
    BUCKNAM a. BRETT.
    
      Supreme Court, First District ;
    
      General Term, September, 1861.
    Parties.—Joinder of Plaintiffs.—Trial.
    In an action for the conversion of personal property, brought by tenants in common, if one of the plaintiffs dies pending suit, the action should be continued by the survivors, without joining the executor of the deceased plaintiff. This was the rule at common law, and it has not been repealed by the Revised Statutes nor by the Code.
    
      Tt seems, that all common-law actions to enforce the rights of joint owners or tenants in common, where one of them has died, must be brought in the name of the survivors only.
    A distinct defence, not pleaded, cannot be proved at the trial.
    Appeal from a judgment.
    This action was commenced by S. Bucknam, S. B. Hume, and E. T. Bucknam, as part-owners of a vessel, to recover damages for its conversion by the defendants. Before the answer was served, E. T. Bucknam died, and his déath being suggested on the record, the defendants answered, pleading the non-joinder of the personal representatives of the deceased as a defence. On the same ground they moved ’at the trial to dismiss the complaint, which motion was denied.
    
      The defendants also offered to prove at the trial, that the conversion complained of consisted in the seizure of the vessel under an attachment against “John Doe and Bichard Boe,” and also “ offered to claim” that these plaintiffs were intended by those names. Bo such defence having been pleaded, the evidence was excluded; and the plaintiffs had a verdict. ' The defendants appealed.
    
      C. A. Nichols, for the appellants.
    —I. The court erred in refusing to dismiss the complaint, and in holding that Ezra T. Bucknam was a partner in the ownership of the brig, the shareholders in a vessel being, in the absence of positive agreement for partnership (of which there is no evidence in this case), tenants in common, and not joint-tenants or partners, and the representatives of Ezra T. Bucknam were entitled to the absolute control of the interests and property of the decedent. (Story on Part., § 417, and note ; Collyer on Part., bk. 5, ch. 3 § 1 ; 3 Kent's Com., 5 ed., 151 ; Abbott on Shipping, § 97, and note ; Nicoll a. Mumford, 20 Johns., 611 ; French a. Rice, 24 Pick., 13; Jackson a. Robinson, 3 Mason, 138; Patterson a. Chalmers, 7 B. Munroe, 595.)
    II. The action should have been continued by the personal representatives of the deceased owner, they being the persons entitled to recover for the shares of the decedent, and therefore the real parties in interest as to that share. 1. Section 111 of the Code introduces a radical change in the mode of bringing actions, abolishing all technical rules as to parties, and substituting the practice in equity, of making plaintiff all those who are entitled to the thing recovered or relief obtained. (Wallace a. Eaton, 7 How. Pr., 99.) 2. The ancient rule of common law, that the survivor in case of trespass to real estate was entitled to bring an action for himself, was technical, and not consonant with any rule of practice known in courts of equity, and is not applicablefor it was only rendered necessary by the rule of common law, under which such an action died with the person; and there was no severance in such an action, because the amount of injury to each of the co-tenants was not ascertained and determinate. The statute makes such a cause .of action survive,‘and gives to the personal representatives of each owner ■ the right of action for the conversion of his share. (3 Rev. Stat., 5 ed., 202 ; Dyckman a. Allen, 2 How. Pr., 17.)
    
    III. The present action is no bar to an action by the personal representatives of Ezra T. Bucknam, to recover the value of five-eighths of the vessel.
    
      I. T. Williams, for the respondents.
    —I. The defendants asked for a dismissal of the complaint or a nonsuit; as if—even assuming that the death of one of several plaintiffs operated to abate the suit—such abatement could be taken advantage of by motion for nonsuit on the trial.
    II. Ought the representatives of Ezra T. Bucknam to have been brought in, after his death, and made co-plaintiffs in the action ? It is insisted that they ought not. This is strictly an action at law,—an action for taking and converting the personal property of the plaintiffs,—in which damages, measured by the value of that property, were sought. In such an action it is not possible to unite parties, a part of whom sue in their individual capacity and the remainder in a representative character. (3 Bouvier Inst., 162 ; Morehouse a. Ballou, 16 Barb., 289 ; 18 Ib., 592 ; 2 Duer, 626, 650 ; 1 Mass., 480, 133 ; Harden, 480 ; Minor, 364; 1 Bibb., 462, 547 ; 3 Ib., 261; 5 Alabama, 421.)
    III. In actions at law for injury to personal property, all the parties injured must join as plaintiffs, if they be all living. If .any be dead, the action must be brought in the name of the survivor or survivors. If either of the plaintiffs die pending the action, his death should be suggested upon the record, and the suit will proceed in the name of the surviving plaintiffs. Bouvier says’ (3 Inst., 175): “If one of several plaintiffs in an action, in form ex delicto, dies pending the action, the suit does not abate, and the survivor may prosecute it to judgment.” The same is said 2 Saund., 72, i.
   By the Court.— Clerke, P. J.

—In actions ex contractu, where one or more of. several parties having a joint legal interest dies, whether they are or are not, in the commercial sense of the term, copartners, the action can only be maintained in the name of the survivors. So also1 in actions ex delicto, for injuries to personal property, joint-tenants and tenants in common must join;, and- where one of several parties, interested as such, dies, the action must also be in the name of the survivor or survivors alone, and the executor or administrator of the deceased cannot be joined,,nor can he sue separately. (1 Chitty’s Pl., 77.)

This is the well-known and well-established rule of common-law practice and pleading. The several part-owners of a'vessel are tenants in common; like tenants in common of other property, they must join, in an action at law, for the recovery of . damages caused by an injury to it; and, in case of the death of any part-owner after the injury is sustained, the right of action survives to the surviving part-owners, who must afterwards pay .to the personal representatives of the' deceased the value of his share; (Abbott on Shipping, Am. ed., 1846, 146.)

These rules were founded in utility. They were designed to avoid the inconvenience resulting from uniting persons who sue t in their own right, with those who sue in a representative capacity. It would- be difficult in case of a recovery against the plaintiffs, to enter a-judgment upon the verdict, the representati ves not- being liable for costs in the same manner in which the other plaintiffs are liable. The executor of a deceased person cannot be- jointly sued with the survivor, because, -if for no other reason, the executor is to be charged de bonis testatoris, and the survivor de bonis propriis, and the judgment could not be so rendered.. So, when several persons are jointly interested in the property injured, and one of them is dead, the action must be maintained in the name of the survivor; and the.exec.-utoror administrator of the deceased cannot be joined, nor can he sue separately.

.' Have .these rules of the common law been abrogated or altered by modern legislation in this State ?

The counsel for the appellant claims that%hey have been, because the statute (3 Rev. Stat., 5 ed., 202), varying the rule of the common law, in case of injury to real or personal estate, makes ■ such a cause, of action- survive, and gives to the personal representatives- of the deceased owners-the right of action.- But this enactment was evidently made, not to- enable the representatives of deceased joint-owners of .property-to be united with the survivors, but to prevent the total failure of a remedy, where the sole owner of property died before he obtained redress for any injury to it. This would be repealing a law by something worse even than implication. There is nothing to imply, even remotely, any such intent on the part of the Legislature.

He refers us also to § 111 of the Code, which says that every action must be prosecuted in the name of the real party in interest. He may, for the same purpose, with equal if not more propriety, refer us to § 119, which says: “ Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants.” But it is plain to me that these sections were not intended to contravene the rules of the common law to which I have referred. In order to have this effect, it would require something more positive and direct than the language conveys. If applicable at all, it is applicable to property held in copartnership as well as to any other kind of joint-ownership ; and, certainly, I have never heard or read that any one has ever insisted that it was necessary to join the names of the executors or administrators of a deceased member of a mercantile firm with those of the surviving members, in an ordinary common-law action, for a debt due to the firm, or for an injury to its property.

The judge was, therefore, substantially right in his ruling on this subject, although he seemed to confine the principle upon, which I have commented to a copartnership. But this, doubtless, was a mere verbal inadvertence.

With regard to the offer on behalf of the defendants to prove that Sumner Bucknam and Ezra Bucknam were indebted to the defendants at the time of issuing the'attachment, and then to claim that they were therein described as John Doe and Richard Roe, &c.,:—such evidence, if admissible at all, was not admissible under the pleadings, and the judge properly reiected it.

Judgment should be affirmed with costs.

Leonard, J.

—I concur. There was also a question raised by defendants by an offer to prove an indebtedness from plaintiffs to defendants. No such defence had been pleaded, and the evidence was properly excluded.

Judgment affirmed. 
      
       Present, Clerke, P. J.f, Sutherland and Leonard, JJ.
     