| N.Y. Sup. Ct. | Aug 15, 1804
delivered the opinion of the court. The defendant, with two others, (Lord and Sherman,) who were copartners, were tenants in common of the salt. One tenant in common cannot maintain trover- against his co-tenant, unless the thing holden in common be destroyed. In case of a sale by one, and a receipt of tbe money, an action for money bad and received will lie. In this case Lord and Sherman sold their share, being five hundred and thirty bushels, to the plaintiffs, with the assent of the defendant, and on his advice. He promised to deliver the plaintiffs that quantity, and received from them the proportion of the duties, chargeable to Lord and Sherman. This, then, was a valid sale, and severed the tenancy in common. The damages are not excessive. It does not appear that Turk’s Island salt *was of a value superior to the other, which was from the island of St. Thomas. The plaintiffs gave six and six pence per bushel, and have recovered only that amount, with interest. The verdict invades no principle of law or justice: we are, therefore, against the motion. The plaintiff however, must stipulate not to bring any other action for St. Thomas’s salt.
Postea to the plaintifPs.