Putney v. Lapham

Metcalf, J. Upon examining the papers in this case, we find that the action submitted to the referees was an action of trespass on the case, and not trespass vi et armis. This fact renders the award obscure. But we understand it, as the parties have construed it in their arguments, namely, to be an award that the plaintiff shall recover one dollar, if, on the facts found by the referees, the action which was submitted to them can be maintained. And the decision of this question depends on two other questions. The first is, whether a reversioner, during the continuance of the particular estate, can maintain an action of trespass on the case for an injury done to the reversion. And the law is clear that he can. Thomlinson v. Brown, Sayer, 215; Jesser v. Gifford, 4 Bur. 2141; Kidgill v. Moor, 9 Common Bench Rep. 364; Woolrych on Window Lights, 67-69. The second question is, whether one of two reversioners can maintain such action without joining the other in the suit. And the law is equally clear that in an action of tort, one of two persons jointly injured may alone maintain an action for the injury, unless the non-joinder of the other is pleaded in abatement; and that, under the general issue, evidence of such non-joinder will not defeat the action, but will merely restrict the plaintiff to a recovery of a moiety of the damage. Gould Pl. c. 5, §§ 111, 112; Thompson v. Hoskins, 11 Mass. 419; Call v. Buttrick, 4 Cush. 345. In the present instance, the papers show that the defendant pleaded the general issue in the court of common pleas, before the case was submitted to referees. We understand that the referees have found that the plaintiff has sustained one dollar damage to his reversion, by the acts proved before them to have been done by the defendant. Exceptions overruled.