Defendants in an action of trespass brought before a justice for taking plaintiff’s goods pleaded in abatement that there was a joint owner who ought to have come in as co-complainant. Issue was taken denying that the alleged joint-owner had any interest in the goods. The justice on the trial of this issue overruled the plea and allowed a plea in bar. Plaintiff insisted that he ought to have assessed damages, and as he refused, asks a mandamus to compel him to do so.
The justice was right. The circuit practice now authorizes a plea in bar after a plea in abatement has been disposed of in this way, and in many cases great injustice would be done by depriving a party who has honestly pleaded in abatement, of his defense on the merits. We think the practice is correct.
Motion denied.