10 N.C. 246 | N.C. | 1824
The slave had been hired by the guardian of the plaintiff for the year within which he was killed, to some other person. Much evidence was introduced as to the fact of killing, and the plaintiff then proved that the negro had been part of the estate of John Hilliard, deceased, (247) and offered in evidence the record of Nash County court appointing in 1818 a guardian to the children of John Hilliard, who had been dead eight or ten years. The hiring by the guardian was proved.
Paxton, J., who presided, charged the jury that it was for them to inquire, in the first place, whether it was proved to their satisfaction that the negro was delivered over to the guardian of the plaintiff; if so, their next inquiry would be whether the negro was destroyed by the acts, or in consequence of the acts, of the defendants; that if the evidence satisfied them that such was the fact, the plaintiff was entitled to *137 recover, notwithstanding the negro was at the time hired to a third person who was entitled to the possession and services of the negro; that the plaintiff had a reversionary interest in him, and consequently could support this action against any one who did him a permanent injury.
The proof as to the killing was that it was occasioned by the exercise of immoderate force.
The jury found a verdict for the plaintiff; and the case now stood before this Court on a rule to show cause why a new trial should not be granted. The trespass complained of in this case was committed on the (250) property while it was in the possession of a hirer for a year; and the question to be decided is whether an action on the case is the proper remedy. It is too firmly settled, both by principle and authorities, not to be shaken, that possession, either actual or virtual, is necessary to maintain trespass; for the action is properly to obtain a recompense for the wrong done to the possession, and, therefore, he who has parted with the right of possession for a limited time, without the power of resuming it, cannot complain that his possession is violated. The cases of Ward v. McCauley and Gordon v. Harper, in Term, and the cases decided in this Court establish the rule that neither trespass nor trover will lie unless there exists in the plaintiff a right of possession as well as of property. And it seems to follow very clearly thattrespass could not be maintained in the present case. It has been argued that trespass will lie because the injury was immediate on the act done, and consisted in the destruction of plaintiff's property. It is true that the injury was immediate to the chattel itself, and also immediate to its actual possessor; but it was consequential only, as relative to the plaintiff's property; for he had parted with that for a definite time; and whether it existed or was destroyed, it still continued beyond his control for that period. He would be, ultimately, a sufferer by the loss of his reversionary interest, and to that injury the law has adapted an action on the case. This distinction prevails, with one exception, in real as well as personal property; for both tenant and landlord may have actions against a wrongdoer; the first, an action of trespass for an injury to the possession; the last, a action of the case for an injury to the reversion; as when the defendant, by stopping up a rivulet, (251) had flooded an adjacent close and destroyed great quantities of timber, both remedies were allowed to be pursued for the damage respectively sustained. The exception adverted to does not seem to be *138 well established by authority, for the decisions are both ways relative to the right of a lessor to bring trespass against one who enters on his lessee at will; but supposing the right to subsist, it may be placed on the ground that the lessor has a virtual possession in that of his lessee, since he may put an end to the estate at his pleasure. I think the opinion appealed from is correct, and that there must be a judgment for the plaintiff. My brethren concur with me in opinion.
PER CURIAM. No error.
