entertained a doubt, but for the case of Barton v. Williams," &c.] In Barton v. Williams, A. and B. having agreed to purchase cottons on their joint account, directed their brokers to purchase the same: these purchases having been made, warrants or orders for delivery were made out in the name of the brokers, and the cottons were left in their possession as the brokers of A.: immediately after the purchase, B. paid A. one half the value: after considerable purchases had been made, the brokers were informed that B. had an interest in the goods purchased: A., after this, directed the brokers to procure him a loan on the security of the warrants, and C. advanced money by discounting bills drawn by A. upon the brokers, as a security for which the whole of the warrants were deposited with C. by the brokers; while they were so deposited, the brokers received instructions both from A. and B. to make a division of the goods held on their joint account, which they did, by appropriating specific warrants to each party, and which division was approved of by both. Before the bills became due, the brokers were directed by A. to get one half renewed, which C. agreed to do, and discounted fresh bills; and the brokers then left in the hands of C., as a security for the money thus advanced, the warrants belonging to B.; C., however, not then knowing that B. had any interest in them. It was held, first, that the first pledge did not transfer to C. any interest in that part of the goods which belonged to B.; secondly, that, after the partition had taken place, the tenancy in common, if it ever had existed, was determined, and, that being so, the second pledge was the pledge of a specific chattel belonging to B., which the brokers had no authority to make, and that trover was maintainable. It has been said," observes Abbott, C. J., "that trover cannot be 1849. MAYHEW v. HERRICK. 1849. MAYHEW V. HERRICK. ground that, at the time of the original pledge, the plaintiffs were tenants in common with Moore, who was the owner of an undivided moiety. It is laid down by Lord Chief Baron Comyns (a), that, if a bailee sells the goods of another, the very act of sale on his part is such a conversion as to entitle the owner to maintain trover; and if that be so, it follows, that, if a bailee, in possession of undivided shares belonging to two persons, sells the whole, it must be a conversion as to the undivided part belonging to one, over which he has no right or title whatever. I incline to think, therefore, upon that ground, that the pledge could not operate upon the property of the plaintiffs; and that, even if there had been no partition, the sale was a conversion of the undivided interest, and therefore that trover may be maintainable." And Bayley, J., said: "There may be cases in which the indivisible nature of the subjectmatter of the tenancy in common may raise an implied authority in one to sell the whole. But, unless there be such authority, either express or implied, a sale of the whole by one tenant in common, is, with respect to the other, a wrongful conversion of his undivided part.” Parke, B., evidently considers that case an authority that a sale out and out of the whole partnership property would be a conversion quoad the solvent partner. Two persons jointly interested in a chattel, may maintain separate actions of trover in respect of it against a person who unjustly detains it; Bleaden v. Hancock. (b) In Fennings v. Lord Grenville (c), it was held that one tenant in common of a chattel cannot maintain trover for it against his companion, unless the latter have so disposed of it as to render it impossible that the plaintiff should ever take and use it. Here, the (a) Com. Dig. Action upon the Case upon Trover, (E.); citing 2 Salk. 655. (b) 4 C. & P. 152. (There was no plea in abatement.) (c) 1 Taunt. 241. goods are as entirely placed beyond the power and control of the plaintiff, as if they had been wholly destroyed, or as the ship was, in Barnardiston v. Chapman. In Jacky v. Butler (a), judgment was entered against one of two partners in trade; and, upon a fi. fa., all the goods, being undivided, were seized in execution: upon application to the King's Bench by him against whom the execution was not, the court held that the sheriff could not sell more than a moiety, for, the property of the other moiety was not affected by the judgment, nor by the execution. In Smith v. Stokes (b), Lord Kenyon says: "I do not understand how the assignees of the bankrupt could take the whole legal interest in this case, without which it is admitted that the action is not maintainable against the defendant. If, indeed, property be left in the hands of a bankrupt partner at the time of the bankruptcy, the assignees are entitled to take possession of the whole and sell it; but they must account for a moiety to the other partner. As in the case of Heydon v. Heydon (c), where it was holden, that, under an execution against one of two copartners, the sheriff must seize all, and not merely a moiety of the goods sufficient to cover the debt; because the moieties are undivided; and he must sell a moiety thereof undivided, and the vendee will be tenant in common with the partner." [Cresswell, J. In Farrar v. Beswick, Parke, B., says: "As at present advised, though it is not necessary to give a conclusive opinion, I think, that, if the plea had stated that Joshua had a joint interest in these cattle, and that the sheriff seized and sold the whole goods to levy the execution, it would have been a good answer to this action." Do you contest that proposition?] I do. There 1849. MAYHEW v. HERRICK. 1849. MAYHEW v. HERRICK. are numerous cases to shew that the sheriff has no right And so, if the of two partners for the separate debt of one, should receive a fi. fa. requiring him to levy for the separate debt of the other, he cannot return nulla bona to the second writ, without rendering himself liable to an action for a false return. (e) There appears to be much doubt as to what interest in the partnership property can be sold by the sheriff. (g) In a recent case, Lord Denman, C. J., said, (a) 8th edit., by Chitty, p. 583. (b) Citing Johnson v. Evans, 7 M. & G. 240., 7 Scott, N. R. 1035., 1 D & L. 935.; Farrar v. Beswick, 1 M. & W. 682. (c) Citing Johnson v. Evans, and Jacky v. Butler, 2 Ld. Raym. 871. (d) Citing Eddie v. Davidson, 2 Dougl. 650.; Pope v. Hayman, Comb. 217.; Heydon v. Heydon, 1 Salk. 392. And see Morley v. Strombom, 3 B. & P. 254. 288.; Bachurst v. Clinkard, 1 Show. 169.; Garbett v. Veale, 5 Q. B. 408.; Johnson v. Evans, 7 M. & G. 240., 7 Scott, N. R. 1035., 1 D. & L. 935. Dutton v. Morrison, 17 Ves. 193.; Taylor v. Fields, 4 Ves. 396.; Tidd's Practice, 9th edit., p. 1807. (e) Citing Johnson v. Evans. (g) See Burton v. Green, 3 C. & P. 306., and the note there. that he must sell such legal interest or share as the defendant has, as partner (which, in the case of only two co-partners, would be an undivided share), not the degree of right which he may be found to have on a winding-up of the affairs; because, if the plaintiff waited till that could be ascertained, the goods might remain unsold for an indefinite time: he must, however inconvenient it may be, sell the share of the defendant partner, make the purchaser tenant in common with the other partner, and the purchaser must do the best he can to ascertain what interest there is. (a) And, in another more recent case, the same learned judge said, 'The interest of one of several partners in the partnership property applicable to an execution against him, is only the surplus after payment of the partnership debts, and must depend upon a settlement of accounts, which a court of law is not competent to take, except by consent of all parties.' (b) Where an execution issued against one of two partners for a separate debt, under which the goods of the partnership were seized; before the sale, a fiat in bankruptcy issued against the partnership; the partnership property was afterwards sold, and the produce received by the assignees: it was held that the execution-creditor could not maintain an action. against the assignees for a moiety of the produce, as money had and received to his use, having acquired no legal interest in the goods. (c) The proper course seems to be, to buy the defendant's share, and file a bill in equity for an account." [V. Williams, J., referred to Graves v. Sawcer (d), “in an action upon the case, the (a) Citing Holmes v. Mentze, 4 Ad. & E. 131. (b) Citing Garbett v. Veale, 5 Q. B. 408.; Heydon v. Heydon, 1 Salk. 392.; Chapman v. Koops, 3 B. & P. 289. And see dictum per Patteson, J., in Burnell v. (c) Citing Garbett v. Veale, (d) Sir T. Raym. 15. |