
    Lyman Parsons versus Zebina Dickinson and William Dickinson.
    A sale of a chattel, without a delivery, gives the vendee a constructive possession sufficient to maintain trespass against a person who takes the chattel without right.
    Thus, where the owner of a chattel sold it to the plaintiff on Saturday night, and the plaintiff used'due diligence to obtain possession of it on Sunday, but a creditor of the owner took it on that day and secreted it and caused it to be attached on Monday on a writ against the debtor, it was held that the plaintiff might maintain trespass against such creditor and against the attaching officer.
    Trespass for talcing and carrying away a chaise and harness, alleged to be the property of the plaintiff. The defendants pleaded severally the general issue.
    At the trial, before Wilde J., the plaintiff, to prove property in himself, called as a witness one Edwards, who testified that he owned and kept a livery stable in Amherst in 1829 ; that being much in debt, he, on the evening of December 5tb, which was Saturday, departed from Amherst for New York, leaving at Amherst the chaise and harness in controversy, which were in a shed previously occupied by him ; that he reached Goshen, eighteen miles west from Amherst, at about 11 o’clock on Saturday night, and called up the plaintiff and sold him the chaise and harness left at Amherst; that the plaintiff paid foP the same by giving up to Edwards a note of hand against him for $ 70 and by a payment in cash of $ 30.
    It was further testified, that the plaintiff went to Amherst the next afternoon or evening and inquired for the chaise hut could not find it; that William Dickinson, one of the defendants, was seen in the afternoon of that day taking away the inaise and harness from the shed where Edwards had left them ; that the chaise and harness were attached on Monday morning, as the property of Edwards, by Zebina Dickinson, a deputy-sheriff, on a writ in favor of William Dickinson, who was a creditor of Edwards. The jury found that the sale to the plaintiff was not fraudulent.
    
      Sept. 30th.
    
    
      Sept. 26th
    The defendants contended that the action could not be maintained, inasmuch as no possession was acquired by the plaintiff before the attachment by Zebina Dickinson.
    The parties agreed, that if the plaintiff had not sufficient possession and property in the chaise and harness, to entitle him to maintain this action, a nonsuit should be entered ; but if the foregoing evidence was sufficient to maintain the action, a new trial was to be had, upon the question, whether the property had been taken by the defendants.
    
      Briggs and Huntington, for the plaintiff,
    contended that as between the vendor and vendee, and as against strangers or trespassers, the property in the chaise and harness passed by the sale, "without a delivery ; 2 Kent’s Com. 392, note, 393 et seq. ; Com. Dig. Biens, D 2, D 3 ; 3 Stark. Ev. 1637, 1640; Zwinger v. Samuda, 7 Taunt. 265 ; that the defendants were trespassers in taking the articles on Sunday ; that the subsequent attachment could not legalize the taking ; and that the general property in the plaintiff draws to it a possession in law, which is sufficient to found an action of trespass upon ; Walcott v. Pomeroy, 2 Pick. 122 ; 2 Wms’s Saund. 47 a, et seq. ; Smith v. Milles, 1 T. R. 480 ; Woodruff v. Halsey, 8 Pick. 335 ; Putnam v. Wyley, 8 Johns. R. 337 ; Vin. Abr. Trespass, (H. a. 3,) pl. 16.
    
      Dewey and E. Dickinson, contra,
    
    cited Lanfear v. Sumner, 17 Mass. R. 110 ; Gardners. Howland, 2 Pick. 599 ; Flagg v. Dryden, 7 Pick. 52; Butterfield v. Baker, 5 Pick. 525.
   Putnam J.

delivered the opinion of the Court. If this should be considered as a question between a bona fide vendee and an attaching creditor, it would be clear for the latter ; for the creditor attached the goods before the vendee had perfected his title by having an actual delivery of them to him. The case cited, of Lanfear v. Sumner, would be conclusive upon the matter.

The defendant, William Dickinson, claims in virtue of an attachment made for him by the other defendant, Zebina Dickinson; and they contend that the attachment was made on Monday, after the sale to the plaintiff on Saturday, and before the vendee obtained the actual possession of the property.

But the plaintiff contends, that the defendants are not in a situation to avail themselves of the rule laid down in the case of Lanfear v. Sumner, because the creditor took the property on Sunday, after the sale, without any legal right, and removed and secreted it from the place where the vendee was to have received it. And the action is brought to recover damages for that trespass.

The officer cannot be considered to be in a more favorable situation than the creditor in whose favor and by whose direction the attachment was made, immediately after the expiration of the Sunday.

Now it is very clear ¿hat the sale, as between the vendor and the vendee, was good before the delivery. See the cases cited to that point in Lanfear v. Sumner.

If the property is not present at the time of the sale, to be actually delivered, and if there is no symbolical delivery, yet by the operation of the law, the thing sold belongs to the vendee, and the price to the vendor. So that if a stranger, 01 one without legal right, shall take the property before the ven dee (exercising ordinary care and diligence) obtains the actúa possession, the law will protect the property for the vendee ; and by reasonable intendment of law, the possession is to be considered constructively in the vendee, as against such stranger.

And we all think that this rule applies clearly to the case at bar. The plaintiff was the bond fide purchaser on Saturday. On the next Sunday, the creditor, without any legal right, seized and carried the property away and prevented the plaintiff from .taking the possession. He was then unquestionably a stranger and a trespasser, and he cannot purge the original wrong, by the subsequent attachment. It would be against the clear morabas well as legal rule, that no one shall be permitted to take advantage of his own wrong.

And the measure of damages should be the value of the property taken.

_ According to the agreement of the parties, a new trial is to be granted, as to the question whether the defendants took the property, that not having been submitted to the jury, but taken for granted for the purpose of obtaining the opinion of the Court upon the law of the case. 
      
       See Ricker v. Cross, 5 N. H. R. 570.
     