
    William C. Holly versus Henry H. Huggeford.
    If goods consigned to a commission merchant for sale, and on which he has a lien for a balance due to him from the owner, are attached as the property of the factor, the owner of the goods may maintain trespass against the officer who made the attachment.
    The lien of the factor is a personal privilege, and cannot be set up by any other person in defence of an action by the principal.
    A commission merchant, who had sold an article consigned to him, afterwards purchased it back at a reduced price on his own account, but it proving defective, the original owner who had made the consignment agreed to take it back, and it was accordingly charged to him in account by the factor, though it still remained in the factor’s possession, without any other act done to revest the property. Held, that the property was revested in the original owner, who might maintain trespass against any wrong-doer who took the article from the possession of the factor.
    If A’s personal property is attached in a suit against B, and A sells and assigns his property to a third person while it is under attachment, an action of trespass for the benefit of the vendee, against the attaching officer, is properly brought in the name of A.
    This was an action of trespass for talcing certain chain cables, the property of the plaintiff. The defendant pleaded, that as a deputy sheriff, he attached the cables as the property of Thomas J. & Ebenezer Lobdell, at the suit of Levi Haskell, October 17th, 1826. He also pleaded the general issue.
    At the trial, before Parker C. J., the plaintiff read the deposition of Thomas J. Lobdell, who testified that the cables were consigned to him as a commission merchant, for sale, by the plaintiff, during the years 1825 and 1826 ; that he, Lob-dell, in the summer or autumn of 1826, having undertaken to raise a vessel which had been sunk, took the chain cables without Holly’s knowledge or assent, to use in the undertaking, intending to restore them in good order, and that they were attached by the defendant while they were on board the vessel for this purpose; that in August, 1826, he (Lobdell) stopped payment; that at that time he made out his account against the plaintiff, charging him with various acceptances, which made an apparent balance due from the plaintiff to Lobdell, hut that be has never paid his acceptances; that at the time of the attachment, if his acceptances had been paid, the plaintiff would have owed him 282 dollars 55 cents ; that some of the acceptances were still outstanding, having never been paid by himself or Holly.
    
      Lobdell also testified, that the largest chain mentioned in the declaration, had been sold by him to Cutler & Hammond and John Benson, and after it had been used and a part of it lost, he had purchased it back of Cutler & Hammond, on bis own account, at a reduced price ; that subsequently, in June or July, 1826, he had the cable tried by a proving machine and found it very defective ; that shortly after, he saw Holly at New York and told him that he had charged the chain back to him as bad, and Holly assented that he should so do ; that Holly had previously given him instructions tr take back all defective chains; that he accordingly charged the chain back to Holly, which appeared in the account rendered in August.
    John Hall, a witness for the plaintiff, deposed, that on January 4th, 1827, Holly assigned and sold the chains in question to Hinton & Moore, for a valuable consideration, with authority to use all lawful means in Holly’s name to obtain possession of them from the defendant.
    The defendant produced a bill of sale, by which it appeared that the large chain was sold to Cutler & Hammond, June 6, 1826, and repurchased by Lobdell on the same day at a reduced price; and the balance settled by a note of Cutler & Hammond at sixty days ; which it was proved was paid when it became due.
    The counsel for the defendant contended, that the plaintiff had misconceived his action ; that Lobdell, being a commission merchant, had a lien upon the chain cables to secure his general balance, and therefore as Holly had not a right to the present possession of the chains, although the general property might be in him, his remedy was case, and not trespass : Also, that as Holly had transferred his interest in the chains before the bringing of this action, it could not be maintained in his name : And that the property of the large chain was in Lob-dell, being vested in him by the repurchase, and that there was no evidence of any transfer to Holly after the repurchase.
    The judge directed the jury, that if the general property in the chains was in Holly at the time .of bringing the action, he might maintain trespass against the defendant, notwithstanding any lien which Lobdell might have had upon them for his general balance against Holly: And that the transfer of Holly's interest after the taking, would not prevent the suit from being maintained in his name.
    The judge also instructed the jury, that as to the large chain repurchased of Cutler & Hammond, the ceremony of a sale and delivery was not necessary to revest the property in Holly, but that charging it back in his account by Lobdell, with the consent of Holly, was sufficient for that purpose.
    The jury having found a verdict for the plaintiff for the value of all the chains, the defendant moved for a new trial on account of the above directions to the jury, and because the verdict as to the large chain was against evidence. •
    
      H. H. Fuller, for the defendant.
    1. The plaintiff, at the time of the taking, had not the actual possession of the chains, nor even a constructive possession, which was prevented by Lobdell’s lien upon them ; and therefore cannot maintain trespass. 1 Chit. PI. 166, 167; Com. Dig. Trespass, B 4; Smith v. Miller, 1 T. R. 480; Ward v. Macauley, 4 T. R. 489; Gordon v. Harper, 7 T. R. 9; 3 Stark. Ev. 1438, 1439; Walcot v Pomeroy, 2 Pick. 121; Putnam v. Wyley, 8 Johns. R. 337; Van Brunt v. Schenck, 11 Johns. R. 377; 1 Com. Contr. 267.
    
      March I lift.
    2. Holly, having assigned to Hinton & Moore, had no interest left in the property, and therefore cannot maintain the action. No delivery was necessary to pass his interest in the property to them, as he had not the right of present possession in consequence of Lobdell’s lien. Long on Sales, 162, 165, 166, 170; Haskell v. Greely, 3 Greenl. 425; Zwinger v. Samuda, 7 Taunt. 265; Harman v. Anderson, 2 Campb. 243; Portland Bank v. Stacey, 4 Mass. R. 661; Jewett v. Warren, 12 Mass. R. 300; Putnam v. Dutch, 8 Mass. R. 287.
    3. The verdict as to the large chain is against evidence.
    
      Shaw and Bartlett, for the plaintiff,
    contended that trespass was the proper form of action, and cited Hammond’s N. P. 219; Walcot v. Pomeroy, 2 Pick. 121; Brownell v. Manchester, 1 Pick. 234; Stevens v. Briggs, 5 Pick. 177; Gordon v. Harper, 7 T. R. 9. Lobdell could have no lien for acceptances which were dishonored; and if he had any lien, he forfeited it by abusing his trust in making use of the chains, 
      Jarvis v. Rogers, 15 Mass. R. 396; Kinder v. Shaw, 2 Mass. 398; Hamm. N. P. 233, 234. Besides, Lobdell does not claim any lien, and if he waives it, the defendant cannot set it up. Jlfeecker v. Wilson, 1 Gallison, 425; Jones v. Sinclair, 2 New Hamp. R. 319.
    
      March 23d.
    
    The assignment of Holly to Hinton & Moore, conveying a mere chose in action, the suit was properly brought in his name.
   Parker C. J.

delivered the opinion of the Court. The principal objection to the verdict in this case arises from the supposed lien which Lobdell, the debtor, had on the goods attached, as the factor to whom they were sent to be sold on commission, he having accepted droughts drawn by Holly, the plaintiff, the balance at the time of the attachment being in his favor.

It was argued that this lien so destroyed the right of possession in Holly, that he cannot maintain trespass against the sheriff who made the attachment. We think this objection is not supported. It is true that the plaintiff must be in possession of the goods at the time of the injury, in order to maintain this action, for it is a remedy for an injury done to the possession. But by the authorities, general property in the goods carries with it constructively the possession, unless by some act of the owner he has so parted with the possession that at the time of the injury he has no right to reclaim it; as if, by contract, he had given the use and possession of the goods for a specified time, during which that injury occurs ; which may happen in the case of a lease of a house with the furniture in it, or of a store with the goods in it, or of a manufactory with the machinery. But the lien of a factor does not dispossess the owner, until the right is exerted by the factor. It is a privilege which he may avail himself of or not, as he pleases. It continues only while the factor himself has the possession, and therefore if he pledges the goods for his own debt, or suffers them to be attached, or otherwise parts with them voluntarily, the lien is lost, and the owner may trace and recover /hem, or he may sue in trespass if they are forcibly takei.; for his constructive possession continued notwithstanding the lien. None but the factor himself can set up this privilege against the owner. It is a personal privilege of the factor, and cannot he transferred ; nor can the question upon it arise between my but the principal and factor. Jones v. Sinclair, 2 New Hamp. R. 321; Daubigny v. Duval, 5. T. R. 606.

The next objection is, that the property in the large chain, having vested in Lobdell by his purchase from Cutler & Hammond, to whom it had been sold by him, could not be divested jut by some formal act of transfer from him to Holly ; of which, it is said, there was no evidence. But we think, on this point, the case is clearly made out_ for the plaintiff. By the original authority given to Lobdell to sell, it was agreed, that in case the cables should prove defective, they should be returned. Now the large cable proved to be defective. The plaintiff was notified of it and agreed to take it back, and it was on Lobdell’s books charged back to Holly, before the attachment. This was quite sufficient to revest the property in Holly, and Lobdell being his agent and factor, there was no need of a formal act of delivery, for the possession of the factor is the possession of the principal.

The last objection is founded on the assignment of his interest in this property by Holly, after the attachment, but before this action was commenced; from which it is inferred by the counsel for the defendant, that Holly had no property remaining, and therefore has no right to recover.

The property at the time of that assignment wras in the custody of the law under attachment. The plaintiff’s right was in action only, and that he could not sell so as to enable the ve idee to sustain an action. He had a right to carry on the suit in his own name for the benefit of his vendee, and the defendant cannot object to his want of title on this ground.

Judgment according to verdict. 
      
       See 1 Chitty on PI. (7th Am. edit.) 194, 195.
     
      
       See Story’s Comm, on Agency, 378 et seq. and cases cited.
     
      
       See Story’s Comm, on Agency, 384.
     
      
      
         Where parties agree to rescind a sale once made and perfected, without fraud, the same formalities of delivery, &c. are necessary to revest the property in the original vendor, which were necessary to pass it from him to the vendee. Quincy v. Tilton, 5 Greenleaf, 277.
     
      
       See 1 U. S. Digest, 247, Assignment, 111. The Court will protect the right of the vendee to sue in such case, even against the vendor, in whose name the suit is brought; so that the vend'or cannot discharge the suit when brought by the vendee, or defeat it by his admissions or his testimony. Matthews v. Haughton, 1 Fairfield, 420; Hachct v. Martin, 8 Greenleaf, 77, Frear v Evertson, 20 Johns. R. 142; Titcomh v. Thomas, 5 Greenleaf, 284.
     