Opinion
(June Term, 1849.)
1. A count for a forcible entry may be joined with a count for an assault and battery.
2. The law permits each tenant in common a peaceable entry upon every portion of land held in common, but it does not justify any actual force applied to the person of his cotenant.
APPEAL from the Superior Court of Law of BLADEN, at Spring Term, 1849, Caldwell, J., presiding.
Strange and D. Reid for plaintiff.
W. H. Haywood and W. Winslow for defendant.
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. In doing so they committed an assault upon his person. The declaration contained two counts: the first for a 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.
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 (329) 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 cotenant. 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 applied to the person of his cotenant. The case states that the defendant did commit an assault and battery upon the person of the plaintiff.
PER CURIAM. Judgment affirmed.