
    Reuben Baker versus Enos Jewell.
    Where one is answerable in a personal action to two or more, jointly, and settles the dispute with one of them, the cause of action is severed, and he shall still answer to the rest
    A want of proper plaintiffs in actions upon contract, is an exception to the merits, and is to be taken advantage of, either upon demurrer, in bar, or on the general issue, but not in abatement
    A false and fraudulent affirmation, made by the seller of an estate, to two or more purchasers, is, in its nature, a several tort to each, and they cannot join in an action therefor.
    This was an action of the case, in which the plaintiff declares that the defendant, being the owner of a certain saw-mill and dam, to induce the plaintiff to purchase one eighth part thereof, falsely and fraudulently affirmed and promised to the plaintiff that the said mill and dam, were well and substantially built; that the plaintiff thereupon purchased the eighth part; and that, in fact, the said mill and dam were not well and sufficiently built, but as soon *as a head of water was raised against the dam, [ * 461 ] it gave way, and was carried off by the force of the water, whereby the mill became useless to the plaintiff, and he was put to great expense, &c.
    The defendant pleaded in abatement, that the promise, if any such was made, was made to the plaintiff jointly with one Brown Baker, who is still living, and not to the plaintiff alone; and because the said Brown Baker is not named in the writ, he prays it may abate
    The plaintiff replied, that the said Brown Baker sued his action against the defendant for the damage aforesaid sustained by him as owner of one fourth part of the said mill, and thereupon such proceedings were had, that at the term of this Court holden here in September, 1806, he recovered judgment against the defendant.
    To this replication the defendant demurs generally, and the plaintiff’ joins in demurrer.
    
      [Note. — It appears from the record of the action of Brown Baker vs. Jewell, that it was submitted by a rule of this Court to referees mutually chosen by the parties, and that the judgment was rendered upon their report.]
    The present action was submitted without argument to the decision of the Court, whose opinion was delivered by
   Parsons, C. J.

The question before the Court, in this case, is upon the sufficiency of the plaintiff’s replication to the defendant’s plea in abatement.

Whether this action arises from a contract or from a tort, we consider the law to be well settled, that if one man is legally answerable, in a personal action, to two or more persons jointly, if he will settle and adjust the controversy with either of them, so that he has no longer an interest in the dispute, this is a severance of the cause of action, as to any or all of the parties. Upon this principle, when the defendant permitted Brown Baker to proceed alone for his damages, and referred his demand to referees, on whose report Brown Baker had judgment, he in law agreed to a severance of the demand for damages; and cannot now take ex- [ * 462 ] ception * to the plaintiff's writ, because he has sued without joining Brown Baker, who is already satisfied for his damages.

If, therefore, the plaintiff ought prima facie to have joined Brown Baker as a co-plaintiff, yet, from the facts disclosed in the replication, it appears to us to be a sufficient answer to the defendant’s plea in abatement, and the interlocutory judgment must be entered. [ Vide 2 Mass. Rep. 405, Austin vs. Walsh.]

It may be observed that, if this action be founded on contract, there is another exception to the plea. For the want of the proper plaintiffs in actions on contract, is an exception to the merits, and is to be taken advantage of, either on demurrer, in bar, or on the general issue, but not by plea in abatement. [ Vide 1 Bos. & Pul. 67, Scott vs. Godwin.]

The action is, however, substantially founded on a tort, as the false and fraudulent affirmation is the gist of it; and the two Bakers could not have legally joined in the suit; as this affirmation, although made in the hearing of and directed to both, yet in its nature is several; as one of the purchasers might have been deceived, and the other not, from his having a knowledge of all the facts attending the building of the mill and dam, or from some other cause. But if the affirmation was part of the contract in the sale, then it must be proved by some memorandum in writing, signed by the defendant or his agent.

Respondeas ouster awarded.  