White v. Morris, 8 N.C. 301, 1 Hawks 301 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 301, 1 Hawks 301

James White v. Morris.

i-From Craven.

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, 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, butthat he had loaned him to his brother, Paul While, 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 anil 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 general property in a chattel draws to it the possession thereof in Law, so as to maintain an action of trespass, though it has never been accompanied with actual possession — (Bacon, “ Trespass (jm %*> pi, g — j¡ro. “ Trespass,” pi. 303, pi. 306 — Latch. 214 — Bulst. £68.)

This general property will support trespass, though the chattel, when taken, were in the actual possession of a bailee, who had a special property therein — (Bacon, ut supra pi. 16 — 2 Roll. Mr. 569 P. pi. 5 Sid. 438.)

If the goods of J. S. be bailed to J. N, and be taken from or injured in the hands of J. N. by a stranger, J. S. may maintain trespass — (Bac. ut supra pi. 17 — 2 Bol. Mr. ut supra.)

Not only he who has the property, but also he who • has the possession of goods, shall maintain trespass $ as if. a man has cattle to agist, he shall have trespass against him who takes them — (Com. Dig. “ Trespass B.. 4.”) • .

If trespass be done to goods in the hands of a bailee, trespass lies by bailee — (2 Roll. 557, 631) — and also by bailor, and he who first recovers shall have the damage— (Com. Dig. ut sup. 578 — 2 Boll. 569, 622.)

It seems to have been thought that there was a difference between the possessory right necessary to maintain trespass and trover, and Lord Kenyon once so decided in Ward v. M’Cauleij, (4 Term 489.) The distinction is unfounded — See Saund. 47 a. et seq.

The doctrine as laid down by Chitty, would at first view seem to uphold this distinction, but on examination, it will not. All that Chitty means, is, that a reversion-ary proprietary interest, while a certain fixed right of immediate ownership is in another, will not draw' to it the possession in law, and maintain trespass or trover — . (Chit. PI. 48, 49, 150, 151.) He cites Ward v. M’Cau-ley, Gordon v. Harper, (7 Term Rep. 11,) and Bidingfield v. Onslow, (3 Lev. 209.) Gordon v. Harpek alone supports him, and this case may be questioned' — Kennedy v. Waller, (2 Hen. & Mun. 415.) As to the others, they shew that a reversionary interest after a term will not support trespass, and they also indicate that the possession of a mere tenant at, will is no bar to the action.

The law as respects real property, is more exact in requiring possession to maintain trespass, than in regard to personal estate —yet even in real property, in a case like this, the owner might have trespass — {Com. Big. ie Trespass B. 2” — 2 Roll. 551.) Starr x. Jackson, (II Mass. Rep. 519.)

Tayxor, Chief-Justice,

delivered the opinion of the Court:

The Plaintiff, notwithstanding the loan to his brother, had a constructive possessi¿n 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. M’Cauley, 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 — (Co-myns “ Trespass B. 1.”) The very case before us is put in the books, to shew 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.”) The case of Carson v. Noblet 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 He by the owner, for a taking from the actual posses^ sion of the bailee—(1 Law Rep. 522.) The nonsuit «mat therefore be set aside, and judgment entered" up on the verdict, in favour of the PiaintiiF.