The general rule is that tenants in common cannot join, or be joined in real or mixed actions, unless in the case where some entire or indivisible thing is to be recovered. (Co. Litt. 197, b.) Their freeholds are several, and they claim by several and distinct titles. (Litt. sect. 311. 2 Bl. Com. 194. Com. Dig. tit. Abatement, (E. 10,) (F. 6.) There is neither a privity of title, nor an union and entirety of interest, as between joint tenants, which render it necessary for the latter ,to unite, generally, in all real and mixed actions. It was formerly held, that tenants in common could not join in making a lease; and that a recovery in ejectment could not be had upon their joint demise ; but that a separate demise by each must be laid; else, as their estates and titles are different and independent of each other, it would be permitting the plaintiff to try several and distinct titles in one issue, at the same time. (Adams on Ej. 186. Runn. on Ej. 222.) This rule was relaxed as to ejectment m Jackson v. Bradt, (2 Caines’ Rep. 169.)
*193By the 52 H. 3, ch. 29, and. the statute of this state for giving further remedy, and regulating the process and proceedings in assizes and other actions, (1 R. L. 79, s. 2,) it is provided, “ that if any person hath died, or shall die, leaving several persons, his or her heirs, either in the same degree, or in different degrees, all such heirs shall or may recover in one writ or action, as heirs of the deceased person.” This statute undoubtedly authorizes the bringing of a joint action by heirs, who are tenants in common. But the question here is, whether it is imperative upon them to unite; and takes away all discretion upon the subject ?
The statute was intended for the benefit and relief of heirs. Such is the scope and general character of its provisions ; and the language used in this particular section, I am inclined to think, according to established principles of construction, leaves it discretionary with heirs to bring joint or several actions, according to their own views of their own interests.
In The Newburgh Turnpike Company v. Miller, (5 John. Ch. Rep. 112,) one point presented was, whether the plaintiffs were bound by an act of the legislature, passed in 1815, to remove their gate from the Walkill bridge. The words of the act were, “ that it shall and may be lawful for the president, directors and company, to remove the toll gate, &c.” The Chancellor held that the statute was not imperative; but that it left it to the discretion of the company to remove their gate or not; and he considered the true rule of construction applicable to statutes in such cases to be, that the word may means must or shall, only in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power should be exercised.
So in Rex v. Barlow, (2 Salk. 609,; it was said that where a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall. That was a case under the 14 Car. 2, ch. 12, which gave power and authority to the church wardens, &c. to make an assessment to reimburse the constables. The statute was held to be imperative. Both *194the public and the constables had an interest in having the authority exercised. The statute of 23 H. 6, which says the sheriff may take bail, is construed the same as though it had said he shall, upon the principle already stated. The case of Stamper v. Millar, (3 Atk. 211,) and Backwell's ease, (1 Tern. 152,) illustrate the same principle. In the latter case, the lord keeper declared, that though the words in the act of parliament, under which the application for a commission of bankruptcy was made, were, that the Chancellor may grant it, yet that may was in effect mxist, and it had been so resolveu. by all the Judges.
In the case now under consideration, the public has no direct or immediate interest in the question; nor have third persons a vested right, or, as Chancellor Kent expresses it, a claim de jure to call upon the plaintiff to exercise the authority given by the statute to sue jointly with his co-tenants, it is a power given for the benefit of the heirs, which they may exercise, or not, at their discretion. It is permissive merely, and not compulsory.
It was said upon the argument, that the English statute was the same as ours, and that under their statute, co-parceners and tenants in gavelkind, (who are co-parceners by particular custom, instead of common law,) may be compelled to join. Co-parceners aud tenants in gavelkind might sue and he sued jointly at common laxo ; and they are not at all affected by the statute. The properties of their estates are like those of joint tenants, not of tenants in common. They have an unity of interest, title and possession. All the parceners make but one heir: and have hut one estate among them. (2 Bl. Com. 187.) And although their estate is created in England in the same manner as a tenancy in common may he created under our laws, the properties, qualities and incidents of the two estates are in no respect similar.
1 am, therefore, of opinion, that the demandant is y titled to judgment.
Judgment of respondeas ous'er.