Harman v. Whitchlow

concurred. But if a joint tenant, or tenant in common brings an *action alone, and the defendant pleads non culp. and the verdict it appears that they were tenants in common, the plaintiff shall have judgment. For it ought to have been pleaded in abatement at first. But here it appears by the declaration, and in the knowledge of the plaintiff himself.

And judgment was arrested. The distinction taken is, *154that where the tort is an injury to both, they ought to join; but if the injury be private, as chasing the cattle of one he shall have the action alone. 1 H. 5. One brought an action for removing, a boundary, et non allocatur. 47 E. 3. Jones 142. Noy 84.

If the tenant of the land, or a stranger, chases the cattle of a tenant in comnion, who has common there, he alone may have an action. But it is not so here; and the difference is grounded on this rule. Where the injury is equally great to one tenant in common as to the other; there they shall join in a personal action.