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.1 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.2
Respondeas ouster.
See Chitty’s Pl. (6th Amer. ed.) 99.
See Revised Stat. c. 93 § 12.