#### Benjamin Converse *versus*John Symmes.

Where, in the progress of a suit, the title to the action, which is alleged to be in one, appears to be in two or more, the variance is fatal; — but if one be sued where others are alike interested and liable with him, he must plead this in abatement, or he cannot avail himself of it in any future stage of the action.

This was a complaint under the statute of 1795, c. 74, for the support and regulation of mills. The complainant alleges that he is seised of a certain parcel of land in *Woburn,*and that the said *Symmes,*being owner of a certain water-mill, to work which he had found it necessary to raise a suitable head of water, in doing which he had overflowed the said land of the complainant, &c.; wherefore he prays for a warrant to the sheriff to impanel a jury to appraise the yearly damage done to him as aforesaid, and to determine how far the same may be necessary.

The respondent pleads, in bar, that he was and is seised in fee and in common of one undivided fourth part of a certain mill, &c., with a right there to build and construct a mill-dam, and the same . to keep up and maintain; one *Josiah Symmes,*now in full life, being seised in fee and in common of the other undivided three fourths of said mill, &c.; that the said mill, &.C., is an ancient mill, and that he, the said *John,*and all those whose estate [ * 378 ] he hath, on, &cc., had, and for a time * beyond which the memory of man doth not extend, have had, and by law ought to have, a right to build and maintain a mill-dam as aforesaid, and to the same height and extent to which the dam complained of has been raised, &c.; wherefore the said *John,*as tenant in common, &c., did build and maintain the said dam, &c., as he lawfully might do, by which the waters of the said stream are restrained "and flowed back, and so, and not otherwise, were flowed over the land of the complainant, &c.

To this plea the complainant replies, that the said *John,*and those whose estate he has, &c., and the said *Josiah,*and those, &c., had not a right to build, &c., in manner and form as the said *John*in his said plea has alleged; and tenders an issue to the country, which is joined by the respondent.

This issue being found for the complainant, the respondent moved in arrest of judgment, on the ground that it is apparent on the record that the complaint should have been brought against the two owners of the mill, <fcc.

*Ward,*for the complainant,

contended that this did not appeal *377from his showing, and if the respondent would have advantage o' it, he should have shown it in abatement. (1)

*Bigelow*and *G. Sullivan*for the respondent.

(1)

 1 *Saund.*291, *d. — 6 D. & E.*766. — 1 *Salk.*32.

Sewall, J.,

delivered the opinion of the Court.

It appears in the proceedings that two persons, one of them not summoned, owned and occupied the mill, the dam of which has occasioned the nuisance and damage complained of by *Converse ;*and therefore it is argued for *Symmes,*that no judgment is to be rendered on these proceedings, notwithstanding the verdict of a jury, finding the fact of damages to the complainant, and assessing the same.

The authorities all apply to the case of *plaintiffs;*where the title is not wholly in one, and where the right of action depends on a title, which is alleged to be in one, but is proved to be in two or more ; and it so appears by the pleadings, or in the progress of the suit. (2) The variance is in that case fatal. The one plaintiff cannot recover his * portion of the right, to [ * 379 ] which two or more are jointly entitled; because this might expose the party liable to be vexed by a multiplicity of suits.

The case of defendants is otherwise. There, if one, being sued, waives the right he has to the aid of others, alike interested with him, or liable in the same contract, this will not affect the plaintiff; and if the defendant neglects to plead in abatement, that others liable ought to be impleaded, this is a waiver of his right; and he cannot object this variance, either on the general issue, or in arrest of judgment, if the fact becomes apparent upon the record, *(a)*

*378Lord *Mansfield*expresses this distinction in a very few words, in the case of *Barnard*vs. *Kinworthy,*cited 1 *Bos. Sf Pul. 73, in noiis : “*If there are less plaintiffs than there ought to be, it goes to a nonsuit; if less defendants, it is only in abatement.”

The respondent, in the case at bar, discloses another owner and occupant of the mills, and justifies under their joint right the flowing complained of. The issue joined upon the right has been tried, and the justification is found against the respondent; and as he answered alone, and waived the right he had of making his partner a co-defendant or respondent, he comes too late with a motion in arrest of judgment.

*Judgment according to the verdict.*

ADDITIONAL NOTE.

[Since the statutes, in *Massachusetts,*authorizing amendments by change of parties, unless a defendant object at the trial to a misjoinder of plaintiffs, he is held to have waived the exception — *Dodge*vs. Wilkinson, 3 *Metc.*292.

In Vermont, nonjoinder of plaintiffs, though ground of plea in abatement, may be taken advantage of on the trial. — *Hilliker*vs. *Loop,*5 *Verm.*116.

Nonjoinder of a dormant partner can be objected to-in neither mode. — *Morton*vs *Webb, 7 Verm.*123.

Ejectment against several persons, occupying different rooms in the plaintiff’ building. Held, this was not a misjoinder, but each might plead severally *not guilty*as to his own room, and *disclaim*as to the rest. — *Marshall*vs. *Wood,*5 *Verm.*250.

A plea in abatement for nonjoinder of defendants, must give the plaintiff a bettei writ. — *Wilson*vs. *Nevers,*20 *Pick.*20.

If such plea allege, in an action of assumpsit, that the promise was made jointly by the defendant and others named; evidence showing that one of the persons named did not, or that another not named did join in the promise, will not sustain the plea. — *Ibid.*

If, upon such plea, the plaintiff amends his writ and declaration conformably thereto, and summons in the new parties, but afterwards discontinues against them; he is not thereby estopped, upon trial of the issue on the plea, to deny that such persons joined in the promise.— *Ibid.*

The rule, that nonjoinder of defendants must be pleaded in abatement, applies *379where the promise was made by the defendant and one of the plaintiffs, jointly.— *Palmer*vs. Crosby, 1 *Blackf.*139.

If one partner buys and uses goods for the benefit of the firm, though the seller is ignorant of the partnership, in a suit against the former alone, lie may plead in abatement nonjoinder of the other partners. — *Alexander*vs. *M' Ginn,*3 Watts, 220.

A plea in abatement of nonjoinder does not admit any contract, but merely precludes any objection, a second time, for want of parties.— *Witmer*vs. *Schlatter,*2 *Rawle,*359.

It is evidence, as against the defendant, that the persons named are his partners , but they must be proved to be such in the usual way. — *Ibid.*

Upon such plea, the burden of proof is on the *defendant__Jewett*vs. *Davis,*C *N. H.*518.

See *Knight*vs. *Dorr,*19 *Pick.*48. — *Geer*vs. *Richmond, Sea.,*6 *Verm.*76. — *Wright*vs. Geer, 6 *Verm.*151. — *Ambler*vs. *Bradley,*6 *Verm. 119.—Lyman*vs *Albee,*7 *Verm.*508. — *Vail*vs. *Strong,*10 *Verm. 457.—Allen*vs. *Sewall,*2 *Wend.*327*—Hoxie*vs. *Carr,*1 *Sumn.*177. — *Horton*vs. *Cook,*2 *Watts,*40. — *M’Arthur*vs. *Ladd,*5 *Hum.*517.— *Conley*vs. *Good,*1 *Bre.*96. — *Pike*vs. *Dashiell, 7 Har.*& 9. 466.— *St. Mary's,*&c., vs. *Wallace,*5 *Halst.*311. — *F.*H.]

(2)

 1 *Bos.*& *Pul.*70, *Scott*vs. *Godwin.*

(a)

**[The rules laid down by the learned judge admit of so many exceptions, as to be hardly entitled to be called general rules. *First, as to plaintiffs.*With respect to actions of tort, such as trespass *guare*clausum, or for taking goods, trover, case for malfeasance, misfeasance, or nonfeasance, and such like actions of tort, it seems clearly and fully established, that if one only, of two or more joint-tenants, parceners, tenants in common, executors, assignees of bankrupts, and others, who regularly ought to join, bring any such actions, the defendant must plead the omission in abatement, and cannot give it in evidence on the general issue, or in any other way, or by pleading in bar, or in arrest of judgment, or though the matter be found specially, or appear upon the face of the pleading of the plaintiff. — 1 *Saund.*291, k, and the numerous cases there cited. — 8 *Johns.*151. — 6 *Johns.*108. — 1 *Johns.*471. —14 *Johns.*426. — And even in actions founded on contract, in some cases, also, the objection can only be taken by plea in abatement. As where the plaintiff is suing in *autre*droit, as executor or administrator, (1 *Saund.*191, g, *h.*— 2 *Bingh.*177,) or is a *feme*covert, and the objection is nonjoinder of the husband, (3 *D. & E.*631,) or that the promise was made by defendant and one of the plaintiffs. — 3 *Caines's Rep.*99. — And in some cases the objection cannot be taken in any way ; as where the person was a dormant copartner, (2 Taunt. 324, 325.—4 *B. & A.*437. — 3 *Stark.*9. — *R. & M.*293,) or an infant, or *feme*covert, (1 *Stark.*25. — 3 *Esp.*76. — 1 *Wils.*89;) or did not seal the deed.—2 *Str.*1146. —1 *Saund.*291. f. 154. *n.*1.—3 *B. & C.*254, 353.-6 *M.*& *S.*75.

Secondly, *as to defendants.*In actions founded *on*contract, the nonjoinder of a co *378contractor can generally be excepted to only by a plea in abatement.-— 1 *Saund.*291, b, n. 4. — 5 *D. & E.*651.—1 *East,*20. — 4 *D. & E.*725.-3 *Camp.*50. —1 *B. & A*224. But if it appear on the face of the plaintiff’s pleadings, the defendant may demur, or arrest the judgment, or bring error, though it is no ground of nonsuit. — 1 Saund. 291.— *C.*154, *South*vs. *Tanner &*Al.—2 *Taunt.*254. — 5 *Burr.*2614.— 2 *East,*313. — 2 *D. & R.*439. — In actions for *torts,*the nonjoinder of a party who was concerned in the tort cannot, generally, be taken advantage of in any way, (1 Saund. 291, e. and *g.*and cases there cited. — 6 *Taunt.*29, 35, 42. —2 *Ch. R.*1.—6 *Moore,*154.—7 *Price,*408. — 3 *B. & B.*54,) although it appear on the pleadings that they were wrong-doers But actions which concern *real*property, materially differ, in this respect, from mere personal actions of tort; for if one tenant in common only be sued in trespass, &c., for any thing respecting the land held in common, he may plead the tenancy in common in abatement. (1 *Saund.*291, *e.*—5 *D. & E.*651.)

In the case in the text, there would seem to be no propriety in admitting the excep tion to abate the process, and put the parties out of court, even if pleaded. The proceeding is not strictly according to the course of the common law, and the Court, in their discretion, *might*well allow a person interested, when discovered, *to be*made a party. — Ed.]