Opinion of the Court by
Justice Browne.
This was an action of trover and conversion brought by Lemon Parker against H. Rolette. The plaintiff below derived his title from the following bill of sale, viz.:
Know all men by these presents, that I, William Kelly, in consideration of four hundred dollars to me paid by Parker and Tilton, do hereby sell, alien and convey to Lemon Parker, four yoke of oxen, with the yokes and chains belonging thereto. The condition of the above sale is such that I, the said William Kelly, stand indebted to the above named Parker and Tilton in the above named sum; now, if the above debt is canceled within one year, then the above sale to be null and void, otherwise to remain in full force and virtue; and it is further agreed between the parties, that the said Parker and Tilton are to loan me the said team without charge, and to furnish hauling for the said team to the amount of said debt.
Signed, Wm. Kelly, [seal.]
July 11, 1829.
The defendant, by his counsel, moved the court to instruct the jury, that if they believed that William P. Tilton was interested in the contract between Kelly and Parker for the oxen, &c., they should find a verdict for the plaintiff for his share or interest only. Other instructions were prayed for, which will not now be noticed. I am of opinion, that the court below erred in refusing the instruction as asked for, for which reason the judgment must be reversed with costs, and the cause remanded to the circuit court.
Ford, for appellant.
J. B. Thomas, Jr., for appellee.
From this opinion, Justice Smith dissents.
Judgment reversed.
In actions for torts, the non-joinder of persons interested with the plaintiff, must be pleaded in abatement, and can not be taken advantage of on the trial, otherwise than in mitigation of damages; and in such case, if the defendant, omit to plead the non-joinder in abatement, the plaintiff may have judgment for his aliquot share of the damage sustained. Edwards v. Hill, 11 Ill., 22. But in an action to recover a specific penalty, given by statute, which does not rest in computation, such as an action to recover the penalty for cutting timber, the owners of the land must all join in the action. Ibid.