Opinion
(June Term, 1858.)
An action of detinue cannot be maintained by one of several tenants in common of a chattel, even though the defendant should fail to plead the nonjoinder of the others in abatement, and the objection may be taken upon the general issue or by demurrer, or by motion in arrest of judgment.
ACTION of DETINUE for the recovery of a slave Louis, tried before MANLY, J., at the last Spring Term of Bladen Superior Court.
No counsel appeared for the plaintiffs in this Court.
C. G. Wright, for the defendant.
The slave in question had been bequeathed to Martha McMillan, by the will of James Cain, in the following words: "I give and bequeath unto my daughter, Martha McMillan, one negro boy named Louis, and all the property heretofore given to her by me; but if she dies without issue, the property shall return to my other children, and be equally divided among them."
At the death of the testator, he had living, beside the legatee Martha, eight other children, to wit, Ann, Sarah, Elizabeth, Mary, James, Samuel, William and Jonathan, who have since died, with the exception of William and Samuel, the plaintiffs.
On the death of Martha without issue, and previously to the bringing of this suit, a demand was made by the plaintiffs of the defendant, for the slave Louis, which was refused to be delivered up.
The defendant claimed, through a bill of sale from the husband of Martha McMillan, conveying the absolute interest.
The recovery was resisted on two grounds:
1st. That this particular form of action cannot be maintained by two tenants in common of slaves, without the joinder of the other tenants.
2nd. That Martha McMillan, under her father's will, took an absolute estate in the negro in question; the limitation over to the other children being too remote.
There was a verdict for the plaintiffs, subject to be set aside, and a nonsuit entered, in case the Court shall be of opinion with the defendant upon the above points.
Upon consideration of the questions reserved, the Court being of opinion with the defendant, ordered a non-suit according to the agreement, and the plaintiffs appealed.
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 pleaded in 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 contract, it falls under a well-settled general rule, and treating it as an action ex delict, 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.
PER CURIAM, Judgment affirmed.