Swift v. Moseley , 10 Vt. 208 ( 1838 )

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 taken, or a property in it, either general or special, with the right to immediate possession. If he had the actual custody of the thing, even wrongfully, 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 such .custody. His possession is that of the master. The gener ral owner of a chattel may always maintain the action, unless he have parted with the possession, fora “ definite term.” Ward v. Macauley, 4 T. R. 489. Lord Kenyon in that case intimates an opinion, that trover will lie, but in Gordon v. Harper, 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. continuance of the bailment.

In the present case it is contended, that the'-act of the jeggee or baiiee, in selling to the defendants, did, ipsb*facto, determine his right, and revive the right of the plaintiff to immediate possession. If so, the plaintiff may - maintain this action. It may be well to inquire what acts will determine a bailment of this character.

It is certain the act of a mere stranger will not operate to revive the plaintiff’s right to immediate possession. Any misuse or 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 may maintain trespass or trover.

It has been long settled that if the bailee kill or destroy the thing bailed, trespass or trover will lie. Coke’s In. a. 53. It was early held, too, that the interest of the tenant in standing trees 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 and 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 case, much more in this, where the bailee sells the 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.