
    William Sumner versus Edmund Tileston et al.
    
    *n case against three for erecting a dam by means whereof the plaintiff’s mills were obstructed, two of the defendants plead in abatement the death of the third pending the suit. Plea held ill, for that it did not appear by the pleadings that the defendants were charged b-y reason of their holding real estate as joint tenants or tenants in common.
    This was an action of the case against E. Tileston, M. Hollingsworth and A. Fuller. The declaration alleged that the defendants wrongfully did erect cí a certain dam ” in and across Neponset river, and <£ did shorten and heighten their said dam,” by means whereof the water was penned up so as to flow back and obstruct the wheels of the plaintiff’s mills.
    The defendants pleaded jointly the general issue and the statute of limitations. At an adjourned session of this Court in June 1826, Tileston and Hollingsworth pleaded in abatement the death of Fuller since the adjournment in February preceding ; to which plea the plaintiff demurred.
    
      Richardson and Cushing,
    
    being called on by the Court to support the plea in abatement, said that the three defendants were tenants in common of the dam; that this was stated in substance in the declaration ; that if they were chargeable at all, it was in respect of their real property, and consequently they must all have been joined in the action, and by the death of one of them the action abates. There are cases of tort in which all the tortfeasors must be joined, and yet on the death of one the action will survive against the rest; but it is otherwise in this particular case, where the act of one is the act of all, md all or neither must be acquitted or convicted. 7 H. 4. 8. pl. 10; Mitchell v. Tarbut, 5 T. R. 651; 1 Chit. Pl. 71, 76 ; 1 Wms’s Saund. 291 e, note 4; Spenser v. Rutland, Yelv. 209; Varnum v Abbot, 12 Mass R. 480; Farr v. Denn, 1 Burr. 362
    
      
      Nov. 4th.
    
    Churchill, for the plaintiff.
   Putnam J.

delivered the opinion of the Court. It seems to be settled, that where only one tenant in common of real estate is sued in trespass for any thing done in regard to the estate in common, he may plead that matter in abatement; 1 Chit. PI. 71, [6th Amer. ed. 95, 96, 100;] and the coun sel for the defendants contend that this rule applies to the case at bar. We think however that it should appear from the pleadings, that the defendants were charged by reason of their holding certain real estate as joint tenants or tenants in common. In the case cited from 7 H. 4. 8. the defendant, the abbot of Stratford, was sued for not repairing a wall upon the bank of the Thames, which he ought to have repaired by reason of his holding certain land, for the default of reparation whereof the lands of the plaintiff were overflowed. But in the case at bar it does not appear that the defendants are charged as tenants in common or as joint tenants. The plaintiff declares that they have wrongfully prevented the water from running off from his mills, by making a dam below across the river, and to this the defendants plead the general issue. It does not appear that their defence depended upon the title to the land where the plaintiff alleges that they built the dam, and it may turn out on the trial, that they defend on the ground that they never did the act of which the plaintiff complains. The plaintiff charges them as wrongdoers. The action is merely ex delicto, and the title of the defendants would not be affected by a verdict upon the issue.

The plea in abatement states that one of the defendants died after the adjournment from February and before the sittings in June. Now that fact is immaterial, because in actions for torts the plea of the general issue by many defendants is in its legal effect several. One only or more may be convicted and the rest acquitted, or they may be all convicted or all acquitted. We are of opinion that the death of one under these circumstances is not a sufficient cause to prevent the plaintiff from proceeding against the others.

Respondeas ouster. 
      
       See Chitty’s Pl. (6th Amer. ed.) 99.
     
      
       See Revised Stat. c. 93 § 12.
     