3A jmomsn. nuronrme. ‘ I
‘ crease of the nuisance thus in common indicted and in common sus-
tained. T0_ my mind this bill, presents a much stronger case for join-
der oisall the defendants than Gaines v. Chew, Oliver v. Piatt, Cent.
P. R. Oo. v. Dyer, or, indeed, a large majority, if not all, of the cases
to be found in the books establishing the rule invoked. As counsel
for complainant well observed, if there is found inthe books no prece-
dent precisely like the case in hand, in all its circumstances, it must
be because no case, except that of Keyesjexactly like it has been
presentedto the courts for adjudication, and the time andthe occasion
have now come to make one. I think the bill not demurrable on
V the ground of misjoinder of defendants or multifariousness. r j
r I amsatisiied alsorthat the complainant is entitled temaintain the
suit without joining his co-tenant or making him a defendant. His
rinterest-—his estate--is several. There is but a unity of possession.
His interest or estate is capable of being injured, and he is entitled
to have it protected from irreparable injury, whatever course his co-
tenant may see fit to pursue. He claims nothing against his co-
· tenant., The co,-tenant is not an indispensable party to a determi-
nation of his rights. In this state, both before the Code, under the
common-law rules, and after the adoption of the Code, by erpress
provision carrying the former rule into it, it was settled that tenants in
common. could sue alone. In Goodenough v. Warren, 5 Sawy. 497, a
suit to quiet title, it was held that one tenant in common, made a de-
fendant, could removethe case from a state court to the circuit court of
the United States, on the ground that there was a. controversy wholly
between him and the plaintiff, which could be fully determined as
between them without the presence of other parties. The same ruling
was made in Field v. Lownsdale, 1 Deady, 289.
In Dent v. Turpin, 2 Johns. & H. 139, and in Southern v. Rey-
nolds, 12 Law Rep. (L. T. R.) 75, it was held that a co-tenant,
in the right to the use of a trade-mark, might maintain a bill to re-
strain its use without joining or making his co-tenant a party. In
Payne v. Hook, 7 Wall. 431, it was held that one of the heirs of an
estate could maintain a bill against an administrator and his sure-
_ ties to obtain relief against fraudulent proceedings, for an account,
and for her share of the estate, without making the other heirs par-
, ties to the bill. The other heirs were named in the bill, but it was not
stated of what state they were citizens. The court says: "It can
°/never be indispensable to make defendants of those against whom
nothing is alleged, and from whom no relief is asked. A court of