The opinion of the Court was drawn up by
Weston C. J.The point more directly presented to our consideration upon these pleadings is, whether the Eatons should have been joined, as plaintiffs in this action. This will depend upon the question, whether upon the facts set forth in the plaintiff’s declaration, one tenant in common of a chattel can maintain an action, like the one before us, against his co-tenants.
If one tenant in common destroy the common property, trespass lies against him by his companion. Coke Litt. 200 b. So if one misuse a chattel owned in common, he is liable to the action of his co-tenant for the misfeasance. Martyn v. Knowlleys, 8 T. R. 145. In Fennings v. Lord Grenville, 1 Taunton, 241, the court admit that trover will lie by the party injured, where one tenant in common destroys the common property. To the same effect is Mersereau v. Norton, 15 Johns. 179. In Oviatt v. Sage, 1 Conn. R. 95, the court held, that a destruction of the chattel owned in common by one co-tenant, will render him liable in trover at the suit of another. And this was decided by the Court to be the settled doctrine in Hyde v. Stone, 7 Wendell, 354, and in Gilbert v. Dickerson, ibid. 449.
The defendants are charged in the plaintiff’s declaration, with having carried the oats, confided to their care, in so negligent and careless a manner, that the boat in which they were transported, was filled with water, and the oats lost. Is this equivalent to an averment of the destruction of the oats by the Eatons, who were co-tenants with the plaintiffs ? We are of opinion that it is. ’ It is not traversed by the plea in abatement, but the defendants there pleaded the joint, interest of the Eatons, at the time the oats mentioned and described in the plaintiff’s declaration, “ were lost and destroyed.” They very properly understood the term, lost, to have had the same meaning as, destroyed, in the connection in which it stands.
There are cases in the books, where evidence of destruction by co-tenants much less strong, has been held sufficient. In Barnardiston v. Chapman et al. reported by Lawrence J. in the case *197of Heath v. Hubbard, 10 East, 121, the plaintiff was owner of one moiety of the ship Triton in common with the defendants, who were the owners of the other moiety. The plaintiff, being in possession of the ship, the defendants took her forcibly, secreted her from his knowledge, changed her name, and sent her to Antigua, where she was lost. Trover by the plaintiff against the defendants was sustained, the jury having found, under the direction of the presiding Judge, the destruction of the ship by the defendant’s means; and the Court of Common Pleas, on motion, refused to grant a new trial.
In Sheldon v. Skinner, 4 Wendell, 525, the parties were tenants in common of a number of swine, which had been fattened and in the possession of the defendant. He gave notice to the plaintiff to attend to a division of them, which he declined. The defendant then divided them himself, and turned the plaintiff’s proportion into the street. This was held to be prima facie evidence of the destruction of them, and such as would enable the plaintiff to maintaiu trover against the defendant his co-tenant.
If upon the facts in the plaintiff’s declaration, he is entitled to sustain either trover or case, against the defendants, his co-tenants, which we hold to be warranted by the authorities before cited, Paine, being a participant in the wrong, is equally liable. We accordingly adjudge the plea in abatement bad.
Judgment of respondeas ouster.