#### TIMOTHY ANDERS vs. JAMES MEREDITH et al.

June 1839

One tenant in coupmon may have an action on the case against his coten-ant for any act done on the. land amounting to waste or destruction, hut he cannot in any event have an action of trespass quart clausum fregit against him, nor against any other person entering under his authority.

An order of the Superior Court, either allowing or rejecting amotion for an amendment, where the court has the power to amend, is a matter of discretion, and cannot be appealed from.

This was an action of trespass ojiare clausum fregit, tried at Bladen on the last circuit before his Honor Judge Pearson, upon the pleas of the general issue and liberum tenementum. The proof in the cause was that Meredith, one of the defendants, was either entitled to a fee in severalty in the locus in quo; or he was entitled as tenant in common with the plaintiff and others: That he, and the other defendants under his direction, entered upon the land, and in the absence of the plaintiff, broke open the door of a house and entered and took therefrom a loom and some other articles of personal property.

After the evidence had closed and the arguments of counsel commenced, the plaintiff’s counsel moved to amend the declaration by adding a count for the trespass to the personal property in taking the loom and other articles.,, This motion was objected to by the opposite counsel and rejected by the court.

It was insisted for the defendants that Meredith had made out a title in severalty; but that if he had failed in that, and was but a tenant in common with the plaintiff, he, and the other defendants acting under his authority, had a right to enter, and that the plaintiff could not maintain this action. The plaintiff insisted that being a tenant in common and in possession, he could maintain this action against a co-tenant who entered in the manner proven. ■

His Honor charged the jury that whether Meredith had the title to the land in severalty or only in common with the plaintiff, the latter could not recover in this action.— *200There was a verdict and judgment for the defendants, a'nd the plaintiff appealed,

Strange for the plaintiff. 1

, 7 7 No counsel appeared for the defendant in this court.

Daniel, Judge,

after stating the case, proceeded: We are of the opinion, that the charge of the Judge was correct.— The possession of one tenant in common is the possession of the other; each' has a right to enter upon the land and enjoy it jointly with the others. If one tenant in common destroys houses, trees, or does any act amounting to waste or destruction in woods or other such property, the other tenant may have an action on the case against him. But he never can, in any event, have an action of trespass quare clausum f re-git against his co-tenant. Co. Lit. 200, 1 Thomas Co. Lit. 785, 1 Chitty’s Gen’l. Prac. 271. The other defendants were not trespassers; as they entered and acted by the direction of Meredith.

The rejection by the Court of the plaintiff’s motion to a~ mend the declaration, was a matter in the discretion of the Judge; and it is not a ground of appeal to this Court. It may be proper to remark that as no objections were taken at the trial to the sufficiency of the pleas, we understand the note of the plea of liberum tenementum (afterwards to be drawn out in full) to mean that the locus in quo, was the freehold of Meredith, and that Causey entered with him and under his authority. We think the judgment must be affirmed.

Pee. Curiam. Judgment affirmed.