Page:United States Reports, Volume 24.djvu/310

302 the Court would be correct, for it is a general rule that no recovery can be had unless all the plaintiffs are competent to maintain the suit. If, therefore, the title fails as to one, it is not maintainable in favour of the others. The proof does not, under such circumstances, meet the case set up in the declaration. But, framed as this exception actually is, the direction given by the Court is, in its terms, erroneous. It was not necessary to prove that all the plaintiffs are the proper heirs at law of J. B. Chirac. The action was maintainable if the husbands were not the proper heirs of J. B. Chirac; for, in right of their wives, they were proper parties to the suit. The fourth exception is, therefore, well taken.

The fifth exception is founded on the supposed variance between the writ and declaration, by the amendment, introducing the husband of Maria Bonfils upon the record. The Court held this variance fatal under the general issue. It is observable, that this amendment was made under an order of the Court, and was not objected to, on the record, by the defendant; and that the general issue was subsequently pleaded. It has been decided, in this Court, that the allowance or disallowance of amendments is not matter, for which a writ of error lies here. Variances between the writ and declaration, are, in general, matters proper for pleas in abatement; and if, in any case, a variance between the writ and declaration can be taken advantage of by the defendant in the Court below, it seems to be an established rule, that it cannot be done except