Tbe opinion of tbe court was delivered, January 9th 1872, by

Upon tbe principal question raised in the court below and discussed here — which is certainly very important and interesting — two very respectable courts of our sister states have given opposite judgments: Cincinnati Insurance Company v. Bakewell, 4 B. Monr. 541; Cincinnati Insurance Company v. Duffield, 6 Ohio (N. S.) 200. Tbe ruling of the learned judge below, which adopts tbe latter of these two judgments, is certainly sustained by the concurrent opinions of tbe most distinguished of tbe foreign jurists and writers on commercial law. Boulay-Paty lays it down as an uncontroverted point that where tbe assured has bad only a part of bis interest in tbe subject covered by tbe policy, be is only obliged, in order to recover for a total loss, to abandon the proportion so covered, and remains owner of that which was not insured; and be explains very -clearly tbe principles upon w'hich tbe loss and salvage are to be adjusted in such a case: Traite des Ass. tom. 2, ch. 17, s. 13, citing Pothier, Valin, De Laca and Casaregis. See also 2 Arnould on Ins. 1159.

We give no opinion, however, upon this question, because in any view of tbe case tbe plaintiff below showed no title to recover. Conceding fully tbe postulate with which they set out, they were tenants in common with tbe defendants of tbe “Indianola” in certain proportions; nor would tbe case be varied if in point of fact there was no abandonment. They claimed and recovered tbe entire sum insured as for a total loss, and tbe defendants were undoubtedly subrogated to all tbeir rights for tbe purpose of indemnifying themselves. Tbe form of action was assumpsit — ■ special with tbe common money counts. Tbe special count alleged that tbe defendants took possession of and converted tbe wreck, and by reason thereof became liable to pay tbe plaintiffs tbeir share of its value. This count was clearly bad on general de*500murrer; no such liability resulted in law from the facts upon which a promise could be founded. As to the money counts the plaintiffs did not show that the defendants had ever received one dollar or one dollar’s worth from the wreck. They seem to have gone upon the idea that they had a right to maintain the action for their share of what the defendants might have realized by a sale. But this is founded upon an entire misapprehension of the relation between them. The defendants were not trustees for them. According to their own theory, if there was an abandonment all they ceded to the defendants was so much only as was covered by the insurance. They remained the owners of that for which they stood their own insurers. Of course the defendants had no title to sell more than had been abandoned to them. It may be that when one tenant in common, who is in possession of the joint property, abandons it to inevitable destruction, it would be the same thing as if he had destroyed it himself, which would be a conversion, and entitle his co-tenant to maintain trover and recover the value of his share in damages. The authorities certainly go that length. But that was not this case. The defendants through their agent, after examination and inquiry, thought that the sunk pteamer was not worth the risk and expense] of raising. They did nothing. The plaintiffs themselves might have raised the wreck if they had seen fit. The defendants did nothing to prevent it. It was just as much their right to look after their interests as it was the defendants. No action of trover, therefore, could have been maintained, and certainly without evidence that the defendants had recovered or received anything for which they were liable to account to their co-tenants, assumpsit would not lie: Holliday v. Camsell, 1 T. R. 658; Barnardiston v. Chapman, 4 East 121; Barton v. Williams, 5 B. & Ald. 895; Fennings v. Lord Grenville, 1 Taunt. 241; Martin v. Knowllys, 8 T. R. 145; 3 Steph. N. P. 2672, note a; Gillis v. McKinney, 6 W. & S. 78; Rank v. Rank, 5 Barr 211; Agnew v. Johnson, 5 Harris 373 ; Borrell’s Adm’rs. v. Borrell, 9 Casey 492.

Judgment reversed.