#### Linton and Others v. Bartly and Others.

July, 1838,

Lewisburg;.

Writ of Right — Nonjoinder of Heir — How Advantage Taken.* — Where a writ oí right is brought by demandants who claim as heirs, and the mise is joined on the mere right, evidence at the trial that there is another heir besides those named in the writ and count, will not entitle the tenants to a verdict. The tenants, to avail themselves of such matter, should plead it in abatement.

Writ of right, in the circuit court of Gray-son county, by Isaac Bartly, Reuel Bartly, Eleanor M’Knight, Peggy Bartly, John Webb, Daniel Coleman and Sally his wife, Caleb Davis, and Lydia his. wife, and Jesse *162Hodge and Peggy his wife, .heirs and legal representatives of William Bartly deceased, against Mary Hinton, Mary Ann Hinton and Peggy Hinton. The demandants filed their count, and the tenants filed their plea, to which the demandants filed their replication ; and thereupon the mise was joined between the parties..

' *At the trial, the demandants, to prove that they were the heirs of William Bartly deceased, introduced a witness, who stated upon his cross examination, that one of the heirs of William Bartly was not a demandant, either in the writ or count, but was omitted in both. Whereupon the counsel for the tenants moved the court to instruct the jury, that unless they were satisfied, from the evidence, that all the heirs of William Bartly deceased were made demand-ants, they should find a verdict for the tenants. But the court, being of opinion that the tenants had, by joining the mise, admitted that the demandants were the heirs of William Bartly deceased, and could not prove the existence of other heirs than those named, in order to defeat the demandants, except on a plea in abatement, refused to give the instruction asked. To which opinion the tenants excepted. Verdict and judgment were rendered for the demandants ; and the tenants obtained a supersedeas.

B. R. Johnston, for the plaintiffs in error,

argued, that the matter to which the evidence applied, respected the title of the demandants and the extent of their interests in the land. If those before the court shewed title only to a part, they could recover only to that extent. In this cáse, no'title was shewn to the interest of' the. heir who was not named; and the judgment, to .the extent of that interest, was therefore erroneous.

David M’Comas, for the defendants in error,

insisted, that the authorities fully sustained the proposition, that if one of-the heirs were not named, it was matter in abatement only, and could not be taken advantage of at the trial. - He referred to Cro. Eliz. 554, pl.; 7 Com. Dig.; Abatement, E. p. 43; 1 Dodd’s Bac. Abr. p.18; 9 Vin. Abr. 457, pl.; 2 Bro. Abr. Entre Congeable, pl. 59 ; 1 Chit. Plead. 75 ; Garrard v. Henry, 6 Rand.110.

*

Writ of Right — Nonjoinder of Heir — How Advan» tage Taken. — In a writ of right, the nonjoinder of an heir as plaintiff is a matter in abatement, and is not therefore available on the mise joined. Walkers v. Boaz, 2 Rob. 485, 491, and *foot-note-,*Bell v. Snyder, 10 Gratt. 355. both cases citing the principal case.

PER CURIAM.

The judgment is to . be affirmed. _ ■_