
    Craig against Ward.
    ALBANY,
    August, 181&
    
    The merepossession ot a personal chat-consent of the tr“e owner, der the chat-the debts or (¿sep°r'eputedf owner ¡ but there must he a fraudulent purpose^6 view, or implied from the special circumstances of the case.
    Where a purchased a livery stable, &c. and delivered the possession at-tied‘on the íwñ namé“but ^ai^themo" neys received to aiiowB.one third of the net proceeds, thnd of the ov_ ciear^prot terwards wt L^ih^red” yards, while sion of B. was cution 'by™” that the procoLch did* not uniLíhfspost was fraudulent, and iniourabl/^purposes, it was-mot liable to his creditors*
    THIS was an action of trespass de bonis asportatis, for seizing and carrying away a coachee and 3 horses, the property of the , . ./V, J?, X . , , , , plaintiff. The claim as to the horses was, however, atterwards, abandóned. The cause was tried at the New-York sittings, in November, 1811, before Mr. Justice Van Ness.
    
    The plaintiff, in May, 1809, purchased of one Gordon, as agent of the estate of Patrick Shay, deceased, divers horses, carriages, See. and a lease of certain stables in Courtlandt-street, forming what was called the livery-stable establishment, for which a bill ° ... - of sale was given by the executors of Shay. The plaintiff paid 400 dollars in cash, and gave three promissory notes for 400 dol)nrs paoil lars eacn.
    It was proved, that the plaintiff bought the coachee, or carriage, in question, of Burtis 8c Woodward, coachmakers, m June, 1809, for 90 dollars, which was afterwards put into the possession of Jacob Crissy, and was considered as part of the livery-stable establishment. The coachee and horses, which were established as stage to run from Pawles Hook to Brighton, were attached Newark, in New-Jersey, m August, 1809, at the suit of Ward, fora debt due to him from Crissy, and sold. The plaintiff put in a claim of property, which was tried before a sheriff’s jury, in New-Jersey, who found the property to be in Crissy.
    
    . j__4. Z4._______j From the evidence on the part of the defendant, it appeared that Crissy had been in possession of the livery-stable establishment from the time it ivas first purchased by Craig, who had said that Crissy was to pay the notes given for the purchase, the rent and wages of the persons employed, &c.; that a sign was put up on which was written “ Crissy’s Livery Stable;" and a notice was published in the gazette, by which Crissy informed the pub-lie, that he had established a regular stage between New-York and Brighton, &c. and a similar advertisement was posted up in New-Jersey ; and Craig admitted that he had drawn the advertisements. When the carriage and horses were seized under the attachment,, the driver, at first, said they belonged to Crissy, but, afterwards, said they were the property of the plaintiff. The coachman was employed and paid by Crissy, and he testified that Crissy had the whole management of the establishment, which was conducted, in the name of Crissy, who paid the expenses; and that when the plaintiff wanted a ■ horse, or carriage, he applied to Crissy for them.
    The plaintiff gave in evidence an agreement made between him and Crissy, dated the 1st of May, 1809, which recited that Craig had that day purchased the livery-stable establishment of the executors of Shay, with the carriages, horses, &c. and taken a lease of the ground and stable, &c. “ with the intent, and for the purpose, of carrying on the business, &c. through the agency, of Jacob Crissy, and had intrusted the same to the care and. management of the said Jacob Crissy.” Crissy then covenanted with Craig to take the care and management of the said carriages, horses, gigs, See. and to enter into the occupation of the said stables, &c. and to carry on the said business in all its branches, to the best advantage, &c. for and on account of Craig, for and during the term of three years from the date of the agreement and to account to Craig, monthly, during the term, for all moneys received, &c.; add Craig covenanted, that he would, monthly, and as often as he should receive from Crissy any sum or sums of money arising from the business, after deducting all expenses, rent and charges, incident to the establishment, pay to Crissy one third of the net proceeds, or profits, received, &c.; which one third of the net proceeds, or profits, was to go as a full compensation, or consideration, for Crissy's services, care and management of the stables, &c. during the said term of three years; and Crissy covenanted to keep regular books of accounts, which Craig was to have leave, at all times, to inspect.
    The counsel for the defendant moved for a nonsuit, on the ground, that in whomsoever the property in the carriage in question was, the possession of it, for the term mentioned in the agreement, was in Crissy, and that the plaintiff could not maintain the trespass. The judge was of that opinion, as it respected the horses; but as the carriage was purchased subsequent to the agreement, he thought that if Crissy, under all the circumstances of the case, was not to be deemed the owner, and the property, therefore, liable to pay his debt, he might be considered as the agent of Craig, who would, in judgment of law, be deemed to have the possession. The plaintiff’s counsel contended that, even if the acts of Craig, and the ostensible ownership of Crissy, might have subjected the property to the creditors of Crissy, whose debts accrued subsequent to his possession; yet the rule could not apply as to debts existing prior to such possession; as the creditors could not then be deemed to have trusted Crissy on the faith of the property. The judge expressed his doubts as to the correctness of this distinction; and charged the jury that if they believed that Crissy had such an ostensible ownership as would render the property liable to debts of creditors subsequently accrued, it would be liable to all.
    The jury found a verdict for the plaintiff, for 102 dollars and 66 cents.
    A motion was made to set aside the verdict, and for a new trial.
    
      Slosson, for the defendant.
    To maintain trespass for goods, the plaintiff must have the actual or constructive possession, at the time of the alleged trespass. If he has not the actual possession, he must have a right to reduce them to his possession when he pleases. By the agreement, Crissy was to have the possession for three years, so that the plaintiff could not claim it before the expiration of that time.
    The carriage, it is true, was purchased after the agreement, but it was turned into the establishment, of which Crissy was to have the sole management. It was as -much in his possession as any other article belonging to the establishment. Though the carriage did not pass by the agreement, yet that agreement shows the intention of the parties as to the property.
    Again, the advertisement of Crissy, written by the plaintiff shows it to be his property. The acts and declarations of the plaintiff recognise it as the property of Crissy, and he cannot, now, be permitted to gainsay those acts, and declarations, after Crissy may have obtained credit on the faith of the ownership.
    
      T. A. Emmet, contra.
    At the time of the purchase by Craig? and the agreement with Crissy, the carriage was not in the possession of either party, for it was not then purchased. This case is different from that of Putnam v. Wiley, or Ward v. Macauley. It is, in fact, an attempt to extend the law of partnership to a most dangerous length. For there are very many useful public works and manufactories, on a similar establishment, carried on by confidential agents, who are to have a per centage, or portion, of the net profits, as a compensation for their services. The agreement between Craig and Crissy contains no words of demise, It de« c]ares that the plaintiff had purchased the property, and had in* trusted Crissy with the care and management of it. All the covenants are on the part of Crissy. The plaintiff merely promises to pay him his wages. Crissy was a mere servant, or agent, who was to receive a portion of the net profits, as a compensation for his services. Crissy had no jus disponendi in regard to the property. If Craig had been dissatisfied with the conduct of Crissy, and had turned him out of possession, the latter could not have maintained any possessory action against the former.
    As to the point of visible ownership; the cases have gone no further than to say, that where a person, trusting to the visible ownership, has given a credit, he may set off the debt against the claim by the real owner, or principal ; but none of them go so and antecedent debt to be set off by the person claiming to be the real owner. The doctrine of partnership is not applicable to the present case: and if Crissy could have no ¿ght of action against Craig, if dispossessed by him, the creditors of Crissy could have no right to take the property in execution.
    
      D. B. Ogden, in reply, observed, that the advertisements, drawn up by the plaintiff, as well as his declarations, showed, conclusively, that the livery-stable establishment belonged to Crissy, and that this carriage was delivered to him to form a part of that establishment.
    
      Possession is the only indicium of property in personal chattels ; and Crissy having advertised the property ip his own name, with the assent of the plaintiff, the plaintiff cannot now claim to be the owner. The distinction between debts contracted before or after the visible ownership, is not to be found in the books. case of Ross v. Dey
      
       supports the principle for which we contend. After the plaintiff by his conduct, has led the defendant to believe that Crissy was the real owner, he cannot pull off the mask, and claim the property as his own.
    Again, Crissy was to have one third of the profits. Now a participation in the profits renders the person a partner, and if he was a partner, he had an interest which could be taken in execution. . ,
    Again, if Crissy had an interest in the property, it was liable to ' be attached in New-Jersey, and the right of property being there decided, the present action cannot be brought for the same pro» perty in this state.
    
      
      
        Putnam v. Wiley, 8 Johns. Rep. 432. 4 Term Rep. 489. 7 Term Rep. 9.
      
    
    
      
      
        George v. Clagett, 7 T. Rep. 359. Rabonc v. Williams, ib. note (a). Ross v. Dey, ib. note (c). 2 Esp. N. P. Cases, 469.
      
    
    
      
      7 Term Rep 361. note.
      
    
   Per Curiam,

The only question ariring on thi~ cu~e ~, whe~ ~iher the coachee, purchased by the plaintiff, subsequent to the articles of agreement between him and Crissy, and delivered into the possession of Crissy, was liable, as the property of Crissy, for his debts. The carriage was not embraced by the agreement, and m~ht have been recalled by the plaintiff at any time~ As to this article, Crissy was the mere agent or servaiit of the plaintiff Th~~ property in the coachee did not, therefore, pass as between them and imless the possession was fraudnlent, and intended for colourable purposes, the ceachee was not liable to the creditors of Crissy~ The bankrupt law of 21 Jac. I. c. 19. s. 11. considers chattels so possessed by the bankrupt, and used by him as reputed owner, with the consent of the true owner, as liable to pay the debts of the bankrupt. But independent of any statute provision, the mere possession of a chattel will not, of itself, render the chattel liable to the debts or disposition of the possessor. There must be a fraudulent or deceptive purpose in view, or implied, under the special circumstances of the case. The jury by their verdict in this case, have negatived the suggestion of fraud; and the motion for a new trial ought to be denied.

Motion denied:  