tenant. Where an entire thing, however, is demanded, as a manor, it Non joinder of seems that jointenancy of parcel will abate the whole writ. (a) In some other cases, also, jointenancy of parcel will abate the whole writ, as in a formedon, or assise, for a rent-charge; because, in a rent-charge demanded, it is necessary to name all the tenants of the land out of which the rent issues. (b) Four tenants cannot plead that two of them are jointenants with A. and B. not named. (c) If A. plead jointenancy with B., whereby the writ abates, to another writ against A. and B., they may plead jointenancy with D. (d) And a man may plead jointenancy with his wife. (e) Although in a plea of non tenure, it is necessary to aver that the defendant was not tenant, the day of the writ purchased, or ever after, yet in a plea of jointenancy, it is sufficient to say, that the tenant held jointly with another not named, the day of the writ, without saying, or ever after (f); but it is necessary to state that the person who is averred to be jointenant is alive. (g) It is said, that when a tenant pleads jointenancy, he ought always to shew of whose gift the joint estate is, because jointenancy is always the act of the parties. (h) Jointenancy is, in general, a good plea in a præcipe quod red- In what actions. dat, as in formedon (i), dower (k), writ of entry (l); or writ of right of advowson; and it is said, in a darrein presentment (m); in assise of land (n), or rent (o), in a juris utrum (p), in a cessavit (q), in waste against a guardian (r), and in a writ of partition, brought by a jointenant. (s) In an assise of rent service, jointenancy of the rent by the pernor, is a good plea; and in an assise of rent-charge, or rent-seck, jointenancy of the land may be pleaded. (t) (a) 2 Leon. 161. 3 Leon. 92; but see Dyer, 291, a. and Doctr. Pl. 7. (b) Dyer, S1, b. 84, a. 45 Ass. 18. 740. (d) 39 Ed. 3, 36, a. Com. Dig. Abateinent, (F.5). Br. Ab. Jointen. 20. (e) Thel. D. l. 11, c. 28, s. 2, 10, 12. (f) Br. Ab. Nonten. 25. Booth, 32. Thel. D. l. 11, c. 28, s. 52. (g) Com. Dig. Abatem. (F. 5). Thel. D. l. 11, c. 28, s. 28; but see s. 31. (h) Dyer, 32, a. Vin. Ab. Jointenants, (E, 6); but see Lady Cobham v. Tomlinson. T. Jones, 6, for the tenants (i) Thel. D. l. 11, c. 28, s. 36. (1) Ibid. s. 11, 12. (m) Ibid. s. 44, but see s. 16. (8) Co. Ent. 413. (t) Br. Ab. Jointenancy, 62. Dyer, 31, b. See ante, p. 65. Non joinder of tenant. Replication. In a writ of deceit, brought against the party who recovered in a former action, and his feoffee, the latter may plead jointenancy. (a) On a general writ of scire facias against the heir and terretenants, if some of the terre-tenants only are summoned, they may plead that there are other terre-tenants not named, in the same county, and pray judgment if they ought to answer quousque the others be summoned, but ought not to pray quod breve cassetur, for the court ought never to abate the writ, but where the plaintiff can have a better writ (b); but upon a special writ, if all the terre-tenants are not named in it, those who are may plead in abatement, for there the plaintiff may have a better writ by naming them all. (c) And it seems to be a good plea, that there are other tenants not named, in another county. (d) At common law, if the tenant had pleaded jointenancy by deed or fine, with one not named, and had brought the deed or fine into court, the defendant was not suffered to aver sole tenancy in reply to this plea, but his writ immediately abated. To remedy this, the statute de conjunctim feoffatis, 34 Ed. 1, st. 1, was passed, by which in assises of novel disseisin, mortdancestor, juris utrum, and other writs where tenements are demanded at the first day in court, if the tenant alleges that he holds jointly with his wife or a stranger, and shews a deed testifying the same, the demandant may aver that he was sole tenant the day of the writ purchased, and the justices of assise shall summon, as well the person absent, as the present tenant, to answer upon a day certain, as well to the plea, as to the lands demanded and put in view. (e) But though the demandant could not at common law have averred sole tenancy in reply, yet he might have confessed and avoided the plea. (f) The statute does not extend to jointenancy by fine, which remains as at common law (g); nor, as it seems, to jointenancy by will. (h) The process upon this statute to bring in the jointenant is a scire facias (i), which may, it is said, issue, although the demandant has (a) Thel. D. I. 11, c. 28, s. 17. Fitz. (b) Adams v. Terret. of Savage, 2 (d) Prynne v. Sloughter, 2 Vent. 104. (e) Com. Dig. Abatem. (E. 5). Vir. Ab. Jointen. (A. b). Booth, 31. (f) Br. Ab. Jointen. 64. (i) Rast. Ent. 66, b. 415, b. tenant. not replied (a), but no process goes upon the statute, unless a Non joinder of freehold be demanded. (b) If the tenant pleads a false plea under the statute de conjunctim feoffatis, he is liable to fine and imprisonment. (c) The usual replication to a plea of jointenancy, is, that the tenant or defendant is sole tenant, with a traverse of the jointenancy. (d) And, in partition, the replication is, that the tenant and plaintiff hold jointly, with a traverse that any other holds with them. (e) So the plaintiff may confess and avoid the plea, as by alleging that he was seised until disseised by A., who enfeoffed the tenant and another, upon whom the demandant entered, and was disseised by the tenant alone (f); but a disseisin or abatement in the feoffor ought to be suggested, for a bare entry is not sufficient. (g) Jointenancy cannot be pleaded after a general imparlance. (h) If one parcener be sued in a real action, she may plead, that there is another coheir not named; although the parceners are in by several descents. (i) In all actions in which the inheritance or freehold is demanded, or ought to be recovered, if the husband is seised jointly with his wife, by purchase, before or after marriage, and the wife is not joined, the tenant may plead the non joinder in abatement; and so if the husband holds in coparcenery with his wife, without partition made before marriage, or if the land descends to them in coparcenery after marriage, or if the husband is seised in right of his wife. (k) In real actions it may be pleaded in abatement of the writ, that since the last continuance the demandant died. (1) But by statute 17 Car. 2, c. 8, in no action, real, personal, or mixed, shall the death of either party, between the verdict and judg (a) Thel. Dig. l. 11, c. 28. s. 3. (b) Thel. D. l. 11, c. 28, s. 37. (c) Com. Dig. Abatement, (F. 5). Vin. Ab. Jointen. (A. b). (d) Ast. Ent. 393. Com. Dig. Abatem. (F. 5). Rast. Ent. 66, b. F. Jones, 6. (e) Co. Ent. 413, a. (S) Thel. D. l. 11, c. 28, s. 46. (g) Ibid. s. 48. (h) Hetl. 142. Dyer, 210, b. But see Keilw. 93, b. (i) Thel. D. l. 5, c. 1, s. 7. Com. Dig. Abatement, (F. 4). (k) Thel. D. l. 5, c. 4, s. 1. Com. Dig. Abatem. (F. 7.) Baron and Feme, (Y.) (1) Com. Dig. Abatem. (H. 32). Ast. Ent. 8. Coparceners. Baron and feme. Death of sole demandant. Death of sole ment, be error, so as judgment be entered within two terms after Death of one of In all real actions, the death of one of the demandants, since the demandants. the last continuance, may be pleaded in abatement (a), unless the cause of action survive, as if the action be brought by two jointenants, or by two coparceners, and one of the coparceners dies without issue, in which case it may be contended, that the writ shall not abate, by statute 8 and 9 W. 3, c. 11, s. 7. (b) In real actions, at common law, the writ will abate on the death of one of the demandants, even although he has been summoned and severed, and although the thing in demand will survive (c); and the reason given is, because the nature of the demandant's demand is changed, and instead of going for a moiety, he now claims the whole, and the writ, it is said, cannot have this double effect. (d) But in those writs in which, if they be abated, the plaintiff would not be entitled to another writ, the death of one of the plaintiffs shall not be pleaded in abatement; thus in a quare impedit, after a plenarty and six months passed, or when a lapse will incur, the death of one plaintiff will not abate the writ, for otherwise the surviving plaintiff might wholly lose the turn. (e) Death of sole tenant. The death of a sole tenant, since the last continuance, may be pleaded in abatement, but if he die after verdict, and before judgment, this is aided by statute 17 Car. 2, c. 8. (f) And the writ does not abate by the death of the defendant in error upon a judgment in dower, but a sci. fa. shall go against her executors, to reverse the judgment of damages (g); but where, by the (a) Bendl. pl. 74. Com. Dig. Abatem. (H. 33). (b) See Read and Redman's case, 10 Rep. 134, a. Gilb. Hist. C. B. 245, and quare. (c) Read and Redman's case, 10 Rep. 134, a. (d) Gilb. Hist. C. B. 244. Bac. Ab. Abatement, (F). (e) Read and Redman's case, 10 Rep. 134, b. Hall's case, 7 Rep. 26, b. (f) Com. Dig. Abatem. (H. 34). writ of error, the plaintiff is to be restored to his lands, the death Death of sole of one of the defendants was held to abate the writ. (a) tenant. The death of one of several tenants, in a real action, will in Death of one of general abate the writ (b), unless the cause of action survive several tenants. against the surviving tenant, in which case, the statute of 8 and 9 W. 3, c. 11, seems to apply. In some actions, indeed, before that statute, the death of one defendant did not abate the writ, as in assise of novel disseisin, or mortd'ancestor, against jointenants. (c) And so in assise against two disseisors if one of them dies, and there is a tenant of the freehold. (d) So in a quare impedit, the death of one of the defendants will not abate the writ (e), and so also in a writ of partition, by stat. 8 and 9 W. 3, c. 31, s. 3. In general, the writ will not abate by the death of one who is a stranger to it, unless by such death no cause of action remains in the demandant. (f) Nor will a writ abate by the death of the vouchee, tenant by receit, or prayee in aid. (g) Death of a stranger. The tenant may plead, that the demandant himself was seised The demandant on the day of the writ purchased (h); and this plea may be himself seised. pleaded either in abatement or in bar, at the option of the tenant (i); or that the demandant was seised of parcel (k); and if an entire thing be demanded, as an advowson or manor, such a plea as to parcel will abate the whole writ. (7) In assise for rent (a) Hobby's Case, Godb. 66, 68. (b) R. v. Dryden, Cro. Car. 574, 583, 585, 589. Com. Dig. Abatem. (H. 35). Vin. Ab. Abatem. (M. a). Doctr. Pl. 6. (c) Thel. D. l. 12, c. 2, s. 5. Cro. Car. 574. (d) Thel. D. l. 12, c. 2, s. 4. R. v. Dryden, Cro. Car. 574. (e) Hall's case, 7 Rep. 26, b. Dyer 194, b. (S) Thel. D. 1. 12, c. 10. Com. Dig. A batem. (H. 36). Vin. Ab. Abatem. (P. a). (g) Thel. D. 1. 12, c. 3, c. 4, c. 5. Com. Dig. Abatem. (H. 37). (h) Thel. D. J. 11, c. 35, s. 1, 4, 18. Vin. Ab. Abatem. (E). Com. Dig. Abatem. (F. 16). (i) Thel. D. 1. 11, c. 35, s. 20. Fitz. Ab. Brief. 244. (k) Thel. D. l. 11, c. 35, s. 4, but quare whether it will abate the whole writ, s. 17. (1) Thel. D. l. 11, c. 35, s. 17. |