If the defendant is sued or declared against by a wrong name, he may plead the mistake in abatement ; 3 Bla. Com. 302; 3 East 167; Bac. Abr. D ; Louisville & N. R. Co. v. Hall, 12 Bush (Ky.) 131; and in abatement only, Thompson v. Elliott, 5 Mo. 118 ; Salisbury v. Gillett, 2 Scam. (Ill.) 290 ; Melvin v. Clark, 45 Ala. 285; Carpenter v. State, 8 Mo. 291; Corn. v. Lewis, 1 Mete. (Mass.) 151; but one defendant cannot plead the misnomer of an other, Com. Dig. Abt. F, 18; Archb. C. P. 312 ; 1 Nev. & P. 26. But if having been sued by the wrong name, he is served with process, and fails to plead the misnomer in abatement, he will be bound by the judg ment; Bloomfield R. Co. v. Burress, 82 Ind. 83. And a corporation setting up a misnomer in its answer, but failing to state its true name, will be bound by a judgment against it in the name by which it was sued; Louis ville & N. R. Co. v. Hall, 12 Bush (Ky.) 131.
The omission of the initial letter between the Christian and surname of the party is not a misnomer or variance ; Franklin v. Talmadge, 5 Johns. (N. Y.) 84. Since over of the writ has been prohibited, the misnom er must appear in the declaration ; Williard v. Missani, 1 Cow. (N. Y.) 37. Misnomer of defendant was never pleadable in any other manner than in abatement ; Thompson v. Elliott, 5 Mo. 118; Salisbury v. Gillett, 2 Scam. (Ill.) 290; Kelvin v. Clark, 45 Ala. 285; Carpenter v. State, 8 Mo. 291; Com. v. Lewis, 1 Mete. (Mass.) 151. In England this plea has been abolished; 3 & 4 Wm. IV. ch. 42, s. 11. And in the states, generally, the plain tiff is allowed to amend a misnomer. The misnomer of one of two defendants, as to his Christian name, if material at all when sued as a firm, must be taken advantage of by plea in abatement ; Whittier v. Gould, 8 Watts (Pa.) 485.
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 object to this matter by a plea in abatement; 2 Gabb. Cr. L. 327. As to the evidence necessary in such case, see 1 M. & S. 453 ; 3 Greenl. Ev. § 221.
Non-joinder. If one of several joint ten ants sue, Co. Litt 180 b ; Bacon, Abr. Joint Tenants, K; 1 B. & P. 73 ; one of several joint contractors, in an action ea contractu, Archb. C. P. 48, 53; one of several partners, Puschel v. Hoover, 16 Ill. 340; Bellas v. Fagely, 19 Pa. 273; one of several joint exec utors who have proved the will, or even if they have not proved the will; Newton v. Cocke, 10 Ark. 169; 1 Chit. Pl. 12, 131 one of several joint administrators ; id. 13; the de fendant may plead the non-joinder in abate ment; Com. Dig. Abt. E; 1 Chit. Pl. 12. The omission of one or more of the owners of the property in an action ex delicto is plead ed in abatement; Chandler v. Spear, 22 Vt. 388; Weare v. Burge, 32 N. C. 169; Morley v. French, 2 Cush. (Mass.) 130; Reading IL R. v. Boyer, 13 Pa. 497; Edwards v. Hill, 11 Ill. 22. Dormant partners may be omitted in suits on contracts to which they are not privy; Clark v. Miller, 4 Wend. (N. Y.) 628 ; Wilson v. Wallace, 8 S. & R. (Pa.) 55; Lord v. Baldwin, 6 Pick. (Mass.) 352; Clarkson v. Carter, 3 Cow. (N. Y.) 85. A non-joinder may also be
taken advantage of in actions ex contractu, at the trial, under the general issue, by de murrer, or in arrest of judgment, if it ap pears on the face of the pleadings; Armine v. Spencer, 4 Wend. (N. Y.) 409.
Non-joinder of a person as defendant who is jointly interested in the contract upon which the action is brought can only be taken advantage of by plea in abatement; 5 Term 651; 3 Campb. 50 ; Robertson v. Smith, 18 Johns. (N. Y.) 459, 9 Am. Dec. 227 ; Hine v. Houston, 2 G. Greene (Ia.) 161; Johnson v. Ransom, 24 Conn. 531; Potter v. McCoy, 26 Pa. 458; Gove v. Lawrence, 24 N. H. 128; Merrick v. Bank, 8 Gill (Md.) 59; Henderson v. Hammond, 19 Ala. 340; Mershon v. Hoben sack, 22 N. J. L. 372 ; Com. v. Davis, 9 B. Monr. (Ky.) 129; Beasley v. Allan, 23 Ga. 600 ; Prunty v. Mitchell, 76 Va. 169 ; 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; Robertson v. Smith, 18 Johns. (N. Y.) 459, 9 Am. Dec. 227. Non-joinder of a co-tenant may be pleaded when the suit respects the land held in common; Southard v. Hill, 44 Me. 92, 69 Am. Dec. 85; State v. Townsend, 2 Flaming. (Del.) 277. When the contract is several as well as joint, the plain tiff is at liberty to proceed against the par ties separately or jointly; and where one member of a firm is sued separately on an endorsement, the liability being joint and several, he may have the other partners made parties but cannot abate the suit for their non-joinder ; Jameson v. Smith, 19 Tex. Civ. App. 90, 46 S. W. 864. In actions of tort the plaintiff may join the parties con cerned in the tort, or not, at his election ; 1 Saund. 291; 3 B. & P. 54 ; Gould, Pl. ch. 2, § 118. The non-joinder of any of the wrong doers is no defence in any form, of action ; Buddington v. Shearer, 22 Pick. (Mass.) 427.
When husband and wife should be sued jointly, and one is sued alone, the non-join der may be pleaded in abatement; Archb. C. P. 309. Non-joinder of co-executors or co administrators may be pleaded in abate ment; Com. Dig. Abt. F. The form of action is of no account where the action is substan tially founded in contract; 6 Term 369. The law under this head has in a great measure become obsolete in many of the States, by statutory provisions making contracts which by the common law were joint, both joint and several.
Pendency of another action must be plead ed in abatement and not in bar; Mattel v. Conant, 156 Mass. 418, 31 N. E. 487 ; Central Railroad & Banking Co. v. Coleman, 88 Ga. 294, 14 S. E. 382; Danforth v. R. Co., 93 Ala. 614, 11 South. 60 ; and the judgment of the court below thereon is not subject to review ; Stephens v. Bank, 111 II. S. 197, 4 Sup. Ct. 336, 28 L. Ed. 399. But where two or more tribunals have concurrent jurisdiction on the same subject-matter between the same par ties, a suit commenced in any one of them is a bar to an action for the same cause in any other ; Shelby v. Bacon, 10 How. (II. S.) 56, 13 L. Ed. 326. The rule in equity is analo gous to the rule at law ; Insurance Co. v. Brune, 96 II. S. 588, 24 L. Ed. 737; but it is