majority">Williams, Ch. J.

This was a writ of replevin, for one eighth part of the ship Atlas, which the plaintiffs aver the defendant, with force and arms, unlawfully took and carried away. The defendant claimed, and it was finally admitted, that the defendant was also a joint owner of one eighth part of *333the same ship. The court thereupon charged the jury, that the plaintiffs could not maintain this action ; and the defendant obtained a verdict.

Some question is now attempted to be raised, founded upon the peculiar state of the pleadings. But as no question of that kind was raised in the court below, none such can be discussed here; and the sole question for the consideration of this court, is, whether one joint owner of a ship can sustain a writ of re-plevin against his co-tenant, because he took the ship under colour of a writ of attachment.

That the action of trespass cannot be sustained, by one tenant in common against another, for an amotion of the joint property, has been too often settled to require the citation of authorities. Indeed, before this court, it has been admitted. But it is said, this is not trespass, but replevin ; and as in this suit, the plaintiff’s right or title must be proved, a different rule prevails from that established in trespass. How the fact that the plaintiff is required to prove more than he must in an action of trespass, will show, that the defendant must also, on his part, prove more, is not discerned. Nor do we think, that the plaintiff has established his right, if the defendant proves an equal right.

The ancient form of writ shows the nature of the plaintiff’s claim: “We command you, that justly and without delay, you cause to be replevied the cattle of B, which D took and unjustly detains.” Fitz. N. B. 68. If the cattle so taken are no more the cattle of B than they are of D, upon what principle can the law take them out of the hands of D, and replace them in the hands of B ? If D has right, by an interest equal to B, to retain them, how has B, by an equal interest, a right superior to D ? If each own an equal share, what principle will entitle B to claim possession of the property, which will not also entitle him to damages ? And the claim here is for damages, as well as possession ; and one must accompany the other. We see no common law principle, which will support this action, more than trespass or trover. And those ancient authorities, which, it is admitted, are conclusive against those actions, are equally conclusive against this. They are not confined to trespass or trover, but say there is no remedy. Thus Littleton says : “ If two be possessed of chattels personal in common, by divers titles, as of a horse, or ox, or cow, if one takes the whole to himself out of the possession of the other, the other hath no *334other remedie but to take this from him who hath done him the"wrong- to occupy in common, &c. when he can see his time, &c.” Litt. sect. 323. And Lord Coke, commenting thereon, says : “ If one tenant in common take all the chattels personal, the other hath no remedie by action, but he may take them again.” Co. Lilt. 200. a. And so far as we are informed, whenever the question has been made, there has been but one opinion, that one joint owner of a personal chattel cannot maintain replevin against another joint owner, any more than he could maintain trespass. Rogers v. Arnold, 12 Wend. 30. McEldery v. Flanagan, 1 Harris & Gill 322.

It is claimed, however, that our statute gives this remedy. The first section of the statute authorizes a person whose goods or chattels are impounded or distrained, to replevy them. The 5th section authorizes a defendant, whose goods are attached, to replevy them ; and the 8th section permits a stranger to such attachment, whose goods are attached, also to replevy them. Stat. 442, 445. The statute gives the writ of replevin ; but to make it effectual, the caption must be unlawful. But it never could have been intended to affect rights not depending upon such attachment. When the statute gives this writ to one whose beasts are impounded, it does not mean to say, that he can maintain it, if the beasts were lawfully impounded. Of course, the party must be allowed to justify, by showing that he had a lawful right to do the act. Suppose, then, one of two persons, who own a horse jointly^, impounds him ; would it be seriously contended, he could be responsible in replevin? So the 8th section of the act gives to a stranger a right to replevy his property taken by attachment “to answer to a charge for unlawfully taking the same.” The unlawful taking is the gist of the complaint. The question then arises under the statute, as well as at common law, had the defendant a right to take this property ? Has one joint owner of a ship a right to take her into his own possession ? The defendant in this action does not shelter himself under his writ of attachment, as the plaintiff seems to suppose, but goes back of that, and relies upon his title as a joint and equal owner, and defends himself by that title. And unless Littleton and Coke are entirely mistaken, his co-tenant has no remedy by action, but he may take them again. And we do not see, that the statute has at all, in this respect, varied the common law.

*335It was claimed, that if the plaintiffs and the defendant were joint owners of the ship, the defendant could not recover damages ; and so this verdict could not be supported. It is enough to say to that objection, that it formed no part of the case ; and if it had, as the plaintiffs had, by their own act, placed this defendant in this situation, trifling damages would not furnish ground for a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.

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