#### Alpheus Converse *versus*Judah Ferre and Another.

A owning one fifth part of a mill privilege, and B and C owning each two fifth parts thereof, and the dam being out of repair, it was agreed by them that each should furnish labor and materials in proportion to his share; and that, if any one should fail to perform his part, he should pay to the other, who should do more than his part, his deficiency in money. A expended 200 dollars in the repairs beyond his proportion, owing to the neglect of B in performing his part, C having completed his part It was holden, that A’s remedy was against B only, and not against B and C jointly.

This action was brought to recover from the defendants a sum of money, expended by the plaintiff in repairing a dam across a stream, of which four fifth parts were claimed and used by the defendants, they having a saw-mill and grist-mill carried by said stream, and the plaintiff having a blacksmith’s shop, with a trip-hammer, and other works, moved by the same stream.

At the trial of the cause, which was had, upon the general issue, before the present chief justice, April term, 1813, it was proved by the plaintiff that, the dam being out of repair, he and the defendant *Ferre*began to repair the same; and, before they had proceeded far, they sent for *Wallis,*the other defendant; and it was then agreed by the three that each one should furnish labor and materials in repairing the dam, in proportion to his share in the stream; and that, if any one should fail to perform his part, he should pay to the other, who should have done more than his proportion, his deficiency in money. The two defendants, *Ferre*and *Wallis,*held the said mills by separate titles, each one moiety, and * they used them alternately by weeks. The plaintiff [ * 326 ] expended two hundred dollars in the repairs beyond his proportion, owing to the neglect of *Wallis*in performing his part. *Ferre*having completed his part.

The judge, being of opinion that the agreement was several in its nature, and that it destroyed any implied *assumpsit*of the defendants jointly, as owners of the mills, so instructed the jury nd a verdict was returned for the defendants.

*298The plaintiff moved for a new trial, on the ground of a misdirection of the judge in matter of law.

*Bliss,*for the plaintiff,

contended that the action well lay upon the express agreement proved in the case; but he insisted more strongly that the action was supported on an implied *assumpsit.*(1) The interest of the defendants was a joint one, so far as respected the repairs of the mill-dam, since neither of them could occupy without the repairs being made. If one of two joint owners of a house employ a tradesman to repair it, they are both liable.

*Ashmun*and *Mills*for the defendants.

(1)

 5 *Co.*186, *Slingsby’s*case. — 1 *East,*499.— 1 *Saund.*153. — 1 *ditty on Pleading, 4.*— 1 *H. Black.*236.

Parker, C. J.

Notwithstanding the defendants were the owners, as tenants in common, of four fifths of the dam and stream referred to in the action, yet it appears that they did not use the property in common, but that each used and occupied his share or interest separately. *Ferre*and *Wallis*were no otherwise tenants in common than was the plaintiff, *Converse,*with them.

At common law, no action lies by one tenant in common, who has expended more than his share in repairing the common property against the deficient tenants; and for this reason our legislature has provided a remedy applicable to mills, a species of property which frequently in our country belongs to several proprietors.

The act for the support and regulation of mills (2) provides that, after pursuing the course therein prescribed, the tenant in advance may recover of the tenant in arrear the balance justly [ * 327 ] due from him for the repair of the joint property. * This statute, however, was not pursued in this case; and the plaintiff has no remedy by action, unless he can found it upon some express undertaking of the defendants to pay. He has sued them upon a joint promise; but the evidence shows that the undertaking was several, each for his own deficiency, after the repairs should be completed. *Ferre,*one of the defendants, performed his engagement ; *Wallis,*the other defendant, neglected to perform his. The mutual promises between these parties were lawful and obligatory; and the plaintiff should have sought his remedy according to his contract, without endeavoring to implicate *Ferre*for *Wallis’s*part of the expense of repairing the dam. At any rate, there was no joint promise to this effect, and no such promise can now be implied according to the principles of the common law. *(a)*

*Judgment on the verdict.*

(2)

*Stat.*1795, c. 74.

(a)

*Carver*vs. *Miller,*4 *Mass. Rep.*559. — *Doane*vs. *Badger,*12 *Mass. Rep.*65 — *Swasey*vs. *Little,*7 *Pick.*296.