
    George W. Morey vs. The Whittenton Mills.
    A judgment of the court of common pleas, on a plea in abatement to a complaint under the mill act, is within the provisions of St. 1840, c. 87, j 5, as to pleas in abatement, and cannot be brought before this court by exceptions, writ of error, er appeal.
    In this case, which was a complaint under the Rev. Sts. § 116, to recover compensation for damages occasioned by flowing the complainant’s land by the respondents’ dam, the respondents pleaded in abatement, that if any such dam was kept or maintained, or such damage done, as alleged in the complaint, it was by the respondents jointly with certain other persons named; and that such persons should have been joined in the complaint as respondents. To this plea there was a general demurrer and joinder, on which the court of common pleas gave judgment for the respondents, and the complainant appealed.
    
      T. D. Eliot, for the complainant
    
      No argument was made for the respondents.
   By the Court.

This case presents a single point of prac-

tice under the jurisdiction act, St. 1840, c. 87. It was a complaint in the court of common pleas for flowing; plea in abatement, the non-joinder of other parties as defendants; demurrer thereto, joinder and judgment for respondents; from which the complainant appealed. The jurisdiction act, § 4, in allowing questions of law to be brought before this court, by exceptions or writ of error, expressly excepts those arising on pleas in abatement; and, as more directly applicable to the present case, § 5, allowing a party aggrieved by any judgment, founded on any matter of law apparent on the record, to appeal from the court of common pleas to this court, expressly excepts judgments on pleas in abatement. This case is within the exceptions in the statute; the appeal was improvidently taken and allowed, and the case must be remanded to the court of common pleas.  