#### George Barstow and Another, Plaintiffs in Error, *versus*James Fossett.

*A*declaration in *assumpsit,*alleging that the defendants, *A*and B, being owners of one fourth part of a certain vessel, and that C, D, &c., being owners of the other three fourth parts, the several other owners individually in their several proportions, and the defendants jointly, in their said proportion, promised the plaintiff to pay him for certain repairs of the vessel by him performed, and averring that the other owners had paid, but that the defendants had not paid, — was holden good on error.

Error upon a judgment of the Circuit Court of Common Pleas holden here in August, 1812, rendered in an action brought into that court by appeal from the judgment of a justice of the peace for this county.

The original action was *assumpsit,*brought by *Fossett*against the plaintiffs in error, in which he alleged that the original defendants, with four other persons named, were owners of a certain sloop, and set forth the shares of each of the owners, *viz.,*the defendants as joint partners of one fourth part, &c., and that he, at the request of the owners, had performed certain services in and about the said sloop, in consideration whereof the said owners respectively promised to pay him, &c. Yet, though requested, the defendants had not paid, &c.

In a new count filed in the Common Pleas, the promise is thus alleged, *viz.:*“ The above-mentioned owners [naming those other than the defendants] individually, in their several [ * 251 ] * proportions aforesaid, and the said *G.*and *B.*[the defendants] jointly, in their said proportion, promised, &c., yet though requested, &c., and although the said other owners had severally paid their proportionate parts, &c., the defendants had not paid,” &c.

There was also a third count for money laid out and expended by the plaintiff for the use of the defendants.

The errors assigned were

1. That the plaintiff had declared on a promise made by the defendants and four other persons then living, without making the said other persons co-defendants and parties to the suit.

2. That the defendants were sued jointly, and declared against on two supposed promises.

3. That, in the first count, it appears a joint promise (if any ever existed) was made by the said owners, without any allegation of an adjustment and severance by the said owners.

4. That the plaintiff, at the Common Pleas, made, and by leave *233of said court filed, a new declaration, to which the defendants pleaded in abatement; but no judgment had been awarded on the said plea.

5. That the said plea in abatement (if any judgment was thereon awarded) was overruled by said court, and the defendants were adjudged to answer over to the action.

6. The two first counts being bad, and the verdict being general, and the judgment upon the whole declaration, the same is erroneous.

[Note. — The allegation in the plea in abatement was, that it appeared, by the plaintiff’s own showing, that there were other persons liable, who ought to have been joined. The plaintiff demurred, and the defendants joined in demurrer to this plea.] *(a)*

*Wilde,*for the plaintiffs in error.

Although two or more may bind themselves jointly, or jointly and severally, in which case the obligee may sue them all jointly or severally at his election, yet, if three or more bind themselves jointly * and [ * 252 ] severally, the obligee cannot sue two of them jointly. (1)

In an action against part owners of a ship by a freighter whose goods had been spoiled, it was holden, that the action was *ex quasi contractu;*and it appearing in evidence that there were other owners who were not sued, the defendants had judgment, because all the owners were not joined. (2) In this case, it appeared, from the plaintiff’s own showing, that others were liable, which is still stronger. (3)

If, on a plea in abatement, there be a judgment of *respondeos ouster,*and the defendant plead in chief, and .there is a verdict for the plaintiff, yet the pleadings, &c., must be entered of record, or it will be sufficient cause for arresting the judgment. (4)

*Orr,*for the defendant in error.

The promises are alleged to be several, and after verdict they must be presumed to have been so proved. The plaintiffs in error were sued as a firm, and were, to all legal intents, on the footing of an individual. If two copartners, by their name of copartnership, and a third person make a joint and several promissory note, the firm are to be considered as one person, and may be sued as a several promisor. It is no matter in bar, however, that others might have been joined. If all the owners of a ship are not sued upon any contract relating to the *234ship, the defendants can only avail themselves of the objection by plea in abatement. (5), *(b)*

In both the counts objected to, a sufficient consideration, and a promise to pay the amount due, are sufficiently alleged. If any error is to be found, it must arise either from surplusage or ambiguity. But surplusage does not vitiate; and ambiguity is cured by the verdict. (6)

No plea in abatement was offered within the rules of the common law, or of our statute. The demurrer was therefore superfluous It operated merely as a *motion to*reject the plea; in which case no entry was necessary. The plea was not cognizable by the Court, being expressly excluded by the statute, without any judgment in relation to it.

(a)

*Otis*vs. *Warren,*14 *Mass. Rep.*239.

(1)

*Bac. Abr.,*tit. *Obligations,*D, 4.

(2)

*Salk.*440. — 3 *Mod.*321.

(3)

*Hob.*199. — 6 *D. § E.*768. — See, also, 2 Str. 819.—2 Lord *Raym.*1544. - *Cro. Eliz.*913. — *Noy,*19.

(4)

 1 Lord *Raym.*329, 510. — *Carth.*499. —12 *Mod.*274.

(5)

*Abbot, P.*1, c. 3, § 13.

(b)

*Ruggles*vs. *Patten,*8 *Mass. Rep.*480. — *Converse*vs. *Symmes,*10 *Mass. Rep.*377. — *Hathaway*vs. *Russell,*16 *Mass. Rep.*474.

(6)

*Cowp.*825.— 5 *Mass. Rep.*306.

*Per Curiam.*

The judgment is affirmed, *(a)*

(a)

*Stetson*vs. *Tobey,*2 *Mass. Rep.*521. — *Avery*vs. *Inhab. of Tyringham,*3 *Mass Rep.*160.— *Wells*vs. *Prince,*4 *Mass. Rep.*67. *—Fuller*vs. *Holden,*4 *Mass. Rep.*498 — *Moore*vs. *Boswell, 5 Mass. Rep. 306.*— *Riddle*vs. *Prop's Lock and, Can. Mer River,*7 *Mass. Rep.*169. — *Kingsley*vs. *Bill,*9 *Mass. Rep.*198. — *Crooker & Ux.*vs *Whitney,*10 *Mass. Rep.*316. — *Hopkins*vs. *Young,*post, 302. — *Richardson*vs. *Eastman,*12 *Mass. Rep.*505.