only for the use of his own cattle, but also for putting in the cattle of others; and by the negligence of the defendant in rendering the field unsafe, he is deprived in some degree of the means of exercising his right of using that field for either of those purposes. Whether, therefore, the damage accrues to his own cattle, or the cattle of others, he still may maintain this action. Rule discharged.

BURTON v. HUGHES.

COMMON PLEAS. 1824.

[Reported 2 Bing. 173.]

TROVER for certain articles of furniture seized by the defendants under a commission of bankrupt against Robert Cross. At the trial before Bayley, J., York Lent Assizes, 1824, Kitchen, a dealer in furniture, proved that he was owner of the furniture in question, which he had lent to the plaintiff under the terms of a written agreement, and that the plaintiff had placed it in a house occupied by the bankrupt's wife.

The agreement between Kitchen and the plaintiff was called for, but could not be produced for want of a stamp.

On the part of the defendants it was then contended that the plaintiff must be nonsuited; that at the time of the taking he had neither the property nor the possession of these goods, but only an alleged interest under an agreement; of which interest as the agreement could not be produced, there was no evidence whatever; that in order to support trover, the plaintiff must prove property, special interest, or actual possession, even though that possession should be tortious as against a third person. A verdict having been found for the plaintiff,

Cross, Serjt., in the last term, upon the grounds urged at the trial, obtained a rule nisi to set aside the verdict and enter a nonsuit. Bosanquet, Serjt., now showed cause.

Cross, for the defendant.

BEST, C. J. If this had been a case between Kitchen and the plaintiff the agreement ought to have been produced, because that alone could decide the respective rights of those two parties; but it appears that Kitchen was to supply the plaintiff with furniture, and the question is, whether, after he had obtained it, he had a sufficient interest to maintain this action. The case which has been referred to [Sutton v. Buck, 2 Taunt. 302] confirms what I had esteemed to be the law upon the subject, namely, that a simple bailee has a sufficient interest to sue in trover. In that case a party, whose title was not completed by registry or any regular conveyance, sued in trover to recover a ship of which he had been possessed; registry was absolutely necessary to give him a title, and yet it was holden he might recover against a wrong

doer. Mansfield, C. J. says, "Suppose a man gives me a ship, without a regular compliance with the register act, and I fit it out at £500 expence, see what a doctrine it is that another man may take it from me and I have no remedy. The only doubt on the case, I think, arises from the register act, lest, if we should decide that any property passed by the transfer, it should militate against that act, and I have never been able entirely to free my mind from that doubt; but at present I think that on the circumstances, the plaintiff might maintain trover." Lawrence, J. says, "There is enough property in this plaintiff to enable him to maintain trover against a wrong-doer; and although it has been urged that the contract is void, with respect to the rights of third persons, as well as between the parties, yet, as far as regards the possession, it is good as against all, except the vendor himself." It is impossible to distinguish that case from the present; but it has been contended here that the defendants were not wrong-doers; - certainly not, in taking the effects of the bankrupts, but they are wrong-doers in taking the effects of a third person; they had no right to take goods belonging to the plaintiff which were clearly distinguishable from any the bankrupt ever had.

PARK, J. If this had been a question between Kitchen and the bankrupt, it might have borne a totally different complexion; but whether Mrs. Cross was to live in the house, or Burton, was altogether immaterial as against the defendants, and the case which has been referred to is much stronger than the present. There it was holden that possession of a ship under a transfer, void for non-compliance with the register act, is a sufficient title in trover against a stranger for parts of the ship being wrecked. Admitting that the defendants were not wrong-doers, at all events they were strangers, and possession is sufficient to enable a party to maintain trover against a stranger. What Chambre, J. says, is very material. "The plaintiff has possession under the rightful owner, and that is sufficient against a person having no color." (Here the plaintiff was let into possession by Kitchen, the rightful owner.) "An agister, &c., a carrier, a factor, may bring trover; even a general bailment will suffice without being made for any special purpose, but only for the benefit of the rightful owner." It was immaterial how the plaintiff came into possession, but as there was no dispute between him and Kitchen the verdict must stand.

BURROUGH, J. concurring, the rule was

Discharged.

LUDDEN v. LEAVITT.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1812.

[Reported 9 Mass. 104.]

TROVER for a yoke of oxen and a horse. The case came before the court upon an agreed statement of facts, from which it appears that the chattels mentioned in the declaration were originally the property of the defendant, and being attached by one Blake, a deputy of the sheriff of the county of Oxford, in which county this action originated, on a writ in favor of one Blossom against Leavitt, this latter requested Ludden, his next neighbor, to become responsible to the officer for the chattels attached, which he did by giving the officer a written receipt for them, with a promise to deliver them on demand. After receiving the cattle, the plaintiff observed to the defendant that they were neighbors; desired him, in case the cattle should get into his enclosure, that he would keep them well, and not hurt them; and promised to take them away, and pay him the damage. These transactions took place in the highway, near the defendant's house, where the plaintiff then left the cattle, and they continued in the defendant's possession, with the plaintiff's knowledge, for several months; after which the defendant sold and delivered them to one Soule, in whose possession they continued, until the plaintiff caused them to be attached in the present action, as the property of the defendant, who received of Soule a note of hand for the estimated value of them. Within thirty days after Blossom recovered his judgment against Leavitt, he delivered his execution to Blake, who demanded the cattle of Ludden. He, being unable to deliver them, paid Blake a sum of money in discharge of his engagement.

If, upon the facts stated, the court should be of opinion that the plaintiff was entitled to recover, the defendant was to be defaulted; otherwise the plaintiff was to become nonsuit; and in either case judgment to be rendered accordingly.

Greenleaf, for the plaintiff.

Dana, for the defendant.

CURIA. It is unnecessary to go into an inquiry whether the juggling between the plaintiff and defendant in the present action gave any equitable claims to one against the other; since there is a general principle, which will decide this action and all others similar to it, of which there are many in various parts of the Commonwealth.

It appears, from the agreement of the parties, that the only right acquired by the plaintiff over the property in contest was by delivery of it by the deputy sheriff to him for safe keeping. This did not constitute him a bailiff of the property, but a mere servant of the sheriff,

without any legal interest in the cattle. The sheriff should have brought the action, as the special property unquestionably remained in him, notwithstanding the delivery to the plaintiff. The general property was in the defendant. The plaintiff, therefore, having neither the general nor special property, cannot maintain trover. Whether the circumstances and facts agreed do not give him a right to satisfaction in some other form of action, needs not now be determined.

Plaintiff nonsuit.1

POOLE v. SYMONDS.

SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE. 1818.

[Reported 1 N. H. 289.]

TROVER for a mare. The cause was tried here at the last May Term upon the general issue, when it appeared in evidence that the mare once belonged to one Ezra Flanders; that Ziba Huntington, a deputy sheriff, having an execution in his hands in favor of P. Noyes against Flanders for about $30 debt and costs, on the 26th of June 1817, seized the mare upon the execution; that Flanders, being desirous to procure time to raise money and pay the execution, and thereby prevent the sale of the mare, requested Huntington to delay the sale, to which Huntington, who had been directed by Noyes to grant Flanders any indulgence not inconsistent with the safety of the debt, assented; Huntington took the mare into his possession, and delivered her for safe keeping to the plaintiff, who gave Huntington his promise in writing to return her on demand. Poole kept the mare until the 8th of August 1817, when she was attached as the property of Flanders by the defendant, another deputy sheriff, on mesne process in favor of A. W. Morse against Flanders, and is now held by the defendant by virtue of that attachment. It did not appear that the mare was ever in the possession of Flanders after Huntington seized her, nor that Huntington had ever advertised her for sale upon the execution.

The jury returned a verdict for the plaintiff, and assessed the damages at $30.

William Smith, for the defendant.

Gilbert and J. Bell, for the plaintiff.

The opinion of the court was delivered by

RICHARDSON, C. J. On behalf of the defendant it is contended, that Poole has not a sufficient interest in the chattel in question to enable

1 In Warren v. Leland, 9 Mass. 265, it was held that a deputy sheriff's bailee had no such property as to maintain replevin. The court say, "We have heretofore decided, that where an officer attaches personal chattels, and delivers them to a third person for safe keeping, such third person has no such property in the chattels as will enable him to maintain replevin for them. Ludden v. Leavitt. The plaintiff fails on this ground."

him to maintain this action, and several decisions in the Supreme Court of Massachusetts are relied upon as directly in point; and it is not to be doubted, that, if those decisions were correct, this objection must prevail. But the decisions in this State have been different. In the case of Eastman v. Eastman, in the county of Hillsborough, December Term, 1814, where the case was precisely like the present one, cxcept that the article in question had been taken upon mesne process in Massachusetts, and the plaintiff had become answerable for it to an officer there, the cases in the ninth volume of the Massachusetts Reports were cited by counsel and considered by the court; but the court (Smith, C. J., Livermore, and Ellis, justices) were clearly of opinion, that the plaintiff might maintain the action. No authority is cited by the court in Massachusetts in support of their decision; nor is it recollected that the determination here was supported by authorities. We have therefore felt it to be our duty to reconsider the question, and endeavor by a careful examination of the adjudged cases which bear upon the point to ascertain what the real law of the case is.

No man can maintain trespass, trover, or replevin for personal chattels without either an absolute or special property in the goods, and also possession. But this possession may be either actual or constructive. Thus an executor is by construction of law possessed of the goods of the testator, and may maintain trover for them, although he has never been in the actual possession of them. So where one had wreck by prescription or grant, and another took it away, trespass or trover lay before seizure. And if A. in London gives J. S. his goods in York, and another takes them away before J. S. obtains actual possession, J. S. may maintain trespass or trover. So if the owner deliver his goods to a carrier or other bailee, although in such case another has the actual possession, still the owner has by construction of law a sufficient possession to maintain trover or trespass. This constructive possession is not founded on the mere right of property, but upon the right of possession. For if he, who has the absolute property, has not also the right of possession, he can have no constructive possession. Thus where the owner of goods let them for a year and they were taken away by a third person within the year, it has been held that he could maintain neither trespass nor trover. This constructive possession in one is by no means inconsistent with an actual possession in another. In many cases either he who has the actual, or he who has the constructive possession, may maintain trespass, trover, or replevin; but a judgment in favor of one will be a bar to an action in favor of the other. In some cases he who has only a special property, may have a constructive possession. Thus a factor, to whom goods have been consigned, but have never been received, has such a constructive possession, that he can maintain trover.

A special property in goods may in some cases be founded upon mere possession. Thus he who finds goods which have been lost has a special property in them, because possession is evidence of title.