1S. Misnomer Of plaintiff, where the mis nomer appears in the declaration, must be pleaded in abatement. 1 Chitty, Pl. 451 ; 1 Mass. 76 ; 5 id. 97 ; 15 id. 469 ; 10 Serg. & R. Penn. 257 ; 10 Humphr. Tenn. 512 ; 9 Barb. N. Y. 202 ; 32 N. H. 470. It is a good plea in abatement that the party sues by his sur name only. Harp. So. C.49 ; 1 Tayl. No. C. 148; Coxe, N. J. 138. A mistake in the Christian name is ground for abatement. 13 Ill. 570. In England the effect of pleas in abatement of misnomer has been diminished by statute 3 & 4 Wm. IV., ch. 42, s. 11, which allows an amendment at the cost of the plain tiff. The rule embodied in the English statute prevails in this country.
If the defendant is sued or declared against by a wrong name, he may plead the mistake in abatement, 3 Blackstone, Comm. 302 ; 1 Salk. 7 ; 3 East, 167 Bacon, Abr. D ; and in abatement only, 5 Mo. 118 ; 3 Ill. 290 ; 14 Ala. 256 ; 8 Mo. 291; 1 Metc. Mass. 151 ; 3 id. 235; but one defendant cannot plead the mis nomer of another. Comyn, Dig. Abt. F 18 ; 1 Chitty, Pl. 440 ; Archbold, Civ. Pl. 312 ; 1 Nev. & P. 26.
19. The omission of the initial letter be tween the Christian and surname of the party is not a misnomer or variance. 5 Johns. N.
Y. 84. As to idem sonans, see 10 East, 83 ; 16 id. 110 ; 2 Taunt. 400. Since Oyer of the writ has been prohibited, the misnomer must appear in the declaration. 1 Cow. N. Y. 37. Misnomer of defendant was never pleadable in any other manner than in abatement. 5 Mo. 118 ; 3 Ill. 290 ; 14 Ala. 256 ; 8 Mo. 291; 1 Metc. Mass. 151 ; 3 id. 235. In England this plea has been abolished. 3 & 4 Wm. IV., ch. 42, s. 11. And in the-States, generally, the plaintiff is allowed to amend a misnomer.
In criminal practice the usual pleas in abatement are for misnomer. If the indict ment assigns to the defendant no Christian name, or a wrong one, no surname, or a wrong one, he can only ollject to this matter by a plea in abatement. 2 Gahbett, Crim. Law 127. As to the evidence necessary in such vase, see 1 Menlo & S. 453 ; 1 Salk. 6 ; 1 Campb. 479 . 3 Greenleaf, Ev. 221.
20. Non-joinder. If one of several joint tenants sue, Coke, Litt. 180 b ; Bacon Abr. Joint Tenants, K ; 1 Bos. & P. 73 ; one of several joint contractors, in an action ex con — — tractu, Archbold, Civ. Pl. 48-51, 53 ; one of several partners, 16 Ill. 340 ; 19 Penn. St. 273 ; 20 id. 228 ; Gow, Partn. 150 ; Collier, Partn. 649 ; one of several joint executors who have proved the will, or even if they have not proved the will, 10 Ark. 169 ; 1 Chitty, Pl. 12, 13 ; one of several joint administra tors, id. 13 ; the defendant may plead , the non-joinder in abatement. Comyn, Dig. Aht. E ; 1 Chitty, Pl. 12. Tae omission of cne or more of the owners of the property in an action ex delicto is pleaded in abatement. 22 Vt. 388; 10 Ired. No. C. 169 ; 2 Cush. Mass. 130; 13 St. 497 ; 11 Ill. 22. Dormant partners may be omitted in suits on contracts to which they are not privy. 4 Wend. N. Y.
628 ; 8 Serg. & R. Penn. 55 ; 6 Pick. Mass. 352 ; 3 Cow. N. Y. 85. A non-joinder may also be taken advantage of in actions ex con tractu, at the trial, under the general issue, by demurrer, or in arrest of judgment, if it appears on the face of the pleadings. 4 Wend. N. Y. 496.
21. Non-joinder of a person as defendant who is jointly interested in the contract upon which the action is brought can only he taken advantage of by plea in abatement, 5 Term, 651; 1 East, 20; 4 Term, 725 ; 3 Campb. 50 ; 2 Jur. 48 ; 2 Johns. Cas. N. Y. 382 ; 3 Caines, N. Y. 99 ; 18 Johns. N. Y. 459 ; 2 Iowa, 161; 24 Conn. 531; 26 Penn. St. 458 ; 24 N. H. 128 ; 8 Gill. Md. 59 ; 19 Ala. N. s. 340 ; 2 Zahn N. J. 372 ; 9 B. Monr. Ky. 30; 23 Ga. 600 ; Archbold, Civ. Pl. 309 • unless the mistake appear from the plaintiff's own pleadings, when it may be taken advantage of by demurrer or in arrest of judgment. 1 Saund. 271 ; 18 Johns. N. Y. 459 ; 1 Bos. & P. 72. Non joinder of a co-tenant may be pleaded when the suit respects the land held in common. 44 Me. 92. When the contract is several as well as joint, the plaintiff is at liberty to proceed against the parties sepa rately or jointly. 1 Chitty, Pl. 43 ; 1 Saund. 153, n. 1 ; 2 Burr. 1190 ; Brayt. Vt. 22. In actions of tort the plaintiff may join the parties concerned in the tort, or not, at his election. 6 Taunt. 29, 35, 42; 1 Saund. 291; 6 Moore, 154 ; 7 Price, Exch. 408 ; 3 Bos. & P. 54 ; Gould, Pl. ch. 5, 118 ; 3 East, 62. The non-joinder of any of the wrong-doers is no defence in any form of action.
22. When husband and wife should be sued jointly, and one is sued alone, the non joinder may be pleaded in abatement. Arch bold, Civ. Pl. 30. Non-joinder of co-execu tors or co-administrators may bepleaded in abatement. Comyn, Dig. Abt. Y W. The form of action is of no account where the action is substantially founded in contract. 6 Term 369 ; 5 id. 651. The law under this head has in a great measure become obso lete in many of the States, by statutory pro visions making contracts which by the mon law were joint, both joint and several.
23. Privilege of Defendant from being sued may be pleaded in abatement. 9 Yerg. Tenn. 1; Bacon, Abr. Aht. C. See PRIVILEGE A peer of England cannot, as formerly, plead his peerage in abatement of a ,writ of sum mons. 2 Wm. IV., ch. 39. It is a good cause of abatement that the defendant was arrested at a time when he was privileged from arrest, 2 N. H. 468 ; 4 T. B. Monr. Ky. 539 ; or that he was served with process while pri vileged from suits, 2 Wend. N. Y. 586 ; 1 South. N. J. 366 ; 1 Ala. 276. The privi lege of defendant as member of the legislature has been pleaded in abatement. 4 Day. Conn. 129.
For cases where the defendant may plead non-tenure, see Archbold, Civ. Pl. 310; Croke, Eliz. 559 ' • 33 Me. 343.
Where he may plead a disclaimer, see Arch bold, Civ. Pl. ; Comyn, Dig. Abt. F 15; 2 N.
H. 10.