majority">By the court.

The question, which this case presents for «ur decision, is, when two have incurred a forfeiture to be recovered in an action of debt, whether the action can be maintained against one of them ?

In the case of Hill and wife vs. Davis, (4 Mass. Rep. 137,) it seems to have been the opinion of the court, that debt for a forfeiture must be considered as an action ex contractu, and governed by the principles applicable to that species of ac*36tion. But in the case of Bastard vs. Hancock, (Carthew 361) which was debt for a forfeiture, the jury returned a verdict against one of the defendants, and in favor of ihe rest ; and it was moved in arrest of judgment, that the action was founded upon contract, and could not be supported against one of the defendants alone. But the court, after great debate, says the reporter, unanimously resolved, that the action was founded on a tort, and not upon a contract; and the plaintiff had judgment.

The same point was decided in Hurdyman vs. Whitaker et a. (2 East 573, note.—1 Chitt. Pl. 33—Buller's N. P. 188); and we are inclined to think, that debt for a forfeiture must be considered as debt ex delicto, and that it may be brought against one, or more, of those, who have incurred the forfeiture, without joining all.

But if this were to be considered as an action founded upon ⅛ contract, the defendant could take no advantage, in this Stage oí the proceeding, of the omission of a person, who. ought to have been made a defendant. For that is matter, of which he could avail himself by a plea in abatement alone. 1 Saunders 291, b. note 4.—1 do. 154, note 1.—1 Chitty's Pl. 29.

We are therefore of opinion, that there must be

Judgment for the plaintiff.

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