Soper v. Sumner

The opinion of the Court was delivered by Williams, J. It appears in this case that the plaintiff was the owner of the property, for the taking of which this suit is brought, that he had hired it to one Clark for a given time which had not expired when it was taken by the defendants, and that at the time of the grievance complained of, the same was in the actual custody and possession of Clark. On these facts it is very evident that the plaintiff 'cannot maintain this action of trespass. To maintain the action of trespass it is necessary that the plaintiff should have the possession of the property at the time of the'injury complained of. The action is given to recover for an injury to the possession and of course the possession must be either actually or construetivelyin the person who brings the action. The absolute owner of a chattel who is entitled to the possession is in contemplation of law, considered as actually possessed. Hence the owner who has gratuitously permitted another to use a chattel, has been allowed to recover in trespass for an injury done to it while it is so used. But where it has been leased-for a certain time and has been delivered to the custody of a bailee ; during that time, and while it is in the custody of the bailee, the owner cannot maintain trespass for any taking of the property from such custody. This is a. familiar principle and will be found in the cases of Ward vs. Macauley, 4 Term. 489; Hall vs. Pickard, 3 Camp. R. N. P. 187; 2 Do. 464. This principal of law is fatal to the pl’ff’s action unless his case can be considered as an exception to the general rule. In order to take it from the operation of this principle the pi’ff has insisted that the possession of the property by Clark under the agreement, was for every purpose, except the use, the possession of the plaintiff. To this it is answered, that if the use had been merely by the gratuitous permission of the plaintiff, he might have maintained this action, as being in the constructive possession ; but where to enable a bailee to have the use he must have the actual custody, for a certain time, and pays [278] a consideration therefor, then the possession is in the bai-lee, exclusive of the owner. In the present case, while the contract was in force, the plaintiff would have been guilty of a wrong to Clark, had he attempted to control, or use the property let to him-. The plaintiff also contends, that having a right to put an end to the contract at pleasure he had a right to the immediate possession, and therefore can maintain this action. It may be true that he had a right to put an end to the contract, and resume the possession, but until he exercised this right he could have no claim to the possession, or to any action for an injury to the possession. There was nothing in evidence or offered to be given in evidence by which it can be inferred that the contract between the plaintiff and Clark was terminated, or that the plaintiff had manifested any disposition to terminate the same at the time of the trespass complained of. The assertion of the plaintiff’s claim after the taking, •or the knowledge of either or both of the defendants of the situation of the property can have no effect on this action, whatever it might Rave, on a different one. The evidence offered and excluded, was clearly irrelevant. By the use of the oxen without consent, the defendants may have made themselves trespassers as to Clark.— But if the plaintiff can maintain this action at all, he. had a right to institute the same when the property was first taken. As to him it needed no evidence of a subsequent a-.fouse of legal process, or any after illegal act of the defendants, to give the plaintiff a right of action. But as he had parted with the control and custody of the oxen until the month of October, after they were taken, he cannot maintain this action, although the defendants may have made themselves trespassers as it regards Clark, by working the oxen without consent.' Whether the plaintiff after asserting his right can be considered as having put an- end to the contract so as to enable him to maintain an action against any one who wrongfully withheld the property from him is not the question before us. We are all of opinion that this action cannot be maintained. The judgement of the County Court is therefore affirmed.