
    * Solomon Thompson and Another versus Thomas Hoskins and Others.
    If a tenant in common sue a stranger for a tort done to the common property, the defendant, to avail himself of the omission of the other tenants, must plead it in abatement.
    This was an action of trespass quare clausum fregit, in which the defendants were charged with entering upon the plaintiffs’ close, and setting fire to the trees thereon growing, &c.
    At the trial upon the general issue, it appearing that the plaintiffs were tenants in common of the locus in quo, in the proportion of two fifth parts of the whole, the other owners not being named in the writ, the defendants’ counsel objected to the action, and insisted that the plaintiffs ought to be nonsuited. But this was overruled by the judge who sat in the trial; and the jury were instructed that, if they were satisfied with the evidence respecting the trespass, they might return a verdict for two fifths of the whole damages in favor of the plaintiffs; which was done. The question, however, was saved for the consideration of the whole Court, whether the action, under these circumstances, could be maintained.
    
      Sproat and Holmes for the plaintiffs.
    
      Washburn for the defendants.
   Parker, C. J.

We are all of opinion that the decision of the judge at the trial was correct, and that this matter ought to have been pleaded in abatement, in order to avail the defendants.

Authorities, which abundantly settle this point, are cited by Sergeant Williams in his edition of Saunders’s Reports, in a note to the case of Cabell vs. Vaughan. In all cases of tort, one part owner of the property injured may maintain his action for the injury done to him, unless the defendant should take advantage of the omission by plea in abatement.

This doctrine is not confined to injuries to personal property; but the very case of trespass upon land is instanced by Williams and proved by the authorities he cites. And, indeed, [ * 420 ] there is more reason for the rule in such cases than * for those which relate to personal property; because it often happens that one tenant in common may be totally ignorant of the number of his fellows, and of the place of their residence.

It has been suggested that, in the case of Converse vs. Symmes, a different opinion from that which is now laid down was expressed by the court; but, upon examination of that case, no variance will appear. The person standing in the relation of defendant in that suit insisted that there was another part owner, who ought to have been joined. The judge who delivered the opinion of the Court, in order to show that this matter could not be taken advantage of by the defendant, except by plea, stated that all the authorities showed that the doctrine only applied to plaintiffs who were to be nonsuited, if it appeared that all who were interested were not joined in the suit. This observation was made in answer to some authorities relied upon by the defendant; upon consulting which, and others not then cited, it is manifest that, even in the case of plaintiffs, qn omission of one or more does not go to destroy the action without a plea in abatement, unless in actions upon contract, in which the law still seems to be that a failure to join all those who ought to be plaintiffs in the suit will cause a nonsuit, or even an arrest of the judgment, if the defect appear of record, although it be not pleaded in abatement.

Per Curiam.

Let judgment be entered according to the verdict. 
      
       I Saund. 291.
     
      
       10 Mass. Rep. 378.
     
      
      
         1 Chitty, Pl. 76, 7th ed. — Converse vs. Symmes, 10 Mass. Rep. 378, note.
     