The opinion of the Court was by
Shepley J.This case is presented by a bill of exceptions taken to the acceptance of a report of referees. This was formerly regarded as a discretionary power, and the exercise of it as not subject to a revision, in this mode. Walker v. Sanborn, 8 Greenl. 288. By the Revised Statutes, c. 138, <§> 13, it is provided, that either party may file exceptions to any decision of the District Court accepting or rejecting a report. And by the additional act of April 7, 1845, to amend that chapter, it is provided, that the judgment of the District Court in accepting, rejecting, or recommitting, the report of referees shall be deemed so far matter of law as to be subject upon *139exceptions thereto to revision in the Supreme Judicial Court, with discretionary power to accept, reject, or recommit, the same according to the equity of the case.
The plaintiff brought an action of trespass against the defendant for taking and selling a wagon and harness and other property. The defendant admitted and justified the taking and selling as an officer, by virtue of certain executions in his hands for service against John Lothrop. The action having been referred a report was made to the District Court, in which the referees have stated, that the wagon and harness were the property of the plaintiff and of John Lothrop jointly; that the defendant was not notified of the plaintiff’s joint interest in them; that he was justified in seizing and selling them; and that he should not be liable to the plaintiff for any money arising from the sale of them.
Two objections have been presented to the plaintiff’s right to recover for the value of his interest in the property.
The first is, that the officer was not notified, that the plaintiff was a joint owner of the wagon and harness, before they were taken and sold. An officer is not authorized by virtue of a precept against one person to take and sell the property of another. He must ascertain at his own risk, that the property to be taken and sold is the property of the person against whom he has a precept. And he is not in doubtful cases obliged to take it without a full indemnity. The owner of property, against whom he has no precept, is not obliged to notify him before he will bo entitled to maintain an action against him for taking and selling his property, unless he has so conducted with his own property as to forfeit his legal rights.
One tenant in common of personal property cannot be considered as having conducted, improperly or forfeited any of his legal rights, by allowing another tenant in common to have the possession and use of the property. The plaintiff may have so conducted with his own property as to prevent him from recovering for its value; but the report does not so state, and the Court is not advised of any such state of facts.
The other objection is, that the plaintiff alone cannot main*140tain an action of trespass to recover for the value of his share of the property. The officer might lawfully take the property by virtue of an execution against one of the tenants in common, and sell the interest of that one, and deliver the property to the purchaser, who would become a tenant in common with the other owner. But he could not lawfully sell the share of the other tenant in common, and he would by such an unlawful act become a trespasser, so far as it respects that share of the property. The general rule is, that tenants in common of personal property should join in an action to recover for an injury, because the injury is joint, and they recover joint damages. But the injury is not joint, when the share of one tenant in common has been lawfully taken and sold, for as it respects that one, the justification is complete. The tenants in common do not suffer a joint injury, and they are not jointly interested in the damages to be recovered. Melville v. Brown, 15 Mass. R. 82.
If the law had required in this case, that both the tenants in common should have joined in the action, as the defendant has not pleaded in abatement, he could not make the objection upon a hearing on the merits. Addison v. Overend, 6 T. R. 766.
The state of facts, as presented by the report, are such as to induce the' Court to recommit it, that the referees may have opportunity for further consideration.
Report recommitted.