The opinion of the court was delivered by

This is an action founded upon the 11th section *580of chap. 50 of the Compiled Statutes, and brought to recover the penalty given by that section for the embezzlement of property. But, we think, there was no evidence in the case to prove an embezzlement. ’

It is quite clear that, under the contract between the defendant and the intestate for carrying on the farm, the defendant was a tenant in common with the intestate in the property which he took away. The cases in our own reports abundantly show this. And» it also appeared that the defendant claimed to be joint owner of the crops with the estate of Cilley, and he did not deny the right of Cilley.

There was no secrecy in taking the property, and no concealment of it by the defendant, and no claim made to it, but as a tenant in common. The three calves were in the same situation. The butter he took by the consent of the widow of the intestate, and was to account to her for her share on the sale of it.

We think, to bring a case within this section of the statute, the act complained of must, at least, be done with the intent of wrongfully abstracting the property from the estate of the deceased, to the injury of its assets.

This, the evidence had no tendency to show. All, which the defendant did, was done under a claim of right, and the evidence in fact shows that his claim of right, as tenant in common, was well founded, and as such, h.e did not deny his liability to account to the estate of Cilley.

The judgment of the county court is affirmed.