
    Richard Bell vs. Philander Monahan and Jas. M. Love.
    The owner of a horse who had hired him out, cannot maintain trespass against a third person, for causing him, during the time for which lie was hired, to be levied on and sold as the property of the hirer — the owner’s possession not having been invaded, nor his right necessarily jeoparded.
    To maintain such action, the plaintiff must have had either an actual or a constructive possession, at the time the injury was sustained.
    BEFORE EARLE, J., AT YORK, FALL TERM, 1837.
    This was a summary process for a trespass in levying on and selling the horse of the plaintiff.
    The plaintiff bought a horse from one Peter Coonrod, and paid fifteen dollars, part of the price, to Jameison, a constable, on a note which be held on Coonrod for collection. Coonrod owed the plaintiff something, which was also to be deducted out of the price. The horse was delivered to the plaintiff, who bad him in bis separate and exclusive possession. He afterwards hired the horse to Coonrod, and John Kidd, his half brother, to make their crop; and whilst in their possession or employment, be was levied on as the property of Coonrod, by Monahan, a constable, under an execution, at the 'suit of one Love, and sold by Love’s orders: the plaintiff forbidding the sale. At the time be sold the horse to the plaintiff, Coonrod was much embarrassed, and the horse was bis only property.
    The presiding Judge decreed for the plaintiff.
    The defendants appealed, and moved for a nonsuit, on the following ground:
    Because the plaintiff was not entitled to maintain an action of trespass, as according to bis own showing, at the time of levy and sale, which was the trespass complained of, be was neither in possession of the horse, nor entitled to. possession, as be bad hired him to another.
    If the motion for a nonsuit should not prevail, then for a new trial, on the grounds:
    
      1st. Because the sale from Coonrod to the plaintiff was fraudulent, and conferred no title.
    2d. Because the decree was contrary to law and evidence in other respects.
    
      G. W. Williams, for appellants.
    
      Hill, contra.
   Curia, per Butler, J.

The defendants have taken a correct legal position in their first ground of appeal. At the time the horse was sold, the plaintiff had neither an actual nor a constructive possession; without which, be cannot.maintain this action, His possession was not invaded, nor bis right necessarily jeoparded, by the sale of Coonrod and Kidd’s interest in the horse. When the time had expired for which they had hired the horse, the plaintiff had a right to demand him; and, upon the purchaser’s refusal to deliver him up, the plaintiff could have brought bis action of trover, and upon establishing bis right could have recovered such damages as would have indemnified him for the loss of the horse. Or if the horse had been injured by the purchasers, so as to impair bis value, the owner could have maintained bis action on the case before the time of hiring had expired. These are general principles recognised and enforced in too many judicial decisions now to be disputed. The case in 4 T. R. 489, and 8 T. R. 432, are explicit on the points.

As the plaintiff may vary bis case on another trial, a new trial is granted.  