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.
Harman v. Whitchlow, 1 N.C. 152, 1 Mart. 152 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 152, 1 Mart. 152
Harman vs. Whitchlow, vel Hammond vs. White.
Trin. 2 Car.
TWO tenants in common, had common in law; Whitchlow, ploughed the land, Harman, one of the tenants in common, brought his action upon the case, and declared that thereby his cattle were in great danger of starving and perishing, and on non culp. it was found for the plaintiff.
Whistler. There ought to be no judgment, for this action does not lie for a tenant in common: and by the declaration, it appears that he had a companion who is not joined with him.
Dorrel, e contra.
Here it is alledged that there was a particular damage to the beasts of the plaintiff, in which he had a special property.
Whistler
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.
Whitlock, J. concurred.
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.