
    MIDDLESWORTH v. ROBINSON.
    Error — mortgage of personalty — possession—trover—abuse.
    When personal property which is running at large lias been mortgaged to secure a debt, the mortgager has property in him, which will enable him to maintain trover against any one using it, in any way inconsistent with his ownership, or destroying it.
    Error to the Common Pleas. Robinson brought trover for a hog, and proved on the trial the hog to be his, and that the defendant set on his dog and lulled him.
    The defendant proved that some time before the hog was killed, the plaintiff had made a bill of sale of sundry property, including the hog, to one Schofield to secure him a debt of $40, and left the stock near where he stood; after which the hog run at large, and Schofield exercised no acts of ownership over him. Schofield’s debt was paid after the hog was killed, and the bill of sale given. On this state of fact, the court below charged the jury that if the plaintiff had possession of the hog when he was killed he could recover notwithstanding the bill of sale; but if the possession of him was in Schofield from the time of sale until he was killed, the plaintiff could not recover. There was a verdict and judgment for the plaintiff’.
    The defendant excepted to the charge and has brought this writ of error to reverse the judgment, for the error of the judge in the charge.
    
      Strait and Hawes, for the plaintiff in error,
    contended, that the case was one of a mortgager of personal property, the possession in the mortgagee,suing for all injury to the property while the debt was unpaid, and cited 15 East. R. 607; 7 T. R. 9.
    
      Fox, contra,
    insisted that the defendant had no right to set up an outstanding mortgage upon the hog to avoid his responsibility— as to all other persons than the mortgagee the mortgager’s right of property is complete.
   Lank, J.

We do not discover the error of the court below, which injured the plaintiff in error on which he has reason to complain — if that court erred, in our opinion, it erred in being too favorable to the plaintiff in error. A mortgager has an interest in the subject of the mortgage which he can protect by suit. The hog was at large, in the actual possession of neither the plaintiff below, nor Schofield; by construction of law, he was in the possession of his owner; and if Robinson was the owner, any use or abuse of him inconsistent with the ownership will enable him to support trover. The judgment is affirmed with costs.  