Hare v. Fuller

ORMOND, J. — The only question upon the record, necessary to be noticed, is the right of the plaintiff to maintain the action. The argument upon this point is, that the plaintiff, as bailee, did not have such a possession as would enable him to maintain the action, and that if he did, a mere bailee cannot maintain an action for an injury to the property, although he may for an injury to the possession. We think it indisputable, that the plaintiff had such a possession of the hogs, as would enable him to maintain an action for an injury done to the possession. He had, indeed, all the possession which the owner could have, of stock running at large in the range, and if he could not maintain the action for this reason, neither could the owner. It is equally as clear, that he could maintain an action for an injury to the property, as well as for an actual taking, upon the ground that he is responsible to the owner, and that an injury to the property, is an injury to the possession. This is an ancient doctrine of the common law. “Every person who is answerable to another for a personal chattel in his possession, has such a special property in the chattel, as enables him to maintain an action of trespass, for the taking or injuring thereof, by a stranger.” [6 Bac. Ab. Trespass, C. 565.] And a recovery, by either the bailee or the owner, would oust the other of his right of action. [Ib. 566.] Authorities on the point, might be multiplied to an indefinite extent; it is only necessary to refer to those cited by the plaintiff’s counsel. Let the judgment be reversed and the cause remanded.