Green, J. The general rule is, that tenants in common should join in personal actions. 3 Bac. Abr., Joint Tenants, K.; Co. Bit. 198. In actions in form ex delicto, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on trial. 1 Chitty's Plead. 53. Where several join in a personal action to charge a defendant, the release of one is a bar to all. 3 N. H. R. 96, 106. In this case, one tenant in common brings his suit to recover his portion of the damages sustained.
There is no plea in abatement, and the release of the other tenant is no discharge, it not being a joint suit. The court was right in excluding the evidence, for any other purpose than assessing damages. Judgment on the verdict.