
    Thos. Poole v. G. B. Mitchell.
    
      Tried before Mr. Justice Evans, at Spartanburgh-Fall Term, 188S.
    
    where the TCitenfy omfte whfihC isVier“eu-permit°UMm to fectafterifeha¡as andcdahimot?on fait!8 plaintiff has the tfand^'o^he atf'possessiouto *{— ’““¡n aioiher™1
    Trespass. The plaintiff had a judgment and execution against one Holt, Under which the sheriff levi-ed °n a mare. At the sale, the plaintiff bought the tmt as an act of kindness, suffered her to remain in Holt’s possession. The defendant afterwards, a constable, levied a magistrate’s execution on a colt of the mare, which is the trespass complained of. appeared that the owner of the execution under which the defendant levied, knew that the mare belonged to the plaintiff: and that the levy was made, not only without his consent, but against his will. After the plaintiff closed, the defendant’s counsel mo-^01' a noni5uit, on the grounds, that the execution, which the sheriff had sold, was not produced; and because the plaintiff cannot maintain this action possession. The presiding Judge believing omission to produce the execution, was through inadvertence, permitted the plaintiff then to supply the defect; and on the other ground, refused motion. The jury found for the plaintiff. The defendant appealed, and moves this court for a non-on grounds taken below, and failing in that, for a now trial, on the ground, that the evidence made the plaintiff’s case, a fraud against creditors,
    permitted u ^to Soi Tan act it t°onCdat“theeií-ato who tile “cireumstan-St awasWcon-quenttothepiir-thfc: Jíaiutiff>s parchan™ m and timt he6 was onutiedto
   O’Neall, J.

1st. The first ground taken for a non-suit was decided in the case of Browning v. Huff (2 Bail. 179.) The execution here was omitted to be produced, in the same way, that the record of the let-0f administration was, in the case of Browning v. Huff; and as in that case, the Judge had the right to permit the omission to be supplied even after the motion for a nonsuit was made and argued, and the opinion of the Judge expressed, but the order not made.

2nd. The second ground proceeds upon a very plain and familiar principle of law, that where the plaintiff having the general right of property in a chattel, has parted with the right to possession for a limited time, that trespass will not lie. But 1 think that will not avail the defence in this case. The plaintiff had both the right of property, and also the right to immediate possession. In such a case, notwithstanding the actual possession was in another, yet the plaintiff might maintain trespass. For the right of property with the right to immediate possession, made the plaintiff in contemplation of law constructively in possession of the goods. Holt was but the plaintiff’s bailee to take care of them, and his possession was that of the plaintiff. • Either might maintain trespass. Steedman v. M’Neill, 1 Hill Rep. 194.

Herndon, for the motion.

Upon the facts of the case, and the authority of Smith v. Henry, 1 Hill 16 I should have been inclined to hold this a case of legal fraud, and that the plaintiff was not entitled to recover, had it not been for two circumstances. They are, that it may be, from aught that appears from the Judge’s report, that the debt, for which the colt was sold, was contracted subsequent to Poole’s purchase, with notice of his right; which may, I think, be fairly inferred from the facts reported, viz. that the creditor knew that the mare belonged to Poole; and that the levy was made without his consent and against his will. I am hence reconciled to the verdict.

The motion is dismissed.

Johnson & Harper, Js. concurred.

Ogior v. Deas, 1 Bail. 473.  