White v. . Morris , 8 N.C. 301 ( 1821 )

The plaintiff, notwithstanding the loan to his brother, had a constructive possession of the horse when the trespass was committed, and had a right to the immediate actual possession if he thought proper to exercise it. This makes the distinction between the cases; in Ward v. McCauley, 4 Term, 489, it was held that the landlord, who had leased the goods for a certain time, could not maintain an action of trespass against the sheriff for seizing them because he had parted with the right of possession during the term, and had only a reversionary interest. But whenever the injury is done while the goods are in the actual possession of a servant, carrier or other bailee, if the owner have the immediate right of possession, the action may be brought in his name. The same principle applies to real property, for if a stranger does a trespass to a lessee at will which prejudices the land the lessor may have trespass against him for damage to the land; for the possession of the lessee is his possession (Comyns' "Trespass, B. 1"). The very case before us is put in the books to show that the owner has the right of present possession. So if a man lend his cattle to J. S. to plough his land and a stranger takes them away J. S. may maintain trover or trespass against him (Bro. "Trespass, 90"). Carson v. Noblet, 4 N.C. 136, was decided on the same distinction and is directly in point with the one now before us. That was the case of a loan resumable at pleasure in which trespass was held to lie by the owner for a taking from the actual possession of the bailee. The nonsuit must therefore be set aside and judgment entered upon the verdict in favor of the plaintiff. (304)