This was an action of trover, brought to recover damages for the conversion of two fishing seines. Plea, "Not guilty." In 1841 the seines belonged to John Bennett and F. Fagan, as partners in the business of fishing. In August, 1842, Fagan conveyed his interest in the two seines to the plaintiff. Bennett, who had the possession of the property, died in December, 1842, and his executor, on 31 January, 1843, sold one of the seines to the defendant at public sale, the plaintiff then and there objecting and setting up his title to a half of the said seines. The plaintiff, however, afterwards withdrew his objection, saying "that he would be entitled to his part." At a future day the executor sold to the defendant the other seine at private sale. The plaintiff was not then present, nor did he give any assent to this sale. The defendant used the seines in fishing up to the bringing of this action, which was on 1 May, 1845.
The defendant insisted, first, that he and the plaintiff were tenants in common, and that one tenant in common could not maintain an action of trover against his cotenant for an injury done to the property held in common; and, secondly, that the plaintiff should have made a demand before he commenced this action. The court charged the jury that if the plaintiff assented to the sale made by the executor of Bennett, he could not recover in this action of trover for a conversion of any of the property then sold; and that if there was no assent, then the (389) plaintiff could not recover unless they further found that the defendant had in fact destroyed the seines, or that they had been rendered useless by use, before the bringing of the action; and if that fact was proved against the defendant, then the defendant would be entitled to recover one-half of the value of the seines in damages. The court further instructed the jury that a demand before the bringing of the action was not necessary. The jury found a verdict for the plaintiff; a motion was made for a new trial, and it was refused. Judgment was then rendered, from which the defendant appealed. The court told the jury that if the plaintiff assented to the sale of his interest in the seines, or either of them, then he could not recover in this action for a conversion of that property which he had assented should be sold. The jury have by their verdict negatived any assent to the sale of the plaintiff's interest in the seines. The case, then, it seems, turned altogether upon the ground whether the defendant had destroyed the seines, or whether he had rendered them useless by use, *Page 281 before the action was brought. The original owners had been fishing as partners one or two years before the sale to the plaintiff by Fagan. But whether they had used either of these two seines during that time does not appear in the case. But the evidence does show that the defendant had in fact used these seines in fishing, for three springs, from the sale to him up to the bringing of the action. There was, therefore, evidence to be left to the jury as to the destruction of the seines by the defendant, or as to his rendering them useless by use. The law, we think, was correctly stated to the jury by the court. Lucas v. Wasson, 14 N.C. 398.
PEC [PER] CURIAM. No error.
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