
    Hill vs. Gibbs.
    As a general rule, tenants in common must join in bringing personal actions in which all are interested; and this whether arising ex contractu or ex delicto. Per Bronson, J.; and see note (a.)
    
    In actions ex contractu, the defendant may take advantage of the non-joinder as a ground of nonsuit at the trial under the general issue; but in actions ex delicto he must plead it in abatement, or it will be unavailable to him except by way of apportioning the damages. See note (a.)
    If the defendant, in an action ex delicto brought by one of two tenants in common who ought to join, neglect to avail himself of the non-joinder by way of plea in abatement, he cannot plead it in abatement of a subsequent action brought by the other tenant. See note (a.)
    
    In real actions, properly so called, tenants in common cannot join, but must sue separately. Per Bronson, J.
    Where, by the joint act of A. and B., certain securities in which they had a common, but unequal interest, were deposited with an attorney for collection, who afterwards received the money due thereon; held, in an action against the at. torney by A. alone for his share of the money, that he could not recover, but that B. must be joined.
    Motion to set aside report of referees. The action was for money received by the defendant to the plaintiff’s use. On the hearing before the referees it appeared that the plaintiff’s wife and her sister, the wife of Stephen Bennett, as two of the five children and heirs at law of John F. Lessley, claimed each one undivided fifth part of military lot number 39, in the township of Ovid, containing 600 acres. The two women, with the consent of their husbands, employed the defendant, who is an attorney at law, to recover the land, hi the year 1829, the defendant commenced several actions of ejectment in the name of James Jackson, on the demise of the two husbands and their wives, against the tenants in possession of the land. One of the actions was tried and a verdict obtained for the plaintiffs. A compromise was then made in July, 1830, in which the claimants released all their interest in the land to the tenants, and the tenants agreed to pay the claimants $4000, besides the taxable costs of the suits. A part of the money was paid down, and for the residue securities were given payable in four or five annual instalments. Some of the securities were made payable to the plaintiff and wife, some to Bennett and wife, and others in a different form, but without any reference to the respective shares or interests of the two wives. The defendant made this arrangement as the agent for the claimants, and the securities were left in his hands by the claimants to receive the money when it became payable. Out of the first moneys received the defendant was to be paid his expenses and charges beyond the taxable costs; and in July, 1831, these expenses 'and charges were adjusted between the parties at $881,86. The defendant received the money on the securities as it became due, and made remittances to the plaintiff from time to túne down to November, 1836, amounting in the rvhole to $1250. What payments the defendant had made to Bennett did not appear.
    It was agreed between the parties that Mrs. Bennett was entitled to the largest share of the money, for the reason that the claim of Mrs. Hill, as to a part of the -land, had been barred by the statute of limitations; and the arrangement was, that the defendant should decide between the two women as to their respective shares of the money when the parties should all be together. The plaintiff and Bennett both lived in Connecticut, and no meeting of the parties was had until October, 1838, which was after this suit was commenced. The plaintiff then refused to have the defendant make the division.
    The whole business with the defendant was conducted by the two woinen with the consent of their husbands. Mrs. Bennett testified that the moneys received by the defendant were the joint moneys of herself and Mrs. Hill; that the witness and her sister were both agreed that the witness was entitled to the largest share of the money, but they could not agree on the proper division.
    The referees decided that they could not report any sum due the plaintiff, upon the ground that the deposit of the securities with the defendant was the joint act of Mrs. Hill and Mrs. Bennett, and no proceedings had been had between the parties to enable the referees to decide what particular sum either party 'was entitled to receive, or whether the defendant had accounted to the plaintiff for as much of the fond as was his due; and they therefore made a general report that nothing was due the plaintiff.
    
      B. Johnson, for the plaintiff
    
      A. Gibbs, in proper person.
   By the Court, Bronson J.

As the two wives were tenants in common of the land on account of which the money was received, the plaintiff insists that he may sue for his share without joining Bennett. But the general rule in relation to suits by tenants in common, against third persons, is this: When the action is in the realty, they must sue separately; when in the personalty, they must join. The action is not in the realty merely because it has some relation to land. Thus, debt for rent, and covenant for not repairing, upon a joint demise, are personal actions, and tenants in common must join. So too they must join in actions for a trespass or nuisance to the land. The Tlnglish cases say they may, ours, that they must join. (Litt. § 311, 312, 315—317; Kitchin v. Buckley, T. Ray. 80., 1 Lev. 109, S. C. ; Austin v. Hall, 13 John. 286; Decker v. Livingston, 15 John. 479; Sherman v. Ballou, 8 Cow. 304; Chamier v. Plestow, 5 M. & S. 64; 1 Chit. Pl. 13, 75, ed. of ’37, and cases cited.) If the plaintiff sues as a tenant in common he must fail, because this is a personal action in which the co-tenant should have been joined as plaintiff.

But the tenancy in common has little to do with the case, except by way of making out the plaintiff’s title. Still I think Bennett should have been joined as a co-plaintiff, and that the action in its present form cannot he maintained. The securities were placed in the defendant’s hands as the joint act of the plaintiff and Bennett, and the defendant was to receive the money on their joint account. The defendant's contract was with both— not with each severally—and he ought not to he subjected to more than one action. And besides, the plaintiff did not show what share or proportion of the money belonged to him. It was proved that the plaintiff was not entitled to so much as Bennett; but there was no evidence from which their respective interests in the fund could be ascertained. The plaintiff had already received $1250, and the burden lay upon him of showing that he still had money in the defendant’s hands. It was not enough to show an interest in the fund, without showing the extent of that interest.

As the proof stood, I think the referees were right in reporting against the plaintiff.

Motion denied. 
      
       See also Brotherson v. Hodges, (6 Johns. 108;) Bradish v. Schenck, (8 id. 151;) Thompson v. Hoskins, (11 Mass. Rep. 419.) So in other personal actions sounding in damages—e. g. trespass or trover for taking or converting a chattel, (Wheelwright v. Depeyster, 1 Johns. Rep. 471, Putnam v. Wise, 1 Hill, 234.) case for diverting water (Rich v. Penfield, 1 Wend. 380) or for destroying title deeds, (Daniels v. Daniels, 7 Mass. Rep. 135 ;) but, as to replevin, see Hart v. Fitzgerald, (2 Mass. Rep. 509.)
      In respect to the mode of taking advantage of the non-joinder, the following distinction is to be observed between actions ex delicto and actions ex contractu, viz: In the former, if one of several tenants in common sue where the others ought to be joined, the defendant should plead the nonjoinder in abatement; and if he omit to do so, though it maybe proved at the trial for the purpose of preventing the plaintiff from recovering more than his aliquot share or interest, it cannot be urged as a ground for defeating the action. (Wheelwright v. Depeyster, 1 Johns. Rep. 471; Brotherson v. Hodges, 6 id. 108; Bradish v. Schenck, 8 id. 151; Thompson v. Hoskins, 11 Mass. R. 419 ; 1 Phill. Ev. 210 ; Rich v. Penfield, 1 Wend. 380, 385, 6; Bleaden v. Hancock, 4 Carr & Payne, 152; 1 Chitty’s Pl. 74 et seq. Am. ed. of 1833.) Nor can it be taken advantage of by demurrer, motion in arrest, or writ of error, though the defect appear on the face of the declaration. (Addison v. Overend, 6 T. R. 766; Scott v. Godwin, 1 Bos. & Pull. 74, 5; Rich v. Penfield, 1 Wend. 380, 385, 6.) If one of two tenants in common sue in such case, and the defendant neglect to plead in abatement, the other tenant may afterwards sue alone; and, in the latter suit, the defendant cannot plead the non-joinder in abatement. (Sedgworth v. Overend, 7 T. R. 279.)
      In actions ex contractu, however, the non-joinder by the plaintiff of a co-contrac. tor need not be pleaded in abatement, but may be taken advantage of at the trial under the general issue. (1 Phill. Ev. 210 ; Cowen Hill's Notes to Phill. Ev. 515, 516, and the cases there cited.) Or, if the defect appear on the face of the declaration, the defendant may demur; and this, though it be not shown whether the party omitted is still living or otherwise. (Burgess v. Abbott, 1 Hill, 476, 478, per Bronson, J.)
      
     