Irwin's Admr. v. Brown's Extrs., 1860,35 Pa. St. 331: Assumpsit to recover a share of the proceeds of a wrongful sale of timber belonging to the plaintiff's intestate and two others as tenants in common. Lowrie, C.J. (p. 332): "To enforce a joint or several duty, we impute a joint or several contract. Now, whether we treat the defendant's wrong as waste or trespass, his legal liability for it was to the tenants in common jointly; 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." 1
1 Minor v. Baldridge, 1898, 123 Cal. 187; 55 Pac. 783, 784; Patterson v. Prior, 1862, 18 Ind. 440; 81 Am. Dec. 367; Limited Investment Asso. v. Glendale Investment Asso., 1898, 99 Wis. 54; 74 N. W. 633.
2 But see, contra, Gilmore v. Wilbur, 1831, 12 Pick. (Mass.) 120; 22 Am. Dec. 410; City Nat. Bank v. Nat. Park Bank, 1884, 32 Hun (N. Y. Sup. Ct.) 105, 111.
3Neate v. Harding, 1851, 6 Exch. 349; National Trust Co. v. Gleason, 1879, 77 N. Y. 400, 404; 33 Am. Rep. 632; New York Guaranty, etc., Co. v. Gleason, 1879, 78 N. Y. 503. See Brundred v. Rice, 1892, 49 Ohio St. 640; 32 N. E. 169; 34 Am. St. Rep. 589.
There is authority, however, for the view that one of two or more tenants in common may sue severally in assumpsit,2 although no good reason for the distinction is apparent.
It is hardly necessary to point out that the infancy or insanity of a tort-feasor is no defense to an action for restitution.3 The form of action is contractual, but "the validity of a plea as a defense may, and ordinarily should turn, not upon the form of the action, but its substantial merit." 4 Moreover, while evidence of immaturity or mental deficiency may be admitted under some circumstances in mitigation of damages, it is quite irrelevant when the plaintiff is seeking, not damages, but restitution.