
    Turner vs. Lumbrick.
    Pleading. Parties — tenants in common. One tenant in common may sue i« 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 the person or property, but tending to produce a breach of the peace, wifi constitute the injury
    Practice. Continuance. It is not error to refuse a continuance, on an affidavit, stating the absence of witnesses summoned to prove the pendency of a prior suit, for the same cause, the plaintiff releasing that suit of record.
    Same. Same. Nor is it error to refuse a continuance on an affidavit stating the absence of witnesses summoned to support the character of the defendant’s witnesses.
    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 Turner’s mili; 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 de-tainer, 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, Lum-brick’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 bad 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 Ttirner as miller .
    íhere wás a verdict and judgment for Lumbrick before the justices , whereupon Turner applied to his Hon. Judge’Co ok for h certiorari, which was granted, arid the proceedings were certified hito the circuit court of Henry at September' Term, 1836. At January term, 1838, thé cas'e carne o'n to he tried before Judge Read of the 10th, sitting for Judge HARRIS, bf the 9th circuit.
    Turner offeréd 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 state 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 conliuuance, 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 de-tainer 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 de-tainer, 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 
      Hart vs. Fitzgerald, 2 Mass. R. 509; because in such caset? 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 differeut 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, liad sprung up on the trial, a man’s character — general character — ought to be, and must be known to more than one of his neighbors.
    April 4.
    The evidence makes out a case of forcible entry and detain-er most conclusively; 9 Yerger, 93, Davidson vs. Phillips: Childress & Wyley vs. Black §■ Wife, 9 Yerger, 317.
    
      
      . “Lands, tenements or other possessions.” These are the words of the statute 15 R. 2, c. 2. See the construction of them, Hawkins’ Bk. 1, c. 64, § 31, Edwards vs. Batts, as to occupancies and lands of the United States, 5 Yerg 441; 1829, c. 22; § 11; Pettyjohn vs. Akers, 6 Yerg. 448.
    
    
      
      . §20.
    
    
      
      . 5. R. 2, St. 3, c. 8; 15 R. 2, c. 2; 4 H. 4, c.8; 8 H. 6, c. 9; 23 H. 8, c. 14. See 31 Eliz. c. 11, which explains 8 H. 6, c. 9, and 21 Jac. 1, c. 15, which enables justices to give restitution in certain cases.
    
    
      
      . “Adversely held.” Love vs. Marshall, Martin & Yerger 255, 2d resolution; 9 Yerger 95—6.
    
    
      
      . Davidson vs. Phillips, 9 Yerger, 93, 96.
    
    
      
      . Childress & Wyley vs. Black & Wife, 9 Yerg. 317.
    
    
      
      . “Definite period.” Love vs. Marshall, Martin & Yerger, 255, 260.
    
    
      
      . Trousdale vs. Darnell, 6 Yerger, 431, 434.
    
    
      
      . 10. 11. Love vs. Marshall, Martin & Yerger 255, 260; Manly vs. Rogers, 5 Yerger, 215, 220.
    
    
      
      . Description of premises. Clements vs. Clinton, Martin & Yerger 198, 2d resolution.
    
    
      
      . Clements vs. Clinton, 2d resolution, Martin & Yerger, 200.
    
    
      
      . § 8, 9; Clements vs. Clinton, 4th resolution.
    
    
      
      . § 10. 20.
    
    
      
      . § 6, 25.
    
    
      
      . § 7, 22.
    
    
      
      . § 13; 1822, c. 35., § 2; Clements vs. Clinton, 5th. resolution; Earl vs. Rice, 10 Yerger, 233.
    
    
      
      , Love vs. Marshall, Martin & Yerger, 255, 1st resolution, 258—“Merits, alone,” Edwards vs. Batts, 5 Yerger, 441, 3d point, 442—3.
    
   Green J.

delivered the opinion of the court.

In this cause several objections are taken to the proceedings 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 ejectment 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, therefore, 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. in the present case, states, that the house, forcibly entered, “is situated upon a parcel of land sold by a decree of the chancery court of Henry, and bought by Robert Hays, and bought of him by Jno. R. Moore, Jno. Clayton and William Lyon, and of them purchased by your complainant, and one Benj T. Bowden.” This specification of the estate, or tide by which he claims the land, necessarily describes an estate that would be liable to sale by a decree of the court of chancery, — and as the plaintiff traces his title under such decree, it follows that he has an estate the statute will protect.

3. It is. next insisted that the evidence does not show a case of forcible entry. We think it does. The defendants came to the. mill, forbade the party in possession from grinding, or in any way using the mill, ordered him away, and in an angry manner told him, if he raised a gate, or touched any thing in the mill, he should s.uffer for it. To constitute a forcible entry under the statute, it is not necessary that violence and outrage upon person or property b.e resorted to, but if such acts are. done, as show a breach of the peace may reasonably be apprehended, it is a forcible entry; Childress & Wyley vs. Black & Wife, 9 Yerg. 317. We think the facts above reci-. ted, from this, record, constitute such a case.

4. The next question is, whether a continuance ought to have, been .granted. Upon this application there are tyro affidavits,. The one sets, forth, that there was pending another action of forcible entry and detainer for the same land. But th.e plaintiff having released, of record, all other actions of forcible entry and detainer, the court refused to continue the cause. In this there is no error. If there was another suit pending for the same cause of action, this release might have been pleaded as an effectual defence.

The other affidavit states, that a witness who h,a.d been summoned, was not at home, and unable to attend, and that by him the defendant expected to prove, that another of his witnesses had a good character. This was not sufficient ground for a continuance. The affidavit does not state, that there were not others, whose attendance could have been procured, by whom he could sustain his witness. In the nature of things this must have been so; if indeed, the witness’ character was good, — for he could only enquire into his general character; and general character consists of the opinion generally entertained of a party by his acquaintances — and therefore could have been proven by many witnesses.

1. Note — On the subject of the plea of the Pendency of a ‘prior suit, for the same cause, see the rules and distinctions dearly slated in Gould on Plead. ing, chapter 5, $ 122 to 1£1.

2. Note — The remedy provided by the act of 1822, c. 14, was designed to protect the right to the use, enjoyment or occupation of lands, tenements or other possessions, without reference to the ultimate right of property therein from that class of injuries, which, in that act, and in those ancient English statutes from which it was complied, are denoininated-r-

l. Forcible entry and detainer. Where the defendant enters upon and into premises, actually adversely held, , and. detains them by any Kindof violence what ever, done with force, strong hand, or weapons, to the tenants’s. House, Person, ^Goods, f By breaking open the doors, win-' j dows,, or other parts thereof, I whether any person be in it or [ not. . {By threatening to kill, maim, or beat him, or By such words, circumstances or actions as have a natural tendency to excite fear or apprehension of danger. . ÍBy putting them out of doors, or By carrying them away* . § 2, first clause. 2. Forcible detainer. Where the defendant enters peaceably, and then • turns the tenant out of possession. fBy force, or By frightening him With threats, or I V- $ 2, last Other circum- clause, stances of terror J (Unlawfully and By any of the means mentioned in the case of forcible entry and detainer. §3 4. Urilavful detain-er. Wh^rethe defendant enters by contract, for a definite period, . As a tenant, or By a tenant, by assignment of the term, or From a tenant, by personal representation, or Under a tenant, by subtenancy, o,r By collusion with a tenant, And in either case, holds over■ wilfully and with out force, , after demand of the possession, , and written notice, 10, ■ from the landlord or the assignee of the remainder or reversion to deliver the same. 55

The action is commenced by a complaint in writing, addressed to a justice of the’ peace for the county in which the premises lie, signed by the party grieved, his agent or attorney,, specifying?—

1. The lands, tenements or other possessions, in reference to. which the injury has been done, .

2. The specific injury complained of, as forcible entry and detainer, or forcible detainer, &c.

3. By whom and when done.

Upon the whole, there is no errer in the record, and the judgment must be affirmed.

4.The plaintiffs estate therein, .

And praying for the redress provided by the act of Assemblj%

A summons to appear is thereupon issued to the defendant, which must be served upon him six days before the day of appearance, .

If he appear, he may plead, “not guilty,” or if the fact be so, “that he hath had the uninterrupted occupation, or been in the quiet possession of the premises, for the space of three years together, immediately preceeding the complaint:” if the defendant fail to appear, the justices proceed as if he had appeared and pleaded, “notguilty,” .

The issue is tried before two justices, of whom one must be the justice who issued the process, and who is to keep the record of the proceedings, which record is to be signed by all the justices trying the dispute, — and a jury of twelve elected oi^t of a panel of twenty summoned by the sheriff, who may fill it out of the by-standers, if those summoned, or any of them, do not attend, or the panel, by challenges, of which each party has four peremptory, or otherwise should b.e deficient, ,

If the defendant be found guilty, or his plea of possession be found against him, thejustices enter a judgment and award a writ of restitution. But the writ does not issue till after the expiration of twenty days from the judgment, which period is allowed the defendant to remove the proceedings into the circuit court» by certiorari, , in the petition for which, the merits only need be stated, and on the hearing of which there is a new trial of the facts, .  