Cain v. . Wright

50 N.C. 282

• Court: Supreme Court of North Carolina
• Decided: June 5, 1858
• Status: Published

Opinion

Pearson, J.

An action of trover, or any other action, ex delicto for damages, may be maintained by one of several tenants in common, unless the nonjoinder be pleadedin abatement, and the plaintiff recover his aliquot part of the damages, for the reason that damages are divisible. It is otherwise in the action of “ detinue.” Treating it as an action ex contractu, it falls tinder a well-settled general rule, and treating it as an action ex delicto, we think it cannot be maintained by one of several tenants in common, and the objection may be taken advantage of, upon the general issue, or by demurrer, or motion in arrest; for in detinue the specific thing is recovered which is not divisible / so the plaintiff cannot recover his aliquot part, and if allowed to recover at all, must get the whole, which.would be more than .he is entitled to.

The same reason applies to the action of replevin ; and although'it is an action ex delicto, one of several tenants in common cannot maintain it. The reason and authorities cited in Hart v. Fitzgerald, 2 Mass. Rep. 509, to which we were referred on the argument, fully support this distinction.

As the first point is with the defendant, we are not at liberty to enter upon an interesting question presented by the second. The only subject of the gift, being a negro man, does-not that prevent the limitation over- from being too remote by confining it to a life in being ?

There is no error.

Pee Cueiam, Judgment affirmed.