
    JOHN W. SCOTT v. WILLIAM P. ELLIOTT.
    Possession of a chattel by one who holds for himself, in respect to either a general or a special property, will support Replevin or Trover; such possession for another, will not support an action; therefore,
    
    Where the plaintiff took possession of a steamboat, which had been sold to him by a sheriff with the understanding that if the sale was not valid he should be bailee for the sheriff, Held, that he had title sufficient to maintain Replevin.
    Replevin, to recover possession of a steamboat, tried before Buxton, Ji, .upon the pleas, General issue Property in the defendant, at December Special Term, 1866, of the Superior Court of Chatham.
    The facts were that the sheriff of Chatham county had levied an attachment upon the steamer at Playwood, under the act giving- a lien for work, &c., done upon vessels; that it was afterwards condemned, as “perishable,” by three freeholders, and being- sold was purchased by the plaintiff, subject to an understanding- that if such sale was not valid the boat should be returned to the sheriff; that afterwards the plaintiff placed the boat in charge of a Captain Williams, who ran it to Fayetteville, where it was seized by the defendant, who afterwards refused to give it up.
    The Supreme Court having held that the sale by the sheriff was invalid, (Broan v. The Enterprize, 8 Jon., 260,) his Honor was of opinion that nothing passed by such sale except a bare possession, not coupled with any interest, and that after such possession had heen transferred to Williams, nothing remained in the plaintiff. Upon this intimation the plaintiff submitted to a nonsuit, and appealed to this court.
    
      Howze, for the plaintiff
    1. Hampton v. Broion, 13 Ire., 18, shows that a sheriff may have a bailee, although the deputy in that case was held not to be such. If he could have one in any case, then in this, in which the sheriff could not be expected to retain the thing in his personal possession, and where in fact Scott was responsible over to him.
    2. Trover (therefore Replevin) lies for a gratuitous bailee who is responsible over to his bailor. 1 Ch. PL, 173. The “ title ” necessary under the second plea is only such as will sustain trover, and this against a wrongdoer is bare possession. Branch v. Morrison, 5 Jon., 16. Elliott is no better than a wrong doer, for whom a plausible plea without proof avails nothing. 1 Ch. PL, 171; 2 Saund. Rep., 47, n. d.
    3. Williams was only a servant of Scott.
    
      Phillips & Battle, for the defendant. ■
    In trover the declaration states that the plaintiff was “ lawfully possessed, as of his own property,” of the things in question. The expression, “as of his own property,” is> material. The evidence to support it may be various. As against wrongdoers, possession is sufficient. If there were no possession, some other evidence of property is required. In case of ownership it is said that the property draws to it the possession. This is said to satisfy the former clause quoted above, “lawfully possessed.” Here the .trouble is about the latter clause; the plaintiff was not in actual possession, and was himself but the bare depositary of the sheriff. Constructive possession is never evidence of title, but on the contrary it is title which gives rise to the notion of constructive possession. This case is like that where trover was brought for a hawk not stated in the declaration to have been reclaimed, and at same time stated to have been out of the actual possession of the plaintiff; there was no evidence of title. Fries v. Spencer, Dyer, 306, b.; so Sutton v. Moody, 1 Ld. Ray, 250.
    2. Scott was only servant of the sheriff. Hampton v. Rhodes, 13 Ire., 18,1 Ch. PL, 151; Gordon v. Harper, 7 T. R., 12; Ba-
      
      Jeer v. Miller, 6 John., 195,; Popelston v. Skinner, 4 D. & B., 156; Douglas v. Mitchell, 3 Mur.,'239; Dillenbaclc v. Jerome, 7 Cow., 294; Dudden v. Leavitt, 9 Mass., 104; Eastman v. Avery, 23 Me., 248.
    3. Public policy may be interested against permitting- arrangements like this, where property is taken out of the bailiwick, and occasion given thereby to strife. Miles v. Gattle, 6 Bing., 743.
   Pearson, C. J.

One who has possession of a chattel for himself, in respect to either a special or general property, may maintain replevin or trover. One who has possession of a chattel for another, and not for himself, cannot maintain an action.

The rule is settled, and the only difficulty is in making its application. Our case falls under the first branch of the rule, as will be made apparent by citing a few instances under each.

A common carrier has possession for himself in respect to his special property, and may maintain an action. So one who hires or borrows a horse is in possession for himself in respect to his special property. Such is the case in every bailment, and an action lies in the name of the bailee, and an indictment for larceny may lay it as his property.'

On the other hand, an overseer holds possession for his employer and not for himself, and cannot maintain an action. So one who is driving the wagon of another is not in possession for himself, but as the servant of the other. His possession is that of the man who hired him to take charge of the wagon. Such was the status of Williams in our case. He Avas the mere servant of Scott, and his possession was Scott’s possession.

So, if the sheriff making a levy puts the property in charge of a third person, who is to deliver it on the day of sale, that person is considered as a mere servant holding possession for the sheriff, and having no general or special property in himself. Such is the case in 9 Massachusetts, 104, and the other cases cited on the argument.

In our case the sheriff sold the steamer to Scott, and put her in his possession, with the understanding that if the sale was not valid, he would return her to the sheriff'. Obviously Scott did not take possession for the sheriff, but for himself in respect to the general ownership which he supposed he had acquired. The character of his possession was not at all affected by the understanding as to the return of the steamer-. The suit in which the validity of the sale is put in controversy was not decided until December Term, 1860. So, from the time of the sale, 1857, up to 1860, Scott was holding possession “for himself.” During this time the sheriff had no right to take the boat from him. This is the test to show that he was not the servant of the sheriff. Suppose one hires my horse for a year, but agrees to return ■ him before the end of the year on the happening of a contingency. Will any one say that he is my servant, and is holding- possession for me and not for himself?

There is error.

Per Curiam. Venire de novo.  