
    Mary Jackson and two others vs. John Bates.
    
      Trespass to try title — Practice.
    In trespass to try title tlie plaintiffs, if tliere be more than one, are entitled, upon motion, to liave the name of a plaintiff struck from the record and to go on with the case ; the Circuit Judge cannot refuse the motion, but may impose terms, such as payment of costs or continuance.
    BEFORE WITHERS, J., AT RICHLAND, SPRING TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows :
    “ The plaintiffs had sued the defendant in trespass to try titles: the action was at issue for the fourth term: a year ago Bates, the defendant, had caused the continuance of the cause, on the ground, stated in affidavit, that he expected to prove that Mary Jackson was not an heir at law of Osbarton Thompson, as whose heirs at law the plaintiffs jointly claimed, because she was illegitimate in her birth. After the parties had announced themselves ready for trial, it was moved, on behalf of the plaintiffs, that Mary Jackson be permitted to discontinue, and the others to proceed in the case. Upon objection, I refused the motion. The testimony of the plaintiffs (much of it in commission) was adduced. The course of Bates’ cross-examination showed his design to make a point of the illegitimacy of Mary Jackson, and he was quite successful in that end. Upon the conclusion of the testimony for the plaintiffs, Mary Jackson gave notice that she then and there discontinued her action, being ready to deposit the money for the costs. Objection was made as to her right so to do, and I sustained the objection, heard a motion for non-suit, and granted it.”
    
      The plaintiffs appealed, and now moved this Court to reverse the decision of his Honor in ordering a nonsuit, upon 'the grounds:
    1. Because it is respectively submitted that his Honor erred in refusing the plaintiffs leave to amend their pleadings, by striking out the name of Mary Jackson as one of the plaintiffs, and that the other two plaintiffs have leaye to proceed with their said action.
    2. Because it is respectively admitted that his Honor erred in ordering a nonsuit, after Mary Jackson, one of the plaintiffs, had discontinued, and it having appeared, in the trial of the case, that the said Mary Jackson had no interest, and that tbe costs of the suit were tendered to the Clerk of the Court up to the trial.
    
      Pearson, Bausheit, for appellants,
    contended:
    1. That one or more of several joint tenants may maintain an action of trespass to try titles, without joining their other co-tenants, and will recover in proportion to their interest in the land. McFaclclen and wife vs. Haley, 2 Bay, 457 ; 'Perry vs. Walker, 2 Bay, 461; Perry vs. Middleton, 2 Bay, 462 ; Middleton ads. Perry, 2 Bay, 539 ; Boyleston vs. Gordes, 4 McO. 144.
    2. In all actions ex delicto any one or more of several plaintiffs may discontinue, and the action proceed at the instance of the others. Hawkins et al. vs. Lewis, 2 N. & M. 141 •, White et al. vs. Marshall, MSS. Dec. 1821; Freeman vs. Glarlce, 3 Stro. 282; Bomar vs. Williams, 2 Bich. 12.
    3. In actions brought to try the right of property by several plaintiffs, the failure of one or more to prove any interest in tbe subject-matter is no cause of non-suit, and tbe case should proceed and the verdict found in conformity to the facts. Hawhins et al. vs. Leiois, 2 N. & M. 141; White et al. vs. Marshall, MSS. Dec. 1821.
    4. That, according to the practice of our Courts, long established, and with increasing liberality, plaintiffs may amend at the discretion of the Court, whenever such amendment does not surprise, hinder, delay, or prejudice the defendant, or no new issues are made, or defendant placed in a'worse situation. Hester vs. Hagood, S Hill, 195; Lamar & Daniel vs. Bead, 2 McM. 846; Goodwin vs. Hannah, 5 Stro. 156; Mobley vs. Mobley, 7 Eich. 482; Simpson ads. Bank, 2 Sp. 45.
    
      Arthwr, De Saussure, contra,
    contended that it was a matter of discretion with the Circuit Judge, and that the discretion was in this case properly exercised. They cited 1 Chit. PI. 32, 74, 76, 54; 1 Bail. 306; 1 McO. 484.
   The opinion of the Court was delivered by

Wardlaw, J.

The principle involved in this appeal was settled in Hawkins vs. Lewis, 2 N. & McC. 141; followed in White vs. Marshall, MS. Dec. 1821, 2 Rice Dig. 217; and ever since has been recognized in practice. The cases like the present were actions of trespass to try titles, and in the former the motion to strike out the name of one of the plaintiffs was refused by the Judge on circuit and granted by the Court of Appeals notwithstanding his dissent. As to such motions a Circuit Judge may exercise his discretion so far as to prevent surprise and prejudice to the defendants, as by granting a continuance or mulcting the moving party in costs; but it is unreasonable to defeat all the claimants because one fails in proof of his title. It is well settled that, in actions to try titles, some tenants in common may recover their proportional shares of the land -without joining their co-tenants; 2 Bay, 457, 461, 462, 539; 4 McC. 144; and there is little reason in such suits for treating misjoinder more harshly than nonjoinder. Liberality in the procedure of our courts is mating progress, and we are not disposed to compel retreat from any advance safely attained.

Ordered that the appeal be sustained, and that the plaintiffs have leave, upon the payment of costs, to strike out the name of Mary Jackson, and proceed with their suit.

O’Neall, 0. J., concurred.

Johnstone, J., absent.

Motion granted.  