7 Watts 205 | Pa. | 1838
The joinder of ihe widow, who had not an immediate estate, was an incurable error. Her husband died intestate ; and by the act of 1794, she had but an annuity in the nature of a rent charge, and consequently could not be a parly to an action of partition. But it was thought her name might be disposed of on the record by & nolle prosequi. That however is not a remedy for a misjoinder of parties, which is necessarily fatal if advantage be taken of it in season. In a joint action for a tort which could not have been committed jointly, it can be successfully applied to a misjoinder of defendants only when several damages have been assessed ; and even there, perhaps, because the time for objection has gone by. But in a personal action for a wrong that may be done jointly, the joinder of defendants not guilty is immaterial, because a tort is the separate act of each concerned in it, by reason of which one may be acquitted and another convicted, according to the proof; and it is for this reason that a plaintiff in trespass may enter a nolle prosequi against one or more before judgment, and proceed against the rest. But real actions, or such as concern the realty, stand on a different rule; for a bare tenant in common, sued in trespass or case for a thing pertaining to the freehold, may plead the tenancy in abatement though his estate is several; 1 Saund. 291, n. 4 : much more may the tenant in a real action. And parceners are to be sued jointly, even if they have come to the estate by different descents ; 2 Vin. 67. Partition is a real action, and stands at common law on the reason which, in actions on contracts, forbids a nolle prosequi for a cause which goes to the writ, and allows it for any thing which is cause of personal exemption by matter subsequent. Thus, though the contract was made, in fact, with all the defendants, yet if by reason of infancy or coverture it were not in law the contract of all, the plaintiff could not by this means evade the consequences of having joined parlies originally irresponsible. This distinction, which was taken in Nokes v. Ingham, 1 Wils. 90, rests on considerations that arise out of the form of the matter put in issue. When the allegation of a contract with particular persons varies from the proof, it cannot, be made to conform to it by a nolle prosequi which, while it lops off supernumerary branches from the style of the action, leaves the form of the issue unchanged, and the defendants at liberty to say the contract laid had not been proved. It must be evident therefore, that a nolle prosequi would be nugatory. So here, an averment that the plaintiff and the defendants including the widow hold together in the proportions laid, would not be made more susceptible of proof by dropping her in the prosecution ; and this obviates the argument drawn from our statutory provision borrowed from the 8 and 9 W. 3, that a plea in abatement be not admitted in partition ; if indeed that clause relate to any thing but abatement by death. The defendants may avail themselves of the variance without pleading it; and if they might not, that would be a decisive reason to say the
It may not be amiss to pause, in order to remark that there scarcely seems to have been any thing in the shape of a record below ; and that this was perhaps the cause of the blunders which occurred at the trial. It is represented in our paper books, that after a sort of ex parte investigation of the merits, judgment by default was rendered against three of the defendants, according to something called a statement filed ; and then a jury was sworn without declaration or plea—to try what1? Heaven knows ; for they were sent to sea without chart or compass. Such irregularity is destructive of every thing like certainty, and is by no means creditable to our practice. To finish as the matter was begun, we have a writ of error by agreement, it is said, to remove an interlocutory judgment. Were it not to put an immediate end to the suit, in order to prevent the parties from floundering still deeper in it, such an agreement would not be regarded.
Not only, however, is the action defective in its origin and progress, but the title also is. The arbitrament is void. A submission, whether by deed, parol, or rule of court, like any other naked authority, is couutermandable before execution of it, though expressed to be irrevocable. Vynior’s Case, 8 Rep. 162. Here McClelland, in whom the title was vested, and who had agreed to convey to the other parties estates proportionate to their advancements towards the purchase money he was bound to pay for it, the aliquot parts of which it was to have been the business of the arbitrators to ascertain, had died in the mean time, and the original submission was revoked. It was so entirely gone that the arbitrators could have legally acted only by force of a fresh delegation of authority. The subsequent ratification of it by M’Cord the administrator, and Fatima the widow, could not restore it, because they were strangers to the title; nor was it restored by the ratification of Marshell, the guardian of five of the children. It is not stated whether the assent of the surviving parties, which might perhaps so far make it a submission by parol, was had ; nor is it necessary to inquire whether an award pursuant to a parol submission be not within the statute of frauds; nor whether the guardian who assented to it were competent to bind his wards by an agreement whose purpose was to transmute their money into land: it is enough that at least one of the children was not a party to it. It is expressly stated that neither Louisa nor her guardian had any knowledge of the appointment or proceedings of the
Judgment below reversed, and judgment for the defendants.