The opinion of the court was delivered by
Lowrie, C. J.We should be sorry to think that this is the only form of action that furnishes any hope of redress in such a case as this, for we are quite unable to apply this one. There is no contract, in fact, on which to ground it; and in constructing or implying one, we must have a duty out of which and according to which the construction may proceed. To enforce a joint or several duty, we impute a joint or several contract: 10 S. R. 211; 14 Id. 111. Now, whether we treat the defendant’s wrong as waste or trespass, his legal liability for it was to the tenants in common jointly: Co. Lit. § 315; Roscoe on Actions, &c. 665 : and if the tort be waived and a constructive contract substituted, it must be a joint one. One cannot, by his election of a substitute, destroy the primary action to which his co-tenants were entitled with him.
It seems to us, that we say all we ought to say on the second point, by remarking that when the injury was done, it gave, if it was several, a right of action to the husband and wife which survived to the husband on her death. If the injury was to the three tenants in common, the right of action was not severed by the death of any of them.
Judgment affirmed.