Lowthorp v. Smith, 2 N.C. 294, 1 Hayw. 294 (1796)

March 1796 · North Carolina Superior Court

2 N.C. 294, 1 Hayw. 294

Lowthorp v. Smith.

If one of two joint owners of a vessel, forcibly take possession of her, and send her to sea, without or against the will of the other, and she-is lost, he will be liable in trover for her.

Trover, for one half of a schooner. This schooner formerly belonged solely to Smith ; he sold the one half to Lowthorp, who superintended the affairs of the vessel for two or three voyages'; hut on her returning from the third voyage, which was to London, Smith forcibly took possession of her. The next voyage was in February, to Charleston — this voyage Lowthorp forbad. The next voyage was intended to Cape Francois — it was neither fo hidden or consented to by Lowthorp ; Smith sent her out without consulting him. The vessel was lost on her outward bound voyage. The counsel for the Plaintiff cited Butler’s Nisi Prius 34. Salk. 290. On the part of the Defendant ir. was admitted, that where one of two joint owners takes the whole to himself, and destroys the thing owned, trover will lie ; but if the thing be forcibly taken at first, and afterwards used as the common pro-peny of both, and for the benefit of both, and whilst so employed shall be lost, that such loss is a common one : here the vessel at first was forcibly taken by the Defendant, and the first voyage, to Charleston forbidden ; but it does not appear they afterwards disagreed about the vessel. The last voyage was not forbid by the Plaintiff, and it may be reasonably presumed, as there is no evidence to the contrary, that it was by consent.

Per curiam

If one of two joint owners takes possession of the whole, no action will be for this, for one hath as much right to the possession as the other; but if after taking possession he destroys the property, he is then liable; because, the joint ownership does not empower him to destroy the property of the other ; and if such joint owner, after getting the sole possession, shall without the consent, or against the will of (he other owner, send the vessel to sea, and she be lost in that voyage, the juey may consider suth loss as a destruction of the vessel, occasioned by the joint owner by means of sending her to sea, and find for the Plaintiff,

The jury found accordingly for the Plaintiff, being of opinion that the loss in this case was a destruction occasioned by the Defendant, and of course, a conversion in him — they assessed damages to ¿61072,

The court cited Molloy b, 2, c. 2, s. 2, S.

Note. — Vide 2 Saund. 479. Bull. N. P. 34. 35. Co. Litt. 200 a.