’ The opinion of the court was pronounced by
— This is an action of trover. It did not appear on the trial that there was any conversion. The defendant attached the property in question as the property of one Ansel Amidon, either by leaving a copy with the town clerk, or with the said Ansel, but never took either the actual custody and possession, or any receipt therefqr. The plaintiff, so far from being disturbed in the possession of the property, has actually used the same himself, and appropriated it to his own use and benefit. Now it would be carrying the doctrine of constructive possession to a very great length, to say that a man, who has the custody of property, uses and disposes of it without interruption, can maintain an action of trover against another who asseits a claim to it, without taking any measures' to enforce the claim. As to the small quantity of grain which accidentally fell out of the barn when the defendant opened the door, if it can be the foundation of any action, the plaintiff must seek his remedy therefor by an action of trespass quart clau-sum fregit, if he can escape the effect of the maxim of the law, de minibus, &c.
The judgment of the county court must be affirmed.