Opinion
December Term, 1856.
An action on the case will lie in behalf of a bailor against one who commits a trespass upon the property bailed; and the plaintiff is entitled to at least nominal damages, though no actual injury is done to the property.
THIS was an action on the case, for unlawfully seizing and detaining a vessel, called the Belle, belonging to the plaintiff, tried before BAILEY, Judge, at the Spring Term, 1854, of Pasquotank Superior Court.
The vessel had been chartered to one Burgess, to make a voyage from Elizabeth City, in this State, to the West-India Islands.
While lying at the wharf at Elizabeth City, nearly ready for sea, the cargo on board the Belle, which belonged to one Williams, was unlawfully seized by a constable, by virtue of executions, in favor of the defendant; and the said constable, acting under the directions of the defendant, took possession of the vessel, and detained her nearly a week at that port, when she was recommitted to the charge of Burgess, who immediately proceeded on his voyage. There was evidence tending to show that, during the time of this detention, the wind was fair, and that the voyage might have been made in safety, but after that time, the weather became stormy, and the vessel was in consequence delayed at a very dangerous port, where she encountered a violent tempest, in which she was wrecked. The plaintiff sought to recover, in this action, for the loss of the ship.
The Court intimated an opinion, that the plaintiff was not entitled to recover anything. In deference to his Honor's opinion, the plaintiff took a nonsuit and appealed.
Heath and Jordan, for the plaintiff.
Pool, Smith and Martin, for the defendant.
We think there is error in the Judge's opinion. He doubtless came to his conclusion, from the belief that the plaintiff could not recover the value of his vessel from the defendant, which he certainly could not, (though the detention by him might have been the remote cause of the loss of the vessel) and by not adverting to the principle, that for every tortious act committed as to the property of another, the perpetrator is answerable, in damages, to the owner, either in case or in trespass. If the trespass is committed on property while in possession of the owner, "trespass" is the proper remedy; if while in the possession of another as bailee, the owner having but a reversion of the property, the action is "case." This is an action of the latter character — the vessel being in the actual possession of Burgess at the time the act was committed. The vessel was the property of the plaintiff, and by him chartered to Burgess for a trip to the West Indies. She was loaded with staves, the property of a Mr. Williams, and while lying at the wharf at Elizabeth City, and ready to start on her voyage, one Banks, a constable, came on board and levied several executions on the staves. In one of these executions the present defendant was the plaintiff, and Banks acted by his directions in making the levy. The executions were all against Burgess; the staves belonged to Williams. The levy was illegal; in consequence of it, the vessel was detained in port six days, and though the plaintiff is not entitled to ask for damages for the loss of the vessel, yet, he is entitled, at least, to nominal damages from the defendant, for his illegal detention, by having his execution improperly and illegally levied. Venire de novo.
PER CURIAM. Judgment reversed.