delivered the opinion of the Court. This is replevin for a parcel of spermaceti oil. One principle in regard to this form of action is well settled, which is, that to maintain it, a party must have not only some right of property, but the right of possession; whence it follows, that a tenant in common cannot maintain replevin against a co-tenant, because they have each and equally the right of "possession.

It is conceded, that there was a time when the parties were tenants in common, that is, at the arrival of the whal*76ing-ship May Flower, by which this cargo of oil was broughi H L incumbent on the plaintiffs therefore to show, that by some valid -act, they became tenants in severalty, of the parcel of oil which is the subject of this action, and that it was so far put under their control as to give them a right of possession. This the plaintiffs proposed to do by showing that this parcel of oil was severed, marked and set apart for the plaintiffs, and that nothing remained to Bartlett but a right of lien for storage, and that when he undertook to sell the oil to a stranger, he violated the trust reposed in him, parted with the possession, and thus waived or lost his lien, and that the plaintiffs thereby had an immediate right of possession, which, connected with' their right of property, was sufficient to enable them to maintain this action.

It requires consideration to see whether the facts were such as to make out this case. The plaintiffs and Bartlett, with other owners of the May Flower, being tenants in common of the cargo of oil, undoubtedly it was competent for them to appoint a common agent and authorize him to sell the whole and divide the proceeds, or to make a division and partition of the oil specifically, so that each should hold his share separately. Whether they have made such partition depends upon the agreement manifested by the acts done, and the intent and purpose with which they were done. The plaintiffs rely mainly on the fact, that the oil in question was separated, marked and set apart for the plaintiffs ; but whether this was done with a view to a partition, or to a sale, depends upon all the facts taken together.

It appears that Bartlett was a general agent for the owners to sell the cargo of oil, so constituted either by some specific authority after its arrival, or by the terms of association under which the enterprise was undertaken. The plaintiffs being dissatisfied with the sales made by Bartlett, applied to him, through their agent Drew, to have their shares divided and set off to them. But to this Bartlett did not assent, but made to them another proposition, which was, to sell to them upon as good terms in regard to price and credit, as he had been selling to "others ; this seems to have been intended to meet and obviate any ground of complaint, because, if the terms *77were unfavorable to them as owners, this disadvantage would be more than counterbalanced by the benefit they would derive from a favorable purchase. We think, therefore, that the proposal made by the plaintiffs to divide, was never acceded to, but the offer to sell on the same terms as those of the sale to John A. Parker, was acceded to, and the separation and marking took place in pursuance of such contract of sale, and not as a division among tenants in common. The written agreement entered into by the parties on June 24, 1830, confirms this view. It provides that the oil is to be stored in the oil-shed at the works of the owners, the rate of storage is agreed on, and certain contingent stipulations are made in regard to manufacturing. It then goes on to provide, that the lot of oil is to be in the possession of the agent for the owners, until regularly settled for, in manner conformable to the sale of oil recently made to John A. Parker from the same cargo. The terms of the sale to Parker, as to price and credit, on negotiable notes, are shown. Had it been a division and not a sale, no price or- credit would have been agreed on, and no reference to the sale to Parker would have been necessary or pertinent. The plaintiffs would have taken their aliquot part in gallons, wdthout reference to price. Further, this stipulation, that possession should be retained by the agent for the owners,,shows that it was not to preserve the lien for storage, but that the oil was to remain till settled for. The sale was not to be completed by a delivery of the oil, till settled for, as Parker had settled for his. This reference to Parker’s contract shows what the plaintiffs were to do. Till such delivery, in pursuance of a contract completed, the tenancy in common did not cease. It was a contract of sale, to be completed by payment of the stipulated price, and a delivery, actual or constructive, and until this was done the plaintiffs had not the right of possession. No doübt property passes by a bargain without delivery, so as to place it at the risk of the vendee ; but the vendee has no right of possession, till delivery, and delivery cannot be obtained, till payment is made, or the other terms of sale are complied with. Showing, therefore, that if the property had been lost, or destroyed, it would have been at the risk of the vendees, goes little way to *78show that they could maintain replevin. Hussey v. Thorn ton, 4 Mass. R. 405.

We think the contract was a contract of sale, and the plaintiffs were bound to give their notes for the amount; and as no time was stipulated, it was to be done within reasonable time, and Bartlett could not lawfully sell to others till after the lapse of reasonable time. Having waited a reasonable time, he demanded notes, which the plaintiffs declined giving, on the ground, that they were not bound to do so. But if they were bound to do so, and we think they were, this refusal was a rescinding of the contract on their part, and then Bartlett was remitted to his general authority to sell, this not having been revoked. His sale therefore, afterwards made to Judd, was not such a violation of his authority and trust, as to give the plaintiffs a right to interfere. Under these circumstances, the Court are of opinion, that the instruction to the jury was correct, that upon the contract, if the terms of Parker’s contract were to pay in notes, which was not contested, the giving of negotiable notes was of the substance of the contract, and that the refusal of the plaintiffs to do so, prevented the contract from being completed, so as to vest the right of property in severalty, and the exclusive right of possession, in the plaintiffs. By this separation of the oil therefore, in pursuance of a contract never completed, neither the right of property nor the right, of possession, of the plaintiffs, in this parcel of oil, was changed ; they remained as they were, tenants in common ; and this action cannot be maintained.

On the subject of damages, we think they must be reduced, according to the right reserved at the trial, to 6 per cent, on the value of the goods. The case is not within the letter or the equity of the statute which gives 6 per cent, on the penalty of the bond, and requires that such penalty be given for double the value of the goods ; that applies to cases, where the process of law has been delayed by the replevin. It is desirable, that the assessment of damages should be reduced as far as possible to general rules. In trover, the rule is well established to be, interest on the value of the goods from the time of the conversion to the time of the assessment. And when no special damages are shown, the same principle applies tc *79replevin. Interest is to be calculated from the time of the service of the writ of replevin to the present time, on the value of the goods, and the valuation in the writ is to be taken as prima facie evidence of the true value.