8 Johns. 432 | N.Y. Sup. Ct. | 1811
The plaintiff cannot recover. The case is within the decision of Ward v. Macaulcy; (4 Term Pep. 489.) and that case was no more than a recognition of the settled principle, that a plaintiff cannot bring trespass for taking a chattel, unless he has the actual or constructive possession, at the time. He must have such a right as to be entitled to reduce the goods to actual possession when he pleases. A carrier is only a servant of the owner, and the possession of the servant is the possession of the owner. But here the plaintiff, by accepting of the agreement in writing from Barnard and others, let the chattels in question to them for a year, and it would have been trespass for him to have taken them out of their hands. It was a hiring for a valuable consideration, and not a nude pact; for Barnard and the other lessees were to return the animals with their increase. This promise to deliver the increase of the animals, was a consideration for the use; for, according to the general principle of law, such increase belongs to the person who, by hiring for a time, becomes temporary proprietor of the animal. (Wood v. Ash, Owen, 138. See also Pothier, Traité de Droit de Proprieté, No. 153, 154, 155.) The jury have decided that there was no actual fraud or collusion ; and the goods, after the sheriff’s sale, were not left by the plaintiff, as creditor, with the debtor j but they were delivered to third persons, without any previous agreement with Simpson; and whether they should be left in the possession of Simpson depended upon his subsequent agreement with Barnard and others. From the testimony of Simpson, it appears, that this agreement with him was subsequent to the contract between the plaintiffs and Barnard. The case, therefore, does not touch the question, how far a creditor, after purchase at a sheriff’s sale, can safely leave the goods in possession of the defendant. The case of Kidd v. Rawlinson, (2 Bos. & Pull. 59.) allows a third person, or stranger, who becomes the purchaser, to grant this indul
Judgment of nonsuit.
