#### JOHN McPHERSON & AL. vs. ALEXANDER McPHERSON & AL.

In the aclion of account there are two judgments; first, that the plaintiff and defendant account together; secondly, that the plaintiff or the defendant recover the balance found to be due from the one to the other.

In order to obtain the first judgment, it is not necessary for the plaintiff to shew that the defendant is indebted to him as bailiff, $-c. He need only shew that he is bound to account with him as bailiff, or as a tenant in common, who has been in the pernancy of the profits, and the right to this judgment can only be barred by proof on the part of the defendant that he has already accounted, or by a denial, uncontradicted on the part of the plaintiff, of the existence of any such, relation between the parties, as gives the plaintiff a right to call for an account.

Where there are several tenants in common, some of whom have been in the receipt of profits and some not, each of the latter must bring his own action of account for what he claims — they cannot bring a joint action in the names of two or more, to recover their several shares,

So where several tenants in common receive the profits, unless it can be shewn that they received them jointly as partners, an action of account cannot be brought against them jointly, but each must be sued separately. If either of these cases appear upon the trial, the Court will order a non-suit Every tenant in common, who has been in the enjoyment of the property, is liable to account; and it is not material what was the mode of enjoyment, whether he used it merely for shelter, or as a means cf supporting himself and family, or made money by selling the products, or received money as reut. 1

The case of Powell v Mathis, 4 Ire. 83, cited and approved,

Appeal from the Superior Court of Law of Cumberland County, at the Spring Term 1850, his Honor Judge Settle presiding.

*392This is an action of account, brought by the plaintiffs, alleging that the defendants were tenants in common ■with them of a certain tract of land, which had descended to them from a common ancestor, and received more (han their proper share of the rents, and profits, for which they had refused to account.

The proof was, that Alexander McPherson died more than twenty years ago, leaving his widow and eight children — all of whom had gone off and left their parents, except the three daughters, who, with their mother, remained on the land until 1S3G, when the defendant, Alexander, purchased a place of his own, and moved off, leaving his sisters still there.

It appeared, that in the year 1311, Mrs. McPherson died: That in 18 — , Mrs. Rhodes, formerly Margaret McPherson, died, leaving a husband, and several chidren suviving her: that in the year 1S3S, Hugh, one of the brothers diedintestate, and without issue,or ever having been married : that in the year 1839 Neill, one of the brothers, released all that, interest in the land which he had acquired by descent from his father, to his two sisters the defendants, and that, by a deed without date, and it did not appear when made, he released his interest as heir at law of bis deceased Brother Hughes, to one of the plantiffs; that in the year 1831, Martin McPherson released his interest as heir at law' of his father, to his sisters the defendants, but it did. not appear (hat he had over released his right as heir at law of his deceased brother Hugh. — ■ It also appeared that Rhodes, the husband of Margret, died in 1848, pending this action, and that his administrator was made a parly plaintiff in his stead.

The defendants denied that they were the tenants in common of the plaintiffs or that they were their Bailiffs; and also pleaded and relied on the statute of limitations. They further objected to the plaintiffs’' recovery, upon the ground, that although one tenant in common may maintain *393an action of account, for bis separate share, against any one or more tenants in common, who jointly receive more than his or their share of the rents and profits of the common property; yot he cannot bring a joint action against several cotenants, who, without any concert, each takes more than his share of the common profits. Again, the several tenants in common cannot join in a common action against several other tenants in common, without some contract, whereon to have such an action. Anda-gain, that if severa! tenants in common may join in an action against several others, who occupy the property, all the tenants in common, out of possesion, must join in such action againl those in possession, and that, in this case, Martin McPherson, who has clearly not parted with his interest as heir of his brother Hugh, and Neill, who had not been proven to have parted with his interest before the bringing of this action, were not parties. It was further objected, that the mere perception of the products of the land, not turned into money by sales, by one tenant in common, would not enable his cotenant to maintain the action against him. It was farther objected, that Rhodes and his administrator were not the proper parties in this action. It was further objected, that no demand had been made before bringing the action.

llis Honor charged, that if the defendants, or any of them, had received more than their share of the profits of I he land either in money or fruits of the earth or otherwise, within three years before the bringing of this action, the plaintiffs were enthied to their verdict : That merely living and breathing on the land would not subject the defendants to account., if they did not exclude the plaintiffs from alike enjoyment: Nor would the use of no more than their proportionate share of the land in any way subject them. But if they used more than their own share of the land, and derived any thing from such use, they would be liable.

*394The plaintiffs’ counsel then asked the Court to charge the jury, that, if one of the defendants was seen bringing wood from the land to market apparently to sell, and the jury believed'it was so sold, the defendants would be liable. His Honor declined so charging, but said, mi loss it appeared that the defendants or one of them had received more than his own share, the action would not lie.

A verdict being rendered generally for the defendants and judgment rendered thereon, the plaintiffs appealed.

Banks, with whom were Mullins, W. Winslow and Kelly, for the plaintiffs,

submitted the following argument :

Three several and distinct technical objections are raised by the defendants’ pleadings ; either of which, it is contended, will prevent the plaintiffs obtaining a new trial, notwithstanding there may be error in the Judge’s charge.

It is said, 1st. There is a non joinder of plaintiffs. 2nd. There is a misjoinder of plaintiffs. 3rd. There is a mis-joinder of defendants.

On the first point. It is contended by the defendants, that Martin McPherson should be a party plaintiff, and that the non joinder is cause of non-suit.

On the part of the plaintiffs, it is admitted that the non-joinder of a party, who ought to sue, “is fatal on demurrer, or on motion in arrest of judgment; or on error; or by plea in abatement; or as a ground of non suit on the trial; as a variance upon non estfactum, if the action be a specialty; or, if it be upon any other contract, upon the plea of “general issue.” ” 1 Chit PI. 14.

In this cause there has been no “demurrer,” no “plea in abatement. The action is not upon a specialty. Hence the defendants cannot claim the benefit of a variance.— They have obtained judgment, and neither wish to move *395for its arrest, or to have it vacated for “error,” and could not, if they would — the plaintiffs being the appellants.

This narrows the question down to one single point— Can the plaintiffs in this action be non suited, on the plea of “general issue ?” It is submitted they cannot, for the following reasons:

In an action of account, there is no“general issue.” 1st Chitty’s PI. 524. In an action of account, there is not, and never was any “general issue.” Pulling on Mercantile Accounts, 120, 121.

It is submitted further, that as Martin McPherson was unwilling to join in the action as plaintiff, there was no process of compulsion : and he could not be sued as a defendant, because the evidence shows he was not in pos* session.

The following cases are submitted, as authority, to justify the positions assumed.

“A. alone, declared against B, as bailiff of 3. It was held good ; for perhaps A., only, entrusted his share to B. 1st Comyns Digest Accompt. 122, E. 12. 1st. Viners Ab. sec. 20, 145.”

Again — “In an action of account by A. against the defendant as bailiff of one; it appeared by the plaintiff’s own showing, he was bailiff of two. It was held good, for there was no repugnancy in the counts, and it might be mischievous, if one tenant in common could not have his action, without the other joining.” Cro. Jac. élO. 1 Vin.Ab. sec. 7, 176.

There is “no repugnancy in the count,” for if he was “tenant in common” and bound to account with three, so is he bound to account with two.

To the second objection, viz : That there is a misjoinder of plaintiffs — the suit being in the name of two — when only one should have sued,

It is insisted by the plaintiffs, that “.tenants in common,” may in this action sue jointly, or severally, at their *396option ; and it is contended, that, in cases of misjoinder, if the objection appear on the face of tiie pleadings, advantage of it can only be taken “by plea in abatement.” “demurrer,” “motion in arrest of judgment,” or by “writ of error,” 1st Ghitt.y PI. 484. 1st. Saunders Pl. Eo. 14. In this case the objection of misjoinder appears upon the pleadings, and, an neither of the above remedios can be applied to this case, it follows, that the second objection fails, as the statute of Jeofails after verdict cures defects. It is admitted, that incases of misjoinder, “if the objection do not appear upon the plaint¡¡iV pleadings, it will be ground of non-suit at the trial.” 1st Saunders Plead. Eo. 14.

In North Carolina, tenants in common, (contrary to the rule in England) may recover in an action of ejectment on a joint demise. Nixon v. Potts 1 Hawks 402. Two or more tenants in common may recover in an action of ejectment, though one or more, may be omitted. Bj'onson v. Paynter, 4 Dev. & Bat. 393. From which a rule may be deduced ; “that tenants in common may sue jointly ov severally at their option.”

But there is a third objection. The misjoinder of defendants. The declaration being- against three jointly, and the proof is they are tenants in common, seized, as issaid, according to their interest in severalty.

It is submitted by the plaintiffs in reply to this objection: That the three tenants in possession are seizedper my el per tout-, not simply for their own benefit, according to their own interest, but they are jointly seized for the benefit of those who are out of possession, as Well as for themselves. And as the possession of the three is the possession of the whole, they should, as a whole, account with those for whom they hold.

That co bailiffs may be called to account, see 1st Peters, dorfs Ah, 100, 3rd Wilson 73 to 118.

*397But it is said the following rule is inflexible — “If too many persons be joined as defendants, in an action on a contract or specialty, if the objection do not appear on the plaintiffs’ pleadings, the plaintiffs may be non-suited at the trial, or, if the objection appear on the pleadings, the defendants may demur, move in arrest of judgment or bring error.” 1st Chitty 50. 1st Saunders Plead, and Ev. 14.

It is submitted, that if an objection exists at all, it pears on the pleadings, and yet the defendants have neither demurred, moved in arresto?judgment nor craved a writ of error. In failing to do so, they have waived the advantages prescribed in the rule. It is clear, they cannot claim the benefit of a variance, for the action is not on a specialty. On this point as on the first, they must rely on the plea of “general issue,” and we have before endeavored to show that there is no such plea, the pleas being all special.

If, however, the Court shall be of opinion, that tenants in common should account severally — and is of the further opinion, that in an action of account there is a plea of “general issue” — then and in that event, it is admitted the plaintiffs should be non-suited, unless the act of 1789, Rev. Stat chap. 31, sec. 89. includes this case.

The construction of this statute, hitherto, has been, that where several were sued jointly, the judgment might be several. Brown v. Clary, 1 Hay. 107. Davis v. Wilkinson. 1 Hay. 333 ; and in Sharp v. Jones and Winborne, 3rd Murphy 30(5, the Court uses the following language:

‘ It has been decided in this Court, that under the broad expressions of the act of 1789, if an assumpsit be brought against two, the jury may find against one, and in favor of the other, thus severing by their verdict & joint contract, upon which the suit was brought.”

It is therefore insisted that the Equity of this Statute may well be extended to “tenants in common,” especially *398in the action of account, which possesses equitable features — an action in which there are two judgments, the last of which is predicated upon the question, submitted to the auditors, “ Who is in arrears ?” and, in answering this question, they are at liberty to find a surplusage against the plaintiffs, or a balance in their favor, as the case may be. 1st Seho. N. P., note, page 9, 1st Arch'd N. P. 212, 1st Vin. Ab. 167.

A bill in Equity is a “mere substitute for the action of account.” Wagstajf v. Smith, 4 Ire. Eq. 1.

From this it follows, Equity and Law have concurrent jurisdiction, and the same rule for entering up judgment should prevail. 2 Bur. 1077. Pulling on Mercantile Accounts, 124.

The plaintiffs think the correctness of these several propositions will be illustrated by a brief analj sis of the form of the action, and an abstract of the reasons assigned for a new trial.

At common law the action of account lay only against a “guardian in socage,” bailiff, or receiver, and in favor of trade between merchants. Bul.N.P.\21. 1 Ardid

N. P. 196. IstSelw. N. P. page 1. 1st Bac. Ab. Ac-compt. (A)

But by Statute 3 and 4th Anne, ch. 16, re-enacted Rev. Stat. chap. 21, sec, 104, the action is extended to tenants in common, and one may sue the other “as bailiff,” for receiving more than comes to his just share and proportion.”

In this action there are t wo j udgments — the first is amere interlocutory rule — “quod computet.” The cause is then referred to auditors, on the question, “Who is in arrears?” Saunders v. Godfrey, 3 Wilson 88. 1st Sello. N. P. (note) page 9.

The parties come to an issue on the account, before the auditors. The Court cannot intermeddle in the account, until the auditors report. They may find a surplusage *399in favor of the defendants, as well as a balance against them, but if the defendants be found in arrears before the auditors (and no exceptions are filed and sustained,) the plaintiffs shall have final judgment, “quod recuperent.” 1st. Vin. Ab. sec. 13, 172, sec. 21, 174, 167 and 16S. .1st, Arch’d N. P. 212.

The reason why it is necessary for the plaintiffs to aver in their declaration, that they are “tenants in common,” and the “defendants have received more than their share of the profits,” is, that the auditors, who are judges of record, and take notice of the pleadings, may learn therefrom, that the action is brought under the statute, and not at common law, and that the defendants are only liable for the actual profits, and not those they might have made, and for the further reason of notifying them, that, under the statute, the plaintiffs are entitled to the defendants’ oath, which they are not entitled to at common law; and lastly, that they may allow to the defendants all reasonable coats and charges incurred in the management of the estate. Wheeler v. Horne, Wills. Rep. 210. 3 Chilty’s PI. 1297-8, (Declaration.) 1 Com. Digest 127, E. 12.) 1st Viners Ab. (T.) sec. 3.

The auditors are empowered to “administer an oath,” and examine the parties touching the matter in question,and we know of no plea that can be pleaded before a jury in this action, which puts in issue, whether the defendants have received more than their share of the profits or not; hence there is no “general issue.” 1 Bac. Ab. Note, Account, (D.) Rev.Stat. ch. 31, sec. 104. 1 Chitty PI. 524,. 3 Chitty PI. 1298.

As the jury can award no amount, nor assess any damages, why should evidence to that effect be required ? The action is for the account, not the amount due. Before the amount can be had, a privity of relation must be shown to exist, and it would be gross injustice to compel a plaintiff’ to make out his case before a jury — when by the form. *400of action selected, he in effect admits his inability to do so, without the oaths of the defendants before the auditors.

As between tenants in common, Littleton says, “No man can certainly tell which part is his own.” Blackstone says, they “occupy promiscuously,” “because none knoweth his own severalty,” and it may be added, if each one could tell his own part, “account” would not lie because the “action does not lie for a sum certain.” 1 Bac. Ab. C. and D.

The receipt of the whole profits, by one tenant in. common, imposes an immediate liability to account, and the statute of limitations does not begin to run, so long as there is a common possession. Wagstaffv. Smith, 4 Ire. Eq. 1. Northcote v. Casper, G Ire. Eq. 803.

It is therefore contended, that, in the trial of this cause, the only material question in issue, before the jury, was, “are the parties tenants in common ?” and it is alleged as error, that the Judge in his charge passed over this preliminary” point “to get at another,” subsidiary and secondary thereto. McNeill v. Massey, 3 Hawks 100.

Whether the points reserved be for or against the plaintiffs, it is submitted they are entitled to a new trial upon the points, on "which they appealed, “as the attention of this Court is more properly given to such errors as are alleged by the party who appeals” Norwood v. Marrow, 4 Dev. & Bat. 447.

Strange, for the defendants.

Pearson, J.

The judge, in the Court below, was of opinion, that in the action of account against the defendants, who were tenants in common with the plaintiffs, and were sued as bailiffs under the statute,for using more than their just share, in proportion, of the profits, it was necessary for the plaintiffs to prove to the satisfaction of the jury, not only that the defendants were tenants in com*401mon with the plaintiffs, and had been in the pernancy of the profits, but that they had received more than their just share or proportion. To this the plaintiffs excepted. We think there is error.

The action of account is peculiar, for in it there are two judgments; in the first place, there is judgment that the plaintiff and defendant account together, and in the second place, that the plaintiff or defendant recover the balance found to be due.

The first judgment, like an order of reference to the clerk to take an account in Equity, merely decides, that the plaintiff is entitled to an account; it can only be barred by proof that the defendant had already accounted, or by a denial, uncontradicted by proof on the part of the plaintiff, of the existence of any such relation between the parties, as gives the plaintiff a right to call for an ac-' count.

To require, as a preliminary question before the first judgment is given, that the plaintiff should prove to the jury, that the defendants have recéived more than a just share of the profits, is totally inconsistent with the nature of the action, for three reasons : 1st. It will require the plaintiff to prove to the jury the very thing that is to be decided by the auditor, and leaves nothing for him to do. 2nd. It will require the jury to investigate and decide matters of account, which the mode of proceeding in this action presupposes a jury is incapable of doing : 3rd. It will deprive the parties of the right given by the statute, of an examination on oath touching the matters in question.

Every tenant in common, who has been in the enjoyment of the property, is liable to account, but no recovery can be had against him, unless, upon taking the account, it is shown that he has received more than his just share. The mode of enjoyment is not material" It makes no difference, whether he uses it merely for shelter and as a *402means of supporting himself and family, or makes money by selling the products, or receives money as rent; in either case he is bound to come to an account with his fellows, and can only avoid it, by averring, and proving, that he has already accounted.

The defendants’ counsel earnestly contended, that it was a hardship, to be subjected to a judgment to account, without proof in the first instance, that more than a just share had been received, and that no tenant is safe in taking possesion, if, by doing so, he subjects himself to the trouble and expense of an account. We are unable to perceive the force of the argument. If a bill is filed against an executor, or an agent, or a tenant in common, who has been in the perception of the profits, it would be strange, if the plaintiff was required, in the first instance, to prove that the defendant is in arrear. That is the very question to be settled by taking the account, and, if the plaintiff fails to establish it before the master, he pays the costs of the suit.

We think, therefore, there is error in the part of the charge excepted to by the plaintiffs, but it is apparent from the case, that they have not been prejudiced by the error. The part of the charge excepted to is a restriction or qualification of a general proposition, that the plain, tiffs were entitled to recover. There is manifest error in this general proposition, in favor of the plaintiffs, and of course an error in the restriction or qualification of an erroneous proposition could work no prejudice. The charge ought to have been, that the plaintiffs were not entitled to recover: this would have cut off the question, raised by the exception*

The action is fatally defective, by means of a misjoin-der, both of plaintiffs and defendants. The plaintiffs declare, not upon an express understanding with them jointly, but upon the implied understanding raised by the statute. Now the interest of tenants in common is several, *403and of course this implied understanding with them must also be several — so their right of action is not joint, and there are too many plaintiffs, which is a fatal variance. In regard to the defendants, there is no proof that they received the profits jointly as partners. Each received portions of the profits severally, and therefore they cannot be sued jointly, for in that case each would be bound for the whole judgment, and, if the defendant, who had received the gratest share, happened to be insolvent, the burthen would fall on the others. The principle is the same, as that applicable to co sureties. If one of them pays the debt, he cannot, at law, sue the other two jointly, foreachis only liable for his aliquot part, and to allow a joint suit, would be to subject one to the whole recovery, altho’his fellow may be insolvent. Powel v. Mathis, 4 Ire. 83. It was ingeniously argued for the plaintiffs, that there was no plea under which advantage could be taken of the defect of parties, and he cited a passage, 1 Chitty 14, where it is said, “a variance, in respect to parties, can only be a ground of non suit, under the plea of non estfactum, in debt on specialty andcovenan*; and the general issue in all other actions,” It is clear, Chitty has no reference to the action of account, which he considers obsolete, and therefore does not treat of it — and in which, like covenant, there is properly speaking no general issue. As in the latter the variance may betaken advantage of, under non est factum, so in the former, it may be done, under the plea, that the defendants aro not the bailiffs of the plaintffs, in the manner alleged in the declaration. Both of these pleas deny the relation between^the parties as alleged, and if, upon the trial, there is a variance between the allegata and the probata, it is ground of non suit; if the plaintiffs will not submit to a non-suit, the Court must instruct the jury to find for the defendants.

Per Curiam. Judgment affirmed.