TONG V. MARVIN.

gation of the common law is to be strictly construed; a most excellent rule when rightly applied, but which has often been employed to torture words into expressing a meaning which was not in them. The case of Hurd v. Cass, was followed by Clark v. Clark, 24 Barb. 581, which was also the decision of a single judge at special term. No case in New York has undertaken to consider the question at length, except Billings v. Baker, 28 Barb. 343, which holds curtesy abolished. In the subsequent case of Thurber v. Townsend, 22 N. Y. 517, a decision is made by the Court of Appeals which, as we understand it, overrules the two cases of Hurd v. Cass, and Clark v. Clark supra, and settles the law of New York in accordance with the views we have expressed.

The present case does not call for any opinion as to the effect of the constitutional provision we have quoted upon estates by the curtesy which had become initiate before the act of 1844, nor as to the state of the law between 1844 and 1855. The descent of the land in ques

tion to the wife was in 1855, and her death took place in 1857. We are entirely satisfied that Proctor Tong had no estate by the curtesy in the land, and that on neither point was the demurrer well taken. We think it legally impossible that a woman's estate should remain unaffected by her marriage, and the husband at the same time acquire by the marriage an estate, either vested, initiate or contingent, in it.

The decree of the court below dismissing the bill must be reversed, the demurrer overruled, and the cause remanded with leave to defendants to answer on payment of the costs of this court and ten dollars costs in the court below.

CAMPBELL and CHRISTIANCY JJ. concurred.

MARTIN CH. J. I concur in the result.

15 Mich.-F.

FORT STREET AND ELMWOOD R. R. Co. v. SCHNEIDER.

Fort Street and Elmwood R. R. Co. v. John Schneider.

Contract, construction. Under an ordinance of the city of Detroit, the complainants contracted "to pave their railway track (on a certain street) and two feet and four inches on either side thereof, at their own expense- if the city should pave said street cotemporaneously with the construction of complainants' railway." The city did so, and having assessed said complainants excavation, as well as the paving, of said portion of said street, it was held that under said ordinance and contract, the complainants were only liable to pay for their proportion of the paving.

for the cost of the

Heard November 9th. Decided November 10th.

Appeal from the Wayne Circuit in Chancery.

The bill in this case was filed to restrain the defendant, as City Collector, from collecting a certain assessment made against the complainants, for the expenses of making certain excavations in Croghan street, in the city of Detroit, preparatory to paving the same, and prayed for an injunction.

The complainants were authorized by a city ordinance accepted by them, to construct a railway on Croghan street. By an amendment to that ordinance, also accepted by them, complainants were obligated as follows, to wit:

"If the city of Detroit pave Croghan street cotemporaneously with the laying of the track on said street, said Railway Company shall pave their track on said street, and two feet four inches on either side thereof, at their own expense.

This cotemporaneous paving, the city resolved to do, and did do. The assessment which was made against the complainants embraced an item for grading and excavating, as well as for paving said portion of said street; and the bill was filed to enjoin the collection of that portion of the tax which was for the grading and excavating.

The injunction was refused, and the cause was brought to this court by appeal.

RIPLEY V. DAVIS.

C. I. Walker, for complainant.

Wm. Gray, for defendant.

The Court held, that by the terms of said amended ordinance the obligation to pave, assumed by the complainants, did not include an obligation to excavate with reference to grade, but that the city was to provide for all the work preliminary to the actual paving, and that the injunction should have been granted.

The decree below was reversed, and a perpetual injunction granted in accordance with the prayer of the bill.

Volney A. Ripley v. Ira Davis and another.

Trover: conversion: damages. Where one co-tenant was bound to the other by contract, to deliver and divide joint property at a certain place, but appropriated it to his exclusive use, and under circumstances which rendered a division and delivery in the manner agreed upon impracticable: Held, that it amounted to a conversion, and that trover would lie. Held further, that in the absence of special circumstances requiring a different measure of damages, it was proper to award to the plaintiff the value of the property at the time of conversion, with interest from that time.

Amendment of pleadings in the Circuit Court, when discretionary. On the trial in the Circuit Court, the defendant applied for leave to interpose the defense of the Statute of Limitations, after having plead the general issue. Held, that this was a matter of discretion in the court below, and its denial could not be reviewed by this court.

Heard October 11th and 12th. Decided November 10th.

Case made after judgment from St. Clair Circuit.

This was an action of trover brought to recover the value of two-fifths of a certain quantity of logs cut by defendants on plaintiff's premises, and which said logs. were to be boomed at a certain point and divided. Defendants took the logs to a point far beyond the place agreed upon, and also set up a claim on them, under an alleged agreement.

RIPLEY V. DAVIS.

During the trial, the defendants' counsel objected to a portion of plaintiff's evidence, as it tended to show that the alleged conversion, or at least a part of it, occurred more than six years before the commencement of the suit.

The declaration alleged the conversion as having taken place within the six years.

The court overruled the objection, and also refused permission to defendants to add to their plea, a notice of the statute of limitations.

Judgment was rendered for plaintiff.

Wm. T. Mitchell and A. B. Maynard, for plaintiffs.

The proof of conversion was sufficient.

The logs were to be placed in a boom, at Port Huron, and there retained. It was their place of delivery, and where the division was to be made. Any removal from that place was a conversion by the defendants. Ripley frequently demanded his share of the logs, and could not get them, and was met with the reply that he had been credited for them in the defendants' account. This fully implied their absolute use and sale by the defendants, and was of itself a conversion. And it is in proof, by both Leighton and Loughrey, that all the D. T. 6 logs, were taken by them, as defendants' agents, from the boom at Port Huron, and run to defendants' mill at Trenton.

It was a disposition of the property, which put it out of the power of the defendants to deliver it on demand. This constitutes a conversion.-3 Mich. 139; 33 Maine, 347; 20 Ala. 212; 21 Pick. 559.

Trover lies by one tenant in common, of a personal chattel, against his co-tenant, for the appropriation of the chattel to his exclusive use, when the chattel is of such a nature as to be necessarily destroyed by the use thereof. 3 Gratt. 205; 17 Penn. 373; 12 Mich. 328.

RIPLEY v. DAVIS.

The question as to the application to append the notice of statute of limitations was clearly within the discretion of the court below, and the refusal, if made, is not a subject of review for this court.

B. C. Farrand, E. Hall and C. A. Kent, for defendants.

1. There is no evidence of conversion.

It will be admitted that plaintiff and defendants were tenants in common of the saw logs in question. A division was to have been made at Port Huron, but this was never done.

There is no evidence of any sale or any destruction of the logs.

There is some evidence tending to show a demand by plaintiff of his portion, and a refusal on the part of defendants to deliver the same. This is the only evidence of conversion.

The law is settled that, as between tenants in common, this is not sufficient. 2 Greenl. Ev. §646, and notes; 2 Hilliard on Torts, 293, et seq.; 1 Chitty on Pl. 156; 1 Taunt. 241; 9 Wend. 338; 7 Id. 449; 1 E. D. Smith, 217; 27 Conn. 355; 40 N. H. 403; 26 Ala. 686; 21 Penn. 90; 14 Ill. 466.

This Court has qualified this doctrine somewhat in the case of 12 Mich. 328. It was there held that one tenant in common of wheat threshed, and in one pile, can recover in trover of his co-tenant for refusing to deliver the portion due and claiming the whole.

This decision does not affect the doctrine we seek to maintain. Saw logs are far from being of the same size and quality. An equitable division must be a work of difficulty. No delivery could have been made by defendants to plaintiff until a division had been made. Plaintiff never asked for such division.

We submit that, under this state of facts, plaintiff is