Crabtree v. Clapham , 67 Me. 326 ( 1878 )

Peters, J.

As a general rule,'replevin does not lie by one tenant in common against his co-tenant for the common property. Witham v. Witham, 57 Maine, 447. The same rule applies to copartners. Hacker v. Johnson, 66 Maine, 21. In Witham v. Witham, it was decided that, upon the defeat of the action between co-tenants, the defendant is entitled to a return of the property and damages for the taking and detention. In Hacker v. Johnson, it was virtually settled that the same consequences follow where the parties in an action of replevin are copartners. The plaintiff, then, must be nonsuit, with an order to return.

What shall the measure of damages be, to be recovered by the defendant? We think the doctrine inculcated in the above named cases and in cases therein referred to is, that, as between co-tena nts, the damages should be in proportion to the extent of the defendant’s ownership in the property replevied. We do not perceive why the same rule should not apply to this case. Certainly, the plaintiff cannot complain of it, who wrongfully assumes possession of property by an abuse of the forms of law. The presumption is, nothing appearing to the contrary, that the parties were equal owners in the property taken and equally entitled to its profit and possession. If there is occasion for it, either party can go into equity and there have all partnership matters examined and settled.

The property as a whole is, by agreement, valued at five hundred dollars. Interest on one-half that sum would not be an adequate compensation for the detention of a half interest of the same. The cattle are more valuable for a present than a future use. The plaintiff, being a wrong doer, should not profit by the wrong. The entry to be: Plaintiff nonsuit; judgment for a return; «damages for the defendant, for the detention of his interest in the property, to be reckoned from the day of the taking to the date of judgment at the rate of thirty-five dollars per year.

Appleton, C. J., Dickerson, Daneoeth, Yiegin and Llbbey, JJ., concurred.