seems to us, requires that those facts which may not amount to a conversion of the interest of a part owner of a ship, may nevertheless be tantamount to a conversion or legal destruction of a part owner's interest when the subject of the tenancy is some chattel not designed, in its ordinary use, to be removed from one point to another. Hence, where two were tenants in common of a marine railway, consisting of iron and wooden rails and sleepers, endless chain, gear wheels, and ship-cradle, and one of them removed these materials to another town and made them into a new railway on his own land, the other cotenant succeeded in maintaining trover for his proportion. Under like circumstances, a tenant in common of certain personal property, consisting of a shingle-mill, and of a clapboard or siding-mill and a steamengine used for operating these mills, was allowed to recover in the same form of action.2.

2318. For refusal to apply Property to its proper use. In Pennsylvania, an action of trover was brought to recover damages for the conversion of certain stereotyped plates of a pictorial history. In the final determination of this suit, the Supreme Court used the following language: "The reason why one joint-tenant or tenant in common cannot maintain trover against his companion is, that both are equally entitled to possession, and the possession of one is the possession of both, and is in accordance with the right of both. But where one misuses the joint property by appropriating it to uses for which it was not designed, and refuses to apply it to the purposes for which it was held by both, or if one delivers the property wrongfully to a stranger, for purposes inconsistent with the purposes for which it was designed, and such stranger denies the title of the other, and claims the exclusive possession and ownership, the reason of the rule ceases, and trover may be maintained."

319. Trover for refusing to Sever.-Where the chattels constituting the subject-matter of a cotenancy are of a severable character, so that either cotenant may lawfully sever

'Strickland v. Parker, 54 Me. 264. 2 Benedict v. Howard, 31 Barb. 571. Agnew v. Johnson, 17 Penn. St. 377.

and appropriate his share without the consent of the others, the rule that taking, and, after demand, retaining exclusive possession, is not a conversion, no longer prevails. Hence, where two were tenants in common of a number of bushels of grain, and one of them locked it up, and refused to permit a division, or to recognize the rights of the other, this was held sufficient to sustain an action of trover, because neither a loss, sale, nor destruction of the common property could more completely deprive the injured party of his rights, nor "give him any better legal or equitable right to an action against his cotenant." And where the property was, in pursuance of an agreement between the cotenants, to be divided. at a particular place, and one of them took it beyond that place to a point from which its return was impracticable, he was held to be liable for its conversion.2

FOR REPAIRS.

320. Writ to compel Repairs.-Where the subject of the tenancy was in need of repairs, the common law, in some cases, gave a remedy which compelled the several co-owners to unite in making the necessary reparations. "If two tenants in common, or joint-tenants, be of an house or mill, and it fall in decay, and the one is willing to repaire the same, and the other will not, he that is willing shall have a writ de reparatione faciendâ; and the writ saith, ad reparationem et sustentationem ejus dem domus teneantur; whereby it appeareth, that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men."3 But "if there be two joint-tenants of a wood, or arable land, the one has no remedy against the other to make inclosure or reparations for safeguard of the wood, or corn." It seems clear from these two quotations that this writ only issued to compel repairs to a house or a mill. Some doubt has arisen whether the writ enabled a cotenant to obtain re

Lobdell v. Stowell, 37 How. 93; S. C. 51 N. Y. 70; Channon v. Lusk, 2 Lans. 211; Fiquet v. Allison, 12 Mich. 330; Webb v. Mann, 3 Mich. 139.

2 Ripley v. Davis, 15 Mich. 78.

3 Co. Litt. 200 b; Cubitt v. Porter, 8 B. & C. 269; Stevens v. Thompson, 17 N. H. 110.

4 Bowles' Case, 11 Co. 82 b.

imbursement for repairs already made, or compelled the cotenants to unite in making such repairs as were shown to be necessary. In an early case in Massachusetts, the former theory was assumed to be correct,' and this case was followed as authority, and without any apparent consideration of its soundness, in another case in the same State, and also in a case in the State of New York. Quite recently, the question has been reconsidered in Massachusetts, and the earlier decisions overruled, because the Court was satisfied from the Latin forms of the writ, from the statement in Fitzherbert N. B. 127, and from the cases in the Year Books referred to by him, that "the writ de reparatione was a process to compel repairs to be made under the order of the Court," and "that there is nothing to indicate that an action for damages is maintainable by one tenant in common against another because the defendant will not join with the plaintiff in repairing the common property. The writ seems to have been but rarely resorted to even in England, and probably has never been issued or demanded in the United States. At the present day, we know of no remedy, unless given by statute in some of the States, by which either cotenant may be forced to unite in making repairs, under order of the Court or otherwise. A cotenant who has made necessary repairs may, on that account, obtain a deduction from an amount which he might otherwise have to pay for mesne profits, or for rents and profits received; but we have never met with a case, in any form of action, wherein one cotenant recovered of another for either repairs or improvements made without the request of the defendant."

Doane v. Badger, 12 Mass. 65.

Coffin v. Heath, 6 Met. 80.
Mumford v. Brown, 6 Cow. 475.

Calvert v. Aldrich, 99 Mass. 76.

5 The common law rules governing actions between cotenants have been modified or abolished in many of the American States. The following note is intended to show the statutory provisions on this subject in most of the States:

ARKANSAS." When one or more joint-tenants, tenants in common, or coparceners in any real estate, or any interest therein, shall take, use, or have the profits thereof in greater portion than his interest therein, such person, or his executor or administrator, shall account therefor to his or their cotenant, jointly or severally.

"Such joint-tenants, tenants in common, and coparceners in any estate, real or personal, may maintain actions of account against their cotenants who receive as

bailiffs more than their due proportion of the benefits of such estate."-Gould's Digest of Ark., p. 95, secs. 1 and 2.

CALIFORNIA..—“ If a guardian, tenant for life or years, joint-tenant or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages."-Code of C. P., sec. 732.

CONNECTICUT.-"When two persons hold any estate as joint-tenants, tenants in common, or coparceners, if one of them shall receive, use, or take benefit of such estate in greater proportion than the amount of his interest in the principal estate, he and his executors or administrators shall be liable to render an account to his cotenant; and such cotenant, his executors or administrators, may bring an action of account against such receiver, and recover such sum as he has received more than his just proportion as aforesaid."-Sec. 264 Act Regulating Civil Actions, Rev. St. of Conn., p. 59.

DELAWARE.-"A tenant in common, or a joint-tenant, or a coparcener, may maintain against his cotenant an action in the case for use and occupation."-Rev. Code, 1874, p. 527, sec. 2.

"A tenant in common, joint-tenant, or coparcener, committing waste of the estate held in common, joint-tenancy, or coparcenary, shall be liable to an action of waste at the suit of his cotenant."-Ib., p. 536, sec. 4.

GEORGIA." Every tenant in common has the right to possess the joint property, and so long as he occupies no greater portion of it than his own share would be on division, and does not withdraw from it any of its essential value, such as mineral deposits, he is not liable to account for rent to his cotenant; but if he receives any rent or other profit, or commits any waste, or if he, by any means, deprives his cotenant of the use of his fair proportion of the property, or if he appropriates all to his exclusive use, or if the property is of such a character as that the use of it must necessarily be exclusive, then he is liable to account to his cotenant."-Sec. 2302 Code of Geo., ed. of 1873.

ILLINOIS.-The statute of this State in reference to accounting is almost identical with that of Arkansas. (See Rev. St. Ill., ed. of 1858, p. 211, secs. 1 and 2.) The statutes of Illinois also provide that, "If any person shall assume and exercise exclusive ownership 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." (See same ed. Rev. St., p. 960, sec. 2.) Under this statute, trover may be sustained against a cotenant who keeps exclusive possession of a chattel(Benjamin v. Stremple, 13 Ill. 466) --or who has converted a promissory note, (Boyle v. Levings, 28 Ill. 314.)

INDIANA.-"If a joint-tenant, or a tenant in common, or tenant in coparcenary, have, by consent, management of the estate, and make, with knowledge and without objection of his cotenant or coparcener, useful or necessary improvements, the cotenant or coparcener shall contribute rateably thereto.

"A joint-tenant, or tenant in common, or tenant in coparcenary, may maintain an action against his cotenant or coparcener for receiving more than his just proportion."-Rev. St. of Ind., vol. 2, p. 243, secs. 15 and 16, ed. of 1852.

KANSAS.-The statute of this State in regard to the liability of cotenants for improvements, and also in reference to accounting, is a copy of that of Indiana.-Genl. St. of Kansas, ed. of 1868, p. 541, secs. 21 and 22.

KENTUCKY.- -“If a tenant in common, joint-tenant, or parcener, commit waste, he shall be liable to his cotenants, jointly or severally, for damages."-Genl. St., ed. of 1873, p. 607.

MAINE. Any cotenant who, in this State, commits any waste without giving thirty days' notice in writing of his intention to enter upon and improve land, forfeits treble damages, for which either cotenant may sue without joining the others. (Rev. St. Me., p. 732.) If any one or more of the joint-tenants, or tenants in common, take the whole rents or income of the joint estate, or more than their share, without the consent of their cotenants, and refuse, in a reasonable time after demand, to pay such cotenants their share thereof, any one or more of them may have an action of special assumpsit against the refusing cotenants, to recover their proportion thereof.” (Ib., p. 734, sec. 16.) Trespass quare clausum fregit is a proper form of action to recover treble damages under the statute-(Mills v. Richardson, 44 Me. 79; Maxwell v. Maxwell, 31 Me. 184)—and the plaintiff in such action may recover treble the damages suffered by the whole property, including the interest of the defendant. (Hubbard v. Hubbard, 15 Me. 198.) The above statute in reference to accounting changes the rule of the common law, and makes the occupant liable for the benefits derived from his occupancy as well as from rents and profits received. (Cutler v. Currier,

54 Me. 81.)

MASSACHUSETTS.-Cotenant committing strip or waste liable to treble damages.— Genl. St. Rev. of 1860, p. 709, secs. 7, 8, 9.

MICHIGAN." One joint-tenant, or tenant in common, and his executors or administrators, may maintain an action for money had and received against his cotenant for receiving more than his just proportion of the rents or profits of the estate owned by them as joint-tenants, or tenants in common." (Comp. Laws Mich., ed. of 1871, p. 1366, sec. 38.) "If one joint-tenant, or tenant in common, shall commit waste of the estate held in joint-tenancy or in common, he shall be subject to an action on the case for such waste, at the suit of his cotenant or tenants."-Ib., p. 1792, sec. 3.

MINNESOTA." One joint-tenant, or tenant in common, and his executors or administrators, may maintain an action against his cotenant for receiving more than his just proportion of the rents or profits of the estate owned by them as jointtenants, or tenants in common."-Rev. St. Minn., ed. of 1873, p. 885, sec. 25.

MISSOURI.-"If a tenant in common, joint-tenant, or parcener, commit waste, he shall be liable to his cotenants, jointly or severally, for damages." (Genl. St., ed. of 1865, p. 743, sec. 46; ed. of 1870, p. 884.) By sec. 49, if in any action of waste the jury find that the waste was wantonly committed, judgment shall be entered for three times the damages assessed.

NEVADA.-Cotenants of a mining claim who have proceeded to work or develop the claim, may each sue the other to recover for moneys expended in such work. See secs. 91 to 98 Comp. Laws Nev. These sections also provide the means of ascertaining the relative liability of each cotenant, and the manner of pleading and proceeding in suits brought under the act.

NEW HAMPSHIRE.-"One copartner, or joint-owner, may recover, in an action of assumpsit against another, his just share of any property received and wrongfully withheld by such other." One cotenant of real estate may recover in such action against another for his share of any trees, fixtures, or other part of the estate destroyed, severed, or carried away by such other." (See Stone v. Aldrich, 43 N. H. 52.) "One cotenant of real estate may recover in such action of another taking the income thereof without his consent, and wrongfully withholding the same, all damages he may sustain thereby."-Genl. St. of N. H., ed. of 1867, p. 406-7, secs. 2, 3, and 4.