The opinion of the court was delivered bj
The parties were tenants in common of the six tons of hay sued for. No division or disposition of the other hay raised upon the leased premises, as shown by the report, affects the title to the six tons in question. The defendant used part of the six tons. He had no right to use the plaintiffs’ half, and is liable in trover for so doing ; he sold that part of the six tons which he did not use. The sale of a chattel by one tenant in common is not such a destruction of it as to enable the co-tenant to maintain trover. The defendant is not liable in respect to the hay sold. There was error in rendering-judgment for one-half of the six tons ; it should have been for only one-half of the hay used by the defendant. As the report does not show the amount nor value of it, no judgment can be rendered in this court. The case will be remanded to the County Court for such further proceedings as may be permitted there.
judgment reversed, and cause remanded.