
    Putnam against Wyley.
    A person cannot maintain trespass for goods, sinless lie lias actual or constmctive possession, at the time. aUeas^sueir^ tided To*reduce the goods to his possession when" Se pleases.
    vered to ufa one year, with crease, and to should beTo°st or uotredeUveredt &tónpSofethea chattels, for a ycar, for a valuable consideration, and not a naked bailment: not1 maintain*16 a ep7vsonS'\i'ha the^possession B*
    THIS was an action of trespass, for taking 4 cows * ' u and 21 sheep, the property of the plaintiff. The cause was tried, at the last Oneida circuit, before Mr. Justice rr ' *7 vCLTl Di€S$*
    
    The plaintiff produced a record of a judgment in his ^avour> against one Simpson, in February, 1808, and a fiert facias, for 300 dollars, afterwards issued on the same , , r , judgment, and delivered to the defendant, as depitty sheriff, the 2d March, 1809, and a bill of sale, exeby the defendant as deputy sheriff, to the plain-sundry articles, including the property in question, dated the 29th April, 1809, the plaintiff having purchased the same, at the sheriff s sale, lor 158 dollars and 73 cents. The plaintiff also gave in evidence a receT* endorsed on the bill of sale, dated the 1st May, signed by John Barnard, Samuel Dill, Oliver Greenwood and August E. Baker, by which they acknow- " J t J ledge to have received from the plaintiff, among other . , , , . . , things, the cows and sheep above mentioned, which had been purchased, by the plaintiff at the sheriff’s sale, which, with the increase, they promised to return and redeliver plaintiff, within one year from the date ; and they promised severally to be answerable each for one fourth of any of the cows, sheep, &c. which might be lost, destroyed, or not redelivered, within the year, with the interest the value thereof.
    It was proved, that in the autumn of 1809, ¡the defendant, as deputy sheriff, went to the farm on which Simpson lived, and took the property in question by virtue of an execution delivered to him the 21st September, 1809, on another judgment against Simpson, at the suit of another person, and sold them, at auction, to one White, for 64 dollars and 90 cents..
    Simpson, who was a witness, testified, that on the day-after the sale of the property on the plaintiff’s execution, he agreed with Barnard, the other person who gave the receipt to the plaintiff, to take back the property into his possession, on the same terms as were expressed in the. receipt, and the property was accordingly delivered to Simpson.
    
    The judgment in favour of the plaintiff was for a bonk fide debt, and the sale on the execution was public, and without fraud, or any express or implied understanding between the plaintiff and Simpson, that the plaintiff would bid off the property for Simpson’s benefit.
    It was objected, that the plaintiff had not such a possession, actual or constructive, as would enable him to-maintain trespass ; but the objection was overruled, and the point reserved. The judge charged the jury to find for the plaintiff, unless they believed there was fraud in the sale to him under the execution; and that the plaintiff was entitled not only to the value of the property, but to a compensation for its detention, up to the ensuing term.
    The jury found a verdict for the plaintiff.
    A motion was made to set aside the verdict, and lot a new trial.
    Lynch, for the defendant.
    The plaintiff had not such a property or possession, as would enable him to maini tain trespass. To enable a person to bring trespass, he must, at the time when the act was done xvhich constitutes the trespass, either have the actual possession in him of the thing, or a constructive possession in respect to the right actually vested in him. In Ward v. Macauley,
      
       Lord Kenyon said, that the action of trespass was founded in possessions and that where A. had let a ready furnished house to B. he could not maintain trespass 
      against the sheriff, for taking the furniture under an execution against B.; and in Gordon v. Harper, it was held, that the landlord could not, in such a case, maintain trover. By the terms of the receipt, Barnard and others were not bound to redeliver the property, but were responsible only for the value. They were at liberty to consider the delivery to them, as an absolute sale, and they might sell the property if they chose.
    Again, the property was not delivered by the defendant to the plaintiff. Where the sale of goods is unconditional, unless possession accompanies and follows the sale, it is void against creditors.† It is true, this, was a judicial sale, but the principle is equally applicable to all sales ; otherwise, a judgment might be used for the purpose of defeating creditors.
    
      Gold, contra.
    
    
      Trespass lies by a person having the general property, where there is. a naked bailment for the gratuitous use of the bailee.
    
    In Kidd v. Rawlinson,
      
       it was held that where the goods of A. taken in execution were put up to sale by the sheriff', and B. became the purchaser, and took a bill of sale, and permitted A. to continue in possession of the goods, the bill of sale was valid against a creditor or purchaser, who might afterwards get possession of the goods. The same principle was laid down by this court in Vredenburgh v. White.
    
    Again, where a person comes to impeach a former sale, he must show himself to be a bona jide creditor, or purchaser, for a valuable consideration. That they were taken under a judgment, makes no difference. The plaintiff is equally bound to show that the judgment was for a just and bona jide debt.
    Again, the direction of the judge, as to the compensation and damages, subsequent to the act of trespass complained of, was incorrect.
    
      
       Smith v. Milles, 1 Term Rep. 475, 480.
    
    
      
       4. Term Rep. 489.
    
    
      
      
         7 Term Rep. 9. 12.
    
    
      
       2 Term Rep. 595. 1 Cranch's Rep. 316.
      
    
    
      
      
         5 Bac. Ab. Tresp.(C.) pl. 9. 16. 17. Latch. 214.Co. Litt. 37.
    
    
      
       2 Bos. & Pull. 59.
    
    
      
       Johns. Cas. 56. See4. Dallas, 167, 208.
    
    
      
      
         Rob. on Fraud Convey. 489. Holt's Rep. 327. Skin. 586.
    
   Per Curiam.

The plaintiff cannot recover. The case is within the decision of Ward v. Macaulcy; (4 Term Pep. 489.) and that case was no more than a recognition of the settled principle, that a plaintiff cannot bring trespass for taking a chattel, unless he has the actual or constructive possession, at the time. He must have such a right as to be entitled to reduce the goods to actual possession when he pleases. A carrier is only a servant of the owner, and the possession of the servant is the possession of the owner. But here the plaintiff, by accepting of the agreement in writing from Barnard and others, let the chattels in question to them for a year, and it would have been trespass for him to have taken them out of their hands. It was a hiring for a valuable consideration, and not a nude pact; for Barnard and the other lessees were to return the animals with their increase. This promise to deliver the increase of the animals, was a consideration for the use; for, according to the general principle of law, such increase belongs to the person who, by hiring for a time, becomes temporary proprietor of the animal. (Wood v. Ash, Owen, 138. See also Pothier, Traité de Droit de Proprieté, No. 153, 154, 155.) The jury have decided that there was no actual fraud or collusion ; and the goods, after the sheriff’s sale, were not left by the plaintiff, as creditor, with the debtor j but they were delivered to third persons, without any previous agreement with Simpson; and whether they should be left in the possession of Simpson depended upon his subsequent agreement with Barnard and others. From the testimony of Simpson, it appears, that this agreement with him was subsequent to the contract between the plaintiffs and Barnard. The case, therefore, does not touch the question, how far a creditor, after purchase at a sheriff’s sale, can safely leave the goods in possession of the defendant. The case of Kidd v. Rawlinson, (2 Bos. & Pull. 59.) allows a third person, or stranger, who becomes the purchaser, to grant this indulgence, and whether the creditor may not also exercise the same humane indulgence, if it be done in good faith, is a question not now before us. . The verdict must be set aside, and as the point was reserved at" the trial, upon a motion to the judge, against the right of recovery, p nonsuit must be entered,

Judgment of nonsuit.  