Opinion
June Term, 1821.
Wherever an injury is done to goods in the actual possession of a servant, carrier or bailee, if the owner have the immediate right of possession, he may sue for such injury in his own name. Therefore, where A loaned a horse to B during the will of A. and the horse was seized by virtue of an execution against B, A may maintain trespass against the officer refusing to deliver him up.
THIS was an action of trespass vi et armis, from CRAVEN, brought by the plaintiff, against the defendant, for taking and carrying away the horse of the plaintiff. It was found by the special verdict on the trial below that the title to the horse was in the plaintiff, but that he had loaned him to his brother, Paul White, to work during the pleasure of the plaintiff. While the horse was in the possession of Paul White, and employed in carrying provisions to market for him, the defendant, a constable, seized the horse and took him into possession by virtue of an execution against Paul White. The defendant refused to deliver the horse to the plaintiff, who claimed the same, and afterwards sold him to satisfy the execution. If under these circumstances the plaintiff could maintain trespass then the jury found for the plaintiff. The Court held that trespass could not be supported, and on motion rendered judgment of nonsuit, whereupon plaintiff appealed.
Gaston for plaintiff.
The plaintiff, notwithstanding the loan to his brother, had a constructive possession of the horse when the trespass was committed, and had a right to the immediate actual possession if he thought proper to exercise it. This makes the distinction between the cases; in Ward v. McCauley, 4 Term, 489, it was held that the landlord, who had leased the goods for a certain time, could not maintain an action of trespass against the sheriff for seizing them because he had parted with the right of possession during the term, and had only a reversionary interest. But whenever the injury is done while the goods are in the actual possession of a servant, carrier or other bailee, if the owner have the immediate right of possession, the action may be brought in his name. The same principle applies to real property, for if a stranger does a trespass to a lessee at will which prejudices the land the lessor may have trespass against him for damage to the land; for the possession of the lessee is his possession (Comyns' "Trespass, B. 1"). The very case before us is put in the books to show that the owner has the right of present possession. So if a man lend his cattle to J. S. to plough his land and a stranger takes them away J. S. may maintain trover or trespass against him (Bro. "Trespass, 90"). Carson v. Noblet, 4 N.C. 136, was decided on the same distinction and is directly in point with the one now before us. That was the case of a loan resumable at pleasure in which trespass was held to lie by the owner for a taking from the actual possession of the bailee. The nonsuit must therefore be set aside and judgment entered upon the verdict in favor of the plaintiff. (304)