The opinion of the Court was delivered by
Mr. Justice Gary.This action was commenced in a trial justice court for claim and delivery of three bales of cotton. The trial justice’s statement of the case and the appellant’s exceptions will be set out in the report of the case.
1 The first error of which the exceptions complain is, that the Circuit Judge should not have overruled the plaintiff’s exception's to the charge of the trial justice in regard to the question of estoppel. The trial justice, it is true, made use of the expression that, so far as the law was concerned, he did not think the doctrine of estoppel applied in the case. He, however, proceeded to charge the jury upon the question of estoppel, and even if there was technical error on the part of the trial justice in his charge to the jury, the Circuit' Judge, under section 868 of the Code, was required to “give judgment according to the justice of the case, without regard to technical errors and defects, which do not affect the merits.” The charge of the trial justice had to be considered as a whole, and when so considered, it will be seen that he practically charged the jury as follows, on the question of estoppel:
1st. That mere knowledge on the part of W. T. Bradley & Co. that the amount due for the hire of the mule was included in the rent note, did not estop them until the whole 2,400 pounds of cotton was paid.'
2d. That if there was no deception, and both parties *573knew all the facts, W. T. Bradley & Co. were not estopped, provided they did not induce McCaslan to take the note.
3d. That the testimony was conflicting as to the alleged agreement between McCaslan and W. T. Bradley & Co., relative to the-hire of the mule, and that it was for the jury to determine this conflict of testimony. This Court fails to see wherein this charge was a denial of substantial justice.
2 The next question raised by the exceptions is, whether the hire of the mule could properly be regarded as an advance for agricultural purposes? Although this Court might interpose the objection that this question does not properly arise in this case, inasmuch as there was no such agreement ds constituted a lien, still the Court will take advantage of this opportunity to decide what seems to be an open question in this State. The amount due for the hire of a mule to work an agricultural crop is included within the terms of the statute providing for advances for agricultural purposes, as the labor of the mule must be regarded as expended in making the crop.
3 The last question raised by the exceptions is, whether the sheriff had the right to take from the possession of the plaintiff so much of the cotton as had been delivered to him in payment of the amount due for-rent of the land. McCaslan had a prior lien on the crop for rent of the land, and became the owner of so much of the cotton delivered to him as was necessary to satisfy the amount due him for rent of the land. The cotton delivered to him was more than sufficient to extinguish his lien for rent of the land, and he thereby became a tenant in common in the ownership of said cotton. W. T. Bradley & Co. had the righ-t to have their lien satisfied out of so much of said cotton as remained after satisfaction of Mc-Caslan’s lien for rent. For the purpose of enforcing payment of this claim, the sheriff had the right to seize all the property in which the tenants had a joint interest, then to sell the interest of the tenants, and to deliver possession of all the property to the purchaser, who would thereby be*574come a tenant in common with McCaslan. Freeman on Cot. and Par., sec. 214; Hillard on Torts, ch. XXXIII, sec. 6; Freeman orí Executions, secs. 125, 254a; Waddell v. Cook, 2 Hill (N. Y.), 48; see, also, notes to this case, reported in 37 Am. Dec., 372; Schatzill v. Bolton, 2 McC., 478.
4 The seizure of the property by the sheriff did not affect McCaslan’s right to a division of said property, nor would a sale of the property by the sheriff confer upon the purchaser any right which McCaslan has in the cotton. Although, technically speaking, the act of the sheriff in taking possession of all the property, and refusing to deliver to the plaintiff any part thereof, was not tortous, and, therefore, the action of claim and delivery is not plaintiff’s proper remedy; still, as this objection was not urged in the Court below, this Court does not feel called upon to interpose such objection. The plaintiff undoubtedly had an interest in the cotton seized by the sheriff to the extent of 157 pounds of lint cotton (the trial justice having reported that the amount due for rent was 1,800 pounds of lint cotton, and no effort was made to correct the report in this particular). ■ And as substantial justice can be done in this action, there is no necessity that the plaintiff should be compelled to commence another action for a division of said cotton. The plaintiff failed to get substantial justice as to the 157 pounds of lint cotton.
It is, therefore, the judgment of this Court, that the judgment of the Circuit Court be reversed, and a new trial ordered, unless within ten days after written notice of this judgment the defendant shall deliver to the plaintiff 157 pounds of said cotton, or its equivalent in money. And upon such being done, that the judgment of the trial justice be affirmed.