
    The State v. Benjamin Addington.
    Columbia,
    Dec. 1829.
    
      la an indictment for horse-stealing, the property may be laid in one who had merely the lawful possession.
    Tried before Mr. Justice O’Neald, at Laurens, Fall Term, 1829.
    This was an indictment for stealing a mare, which was laid in the indictment to be “of the proper goods and chattels of James Todd.” Todd had conveyed all his estate, in trust for his wife, to John Blakely, but remained in possession. Subsequently to the conveyance one of Todd’s sons traded off a colt, part of the trust property, for the mare alleged to have been stolen. Biakely the trustee had never been consulted about the trade, and had never assented or dissented to it. Todd himself at first disapproved of the bargain, but afterwards agreed to it, and kept the mare; which was subsequently missed from his stable, and traced into the possession of a resident of Abbeville, who had purchased her from the defendant.
    The presiding Judge charged, that it was immaterial whether Todd was to be regarded as the legal owner, or not; he had lawful possession of the mare, which was sufficient to sustain the allegation in the indictment that she was his property.
    
      The jury found the defendant guilty ; and a motion was now made for a new trial, on the grounds. 1. That the presiding Judge erred in his charge to the jury. 2. That the allegation of the indictment, as to property in James Todd, was not supported by the evidence. 3. That the verdict was against law and evidence.
    Caldwell, for motion,'
    cited Commonwealth v. Morse, 14 Mass. 217.
    Earle, Solicitor, contra.
    
   Johnson, J.

delivered the opinion of the Court.

All the grounds of this motion resolve themselves into the question, whether the evidence in the case supported the alie gation in the indictment, that the mare stolen by the prisoner, was “of the proper goods an^d chattels of James Todd.”

I take it as a very clear general rule, that he, who has the lawful possession of a chattel, is to all intents the legal owner, except as to the rightful owner. Thus, a common carrier, or other bailee, may maintain trespass or trover for the goods in his possession, against all the world except the owner. If this be correct, the only inquiry is, whether James Todd was in the lawful possession of the mare in question.

The legal right in the trust estate was clearly in Blakely the trustee ; but it is equally certain that he had not the possession, and the fact of its remaining in the possession of Todd, authorizes the inference, that it was so with the consent of the trustee,-which made his possession, according to the rule, a lawful possession ; and if we suppose the possession in Mrs. Todd, the same legal consequences follow, for the possession of the wife is the possession of the husband.

It is said, however, that the mare stolen constituted no part of the trust property, and having been obtained by the son, the possession was in him. I cannot myself put any other interpretation on the facts reported, than that the son, without any authority, had taken a colt, part of the trust properly, out of the possession of the father, and disposed of it in exchange for the mare without his consent, with which the latter was at first dissatisfied, but afterwards approved of it,- and accepted the mare, and kept her as a substitute for the colt disposed of; so that whatever interest the son might have had, whether of right or possession, was by tins arrangement transferee! to the father, conSH<ln‘‘ntty the uiaj'c was well laid in the indictment as the property of James Todd the father.

Motion refused.  