Swift v. MoseleySwift v. Moseley
- Reporters:
- Before:
- Redeield
The opinion of the Court was delivered by
Redeield, J.It seems to be well settled, that the plaintiff, in trespass de bonis asportatis, or trover, in order to maintain tjhe action, must have had, at the time of the injury-complained of, either the actual custody of the thing injured or tаken, or a property in it, either general оr special, with the right to immediate possession. If he had the actual custody of the thing, even wrоngfully, he may maintain the acr tion against every one, whose right is not superior to his.
Perhaps a mere servant could not be said to have any suсh .custody. His possession is that of the master. The gеner ral owner of a chattel may always maintain the action, unless he have parted with thе possession, fora “ definite term.” Ward v. Macauley, 4 T. R. 489. Lord Kenyon in that casе intimates an opinion, that trover will lie, but in Gordon v. *210Harpеr, 7 T. R. 12, it is expressly held, that case is the only reme¿y for an injury done to the thing bailed, during the. continuancе of the bailment.
In the present case it is contended, that the‘-act of the jeggee or bаiiee, in selling to the defendants, did, ipsb*facto, determine his right, and rеvive the right of the plaintiff to immediate possеssion. If so, the plaintiff may - maintain this action. It may bе well to inquire what acts will determine a bailment оf this character.
It is certain the act of а mere stranger will not operate to revivе the plaintiff’s right to immediate possession. Any misuse оr abuse of the thing bailed, in the particular use for which the bailment was made, will not enable the general owner to maintain trespass or trover against the bailee. His, only remedy is case. But if the thing be put to a different use from that for which it was bailed, by the consent‘of the bailee, we think the bailor mаy maintain trespass or trover.
It has been long sеttled that if the bailee kill or destroy the thing bailed, trespass or trover will lie. Coke’s In. a. 53. It was early hеld, too, that the interest of the tenant in standing treеs was so far determined by their being severed from the freehold, that the landlord might maintain trespass.
In the case of Farrant v. Thompson, 5 Barn. & Aid. 826, found in the 7th Com. Law R. it was held that machinery, leased аnd by the lessee severed from the freehold, became instahter re-vested in the lessor, and he might maintain trover even during the continuance of the term. The case is expressly put by the court upon the ground, that the lessee, by his wrongful act, forfeits his right, and thus “ puts an end to his qualified possession.” If so in that сase, much more in this, where the bailee sells thе property. The same doctrine here decided is held in the case of Sanborn v. Coleman, 6 N. H. R. 14.
The judgment of the County Court is reversed, and a new trial granted.