Long v. Bledsoe , 26 Ky. 307 ( 1830 )

Judge Buckner

delivered the opinion of the court.

B. Lojtg declared in trespass vi et armis, against H. M. Bledsoe, for forcibly taking and carrying away, a sorrel mare, the property of the plaintiff, of- the value of $100.

The cause was tried on the general issuew The plaintiff proved that the property belonged to her, and that she had loaned the mare' some short time since, to one Profater; that Bledsoe, having in his hands as sheriff, an execution against Profater, levied it on, and had sold and delivered her to Baker the purchaser. • -

On the motion of Bledsoe, the circuit court instructed the jury as in caseof a non-suit, declaring that the action of trespass would not lie, to which the plaintiff excepted.. The jury found for the defendant, upon which a motion for a new trial was submitted, on the ground of the alleged error in the instructions given, which .was overruled, and a judgment rendered for defendant. An exception was taken by the plaintiff, who prosecutes this writ of error.

The instruction was-obviously erroneous. In tres^ pass for personal property, the plaintiff must have, the-possession, to authorize a recoveryhut it is not necessary that it should be an actual possession.. It must be either actual or constructive,-with a general or qualified property. The general property draws to.. it, prima facie, the possession. See Chitty, 167-8.

In this case, the possession of the loanee, was, in legal contemplation, the possession of the lender^.

Thornton, for plaintiff; T, .A. Marshallt for defendant.

The judgment of the circuit court mast,.therefore^ be reversed with costs, and the cause remanded for a." new trial..