
    DAVID PETTINGILL versus SAMUEL C. BARTLETT.
    A. and B. owned a quantity of hay, as tenants in common ; C. having an execution: against A. caused the whole of the hay to be tajeen and sold by the sheriff, as A.’s property, to satisfy the execution. It was held, that an ae,tion of trespass could not be maintained by B. against C. for selling the whole of the hay.
    THIS was an action of trespass, for taking and carrying away seventeen tons of hay, belonging to the plaintiff. The cause was tried in this county at the last April term, when it appeared in evidence that the defendant, having an execution in his own favour against one J. S. Stone, who owned one undivided half of the hay mentioned in the writ as tenant in common with the plaintiff, caused the whole of the hky to be seized and sold upon the execution ; and the question was, whether this made him liable to the plaintiff in trespass. A verdict was taken, by consent, for the defendant, subject to the opinion of the court upon that question, and the cause continued for advisement.
    
      E. Webster and Noyes, for the plaintiff.
    
      Fletcher, for the defendant.
   Per curiam.

When a debtor owns goods jointly, or as tenant in common with another, the sheriff may seize the whole upon execution; but he should sell only the undivided share of the debtor. In that case the purchaser of the debtor’s share becomes tenant in common with the other owner or owners. 1 Salkeld 392, Heydon vs. Heydon. — 2 L. Raymond 871. — Comb. 217. — Douglas 650, Eddie vs. Davidson. — Cowper 449, Fox vs. Hanbury. — I East 367, Smith & al. vs. Stokes. — 3 Bos. & Pul. 288, 289.

If the sheriff in such case undertakes to sell the whole, nothing but the interest of the debtor will pass; and the purchaser will, in that case, also become a tenant in common with the other owners ; and as the sheriff has a right to seize the whole, and deliver the whole to the purchaser of the debtor’s share, it is immaterial to the other owner, whether he sells the whole or only the debtor’s interest. A sale of the whole is not a trespass. Co. Lit. 200. — 1 Chit. PL 170. —4 East 128. And neither the sheriff nor the creditor is liable in an action of trespass.

Judgment must he entered on lite verdict 
      
       It was afterwards agreed by the parties, that judgment should be entered for the plaintiff for the value of his share in the hay, without costs.
     