Keyes v. Howe

The opinion of the court was delivered by Kellogg, J. That the plaintiff, on the twenty fifth day of May, (when the defendant levied the execution upon the cow and posted her for sale,) had neither the actual nor constructive possession of her, is very apparent from the facts detailed in the bill of exceptions ; and consequently he could not maintain this action for the acts of the defendant, upon that occasion. The cow at that time was in the actual possession of Whitney, under a contract of bailment made with the plaintiff, and for a period of time which had not then expired. Whether Whitney, the bailee, could maintain trespass for the act of the defendant in levying the execution is not now necessary to be determined; — though we do not perceive upon what ground he could [413] complain of an act of the defendant, which in no manner affected his interest in the cow. He was not, by the act of the defendant, dispossessed of her, or deprived of her use, but was permitted to retain the undisturbed possession of her until the expiration of the time, for which she was bailed to him. He was not damnified by the act of the defendant. At the expiration of the bailment, which was on the first of June, the plaintiff’s right of possession reverted to him, and he then had the constructive possession of the cow, unless some act had intervened, which, in law, would defeat it. The levy of the execution on the twenty fifth day of May created no, lien upon the property, provided it was the plaintiff’s only cow; and we are to assume that it was; for the case finds, that evidence was given tending to prove that fact. And even if a trespass were committed by the levy of the execution, we are' of opinion that the subsequent asportation of the property, on the eighth day of June, was a fresh trespass, for which this suit may well be maintained by the plaintiff, he being then in the constructive possession of the cow. Suppose the defendant had pleaded specially a justification of the trespass of the twenty fifth of May, by the levy of the execution, could not the plaintiff have new assigned the trespass'of the eighth of June in the removal and sale of the cow 1 We think, without doubt, he could ; and, inasmuch as the defendant, instead of pleading his defence specially, has sought to avail himself of it under a special notice, which is not issuable, the plaintiff is entitled to avail himself of every matter, which he could successfully new assign. The judgment of the county court is erroneous and is reversed.