Lane v. Dobyns

McBride, J., delivered the opinion of the Court. Did the Court err in overruling the demurrer to the defendants plea in abatement? In support of the demurrer, reference is made to 1 Chitty’s Plead., 75, 76, where it is stated that “a tenant in common may however in general sue separately; as in ejectment for his undivided share, or in trespass for the mesne profits, or in debt for double value against a person who has held over after the expiration of his tenancy. But a joint action for mesne profits may be supported by several lessor’s of the plaintiff in ejectment after recovery therein, although there were only seperate demises by each.” And 2 T. R., 246, is cited by Mr. Chitty to sustain this proposition. In 8 Cow. R., 308, the foregoing rule lias been examined at length, and the case upon which it is based is shown to be an exception to the general rule, growing out of the circumstances of that case. The general rule is, that tenants in common must join in all personal actions concerning the common property; otherwise a multiplicity of suits might be brought for the same cause of action and against the same party. This would be against public policy. No reason is apparent to make this case an exception to such rule. The judgment of the court of Common Pleas ought to be affirmed, and the other Judges concurring, it is affirmed.