Complaint by the appellee against the appellants, alleging, that on, &c., at, &c., the plaintiff was the owner and possessed of fifty saw-logs of the value of 300 dollars, and ten thousand feet of lumber of the value of 200 dollars; that the defendants then and there, without leave, wrongfully took and carried away said property and have not returned the same, and other wrongs then and there did, to the damage of the plaintiff, &c.
There were answers in denial, and other pleading not necessary to be stated in this opinion.
The cause was tried by a jury, and a verdict found for the plaintiff for 70 dollars, on which judgment was rendered, over a motion for a new trial.
On the trial there was no evidence touching the lumber, and the alleged trespass to the logs was, in substance, as follows:
The plaintiff had forty-two logs in a certain mill-yard. The defendant, Bright, as a constable, had in his hands an execution issued to him by a justice of the peace, on a judgment in favor of Conkey, the other defendant, and against one Wilson N. Amis. Bright, by the direction of
The defendants, at the proper time, asked the following, amongst other instructions, which were refused, and exception taken, viz.:
“ That the defendants are not liable in this action without proof that they have taken possession of the property in dispute, or assumed some control and dominion over it; and though the actual levying upon property may be sufficient under ordinary circumstances, yet if the levy was upon a part of the whole, and the subsequent sale was for a part of the whole, without distinguishing which part, no property passed by such levy and sale; and if the defendants did not take possession of said property, but at all times suffered it to remain in the possession of the plaintiff, and as it was at the time of the alleged levy, such levy and sale would not make the defendants trespassers, and liable in this action.” “If the defendants, or either of them, have not injured the plaintiff in his possession of the property in dispute, the plaintiff cannot recover.”
We are of opinion that the charges thus asked should have been given. We shall not stop to inquire what would be the effect of a levy and sale of a part of the logs out of the whole, without, in any manner, separating them, or otherwise designating or pointing out the part
The sale in question did not and could not divest the plaintiff of his title,- and unless his possession has been in some manner interferred with, or unless “ some dominion or control over it,” has been assumed, he has clearly failed to make out his case, and cannot recover. He has failed to show, as charged, that the defendants wrongfully “took and carried away” the property. How hás the plaintiff’s property been injured?
“ Trespass, in the most extensive sense, means any injury to another’s person or property from the misfeasance or act of another.” 3 Steph. Nisi Prius, 2629. “ The gist of the action of trespass is, the injury to the possession.” Id. 2632.
The property in question has not been touched, or in any manner interfered with. How has the plaintiff been injured by the officer going through the useless and vain formality of levying upon and selling it? If he has been injured by such nugatory levy and sale, the injury is not shown in the evidence.
The motion for a new trial, based upon the refusal of the Court to give the charge, should have been sustained.
The judgment is reversed with costs.
Cause remanded, &c.