
    James Steele vs. Edmund Williams & John R. Crockett.
    Trover cannot be maintained unless the property converted was in the actual or implied rightful possession of the plaintiff; it will not lie in favor of the owner of a chattel, where he has parted with the possession to a bailee for hire ; much less would it lie where the property was returned to the bailee, and there remained during the term for which it was bailed, and was then ready to be delivered to the owner.
    BEFORE EARLE, J., AT LANCASTER, FALL TERM.
    Trover for a mare, a colt, -and a cow.
    The mare and cow, with other chattels, were sold in North Carolina, as the property of one William Newell, and bought by the plaintiff ñve or six years ago. They passed into bis possession, and be, after a short time, hired them again to Newell and took a note for ten dollars, each year, for their hire. Newell, brought them on his removal to Lancaster, and they remained in his possession ever afterwards; the mare having produced a colt. In March, 1834, they were sold -by Williams, under an execution-in favor of Crockett, and some other executions: the plaintiff forbidding* the sale. The plaintiff’s son purchased the colt, Crockett purchased the mare, and some one else the cow. The colt and the cow were not removed at all from the possession of Newell, and the son of the plaintiff satisfied Crockett for his bid, and the mare went again into his possession — so that he'had the mare and the colt and the cow, at the time the action was brought.
    His Honor"overruled a motion for a nonsuit, which, as he stated in his, report of the case, he afterwards thought should have been granted. For the defendants, the executions were produced. It was proved that Newell’s circumstances were desperate; and there was strong proof that the claim of the plaintiff was colorable only. A short time before the sale made by Williams, the plaintiff said to one witness, he wished he (the witness,) would take Newell’s property off his hands— that he (the plaintiff) found it troublesome, and he was tired of it — that he wanted to get rid of it, and said nothing about paying for the property. . Newell also had applied to him to take the right of his property, saying, at the same time, that it was in the plaintiff. Another witness deposed that the plaintiff offered to Newell the papers he held on him, and said he would rather Newell should take them up; Newell replied, he would rather the plaintiff’would keep'his property than any one else ; the witness heard nothing said about payment.
    His Honor regarded it a clear case óf a pretended title, to, protect property from creditors, and thought that the plaintiff should not recover. The jury found for the plaintiff a verdict of five dollars.
    The defendants appealed, and moved for a nonsuit on the following grounds.
    
      For a nonsuit.
    
    1st. Because the plaintiff could not maintain an action of trover ; as, according to his own showing, he was not entitled to the possession of the property, having hjred it to Newell, in whose possession it was when levied on.
    2d. Because the property was in possession of Newell, the bailee of the plaintiff) before suit brought, and had remained there ever since.
    3d. Because the plaintiff had sustained no damage.
    If the motion for a nonsuit should not prevail, they moved for a new trial on the same grounds, as well as on the following:—
    1st. Because the sale to the.plaintiff, by the constable in North Carolina, was fradulent, and conferred no title- — Newell still continuing in possession and claiming the property as his own.
    2d. Because the sale was. fraudulent as to the defendants, who were subsequent creditors without notice of the plaintiff’s claim.
    3d. Because there was no conversion proved.
    
      4th. Because, from the proof, it was clear that the property belonged to Newell.
    5th. Because the verdict, in other respects, was contrary to evidence and'the charge of the presiding judge upon the case.
    
      G. W. Williams, for the motion.
    
      Clinton, contra.
   Earle, J.

On the case made by the proof, it would not be easy for the plaintiff to make out his right to retain this verdict. The whole of the evidence showed clearly that the claim of the plaintiff was colorable only, and intended merely to protect the property against the creditors of Newell; and on the grounds taken for a new trial, we should be very unwilling to allow the verdict to stand. But the motion of the defendant for a nonsuit presents the plaintiff’s case in an aspect which forbids that he should recover in this action. To maintain trover, the plaintiff must have not only a right of property, general or special, but also an actual or constructive possession, i. e. the right of immediate possession. At the time of the levy and sale, in March, 1834, the chattels sued for were in the actual possession of Newell, on hire, for the whole of that year; until the end of that term, he had a special property in them, and was entitled to retain possession even against the plaintiff In Ward vs. McCauly, 4 Term R. 489, the plaintiff brought trespass against the sheriff for taking in execution the furniture of the plaintiff in a house to let to Lord Montfort, for a term, ready furnished — and it was held that the action would not lie ; and although Lord Kenyon said that trover was the proper remedy, yet afterward, in Gordon vs. Harper, 7 Term R., 9, which was trover brought in a similar case, he said the opinion he had expressed was an extra-judicial one, to which, on Consideration, he could not subscribe. And it was held by the whole Court, that trover would not lie for the landlord during the continuance of the term, as the tenant had the right of possession; that he would be a trespasser himself if he took them from the tenant, and that trover would not lie in any case unless the property converted was in the actual or implied rightful possession of the plaintiff. But the case here is still stronger against the plaintiff’s right to maintain this action, For, supposing him capable of maintaining trespass or trover on the possession of the hirer, his bailee, against one who should destroy the property, or so effectually convert it that he could never recover the possession; the proof is, that without any charge whatever to the plaintiff, the goods were restored to the possession of Newell before the expiration of the term for which they were hired, ready to be delivered up to the plaintiff as soon as, by the terms of the contract, he was enabled to have them. The injury, therefore, was solely to the posses-, sion of the tenant during the term, and the plaintiff having-sustained no injury whatever, had no right .of action, and was not entitled to nominal damages. The plaintiff, therefore, must be called.

The motion for a nonsuit is granted.  