The opinion of the Court, (Howakd, J. having been of counsel in this case, and taking no part in the decision,) was delivered by
Shepley, C. J.—The plaintiff appears to have commenced an action of assumpsit against Smith to recover for the use or *390charter of one fourth part of the brig Vincennes. To this action Smith pleaded in abatement, that two other persons named were jointly concerned with him in the supposed charter and promise. The plaintiff appears to have submitted to this plea without making any replication, and to have, under the provisions of the statute, summoned those two persons to appear and answer as parties defendant.
At the first term after they appeared, the three defendants, Smith still insisting upon his former plea, pleaded in abatement. A replication, a rejoinder and a surrejoinder, were put in, and to the latter there was a demurrer.
There having been no replication to the plea made by Smith alone, it does not compose any part of the pleadings, which were closed by an issue of law.
When insisted upon, after the other persons had become parties defendant, it was clearly bad, for it only alleged a joint promise with the other defendants without alleging, that the defendants were part owners of the vessel or tenants in common with the plaintiff. It was quite erroneous to insist upon it as a plea after that time. Yet the rule, that judgment should be rendered against the party who has committed the first fault, cannot be applied, for, as before observed, there is no issue upon it. The attempt of Smith to insist upon and to keep it alive after it was functus officio, can have no effect, but to exhibit it as an excrescence of the pleadings. The counsel for the plaintiff insists, that Smith is estopped by it to deny the joint liability of the defendants. If it could be regarded as part of the pleadings presented for decision by the issue, there might be occasion to consider the position. Presented only as it has been, it can have no effect.
The plea of the three defendants, instead of making a distinct statement that they were part owners of the vessel with the plaintiff, and were joint tenants or tenants in common with him, alleges that the plaintiff “ was co-owner of said brig of the one fourth part, as he has set forth, together with the said John U. Smith and Greeley Sturdivant, who was also administrator of William Sturdivant, deceased, part owner of said vessel, *391and Joseph E. F. Cushman.” These allegations, omitting those having reference to the interest of the deceased person, are that the plaintiff was the owner of one fourth part “ together with the said John U. Smith and Greeley Sturdivant, and Joseph E. F. Cushman,” or in other words, that the plaintiff and defendants were the owners of a fourth part of the vessel. Amalgamated with these allegations is one, that one of the defendants was the administrator of William Stur-divant,, deceased, who was a part owner of the vessel. This might have been true without having the least influence upon the plaintiff’s right to maintain the action. It does not however make the plea bad for duplicity. The plea presents the quéstion, whether one of four owners of a vessel can maintain an action of assumpsit against the other three to recover for the use or charter of it; and it is quite clear that he cannot.
The replication in substance admits, that the defendants were at the time owners of certain parts of the vessel, and it alleges, that they exercised the sole control of her and appropriated the whole of the proceeds of the use and charter of her to their own use, and that the plaintiff was the owner of one fourth part of her.
This replication does not exhibit a state of facts, upon which this action can be maintained. The plea therefore must be adjudged to be good and the replication bad.
Judgment that the writ he abated.