IN CONTRACT
~3. 5 Vt. 93 (1823). See, In this connection, Comment, Pleading—Necessity to Plead Corporate Capacity, 22 MI chij,Rev. 175 (1923). his existence, showing that there was no such person in rerum natura, as that at the Commencement of the Suit he was a Fictitious Person,64 or he may have Pleaded the Same Matter in Bar.05 It follows, therefore, that the position of the Counsel for the plaintiff in the instant case, that the defendant could only avail himself of this Defense by Plea in Bar, is erroneous. And the objection that the defendant could not give a Better Writ is met by the fact that the Rule requiring the defendant to give the plaintiff a Better Writ has no application where a plaintiff, as in this case, cannot have a Better Writ, as there was no such person in existence. Notwithstanding the above observations, there are two views as to whether the Corporate Existence of a Corporation was in Issue under a Plea of the General Issue. The generally accepted view was that the Existence of the Corporation was not put in issue by a Plea of the General Issue. This appears to be the better view, as the function of the General Issue was to deny Material Allegations of Fact in the plaintiff’s Declaration. If the Corporate Existence of the plaintiff were put in Issue the General Issue would be placing in Issue a Question of Law, as the Corporate Existence of the plaintiff can only be determined by construing the Charter of Incorporation, and Construction of a written document involves a Question of Law. The General Issue alone, therefore, should operate as an admission of the Corporate Existence of the plaintiff; 66 if it 64. 1 Chitty, On Pheading, e. fl Of Pleas to the Jurisdiction, and in Abatement, and the Proceedings Thereon, 435-436 (12th Am. ed., Springfield, 1859~ New York: Doe v, Penfiehl, 19 Johns. (N.Y.) 308 (1522).
66. Inhabitants of Orono v. Wedgewood, 44 Me. 49, 69 Am,Dee. 81 (1857); 10 Cye. 1354. Keohuk & Hamilton Bridge Co. v. Wetzel, 228 III. 253, 81 N.E. 864 (1907), which held that a Plea denying Sec. 207
PLEAS—DILATORY 423
was desirable to place it in Issue the defendant should Specifically Traverse the Corporate Existence of the plaintiff by use of the Plea of Nul Tie? Corporation.67 And the same principles operate where a defendant Pleads the General Issue to an Action brought by an Executor,°~ the Authority of the Plaintiff being admitted by the Plea.°° As we have seen all Matter of a Dilatory Character must be Pleaded before entering a Plea in Bar, and by a separate Plea limited to the purpose or delaying the Action. Nor was it possible to Plead to the Jurisdiction or in Abatement while Pleading in Bar, or in any manner affecting the Merits of the Cause.7° And, of course, as may be seen from a glance at the chart on the General Order in which Pleas may be Pleaded, it is clear that any Plea, which contains Matter in Bar of the Action, constitutes a Waiver of all Objections to the Jurisdiction of the Court and to the Manner of Framing the Action.7’ Thus, a Plea of the General Issue, as we observed in discussing how the Corporate Existence of a Corporation might be placed in Jssue, admits the competency of that the plaintiff is a corporation is a Plea in Bar, hut a Plea denying that the defendant is a corporation is a Plea in Abatement. 67. That a Special Plea of Nut flat Corporation is necessary to question the Corporate Capacity of the plaintiff, see: 10 Cye. 1355; Inhabitants of Orono V. Wedgewood, 44 Me. 49, 09 Arn.Dee. 81 (1857). ER. Jones, Executor of Broekaw v. Decker’s Executor, 2 N.J.L, 231 (1807). 60. Ibid. The Objection that the plaintiff is not competent to sue, because not entitled to the character which he asserts, may be raised either by a Plea in Abatement or a Plea in Bar. Nooran V. Bradhy, 9 Wall. (U.S.) 304 (1809). See, also: Massachusetts: Langdon v. Potter, 11 Mass. 312 (1814); New York: Thomas y. Cameron, 10 Wend. (N.Y.) 579 (1837). 70. Florida: Putnam Lnmber Co. v. Ellis-Young Co., 50 Fin. 251, 30 So. 103 (1905); Tennessee: Douglas V. Belcher, 7 Yerg. (Tenn.) 104 (1834). ~‘. Sheppard v. Graves, 14 How. (U.S.) 504, 14 LEd. 518 (1852). the plaintiff to Sue and to Maintain the Action as brought.72
of Judgment, or Writ of Error, or, where the Defect is Not Apparent on the Face of the Pleadings, by Plea in Abatement or Motion for a Nonsuit. THE Rules of the Common Law were strict as to the Persons who should be joined as Parties to the Action. Since the objection for Defect of Parties must sometimes be taken by Plea in Abatement, it is convenient to deal in this chapter with the Rules as to Parties and the consequences of Nonjoinder and Misjoinder, and how the Objection may be raised. Non joinder of Plaintiffs in Contract ALL Joint Contractors, such as Joint Promisees, Covenantees, or Obligees, and all Active Partners, should Join in Suits for Breach of Contract to which they are Parties.73 All Persons who were Partners in a Firm when a Contract was made must be Joined, unless some legal excuse for Not Joining them is alleged, as that a Partner is dead. It is no excuse for Nonjoinder that one of 72. Society for the Propagation of the Gospel v. Town of Pawlet, 4 Pet. (U.S.) 480, 7 LEd. 927 (1830), 73. English: Eccieston v. Clipsham, 1 Wms.Saund. 153, 85 Eng.Rep. 158 (1068); Anderson v. Martin-dale, 1 East. 497, 102 Eng.Itep. 191 (1801); Hill v. Tucker, 1 Taunt. 7, 127 Eng.Bep. 731 (1807); Cahfornia: Harrison v. McCormick, 69 Cal. 016, 11 P. 456 (1880); Maine: Darling v. Simpson, 15 Me. 175 (1838) New Hampshire: Pickering v. Dc llochcment, 45 N.H. 77(1863); New York: Dob V. Halsey, 10 Johns. (N.Y.) 34, 8 Am,Dce. 293 (1810) West virginia: Sandusky v. west Fork Oil & Natural Gas Co., 63 W.Va. 260, 59 SE. 1082 (1907). See, also, Jones & Carison, Nonjoiader and Misjoinder of Parties in Common-Law Actions, 28 w.va.Law Qnarterly 197, 266 (1922). 424
DEFENSIVE PLEADINGS Cli. 21
the Partners has sold his interest in a Contract to the others.~ If one of Several Joint Parties die, the character of the interest is still preserved, and the Right of Action must be exercised by the survivors as such, or, if all be dead, by the Personal Representatives of the last survivor,’5 who, though thus excluding the Executors or Administrators of the other deceased Parties from maintaining the Action, is still liable to them in an Equitable Proceeding for the proportionate share belonging to the estate represented by each.7° When a person who ought to Join as plaintiff is omitted in an Action of Contract, if the Defect appears upon the Pleadings, the defendant may Demur, Move in Arrest of Judgment, or bring a Writ of Error. If it does not appear upon the Pleadings, but is disclosed by the evidence, the plaintiff will be Non-suited. It is not necessary to take the Objection by Plea in Abatement, though this may be done. A Nonjoinder of Joint Contractors as plaintiffs is a fatal error, unless Amended, t.nd may be shown under the General Issue, as well as by Plea in Abatement. But dormant Partners need not be joined.” Nonjoinder of Parties Plaintiff on a Joint Bond may be taken advantage of on Appeal 14. Illinois: Denient v. Rokker, 126 111, 174, 10 N.E. 83 (1888); Maine: Goodhue v, Lace, 82 Me. 222, 19 .4. 440 (1889).
75. Alabama: Murphy’s Adm’r.s v, Branch Bank at Mobile, 5 Ala. 421 (1843); Massachusetts: Smith v. Franklin, 1 Mass, 480 (1805); Peters v. Davis, 7 Mass. 257 (1811); New York: Bernard v. Wilcox, 2 Johns Cases 874 (iSO!); Federal: Crocker V. Ecal, I Low, 420, Fed.Cas.No.3,396 (1869).
‘Car. 307 (1907); 1 Lacy. Pleading & Practice 16. or Writ of Error~’5 even after Judgment by Default.’9
A Misjoinder of Plaintiffs is, unless Amended, fatal, and defendant may take advantage of it at any time.8° Where plaintiffs sue as Joint Contractors, they must show a Joint Interest. Too few or too many plaintiffs in Contract will be fatal to recovery, and the Objection may be raised either In Abatement or under the General Issue, Joint Plaintiffs must show a Joint Interest in the Contract.8’ NONJOINDER OR MISJOINDER OF PARTIES DEFENDANT IN CONTRACT 208. In actions Lx Contractu, Misjoinder may be open to Demurrer, Motion in Arrest of Judgment, or Writ of Error; or, if Not Apparent on the Face of the Pleadings, by Motion for Nonsuit at the Trial; Nonjoinder only by Plea in Abatement, unless it Appear from the Pleadings of the plaintiff that the Party omitted Jointly Contracted and is still living. Nonjo inder of Defendants in Contract ALL persons with whom a Contract is made must be Joined as Defendants in an Action for the Breach. Where Several Persons are Jointly Liable on a Contract, they must all be made defendants. Joint Contractors must be Sued Jointly, except that Joinder may be excused: (1) Where a co-contractor has died. IS, International Hotel Co. v. Flynn, 938 Ill. 636, 87 NE’. 855, 15 Ann-Gas. 1059 (1009). 79. Ibid. 80. If it appears that too many persons have bee,, macic plainti~s, this may be raised by Demurrer, Motion In Arrest of Judgment, Writ of Error, or by Motion for Nonsult at the Trial. Sac!! V. DeLand, 43 Xli. 323 (1807); Hennles v. Vogel, 66 III. 401 (1872).
Si. Starrett v. Gault, 165 HI. 101, 46 N.E. 226 (1806). Sec. 208 PLEAS—DILATORY 425
(2) Where a co-contractor has become bankrupt. (3) Where an Action is brought against a firm, and some of the members are nominal or dormant parthers. (4) Where a co-contractor is an infant or a married woman. (5) Where a co-contractor is Resident Out of the Jurisdiction. (6) Where a claim is Barred against one or more Joint Debtors, and not Against Others. The Rule, as laid down by Chitty,32 js thus stated: “Joint Contractors must all be Sued, although one has become bankrupt, and obtained his certificate, for if Not Sued, the others may Plead in Abatement.” Nonjoinder of Joint Contractors as Defendants must be Pleaded in Abatement, unless the Joint Liability appears on the Face of the Plaintiff’s own Pleading.83 It has been held that the fact that plaintiff merely filed the Common Counts with an Affidavit of Claim does not change the Rule requiring a Plea in Abatement, since a Bill of Particulars may be demanded. The General Issue admits that there is no foundation for a Plea of Nonjoinder.84 82. 1 Chitty, On Pleading, e. I, Of the Parties to Actions, 42 (13th Am. ed., Springfield, 1859). Statutes now frequently declare that Contracts in terms Joint shall, in effect, be Joint and Several. Stimson, American Statute Law, 4113 (Boston, 1886-92). ~3. .4 Nonjoinder of a Joint contractor, as defenJant, must be objected to by a Plea in Abatement, Illinois: Lasher v. Colton, 225 Ill. 234, 80 N.E. 122, 8 Ann.Gas. 367 (1907); David Butter & Co. v. McLaughlin, 257 Ill. 199, 100 N.E. 509 (l913)~ Minnesota: Sundberg v. Gear, 92 Minn. 143, 99 NW. 635 (1904). $4. It appears that even if the proof shows that the plaintiff loaned the money to A and B jointly, and not Jointly and severally, or to A alone, the Nonjoinder of B ens be taken advantage of only by a Plea In Abatement. Pearce v. Pearce, 67 111. 207 (1873); Ross v. AlIen, 67 Ill. 317 (1873); Wilson V. Wilson, 125 IlLApp. 389 (2907). Where the Declaration shows on its Face a Nonjoinder of Joint Contractors as Defendants, defendant may take advantage of the Nonjoinder by Demurrer, Motion in Arrest, or by Writ of Error, without a Plea in Abatement. There is a presumption that any partner omitted is still living.8~ A material distinction is to be noted between the case of Nonjoinder of Plaintiffs and Defendants in Actions cx contra cUt, the remedy for Nonjoinder of Defendants being generally restricted to the use of a Plea in Abatement,8° except in the ease of an express showing by the plaintiff as above indicated, when the defendant may Demur, Move in Arrest of Judgment, or support a Writ of Error.8’ The more liberal rule prevails where the fault is in making too many Parties defendant, though in all cases it is a serious one. In Actions of Tort, unless the case is one where, in point of Fact and of Law, the Tort could not have been Joint ~ (though even here an Objection would be aided by the plaintiff’s taking a Verdict against one only), the Joinder of More Than are Liable constitutes No Objection to a partial recov 85. Illinois: Sinsheimner v. Wililiam Skinner Mig. Co., 165 Iii. 116, 40 N.E. 262 (1806); Maine; State v. Chandler, 79 Me. 172, 8 4. 553 (18S7). 86. Whittier, Cases on common-Law Pleading, 00-i; See, Burgess v. Abbott & Ely, 11101 (N.Y.) 476 (1811). See, also: Indiana: Bledsoe v. Irvin, 33 Intl. 293 (1871) lCentr;clc~’; Alien v. L,jeket~ 3 J.J.i\iarsh. (ICy,) 165 (1830); Massachusetts: Wilson V. Nevers, 20 Pick. (Mass.) 22 (1838); New Hampshire: Gove v. Lawrence, 24 NIl. 128 (1851): New Jersey: Gray v. Sharp, 62 N.J.L. 102, 40 A, 771 (1898) New York: Williams V. Allen, 7 Cow. (N.Y.) 316 (1827) Pennsylvania; l’otter v. McCoy, 26 Pa. 458 (1856): Vormo]It: Hicks v. Cram, 17 Vt. 449 (1845) ; Virginia: Prunty i.’. Mitchell, 76 Va. 1G& (1882).
782 (1797). Also, see; New Hampshire: Nealley v. Moulton, 12 N.H. 485 (1842); Vermont: McGregor v. Ea)eh, 17 Vt. 562 (1845). 88. Connecticut: Russell v. Tomlinson, 2 Conn. 206 (1817); New York: Franklin Fire Ins. Co. v. Jenkins, a Wend. (N.Y.) 130 (2829). 426
DEFENSIVE PLEADINGS Ch. 21 ery; ~ and as a Tort is in its nature a separate act of each individual concerned, and the plaintiff may therefore Elect to sue One or An, at his pleasure, the omission of one or more does not afford the defendant a Ground of Objection.90 This Rule, however, holds only in cases of Actions for Torts strictly unconnected with Contract; as, if arising out of Contract, and, to support them, the Contract must be proved and is thus the basis of the Suit, Different Rules apply, and the mere Form of the Action will not gayem.9t The application of the proper Rule, however, will depend upon the Statement of the Gist of the Action, as shown by the Declaration. Misjoinder of Defendants in Contract A Misjoinder of Defendants is, unless corrected, fatal. An Action against Several Persons must be established against them all, and, where the evidence shows that defendants are not Jointly Liable, failure to interpose a Plea denying Joint Liability will not permit a Joint Recovery. Misjoinder is open to attack by Demurrer, Motion in Arrest of Judgment, or on Writ ci Error, if Apparent on the Face of the Record.92 - ~9. See, Govett v. Badnidge, 3 East 62, 102 Eng.Rep. 520 (1802); Nicoll v. Glennie, I Manic & S. 588, 105 Eng.Rep. 220 (1813). See, also, Collneetient: Hayden v. Nott, 0 Conn. 307 (1832); New Yerk: Jackson cx dem. Haiues v. Woods, 5 Johns. (N.Y.) 280 (1810). 90. Even if it appear from the Pleadings that the Tort was Jointly committed by the defendant and another person. See Rose v. Oliver, 2 John. (N.Y.) 365 (1807), 91. WeaIt v. King, 12 (1810). See Pozzi v, Eng.Rep. 1106 (1538), red to; Connecticut; 194 (1819); Vermont: .Am.Dec. 538 (1854). Law Pleading, 613. 01. Illinois: supreme Lodge A. 0. U. W. v. Zuhike, 129 Ill. 298, 21 N.E. 789 (1889); Powell Co. v. Finn, 198 Ill. 567, 64 N.E. 1036 (1002); HamIlton v.
vs.
C.D. AND the said C.D., defendant in the above-mentioned action, by X.Y., his attorney, comes and defends the wrong and injury, when, etc.; and prays Judgment of the said Writ and Declaration, because he says that the said several supposed promises and Undertakings in the said Declaration mentioned, if any such were made, were, and each one of them was, made jointly with one G.M., who is still living, to wit, at , and within the jurisdiction of this court, and not by the said defendant alone. And this the defendant is ready to verify. Wherefore, inasmuch as the said G.M. is not named in the said Writ together with the defendant, he, the defendant, prays Judgment of the said Writ and Declaration, and that the same may be quashed. X.Y. [The signature of Counsel] (Add Affidavit of the truth in substance) SHIPMAN, Handbook of Common-Law Pleading, c. XVI, Dilatory Fleas, § 232 Forms of Pleas in Abatement, 403 (3d ed. by BallantIne, St. Paul, 1923). NONJOINnER 011 MISJOINDER OF PARTIES IN ACTIONS LX DELICTO 209. The Objection of Nonjoincler of Plaintiffs in an Action c$ Tort can be taken only by Plea in Abatement. In Actions for the recovery of property, Noujoinder of Parties Plaintiff may be shown under the General fury Mfg. Cc., 189 Ill.App. 100 (1913); Heidelmeier v, BeebE, 145 Ill.App. 116 (1908). Nonjolnder and Misjoinder of Parties in Common-Law Actions, H. C. Jones and Leo Carlin, 28 SVVaLQ 266. See Harris v. Worth, 78 W.Va. 76, 79, 88 S.F. 603, 1 A. LIZ. 356 (1916). East 452, 104 Eng.Rep. 176 Shipton, S Ad. & Ii. 663, 112 arid the decisions there referS Walcott v. Canfield, 3 Cons, Wright v. Geer, 6 Vt. 151, 27 Whittier, Cases on Common Sec. 209
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issue. If there is a Misjoinder of Parties plaintiff in Tort, this is a fatal error. Misjoinder of Defendants in Actions Upon a Joint Tort is no ground of Objection in any Mode by those properly made Defendants. Non joinder of Plaintiffs in Tort Gives Rise to a Plea in Abatement THE proper plaintiffs in a tort Action for injuries to property are MI the Joint Owners; but where the remedy seeks the recovery of Damages, and not the Speeiflc Thing, the Nonjoinder of one or more of the Joint Owners can only be taken advantage of to defeat the Action by Plea of Abatement.” If a Plea in Abatement is not interposed to prevent the severance of the Joint Cause of Action in Tort, the plaintiff may recover according to his proportionate interest in the property, and the other Joint Owners Not Joined may afterwards sue and recover their proportion of the whole Damages.°4 Misjoinder of Plaintiffs in Tort A Misjoinder of plaintiffs in Tort, as well as in Contract, is ground for Nonsuit on the Trial,05 It has been held that married women must sue alone for personal injuries. Hus 93. Illinois: Chicago II. I. & P. It. Co. v. Todd, 91 JIl. 70 (1878); Johnson v. Richardson, 17 III. 302, 63 Am.Dec, 809 (1855); Edwards v. 1111]], 11 Ill. 22 (1849).
Chandler v, Spear, 22 Vt. 388 (1850).
Illinois: City of Chicago v. Speer, 66 Ill. 154 (1872); Massachusetts: Gerry ‘cc Gerry, 11 Gray (Mass.) 381 (1855), band and wife sue together only when there is a Joint Interest.06 But at Common Law a married woman could not sue or be sued without having her husband Joined with her as a Party, and this is 8till the Rule in Some States.
A Nonjoinder or Misjoinder of Joint Tortfeasors as Defendants is no error, “Several persons acting independently, but causing together a single injury, may be Sued either Jointly or Severally) and the injured party may, at his Election, sue any of them Separately, or he may sue All or Any Number of them Jointly. If he sues all, he may, at any time before Judgment, dismiss as to either or any of the defendants, and proceed as to the others”.°7 The legal nature of a Tort is such that it may generally be treated as either Joint or Several, and all the wrongdoers are liable individually and collectively for the consequences of their acts, and all may be sued Jointly, or Any Number Less Than the Whole, or each may be sued Separately. Each is liable for himself, as the entire Damage sustained was thus occasioned, each sanctioning the acts of the others, so that, by suing one alone, he is not charged beyond his just proportion. It seems, however, that No Joint Action can be maintained for a Joint Slander, though it is difficult to see, upon principle, why one uniting with another in an agreement that the slanderous words should be spoken should not be as much liable as any one of several trespassers where the actual blow was given by one alone. Defendants in Actions cx delicto can generally 98. Cooper v. Cooper, 79 Ill. 57 (1875); Cl]ieago, B. & Q. B. Co. v. Dickson, 67 III. 122 (1873). 97. Nordhaus v. vandalia R. Co., 242 Ill. 166, 174, 89 N.E. 974 (1909); Heidenreich v. Bremner, 260 Ill. 434—439, 103 N.E. 275 (1913); Tandrup v. Sampsell, 234 Ill. 526, 85 N.E. 331, 17 LILA. (N.S.) 852 (1908). be Sued Jointly only when the Wrongful Act is the Joint Act of allP8 BEQUISITES OF PLEAS IN ABATEMENT 210. Pleas in Abatement must be certain and must give the plaintiff a Better Writ or ThU. in Pleading a Mistake of Form in Abatement, the defendant must not only Point Out the Plaintiff’s Error, but Must Show Him Row it May he Corrected, thus enabling him to avoid the same mistake in Another Suit re.garding the Same Cause of Action. AS Pleas in Abatement do not deny and yet tend to delay the Trial of the Merits of the Action, great accuracy and precision are required in framing them.°” They should be certain to every intent, and must, in general, give the plaintiff a Better Writ by so correcting the mistake objected to as to enable the plaintiff to avoid a repetition of it in Forming his New Writ or Bill.’ Thus, if a SS. Defendants who cause refuse to be discharged into a stream, thereby injuring the lands of a lower riparian owner, cannot be joined as defendants, as they are not jointly liable, in the absence of concert or collusion. Parley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 205, 9 AL 11. 033 (1920)- SO. English: Roberts v. Moon, 5 Term IL 48S, 101 Eng.Itep, 274 (1794); Connecticut: Gould v, Smith, 30 Conn. 88 (1801); Illinois: Parsons v. Case, 4~ Ill. 296 (1867) Fowler v. Ai-nolrl, 25 11]. 281 (1861); Feasler v. Schrieu’er, 68 IlL 322 (1573).
English: Evans v. Stevens, 4 Term It. 224, 109 Eng. Bep. 986 (2791); Haworth v. Spraggs, S Term It.
~1xp. Co. v, Haggard, ~i Ill. 465, 87 Am.Dec. 257 (1865); Massachusetts; Wilson v. Nevers, 20 Pick.
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