Imprisonment. A sentence to imprison ment in New York, either of plaintiff or de fendant, abates the action by statute ; Gra ham v. Adams, 2 Johns. Cas. (N. Y.) 408 ; O'Brien v. Hagan, 1 Duer (N. Y.) 664; but see Davis v. Duffle, 8 Bosw. (N. Y.) 617.
Lunacy. A lunatic may appear by attor ney, and the court will on motion appoint an attorney for him ; Faulkner v. McClure, 18 Johns. (N. Y.) 134. But a suit brought by a lunatic under guardianship shall abate ; Collard v. Crane, Brayt. (Vt.) 18 ; but it is held that a suit brought by the committee of an insane person may be revived by the ad ministrator of the latter after his death; Straight v. Ice, 56 W. Va. 60, 48 S. E. 837. Qucere whether suit against committee of an insane person may be revived against the administrators of such person; Paradise's Adm'rs v. Cole, 6 Munf. (Va.) 218.
Mandamus, when brought against a public officer, is a personal action which abates at his death or retirement from office, and his successor cannot be substituted without stat utory authority ; U. S. v. Butterworth, 169 U. S. 600, 18 Sup. Ct. 441, 42 L. Ed. 873, cit ing the prior cases.
Misjoinder. The joinder of improper plaintiffs may be pleaded in abatement ; Archb. C. P1. 304; 1 Chit. Pl. 8. Advantage may also be taken, if the misjoinder appear on record, by demurrer in arrest of judg ment, or by writ of error. If it does not ap pear in the pleadings, it would be ground of non-suit on the trial ; 1 Chit. PL 66. Mis joinder of defendants in a personal action is not subject of a plea in abatement ; Wooten & Co. v. Nall, 18 Ga. 609 ; Archb. C. P1. 68, 310 ; Durgin v. Smith, 115 Mich. 239, 73 N.
W. 361; otherwise where there is found to be no joint liability ; Wright v. Reinelt,'118 Mich. 638, 77 N. W. 246. When an action is thus brought against two upon a contract made by one, it is a good ground of defence* under the general issue ; Clayt. 114 ; Ander son v. Renshaw, 2 Day (Conn.) 272; Dib lee v. Best, 11 Johns. (N. Y.) 104 ; 1 Esp. 363 ; for in such case the proof disproves the dec laration. If several are sued for a tort com mitted by one, such misjoinder is no ground of objection in any manner, as of co-defend ants in actions ex delicto, some may be con victed and others acquitted ; 1 Sound. 291.
In a real action against several persons, they may plead several tenancy ; that is, that they hold in severalty, not jointly ; Cora. Dig. Abt. F, 12; or one of them may take the entire tenancy on himself, and pray judgment of the writ ; Corn. Dig. Abt. F, 13. Misjoinder of ac tion is waived unless taken before defence; Organ v. R. Co., 51 Ark. 235, 11 S. W. 96. Where a husband is improperly joined in an action concerning his wife's separate inter est in land, the action should be abated; West v. Adams (Va.) 27 S. E. 496.
Misnomer of plaintiff, where the misnomer appears in the declaration, must be pleaded in abatement ; Jewett v. Burroughs, 15 Mass.
469 ; Porter v. Cresson, 10 S. & R. (Pa.) 257; State v. Dines, 10 Humphr. (Tenn.) 512 ; Barnes v. Perine, 9 Barb. (N. Y.) 202 ; Pro prietors of Sunapee v. Eastman, 32 N. H.
470 ; American Bank v. Doolittle, 14 Pick. (Mass.) 123 ; Trull v. Howland, 10 Cush. (Mass.) 109, 57 Am. Dec. 82 ; and he must disclose his true name and thereby enable the plaintiff to amend his writ; Corn. v. Lewis, 1 Mete. (Mass.) 151; McCrory v. An derson, 103 Ind. 12, 2 N. E. 211; and where parties were improperly joined in suit on covenants of indemnity and the only relief was in equity, under the statute, the action was abated as to them only ; McIlvane v. Lumber Co., 105 Va. 613, 54 S. E. 473. It is a good plea in abatement that the party sues by his surname only ; Chappell v. Proctor. Harp. (S. C.) 49 ; Labat v. Ellis, 1 N. C. 172; Seely v. Boon, 1 N. J. L. 138. A mistake in the Christian name is ground for abatement ; Moss v. Flint, 13 Ill. 570 ; or where • the in itials merely are used ; Smith v. Barrett, Morris (Ia.) 492 ; City of Menominee v. Lum ber Co., 119 Mich. 196, 77 N. W. 704. 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 plaintiff. The rule embodied in the English statute prevails in this country.