Flinn v. Anders, 31 N.C. 328, 9 Ired. 328 (1849)

June 1849 · Supreme Court of North Carolina

31 N.C. 328, 9 Ired. 328

JAMES FLINN vs. TIMOTHY ANDERS.

A count for a forcibla entry may be joined with a count for an assault and battery.

The law permits to each tenant in common a peaceable entry upon every portion of the land held in common, but it does not justify any actual force applied to the person of his co-tenant.

Appeal from the Superior Court of Law of Bladen County, at the Spring Term 1S49, his Honor Judge Caldwell presiding.

The defendant and one Meredith were tenants in common of the tract of land, where the trespass was committed. The plaintiff was in possession of a part of the land, as the tenant of Meredith. While so in possession, the defendant, together with others, who were aiding and assisting him, entered the house, in which the plaintiff lived, and forcibly turned him out. Iu doing so, they committed an assault upon his person. The declaration contained two counts; the first, fora trespass to the plaintiff’s close; the second, for the trespass to his person. The jury were instructed, that the plaintiff was not entitled to a verdict on the first count, and that they could give no damages, except such as arose to the plaintiff, because of the personal injury to him.

The jury found a verdict for the plaintiff on the second count, and from the judgment upon it, the defendant appealed to the Supreme Court.

Strange and D. Reid, for the plaintiff.

W. II. Haywood and W. Winslow, for the defendant.

Nash, J.

It is unnecessary for us to express an opinion as to the correctness-of the charge upon the first count. The defendant, the appellant, does not complain of it and it forms no part of his bill of exceptions.

We cannot well perceive where the error in law lies in the charge upon the second count. There can be. no doubt, that the two counts can be joined ; and there is as little doubt, that one tenant in common of land may commit an assault and battery upon the person of his co-tenant. While the law permits to each tenant in common a peaceable entry upon every portion of the land held in common, it does not justify any actual force ap* plied to the person of his co tenant. The case states, that the defendant did commit an assault and battery upon the person of the plaintiff.

I’dr Cum AM. Judgment affirmed.