McFadden v. Haley , 3 S.C.L. 96 ( 1801 )

The judges took time to consider this case ; and afterwards, at Columbia, in November, 1802, delivered their opinions, as fob lows:

Grbike, and Bay, Justices,

were of opinion that the nonsuit was properly ordered, and that the defendant was1 not obliged to plead the objection taken upon the trial, in abatement, because he might-not have known the facts on which the objection was raised before the trial.

Waties, and Trezevant, Justices,

being of a different opinion, the court was, at first, divided, till Johnson, and Brevard, Justi. ces, agreed to deliver their opinion, which they at first declined doing, Johnson, J., having granted the nonsuit in the district court, and Brevard, J., having been of counsel in the cause, for the plain,, tiffs, and brought up the motion to this court; and they both decided In favor of the motion. Johnson, J., doubted, at first, but at length concurred entirely with the majority of the court, that the objection ought to have been taken by plea in abatement, and could not be táken advantage of otherwise. ‘

Falconer, and Branding, for plaintiffs. M‘Grady, for defendant

The judges who argued in support of the motion on the first ground, which was the only ground upon which the case was determined, considered the estate of the plaintiff in the nature of an estate in parcenary, except Tkezevant, J. ; who inclined to think it might be better compared to a gavelkind estate, and cited Co. Lift. 176. a. note on sec. 265, of Littleton : and he was of opinion that each joint owner, or co-heir, might maintain a separate action for the whole lands before partition, as gavelkind tenants are seized per mie and per tout, which he thought co-parceners are not; and to support his opinion, on this point, cited 2 Lev. 113. 3 Lev. 354. 1 Esp. Dig. 285, 247, 370. 2 Str. 1146. 5 Rep. 18. b. Bull. N. P. 332. Parceners are entitled to occupy and enjoy the land, promiscuously, till partition ; and a recovery of pos. session by one against a stranger, must enure to the advantage of all, as the possession of one is the possession of all. Where one- parcener sues, Without joining his companions, advantage may be taken thereof by plea in abatement, but not otherwise. The following authorities were referred to in addition to those pro. duced by the plaintiffs’ counsel. 1 Ric. Prac. 198. Carth. 61, 63, 5 Burr. 2613. 1 Ric. Prac. 204. 2 Imp. Prac. 52.

Motion granted.