delivered the opinion of the court. The _ «Counsel for the plaintiffs, on the argument, very properly gave up the point that Israel Gibbs was not interested in the goods seized by the sheriff, in two-lifth parts, for the evidence is conclusive that he was owner to that extent.
The only remaining questions are; 1. Whether an action of trover and conversion will lie by one tenant in common against his co-tenant in common for the sale of the chattel owned by them.
2. Whether the defendant has been guilty of a trover and conversion of the rum before the action brought.
3. Whether the release to the sheriff will avail the defendant.
That an action of trover will lie by one tenant in common against another for a destruction of the chattel, or for ■its loss, whilst under his management, has not been controverted ; but a distinction has been attempted between a sale of the chattel, and a tortious destruction, a distinction, I think, not maintainable. Tenants in common of a ■chattel have each an equal right to the possession, and the law will not afford an action to the one dispossessed, because his right is not superior to that of the possessor ; *179but tenants in common are not like partners; the latter may dispose of chattels, by virtue of an implied authority to sell, without being liable as for a tort, whilst the former cannot dispose of them without violating the right of their co-tenants ; for a sale, therefore, of a chattel, an action of trover will lie by one tenant in common against another.
2. The fact whether a sale of the rum had taken place when the action was brought, was a point submitted to the jury, and the case does not present the dates of the transactions, so as to enable me to say that the jury have mistaken the facts.
3. The release to the sheriE cannotprotect the defendant, because in fact he was not a trespasser, by selling the interest of Israel Gibbs in the rum ; and the release itself manifestly shows that there has been no actual satisfaction to the plaintiEs ; it was given long after the action brought, and I think it was improper evidence, had its operation been more extensive than it is.
The court are, therefore, of opinion, that the defendant must take nothing by his motion.
Van Ness, J. not having heard the argument, gave no opinion.
Rule refused.(a)
The case of Wilson & Gibbs v. Ab.Reed, depending on the same questions, was decided in the same manner.