
    Jabez Walcot versus Samuel W. Pomeroy et al.
    
    Furniture belonging to A, being with his consent in the use of B, without any stipulation as to time or compensation, (though B said he expected to allow a reasonable compensation,) was attached as B?s property. Held, that both the officer and the attaching creditor were liable to Jie owner in trespass..
    Trespass for taking and carrying away divers articles of household furniture. The defendants pleaded severally the general issue.
    The property in question was lent by the plaintiff in September, 1820, to one Richardson, his brother in law, with the view of setting him up in the business of tavern-keeping. It did not appear that any compensation for the use of it was agreed for between them, although Richardson testified that he expected to allow a reasonable one. Richardson opened a tavern, first in Boston, afterwards in Cambridge-port, and lastly in Brighton, and used the furniture all the time, with the consent of the plaintiff, until the 28th of November, 1822, when Learned, one of the defendants, as a deputy sheriff, attached it upon a writ sued out by the defendant Pomeroy against Richardson, the furniture being then in the tavern kept by Richard son in Brighton. The plaintiff made a demand on Pomeroy for (he release of the furniture, which not being complied with, this action was instituted. A verdict was found in favor of the plaintiff, and the question was reserved for the consideration of the Court, whether trespass could be maintained upon these facts, and in particular, as it regarded the deputy sheriff.
    
      Aylwin, for the defendant,
    cited Ward v. Macauley, 4 T. R. 489 ; Putnam v. Wyley, 8 Johns. R. 337 ; Rising v. Stannard, 17 Mass. R. 282; 2 Roll. Abr. 553, Tresp. S ; Gordon v. Harper, 7 T. R. 9 ;— Cooper v. Chitty, 1 Burr. 21. ; Smith v. Milles, 1 T. R. 480 ; 2 Roll. Abr. 561, Tresp. G, pl. 6, and pl. 9.
    S. D. Parker, contra,
    
    referred to 2 Saund. 47 a, note 1and Lotan v. Cross, 2 Campb. 464.
   Parker C. J.,

in giving the opinion of the Court, observed in substance, that the objection made to the plaintiff’s maintaining trespass was that he had not possession of the articles in question. The authorities, making a distinction in this respect between real estate and personal chattels, say that the property of persona] chattels draws to it the possession. Thus if A, in London, gives J. S. his goods at York, and another takes them away before J. S. obtains actual possession, J. S. may maintain trespass for them. Bac. Abr. Tresp. C 2. This action then may be sustained, unless the plaintiff had parted with his right to reclaim the furniture ; and it does not appear that he had. If it had been leased to Richardson, so that the plaintiff could not claim it and take possession when he pleased, trespass would not lie for him against the officer or any one else, because he would then have parted with the actual possession, • and would not have had a constructive possession. But there does not appear to have been any lease here ; there was nothing more than a mere indulgence ; so that if the plaintiff had at any time taken the furniture, Richardson could have maintained no action against him. It is true, Richardson testified that he expected to make the plaintiff a compensation for the use of the furniture ; but there was no agreement between them to that effect, and it does not appear that the plaintiff expected to receive any compensation. The plaintiff had a right to the possession without any demand on Richardson.

Judgment according to the verdict. 
      
      
        Wheeler v. Train, 3 Pick. 255; Campbell v. Arnold, 1 Johns. R. 511; Tobey v. Webster, 3 Johns. R. 468; Brainard v. Burton, 5 Vermont R. 97 Hart v. Hyde, id. 328.
     