McCrillis v. Banks

The opinion of the court was delivered by Hall, J. If the plaintiff and the defendant’s wife are to be considered as having been tenants in common of the hayj the question, in regard to the charge for it, seems to be settled by the case of Albee v. Fairbanks, 10 Vt. 314,—where it was held, that one of two tenants in common of personal property could not recover of the other, in an action on book account, for having used more than his share of the common property. If the parties, as is insisted by the plaintiff’s counsel, were not, in strictness, tenants in common of the hay, it is not perceived how the claim for it would be aided in this action. In that case, the de [444] fendant would have been guilty of a tort, in the use of the hay without the plaintiff’s permission, for which the plaintiff might recover in an action of trover, but which could not be chargeable on book. Under any view of the case, we feel bound to consider the judgment of the county court, so far as it regards the charge for the hay, as erroneous. The judgment of the county court is therefore reversed, and judgment is to be rendered for the plaintiff for the smaller sum found by the auditor. The defendants, having prevailed in their exceptions, are to recover costs in this court, to be set off against the judgment of the plaintiff, and execution to issue for the balance,