Rochell V. & Co's. Lessee. title. The authorities are numerous upon this point. We shall be satisfied with a reference to two cases, decided by the Sa- Benson, Hunt preme court of the State of New York. In that of Smith vs. Burtis & Woodward, 9 Johnson, 174, it was held that when one enters, claiming as a tenant in common under the same title as that of the lessor, he admits the title of the lessor, so that neither he, nor those claiming under him, can set up such entry as adverse to the common title or injurious thereto. In the case of Jackson vs. Bush, 10 Johnson, 223, it was held that in an action of ejectment by a purchaser under a sheriff's sale against a person in possession under the debtor without title or collusively, the defendant cannot set up an outstanding title in a third person to defeat the recovery of such purchaser. We therefore are of opinion that there is no error in the judgment of the court below, and direct that it be affirmed. TURNER US. LUMBRICK. PLEADING. Parties-tenants in common. One tenant in common may sue in ejectment or forcible entry and detainer without joining his co-tenant. FORCIBLE ENTRY, &c., Desciption of party's interest. In an action of forcible entry and detainer, the complaint need not specify the plaintiff's estate in the premises, with technical accuracy. It must show that he had some estate, but need not show the precise quantity of it. SAME. What constitutes the injury? Acts, not of violence or outrage upon PRACTICE. Continuance. It is not error to refuse a continuance, on an affida- In forcible entry and detainer, the plaintiff's complaint was in the following words-"To James N. Barr, Esq. an acting Justice of the Peace for Henry county, Tennessee. I, Abraham Lumbrick, complain of Robert Turner and James Turner, of a forcible entry and detainer, made by them into my mill house, on the 23rd March, 1836. The mill house is situated on Oldtown creek, in the county of Henry, on the road leading from Paris to Dresden, and has been familiarly known as Tarner V. Lumbrick. Turner's mill; and is situated on a parcel of land, sold by decree of the chancery court of Henry, and bought by Robert Hays, and bought of him by John R. Moore, John Clayton and William Lyon, and of them purchased by your complainant, and one Benjamin T. Bowden, and peaceably taken possession of by them long since. On this statement, I ask for a writ of forcible entry and detainer." The process was issued, and on the trial, the defendants pleaded "That there is now pending and undecided, before John D. Love and Allen Wade, two justices of the peace of Henry county, a proceeding by writ of forcible entry and detainer, for the identical same forcible entry and detainer, and between the same parties; and therefore they pray that the proceedings be quashed." Upon this plea, issue was joined, which was submitted to a jury, who found in these words"verdict no suit pending, so say we all." The evidence submitted to the jury was-that Lumbrick had had possession of the mill, from June 1835 until March 23, 1836, early in the morning of which day, the witness, Lumbrick's son, who was miller, on opening the mill, was followed by R. and J. Turner and two others; that one of the Turners claimed the mill, and told witness, that if he had any thing in the mill, he was at liberty to take it out; that if witness proceeded to grind, he should suffer for it; whereupon witness cursed him, and told him to take himself out; that witness then poured out half a bushel of wheat, and went to put it in the hopper, on which, Turner took off the hopper, and set it on the floor, and took the key out of the door; that witness then went to raise the gate to let the mill run, when Turner told him, if he raised a gate, or touched any thing in the mill, he would make him suffer for it; that these words were spoken in an angry, threatening manner; that Turner then replaced the hopper, poured out some corn, and proceeded to grind; and that Thomas Edwards was left by Turner as miller. There was a verdict and judgment for Lumbrick before the justices, whereupon Turner applied to his Hon. Judge Cook for a certiorari, which was granted, and the proceedings were certified into the circuit court of Henry at September Term, 1836. At January term, 1838, the case came on to be tried before Judge READ of the 10th, sitting for Judge HARRIS, of the 9th circuit. Turner offered an affidavit for a continuance, on account of the absence of Love and Wade, whom he had summoned to prove the matter of the plea in abatement. Whereupon the court ordered Lumbrick to elect which action he would proceed upon; and he, not admitting that there was another action pending for the same cause, elected, of record, to proceed in the present action, and released the defendants from all and every other action of forcible entry and detainer, except the present; and the cause was then, by consent, placed at the foot of the docket. When it was again reached, the defendants filed another affidavit for a contiuuance, on account of the absence of a witness summoned, by whom they expected to sustain the character of their witnesses. The court refusing the continuance the cause was tried; and Lumbrick offered to read to the jury, the evidence of the forcible entry and detainer as recorded by the justices, the defendants objecting to the evidence as incompetent, irrelevant and improper, but not to its being read from the justices' record. The objection being over-ruled, the evidence was submitted to the jury, as above recited and they found a verdict for the plaintiff below, and he had judgment, from which the defendants prosecuted this appeal in error. FITZGERALD for the plaintiffs in error, insisted that the non-joinder of Bowden was fatal to the action, to which point he cited Hart vs Fitzgerald, 2 Mass. R. 509, and urged that the defendant in error was entitled to restitution of the whole land or none, and that it was incapable of severance; that the description of the premises, in the complaint, was insufficient, and cited Clements vs. Clinton, Martin and Yerger, 198; that the court ought to have continued the cause; and that the testimony did not make out a case of forcible entry and detainer, there being nothing in the conduct of the plaintiffs in error, calculated to excite fear. W. S. WILLIAMS for the defendant in error said, as to the objection first raised by the plaintiff's counsel, it applies only to actions for chattels-as appears by reference to the case of Turner V. Lumbrick. V. Turner Hart vs. Fitzgerald, 2 Mass. R. 509; because in such cases Lumbrick. the cause of action is joint and joint only-but in case of real estate, one tenant in common can sue alone. As to the second objection-the particularity in the description of the estate required under the English statutes, need not be observed, under our statute, because under the English statutes, differeut modes of proceeding are prescribed in reference to different estates. See 5 Richard 2, c. 7; 15 Richard 2, c. 2; 8 Henry 6, c. 9, and 21 James 1, C. 15. But our statute amalgamates the whole, and gives the writ of forcible entry and detainer, and the same proceeding as to all estates. It is not necessary even under the English statutes, to show what estate the plaintiff has expressly, but only by implication-3 Bac. Abr. 256-7. Much less is it necessary under our statute to show any particular estate, inasmuch as the right to recover is the same for all estates. In this case, the plaintiff shows that he was the owner of the land, it having been sold by decree in chancery and purchased by him of those claiming under that sale,-whence it appears that he had, at least, some estate. The case in Martin and Yerger must have been decided upon the ground that the land was stated to have been part of an occupant tract, not showing whether, as such, it was authorized by law,--inasmuch as the opinion of the court cannot be otherwise sustained by the references in Bac. Abr. But in this case, the description is much more full and satisfactory, than in the case of Clements vs. Clinton. Lastly, the cause ought not to have been continued on the affidavits filed. Because, first, if the plaintiff below, had two actions of forcibe entry and detainer pending at the same time and for the same cause, he had a right to elect, as he did in the present case; Boucher vs. Williamson, 1 Dana's Reports 328, and authorities there cited. Secondly, the other affidavit for the want of a witness to prove the general character of the other witnesses, makes out such a case in advance as did not occur on the trial-thus showing conclusively that the court below exercised a proper and legal discretion in refusing to continue for such cause. But suppose the state of circumstances anticipated by the defendant's counsel below, Turner V. had sprung up on the trial, a man's character-general character-ought to be, and must be known to more than one of Lumbrick. his neighbors. The evidence makes out a case of forcible entry and detainer most conclusively; 9 Yerger, 93, Davidson vs. Phillips: Childress & Wyley vs. Black & Wife, 9 Yerger, 317. GREEN J. delivered the opinion of the court. In this cause several objections are taken to the proceedings April 4. of the plaintiff in error. First, it appears from the complaint, upon which the warrant for the forcible entry and detainer issued, that Lumbrick, who was plaintiff below, and one Bowden, were tenants in common of the mill, which it was charged had been forcibly entered and detained. It is therefore insisted that Bowden ought to have been joined in the suit. This objection cannot be sustained. Any one tenant in common, may sue, though his co-tenants do not join in the action. And this may be done, either in ejectmert or in forcible entry and detainer. Lumbrick had been put out of possession, and he might well maintain his action to regain it, without joining his co-tenant Bowden,-actions for personal property must be in the names of all the joint owners-but not so in real actions. 2. It is next insisted, that the camplaint is not suffi ciently descriptive of the estate of the plaintiff in the premises. The act of 1821, c. 14, § 7, requires the complaint to specify the lands, &c. forcibly entered and detained, and the estate of the plaintiff therein. The 4th section of the same act, gives the remedy provided by the act, in all cases, where the party complaining, has any estate, whether of freehold, or less than freehold. It cannot be material, there. fore, in specifying the estate of the plaintiff, that it should be described with technical accuracy. True, it must be shown. he has some estate; otherwise it will not appear that the entry was made injuriously to any one, 3 Bac. 256. But it is sufficient to set forth an estate within the statute, without describing the particular estate, 3 Bac. 257. Now the complaint |