#### BOND AND WILLIS v. JAMES B. HILTON.

In an action by two joint owners of a vessel against a captain for negligence and delay in making a voyage, it was-Held that upon the death of one of them, the right to carry on the action survived to the other plaintiff, and that it was a misjoinder to bring in the executor of the deceased partner.

It was Held further, that as the .misjoinder appeared on the record, it was error to order a nonsuit, but that the objection should be taken by demurrer, writ of error, or motion in arrest of judgment.

This was an action on the case, tried before Dick, Judge, at the Spring Term, 1858, of Washington Superior Court.

The declaration alleged that the defendant, who was a part owner, contracted with the other part owners, viz., the plaintiffs, Bond & Willis, to take charge of a vessel and cargo, as captain, and make a voyage to the West Indies and back, but that the defendant managed and conducted the affairs of the ship, and made the voyage so negligently, and with so much delay, as greatly to injure the plaintiffs.

The suit was originally instituted by Thomas Bond and E. H. Willis, but during its pendency Bond died, and at Pall Term, 1851, his executor was made a party plaintiff. On the trial of the suit below, the defendant’s counsel objected, that the action could not be maintained by the executor of Bond. The Court reserved this question and submitted the facts to the jury, who found for the plaintiffs.

His Honor, afterwards, upon the point reserved, being of opinion with the defendant, ordered the verdietto be set aside, and a nonsuit entered, from which the plaintiffs appealed.

Wmston, Jr., and II. A. GilUam, for plaintiffs.

Hines and Smith, for defendant.

Pearson, C. J.

Assuming that Willis and Bond had a. joint cause of action against the defendant for the injury to theuvessel and cargo, and that the suit was properly instituted by them jointly, it is clear, that by the death of Bond, according to the common law, Willis was entitled to the entire right of action by the jus aecrescendi, and the suit would be con-*181■timied in his name. It follows, that the effect of making the executor of Bond a party plaintiff, was to create a misjoinder, which is a fatal defect, unless the law is changed by statute.

The Court is of opinion that the case stands as at common law, and does not come within the operation of any of the statutes.

By tiie Revised Statutes, chapter. 43, sec. 2, it is enacted : “ In all estates, real or personal, the part or share, of any tenant dying, shall not descend, or go, to the surviving tenant, or tenants, but shall descend, or be vested in the heirs, executors or administrators, of the tenant so dying, in the same manner as estates held by tenancy in common, &c.” The question is, does the word estates, as used in the statute, include a joint chose in action for a tort.

“ Estate” is derived from status, and in its most general sense, means position or standing in respect to the things and concerns of this world. In this sense, it includes choses in action; Webb v. Bowler, 5 Jones’ Rep. 362; Pippin v. Ellison, 12 Ire. Rep. 61; Hurdle v. Outlaw, 2 Jones’ Eq. 76. But it is also used in a much more restricted sense, and is then put in opposition to a chose in action, or mere right, to signify something which one has in possession, or a vested remainder, or reversion without dispute or adverse possession. Thus, we say, the estate is divested and put to a mere right by a disseisin or discontinuance ; and so, in Equity, where the trust is by agreement of the parties, we say the cestui gui trust has the estate, but where a decree is necessary, in order to convert one into a trustee against his consent, the party has a mere right; Taylor v. Dawson, 3 Jones Eq. 91; Nelson v. Hughes, 2 Jones Eq. 33; Thompson v. Thompson, 2 Jones’ Rep. 432.

It is evident, from a perusal of the statute, that the word estates is used in this latter sense. “ The part or share of any tenant dying, shall not go to the surviving tenant or tenants, but shall go in the same manner as estates held by tenancy in common,” are words strictly appropriate, when applied to u estates” used in this sense, but are out of place when a chose *182in action is referred to. One is not a tenant of a clrose in action, nor does he hold an estate therein. This we believe is the construction that has heretofore been put on the statute, and we have never before heard it contended that it embraced choses in action.

By Rev. Stat. ch. 2, sec. 1, it is enacted, “ It shall be lawful for tiie heirs, executors or administrators, to carry on every suit after the death of either plaintiff or defendant, and every such suit may be proceeded on by application of the heirs, executors, or administrators, of either party.” This statute was, obviously, intended to prevent the abatement of a suit by the death of the plaintiff or defendant, and, of course, has no application except to cases where an abatement would otherwise take place.

The enactments, Rev. Stat. ch. 31, secs. 89, 90, 91, are expressly confined to cases where two or more persons are liable under joint “ obligations, assumptions or agreements,” and have no application to persons who are entitled to a cause of action jointly. Our conclusion is, that the jus aeereseendi remains as at common law, and we concur with his Honor in respect to the misjoinder, but we differ with him as to the mode in which it must be taken advantage of. The rule is, where the defect appears upon the face of the record, it must be taken advantage of by demurrer, or motion in arrest of judgment, or writ of error. "Where it does not so appear, and is shown upon the trial, by a variance between the allegata, and probata, it is a ground of nonsuit; 1 Ch. Plea. “ Parties.” In this case, there was no variance, for the allegation is an injury to the plaintiffs, Willis and the testator of the other plaintiff. This was supported by the proof, and the defect was caused by making the executor a pafty plaintiff. This defect was apparent on the record, consequently, it was error to enter judgment of nonsuit. The judgment in the Court below is reversed, and this Court, being required to give such judgment, as on an inspection of the whole record, ought, in law, to be rendered thereon, Rev. Stat. ch. 33, sec, 6, directs the *183judgment to be arrested. Neither party will recover cost.

Pee CubiaM, Judgment arrested.