Opinion
(1793.)
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 alleged that there was a particular damage to the beasts of the plaintiff, in which he had a special property.
Whistler cited 13 H., 7, 26; 35 H., 6, 36.
If the tenant of the land, or a stranger, chases the cattle of a tenant in common, 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.