The only question which is so presented in this case, as to warrant an examination by this court is, Could trover be maintained for the wrong complained of ? We cannot ¡examine the decision of the court overruling the motion for a new trial, for the reason that it is not shown in the bill of ¡exceptions. The- clerk states in the record, that the defendant ¡excepted to the overruling of the motion for a new trial. But '•that does not make it a part of the record. It could only be •made so, by a bill of exceptions. The law requires the certificate of the judge and not of the clerk, to that fact. We may nay, however, that we have examined the proof which is set out in the bill of exceptions, and do not think if the question were properly presented, that we could disturb the verdict.
The action is for trover, in two counts. One, for the conversion of a promissory note, and the other for the conversion of bank bills. It turns out that the note was payable to the plaintiff, but the defendants were entitled to a part of the money due upon it, and they converted the whole of the note, .or the money which they collected upon it, to their own use, denying the right of the plaintiff to any portion of it. At .common law this action could not be maintained, but under ¡the second section of the fifty-sixth chapter, R. S., we think it can. The section is this : “ If any person shall assume and exercise conclusive control over, or take away, destroy or lessen in value, or otherwise injure or abuse, any property held in joint tenancy, tenancy in common, or coparcenary, the party aggrieved shall have his action of trespass or trover for the injury, in the same manner as he would have if such joint tenancy, tenancy in common, or coparcenary, did not exist.” This seems to reduce the question to the simple inquiry, could this action have been maintained if the plaintiff had owned the whole of the note ? for if it could, then the statute says it may be maintained now, in the same manner as then. The form of the action, it thus seems, may be the same in the one case as the other, because it may be done in the same manner. There is no dispute, if the plaintiff owned the whole of the note, that she could maintain this action. This disposes of the second and third instructions, given for the plaintiff, to which we think the bill of exceptions shows, the defendant did except, although the plaintiff below questions this. "We think the instructions were right, and the judgment must be affirmed.
Judgment affirmed.