Porter v. Foster

The opinion of the Court, was by

Shepley J.

The contract between the plaintiff and Gardner secured to-the latter the right to keep and use the horse until his note became due, but no longer. His neglect to pay at that time would put an end to these rights ; and the exercise of acts of ownership would be without right and unlawful. He could not convey to the defendant greater rights or place him in a position more favorable, than his own. The defendant, though ignorant of the title of the plaintiff at the time of his trade with Gardner, was informed of it, before the note became due, and continued, after he knew that it was not' paid at maturity, to claim and use the horse. Being no longer able to make out a justification of these acts, they amounted to a conversion, as decided in Galvin v. Bacon, 2 Fairf. 28.

The case of Vincent v. Cornell, 13 Pick. 294, cited for the defendant, differs from this case. In that the defendant had parted with the possession, and did not exercise any act of ownership or control after the plaintiff became legally entitled to possession. In this, when the defendant was in the unlawful use, and when the action was commenced he had the right of property land the right to possession.

The neglect of a party to proceed against one, who is known to have taken and used his property unlawfully, does not deprive him of his right to do so, until the statute of limitations interposes.

The other point made at the trial was not insisted upon here. 'Exceptions overruled.