38 Ky. 163 | Ky. Ct. App. | 1839
delivered the Opinion of the Court.
The only question to be decided in this case is, can one tenant in common maintain trespass quern clausum fregit against his co-tenant?
Though it is conceded that, one tenant in common may maintain ejectment against his co-tenant, in case of an actual ouster, and after a recovery of the possession, may maintain trespass for the mesne profits, it has been held that the latter action is an exception from the general rule,, and in no other case can he maintain an action of trespass. 1 Coke Lit. 784-5, note n. 0. and p. And this doctrine has been established by this Court. 4 Bibb, 422, Wright vs. Chandler. The same rules hold with respect to chattels personal or real, held in common, (Coke Lit. ibid.) except when the thing held inn common has been wholly destroyed by his companion.. 1 Coke, 786, note q.
The Circuit Court therefore erred, in instructing the jury that the action would lie.'
Judgment reversed, and cause remanded, that a new trial may be had.
*.* This day, May 9th, the Court adjourned to the 3rd of June.
