Powell v. . Hill

Eodman, J. (After stating the facts as above,) by Sect. 249, C. C. P., the Court may give the plaintiff “ any relief consistent with the case made by the complaint, and embraced within the issue.” The plaintiff in this case demands the recovery of specific goods, or the value thereof. It may be conceded that if entitled to either the one relief or the other, that is to say, if he could have recovered either in an action of detinue or trover, he is entitled to judgment. He is not entitled to any specific goods, because the only goods which he claims, are blended in a mass with others, from which they are undistinguishable. On the proof, he is a tenant in common with the defendant, and the Court could not order the Sheriff to put him in possession of any distinct and specific quantity of corn or fodder, out of the common mass. Neither is he entitled to damages for the conversion of his share of the common property. It is well settled that one tenant in common cannot recover in trover upon a mere demand, and refusal to deliver to him his share: Campbell v. Campbell, 2 Mur. 65; Hill v. Robinson, 3 Jon. 501. In Rooks v. Moore, Bus. 1, it was held that one who was to receive a share of the crop, could not maintain trover for a conversion “before a division. It is true, that in this case the particular number of barrels of corn and of bundles of fodder which the plaintiff was entitled to receive out of the mass, was ascertained : But that did not amount to a specific appropriation; he was still but a tenant in common, just as one is who is *172 entitled to one sheep out of a flock, which must be of the average value. In this case the plaintiff was entitled to his. number of barrels, not of the best, nor of the worst, nor out of any particular place in the barn — but of an average value with the mass. Had a portion of the common property been accidentally destroyed, would not the loss have fallen on the parties, in proportion to their respective interests ? If the defendant had destroyed or consumed the common property, the plaintiff would have been entitled to recover the value of his share: Simmons v. Sikes, 2 Ire. 98. In this case the property remained in specie. The plaintiff is is entitled to partition, but he must resort to the proper proceeding for that purpose. Judgment, reversed. Per Curiam. Venire de novo.