Majority
p. 108Brotherson and others against Hodges and another. NEW-YORK, May, 1810.
Headnote
ave^sevCTid'temonS and a'ndo not join in an action of quare clausum fregit, cannot take ad-thetagtriak ''but abatement111 ™THIS was an action of trespass, for breaking and enter™S the plaintiffs’ close, and cutting down, taking and carrying away timber, &c.
„ At the trial, it appeared, that Esther Kissam was tenant in common with the plaintiffs, of the land on which the trespass was proved to have been committed ; anc^ was not not joined in the action. On this ground the defendants’ counsel objected to the plaintiffs’ recovery.
The plaintiffs’ counsel acquiescing in the opinion, that all the tenants in common must join, and the judge inclining to the same opinion, a nonsuit was granted.
A motion was made to set aside the nonsuit, which was submitted to the court without argument.
The nonsuit must be set aside, and a new trial awarded, with costs, to abide the event. Though all the tenants in common do not join in the action of trespass quare clausum fregit, the defendants cannot take advantage of the omission, at the trial, or in any other way than by pleading it in abatement. This is the rule in actions for torts. (1 Saund. 251. note g. h. where the authorities are all collected.)
Rule granted.