The plaintiff in error, having purchased the life estate of Robert Fenner, hired the slaves, for the recovery of which this action is brought, to Messrs. Bliss and Kirkman, for the term of one year. Pending this term, Robert Fenner died, and the right of the defendants in error as remainder-men to the possession of the slaves accrued. Having commenced their action before the expiration of the term, and while the slaves were in the actual possession of Bliss and Kirkman, the question was raised in the court below, in the prayer for instructions to the jury, whether, under the circumstances, detinue will lie.
On the part of the plaintiff in error, it is insisted that the gist of this action is the wrongful detainer, and not the original talcing, and that as a result from this principle, in order to maintain the action, the plaintiff must show an actual possession, or such a general controlling power over the chattel by the defendant at the date of the writ, as would enable him to surrender it in the event of a recovery. On the other hand, it is argued that the possession of the bailee is the possession of the bailor, ox- the person who lets to hire, and that if the latter disposes of the actual possession for a period beyond the termination of his estate, making no provision in his contract for a return of the property upon the happening of the event which is to terminate his interest, this is his fault, which should not avail him as a defence. I am free to confess that there is force in this argument, and that it derives additional strength when applied to this case, from the fact that, according to the contract of hiring which the defendant below set up, the actual possession of the slaves would be returned to him some eight months anterior to the trial term of the suit.
*198I have carefully looked into the authorities bearing upon • the point, to a few only of which I will refer, and think it may be safely asserted as the correct rule deducible from them, that to entitle the plaintiffs to recover, they must show that the defendant, either at the time of demand made, or in the event there was no demand, at the time the writ was sued out, had the actual possession, or the controlling power over the property, unless, having the possession anterior to such demand or suit, he has wrongfully, or to elude the plaintiffs’ action, parted with it, or unless he holds it under a contract of bailment, the terms of which he'violates by failing to redeliver it. Perhaps an exception to the rule obtains in cases where the defendant represents -that he has the goods, and-thereby induces the owner to bring the action against him. 3 Bar. & Cres. 136; 1 Chitty Pl. 125, mar. The author just cited says: “ Detinue does not lie against a person who never had the possession of the goods; as against an executor on a bailment to the testator, unless the goods came to the possession of the executor; nor against a bailee, if before demand he lose them by accident; though, if he wrongfully deliver the goods to another, he will continue liable.”
The books are agreed that the detention is the gist of this action. By “detention” is meant that the defendant withholds the goods, and prevents the plaintiff from" having possession of them. Did the defendant below detain these slaves when the suit was comn enced against him, there being no previous demand]? It is clear that he had neither the possession, nor the immediate right of possession. The persons hiring the property had, as against him, for the term during which the hiring continued, both the possession and the right of possession ; consequently, he could not be said to have detained them from the plaintiff, as he neither had them nor the control of them so as to make the delivery. See Clemts v. Flight, 16 Excheq. Rep. 42; Charles v. Elliott, 4 Dev. & Bat. 468, which is a stronger case than the one before us; for in that case defendant, who claimed the slave as a trustee under a void deed, put him in the hands of his co-trustee to avoid the plaintiffs taking forcible possessiomof him. The co-trustee had sent him beyond the State, but without the knowledge or consent of the defendant. The *199court, held that it was generally incumbent on the plaintiff to show either an actual possession in the defendant, or a controlling power over the chattel at the date of the writ, citing Anderson v. Passman, 7 C. & P. 193; Leigh’s N. P. 782, and under the facts of th t casé, disallowed the action. In the case of Jones, administrator, &c., v. Greene, same book, Judge Ruffin affirms substantially the same doctrine.
In Kershaw v. Boykin, 1 Brev. 301, the court say : “ It is true the defendant must have possession of the thing sued for, at the time of bringing the suit, 4 Rep. 83; and if he had been lawfully dispossessed before, the action will not lie; citing 1 Wash. 311. But it is otherwise, although the thing be not in the possession of the defendant at the time, if he has wilfully or fraudulently parted with the possession to avoid the suit;” citing 3 Com. Digest, 358; Haw. 12.
The doctrine that where there has been no wrongful or elusive disposition of the property, it must be shown that the defendant was at the time of demand, or of the commencement of the suit, either actually or potentially in possession of the property, was asserted by Tindal, C. J., in Garth v. Howard, 5 C. & P. 346; see also Ford v. Caldwell, Riley’s L. Rep. 277, and Burton v. Brasher, 3 A. K. Marsh. 278.
These authorities may suffice to show that this action could not properly have been maintained, unless .it were shown that the defendant had parted with the property wrongfully or fraudulently to affect the plaintiff’s right to the action; and upon this point, there was no proof whatever to show that the disposition of them, at the time it was made, was in any wise improper. But on the contrary, holding for the life of another, and his estate being uncertain as to the time of its termination, Walker might well have hired the slaves for one year, without any inference of injury to the rights of the re-maindermen. According to the common law, the representatives, under-tenants, or lessees of the tenant for life are . nti-tled to the emblements or profits of the crop, if the estate terminate before harvest, and this results from the nature of his estate, which is contingent and uncertain in dura.ion, and this uncertainty shall not prejudice him. Co. Lit. 42; 3 Bla. Co n. 35. We think, by analogy to such case, the party in possession of personal property pur autre vie, and who hires *200it out for tbe usual period of biring sueb property, is guilty of no wrong against tbe remainder-men, should tbe life estate terminate pending tbe term. Tbe plaintiff can proceed in detinue against tbe person in actual possession, or be may wait until tbe hiring expires and tbe property is returned to tbe person who let it to hire.
As there was no proof in this case raising any presumption unfavorable to tbe defendant in respect to the manner of bis dispossession at tbe time the action was brought, and as be bad bona fide parted with tbe possession of, and tbe dominion and control over the slaves, and was not therefore potentially possessed, we are of opinion that tbe court erred in refusing tbe instructions prayed for. Its judgment is therefore reversed, and the cause remanded.