majority">Dunn, C. J.

The plaintiff in error Warren, who was plaintiff below, brought his action of trespass against the defendants, in the district court of Eock county, and at the September term, 1844, the case was tried on the issue taken on the plea of not guilty, with notice of justification. It was proven on the trial, that about the 1st July, 1842, the plaintiff had' let his field (the close where the trespass is charged to have been committed) to the defendants John Aller and Jesse Aller, in separate contracts ; the south half to John Aller, and the north half to Jesse Aller, to work on the same conditions that one Charles Wardle had previously agreed to work the said north half of the field. The terms,of the letting thus agreed on, by reference to the contract with Wardle, are among other things, “that the defendants were each to put in not less than 40, nor more than 50 acres of winter wheat; the ground to be well ploughed and harrowed, *482and the seeding completed on or before the 10th day of September; the remainder of the ground to be well ploughed and put into spring crops of corn, oats, potatoes, peas, beans and barley,, the quantity varying according to the condition of the ground, and all the spring crops to be planted and sowed in proper season ; all crops to be cut, gathered and secured in good season, and in a proper and cleanly man’ner; all, including ploughing, harrowing, seeding and harvesting, to be done in a husband-like manner; the defendants to give the plaintiff one-half of all the crops, to be divided in the following manner : Wheat and oats to be cut and bound in bundles, and put in shocks of one dozen each, with caps, each party then to take every other shock,” etc. Other facts, immaterial to the question upon which this case must turn, were proven on the trial; and then it was proven that defendants, without division, according to the terms of letting, took and carried away from said field a large quantity of wheat in bundle, taking every shock as they came to it, forbidding the plaintiff from taking any of the wheat, and compelling him, at one time, to quit the field; that defendants carried the wheat from the field, to a Mr. Winston’s farm, about a half a mile distant, and stacked the same. A witness testified that some short time after he heard a contract of sale between one of the defendants, John Aller, and one Osborn, of some wheat, five or six stacks, at Winston’s farm, but did know what wheat it was. The jury returned a verdict for the defendants, under the instructions of the court, upon the points raised.

There are several errors assigned on the instructions, and one on the ruling of the court, permitting the defendants to introduce and read as evidence on the trial the record of said court, of the proceedings on a reference and award between the plaintiff and one of the defendants {John Aller), to rebut the testimony of witness John Warren, introduced by plaintiff, in which testimony the witness testified, that “it was referred to the arbitrators *483to determine how much the plaintiff was bound to pay defendant John Alter, for his services in putting in the fall crop of wheat on said south half of the field.” We do not consider this ruling of the court material to the dispositions of the case in this court. We may assume that the court might properly have ruled out this portion of the witnesses’ testimony, for the reason that the reference and award were the best evidence on this point, but it being received for the plaintiff’s advantage, he cannot object to the introduction by defendants, of the reference and award, to rebut witnesses’ testimony. And the objections, that they were not pleaded, and were not between the same parties, do not apply. The error assigned on the instruction of the court, “that a mere sale is no destruction of the property, for which an action of trespass will lie,” is, necessarily, from the evidence, the material question to be decided.

The fact of sale was of course, an inquiry for the jury, and was the main ground of recovery in the plaintiff’s case in the form of action adopted. The principle is well settled, that one tenant in common of a chattel, may maintain trespass against another for a destruction of the property held in common. 1 Chitty, 79, 173; Co. Lit. 200, (a). And the reason assigned is, because his interest therein is thereby determined.

It was a question, whether a sale of the whole chattel would entitle one tenant in common to an action of trover- or trespass against another, but it seems to be now well settled by the modern decisions, that in such cases the action of trover or trespass lies in favor of the injured party. Litt. § 323; Co. Litt. 200 (a); Wilson v. Reed, 3 Johns. 175; Femnings v. Greenville, 1 Taunt. 241; Barton v. Williams, 5 Barn. & Ald. 395; Farr v. Smith, 9 Wend. 338; Mersereau v. Norton, 15 Johns. 179; Chipman’s Rep. 242; 7 Wend. 357.

The distinction attempted to be drawn, that for such injury, trover lies and not trespass, is not established or *484recognized in the decisions. Either action may be maintained. 2 Kent’s Com. 250, note (a).

The effect and tenor of the ruling of the court in the instruction is, that for a sale by defendants of the chattel, held in common with plaintiff, the plaintiff could not recover in the action of trespass ; though not given in these precise terms. It is said in the decisions, that a distinction has been attempted between the sale of a chattel and a tortious destruction, but that is a distinction not maintainable. There is unquestionably a difference in the meaning of the terms when defined, but their legal effect upon tenants in common is the same, and trover or trespass will lie for either, in favor of the party injured.

The other instructions of the district court, were mainly upon such facts as constituted the plaintiff and defendants (Alters) tenants in common, and are not important to be here considered.

We are of opinion that the court erred in the instruction given, and should have instructed that a sale of the whole of a chattel by one tenant in common, is an injury for which the other may maintain trover or trespass. The court also erred in overruling the motion for a new trial.

Ordered that the judgment of the district court be and the same is hereby reversed, with costs, and this cause remanded to said court for further proceedings.

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