
    Amos H. Woodruff versus Nathan Halsey et al
    
    
      A mortgagee of personal property mortgaged to secure a debt, may maintain trespass against a stranger, who lakes it from the possession of the moitgager, although the trespass be committed before the debt becomes due A mortgagee of a building standing, not on land of the mortgager, but on that of a third person, may maintain trespass against a stranger who pulls down and car* ries away the building, the building being unoccupied at the time of the trespass, and the mortgagee not having taken actual possession.
    Trespass may be maintained against a person who carries away the materials of a building, which has been pulled down by a trespasser, though the person carrying them away was not engaged in the pulling down.
    Trespass quart clausum frcgit, for pulling down a blacksmith’s shop belonging to the plaintiff, with counts for carrying away the materials.
    The defendants, Halsey and Avery, severally pleaded the general issue, which was joined.
    At the trial it was proved, that the defendant Halsey tore down the shop, and that the defendant Avery drove off a team loaded with part of the materials. The shop stood on land ol one Crampton, having been built there under a lease from him. Henry S. Halsey, the brother of the defendant Halsey, on April 8, 1825, being then owner of the shop, and Emeline his wife, mortgaged to the plaintiff a small lot of land opposite to the shop and also by the same deed mortgaged the shop to the plaintiff, to secure a note for 169 dollars, payable in two years from that date. The shop was pulled down before the expiration of the two years, and there was no evidence of any entry into it by the plaintiff before it was pulled down.
    Henry S. Halsey had absconded before the shop was pulled jown, leaving his wife in possession of the premises, which he had agreed to convey to his brother, the defendant.
    The defendant Avery was standing by, at some distance from the shop, with a team, while the defendant Halsey was pulling it down, but did not assist in taking it down. After Avery’s team was loaded with the materials, and he was moving with it on the road, the plaintiff threatened to prosecute him if he did not carry it back. Avery however drove on with his load, and met one Fosket, to whom he said he did not know but he-had got into trouble, and asked him what he should do. Fosket said he was going to get leave of the plaintiff to buy the materials of the defendant ; and then went and asked the plaintiff if he had any objections to his purchasing ; who said he had none, for he had been informed that he should have his remedy against the defendant. Fosket then told Avery he had bought the materials and Avery drove on his load.
    The jury found a verdict against each of the defendants, assessing damages at seventy-five dollars against Nathan Halsey, and two dollars against Avery.
    Judgment was i0 be entered on the verdict, or the plaintiff to become nonsuit, according to the opinion of the Court, or if the action should be supported against Halsey, and not against Avery, a verdict of not guilty was to be entered for Avery.
    
      Sept 9th.
    
    
      Dwight and Bishop, for the defendants,
    contended that the plaintiff, not being in possession, could not maintain trespass ; and that the mortgager was the only person who could maintain trespass, while in possession. Hitchcock v. Harrington, 6 Johns. R. 290
    No action lies against Avery, on account of the plaintiff’s consent to the sale of the materials..
    
      Porter, for the plaintiff.
    The plaintiff as mortgagee had the 'ght of possession, and therefore may maintain trespass. Putnam v. Wyley, 8 Johns. R. 337; Wheeler v. Train. 3 Pick. 255; 1 Pow. Mortg. 18, 42 a, note, 157, 158, 159, 161; Thunder v. Belcher, 3 East, 449; Com. Dig. Trespass, B 2; Newall v. Wright, 3 Mass. R. 138; Stowell v. Pike, 2 Greenl. 387; Smith v. Goodwin, 2 Greenl. 173; Starr v. Jackson, 11 Mass. R. 519; Fay v. Brewer, 3 Pick. 203
    The premises being vacant, the possession was in the plaintiff as mortgagee. Wickham v. Freeman, 12 Johns. R. 183; Steward v. Lombe, 1 Brod. & Bingh. 506; West v. Skip, 1 Ves. sen. 239.
    
      Sept. 12th.
   Parker C. J.

delivered the opinion of the Court. In regord to personal property or chattels, the law is that trespass may be maintained by one who has the actual or constructive possession. Constructive possession is where the general owner, although the chattel is in the actual possession of another, has the right to reclaim it immediately, the person in possession not being entitled to retain it against his will. A strong case to illustrate this position is put in Bac. Abr. Trespass, C, 2. If the owner of a chattel, which is in York, gives it to J S. who is in London, and it is taken or injured by a stranger, J. S. may maintain trespass.

The blacksmith’s shop, the subject of this suit, was mort gaged to the plaintiff to secure the payment of a debt in two years. We presume this mortgage to be valid against Henry S. Halsey the mortgager. The plaintiff, as mortgagee, had a right to the possession immediately. At the time the shop was pulled down, it was unoccupied, and therefore the possession was, according to the title, in the mortgagee. It is very clear that he had a right to an action of trespass for destroying it.

As to the other defendant, he was a trespasser in taking away the materials ; the trespass was complete, when he moved off with the lumber, and the right of action then vested. The subsequent transactions with Fosket could not amount to a re lease, accord or relinquishment. 
      
       See Lunt v. Brown, 13 Maine R. (1 Shepley,) 236; Phelps v. Willard, 16 Pick. 32; 1 Chitty on PI. (7th Am. edit.) 193, 194.
     