1822. WM. STEEL and Jos. STEEL v. WESTERN, Clerk. THIS was an action on the case, in nature of waste. The declaration stated, that the plaintiffs were possessed of a certain piece or parcel of land for the residue of a term of years; and that before the committing the injury thereinafter mentioned, the defendant held as tenant to them, and assigned for breach, that he pulled down a shed then erected and standing on the said piece of land, to the injury of their reversionary estate. Plea, not guilty. Thursday, Where a farm was demised to 4. and B. jointly, and 4. by agreement, underlet part of it to C., and gave receipts rent, and a nofor payment of tice to quit, in his name alone, held, that 4. and B. could not maintain a joint action against C. for pulling down a stood on part of shed which demised. At the trial of the cause, before Mr.Justice Richardson, at the last Assizes at Oxford, it appeared, that the plaintiffs were lessees of a farm, under a joint demise from one Burr, in November, 1811, for the term of twelve the premises years, a small part of which they afterwards underlet to the defendant, and on which the shed in question stood; that he pulled it down in the summer of the year 1821, considering it to stand on part of his own glebe, and not on the land he occupied under the plaintiffs; that the present action was commenced on the 19th September in that year, when the defendant discovering that it belonged to the plaintiffs' estate, rebuilt it in the month of October following, and made it far better than when it was pulled down. For the defendant, a written agreement was produced, which purported to have been made between the plaintiff Joseph Steel and the defendant, by which the former underlet the close on which the shed stood, to the latter; and the plaintiff Wm. Steel was no party to the instrument, except by a memorandum indorsed on the back of it. It was also proved, that Joseph Steel oc 1822. STEEL v. WESTERN. cupied and managed the farm, and that his brother William, the other plaintiff, lived at a distance, and never interfered with it. The defendant also produced receipts for rent, signed in the name of Joseph Steel alone, as well as a notice requiring the former to give up the possession of the land on which the shed stood, to him. Under these circumstances the learned Judge was of opinion, that the defendant held as tenant to the plaintiff Joseph Steel alone; and accordingly directed a nonsuit. Mr. Serj. Peake now applied for a rule nisi, that it might be set aside, and a new trial granted; and submitted, that as the plaintiffs held the estate under a joint demise, the action was properly brought in both their names, as they were jointly interested, and the pulling down the shed was an injury to both. In Skinner v. Stocks (a) it was decided, that the joint owners of a vessel engaged in the whale fishery, may sue a purchaser for the price of whale oil, although the contract of sale were made by one of the part owners, and the purchaser did not know that other persons had any interest in the transaction; and the Court there said, that the action might be maintained in the name of the person with whom the contract was actually made, or in the name of the parties really interested. So in Parsons v. Crosby (b), where an action was brought by a father, whose son's name was introduced into the business as a co-partner; on an objection, that the father could not sue alone, it was held, that the son might be called to shew that he had no interest, and consequently that the action was rightly brought in the name of the father only. These cases establish the principle, that where a contract is made between A. and B., if A. has a partner jointly interested with him, they may maintain a joint action; or if the name of such partner be used, and he is not interested, A. alone may sue. The facts of this case, therefore, warranted the plaintiffs to bring the action in their joint names. Lord Chief Justice DALLAS.-With respect to the justice of the case, there can be no doubt. The shed was pulled down by the defendant, and a far better one shortly afterwards erected in its stead. He at first thought it belonged to him; but as soon as he discovered his mistake, he caused it to be rebuilt. It appears that the writ was sued out against him in the present action on the 19th of September, and the shed was rebuilt in the month of October following. The plaintiffs therefore, could only be entitled to recover the costs of the writ. Besides, the contract was en tered into between the defendant and one of the plaintiffs; and he occupied under Joseph Steel alone. I am therefore of opinion, that the nonsuit was perfectly right. The facts of this case render it distinguishable from those which have been referred to with respect to partners; as if persons ostensibly act as such, a dealing with one may be considered as a dealing with both. Here however the defendant occupied under one of the plaintiffs only; and it does not appear that he was aware that the other was at all interested in the premises. Mr. Justice PARK.-I am of the same opinion. The facts of this case do not apply to those of general partnerships. The plaintiff, Joseph Steel, might have had a separate interest in the premises in question, or his brother might have released his interest in the demise originally made to both. Besides, it appears 1822. STEEL 1. WESTERN. 1822. STEEL v. WESTERN. that he treated the defendant as having contracted with him alone. Mr. Justice BURROUGH. No one was known to the defendant but the plaintiff Joseph Steel. In Skinner v. Stocks, the plaintiffs carried on business publicly, as part owners; and in Parsons v. Crosby, the son permitted his name to be used. These cases, therefore, are distinguishable from the present; and I concur in thinking, that this nonsuit was perfectly correct. Mr. Justice RICHARDSON.-I directed a nonsuit, on the ground suggested by my Brother Park. A deed of release might have been executed between the plaintiffs, or Joseph Steel might have become tenant to his brother William. It is quite clear, that if the defendant had brought an action against Joseph alone for a breach of contract, it would have been maintainable; but he could not join his brother William in such action, without shewing that he had a privity with the former. Rule refused. 1822. DALE v. WOOD. Saturday, April 27th. The Where in an action for an beat, assault, the Plea, plaintiff declar THIS was an action of trespass for an assault. ed that the defendant beat, bruised, and wounded him. Plea, son assault demesne, and the plaintiff replied de injuriâ sua propria: proved, that the and it was latter, being on horseback, got off, and held the defendant, up his stick at when the latter : At the trial before Mr. Justice Park, at the last as-, son assa sizes at Exeter, the plaintiff proved that the defendant had committed a violent assault on him, and beat him with his fists. For the defendant it was proved, that the plaintiff being on horseback, got off, and held up his stick at the defendant, when the latter struck him. There was no evidence to shew whether the plaintiff had remounted his horse before the defendant struck him or not. For the plaintiff it was contended, that his merely holding up his stick did not justify the beating by the defendant; and for the latter it was submitted, that as he had pleaded son assault demesne, and the plaintiff could justify it, he should have pleaded it specially, as it could not be given in evidence under the general replication of de injuria. The learned Judge observed, that every assault would not justify every battery; but that if the plaintiff first lifted up his stick, and offered to strike the defendant, it would be a sufficient assault to justify his striking the plaintiff; and he left it to the Jury to say whether the latter was the aggressor, or whether the assault committed on him by the defendant was occasioned by his holding up his stick in the first instance. They struck him Held, that the plaintiff should have replied having been specially; and whether from left to the Jury, the evidence, the plaintiff was so far the it aggressor, as t justify the assault committed on him by the defendant, and they having found in the affirmative, the Court refused a new trial. |