
    Moses Hall v. Elijah Moor.
    THIS was an action of trespass for taking two horses, two cows, and a steer.
    
      Moor was a constable, and an execution of a judgment before a justice against Richard Hall, a son of Moses, was put into his hands, Moses had, about two years before, removed, from the plantation on which he formerly lived, to another about sixteen miles distant from it, and left his son Richard, a married man with a family, in possession of his plantation and the cattle in question, together with smith-tools and other property. Moor took the cattle in execution, and sold them for the debt of Richard. Two warrants from the justice, who had given the judgments against Richard Hall, were offered in evidence.
    Meason, for the plaintiff,
    objected to them, because they were not directed to any one, but to the constable of ; and because they were dated 12th May, 179 . Moor is not constable of the township in which Richard Hall lives, where the cattle were taken.
    8 St. L. 540.
    
      Lyon, for the defendant,
    The twenty pound law is to be considered as distinct from the other laws giving jurisdiction to justices. The 9th fection says, “upon delivery of an execution to any constable.” These warrants are for debts above 10l. and we can prove, that they were delivered to Elijah Moor, a constable.
    President. No answer has been given to the objection. We see no authority given to Elijah Moor, The omission is too gross to be overlooked.
    
      Kennedy and Lyon, for the defendant,
    moved for a nonsuit. This action is not maintainable. The plaintiff was not in possession, and possession is necessary to support trespass. The plaintiff ought to have brought Trover, when he could have recovered, on proving property in himself, and convertion by the defendant. This is decided in the case of Ward v. Macauley. There the plaintiff had leased his house ready furnished to lord Mountsort. On an execution against the tenant, the sheriff seized part of the furniture, though he had notice that it was the property of the landlord Ward. For this, trespass was brought. At the trial lord Kenyon thought, the plaintiff should have brought trover. A verdict however was taken for the value of the goods, with leave to move for a nonsuit. On a motion for this purpose, lord Kenyon said, “ The distinction between the actions of trespass and trover is well settled ; the former is founded on possession, the latter on property.—Here the plaintiff had no possession ; his remedy was by an action of trover, founded on his property in the goods taken.” The rule for a nonsuit was made absolute. The case before this court is so like that case, that I cannot doubt, that a nonsuit will be ordered here.
    4 T.Rep.489.
    3 Woodeson, 263.
    It may be said that, in that case, there was a lease for a limited time. In this case there is a surrender of the possession similar to that. In that case, there was a lease, which fixed the terms on which the possession was given. In this, none but the father and the son knew the terms, and a deceit was imposed on all others.
    Trespass is not maintainable where possession is in another by delivery ; except in cases of necessity that there may be a remedy for a right. A rector may maintain trespass for taking tythes set out, for possession is construed to follow separation. So may a carrier from principles of policy, to protect commerce in a fluctuating state. Here, there is no necessity for a constructive possession in the father : the relation subsisting between him and his son will rather couple a right with the son’s possession ; and the father may have remedy against the son. And, having parted with the possession, he is excluded from the remedy of an action of trespass which is given for a violation of possession ; and must recur to trover, by which redress is given for a violation of right. Property alone will not alone support trespass. If trees be cut by a stranger on land leased, the owner must bring trover, and the tenant trespass.
    
      
      Bull.Ni.Pri, 83.
    
    4 T.Rep.490.
    
      Bull.Ni.Pri. 83. See 5 Bac. Abr. 164. 5 Com. Dig. 577-8.
    3 Woodeson, 212. 1 Burr. 31.
    
      Campbell and Meason, for the plaintiff.
    The case of Ward and Macauley differs from this case. There, the plaintiff had parted with the ownership of his property, for a limited time ; and the tenant had an interest, which might be seised by his creditors. Here, there was no contract for any time ; and the plaintiff might take them when he pleased. Richard Hall had no interest to be taken. He was a mere agent, and had only a care or oversight of the property, as a butler or servant. Trespass lies for breaking open a box, delivered to keep, and taking goods out of it ; for wherever a man has neither a general nor a special property, and he converts goods, trespass will lie.
    President. It is contended that Moses Hall cannot support trespass, because he had not possession of the property taken, at the time of the taking, and possession being essential in trespass, the plaintiff must be non-suited ; and may bring trover, which can be supported on property alone without possession.
    On the other hand, it is contended, that property alone without possession will support trespass ; and that, (if it were otherwise) in this case, the possession of the son is possession of the father, for the son was but his agent.
    There is a material difference between trespass and trover. Trover waves the trespass in taking, admits the possession to have been lawfully gotten, and proceeds to recover damages only for the unlawful conversion. In trespass, a jury may also give damages for the taking.
    The motives are peculiarly strong to support this distinction, in favour of an officer compellable to take the goods of a certain person, when property ought to be presumed from possession, and the taking to be viewed in the most favourable light, and, if possible, not as a trespass.
    However, as it is to be wished, that the dispute between these parties may be soon terminated, and there are circumstances, which may induce the jury to find for the defendant ; we will not direct a nonsuit, but give the defendant leave to move for a nonsuit after the verdict.
    
      Lyon and Kennedy, for the defendant,
    contended, that possession was evidence of property, or of a fradulent intention to deceive creditors, which would be equivalent. If one taking goods in execution, leave them in the possession of the owner, a subsequent execution will take and hold them.
    2 T.Rep.596.
    
    
      Campbell and Meason, for the plaintiff.
    This is not an action against a constable, but against Elijah Moor, who, though a constable, has not been able to shew any authority for taking the goods in question. There was no collusion nor deception of creditors : all the country knew the property to be in Moses Hall.
    
   President.

The first question is, whether the property be the plaintiff’s, or his son’s. If his son’s, the plaintiff has suffered no damage, and can recover nothing. If the plaintiffs’, you will find in damages the value of the property taken, but no more ; for, having left the property in possession of his son, he gave reason to believe, that it was his son’s, and an officer, under such circumstances, ought not to be punished.

2. Possession is evidence of property, or of a fraudulent collusion between the owner and possessor ; and he, who gives the credit, must bear the loss. The question then will be, whether Moses Hall, in leaving this property in the possession of his son, did any thing more, than is usually done, without implying any right ; or, whether he meant it as an advancement to his son ; or, though he did not mean it so, whether he gave reason to believe this, and, thereby, gave a false credit to his son. If he either meant that the cattle in question should be the property of his son, or that this should be believed, you will consider the property as accompanying the possession, and you ought to find for the defendant.

The Jury found a verdict for the plaintiff, damages 43l. 17s. 6d.

Note. A nonsuit was moved for at the next term. But as the court, to induce the parties to a compromise, had given no opinion, when these notes were concluded ; I have incorporated the arguments and observations on the motion for a nonsuit after verdict, with those made on she trial.  