#### Hilliard, by his Guardian, v. Dortch and others.

} From Nash.

When a slave is hired, and is killed during the period for which he was hired, case for damages against the person killing is the propet remedy for the owner.

This was an action on the case brought to recover damages for killing a slave.

The slave had been lured by the guardian of the plain-' tfff, for the year within which he was killed, to some dther person. Much evidence was introduced as to tliet Igct of killing; and the plaintiff then proved, that the pegro had been part of the estate of John Hilliard, de- and offered- in- evidence the record of Nash, *247County Court appointing, in 1818, a guardian to the children of John Hilliard, who had been dead eight or ten years. The hiring by the guardian was proved.

Paxton, Judge, who presided, charged the jury, that it was for them to inquire, in the first place, whether it was proved to their satisfaction, that the negro was delivered over to the guardian of the plaintiff: if so, their next inquiry would be, whether the negro was destroyed fey the acts, or in consequence of the acts, of the defendants; that if the evidence satisfied them that such was the fact, the plaintiff was entitled to recover, notwithstanding the negro was, at the time, hired to a third person who was entitled to the possession and services of the negro; that the plaintiff had a reversionary interest in him, and consequently could support this action against any one who did him a permanent injury.

The proof, as to the killing, was. that .it was occasioned by the exercise of immoderate force.

The jury found a verdict for the plaintiff; and the casts now stood before this Court on- a rule to show cause why a new trial should not be granted.

Gaston, in support of the rule.

1. The judge directed the jury to inquire whether there-was a delivery of the negro by the administrator to the guardian: now a delivery is not in itself an assent, but evidence whence an assent may be inferred.

2. If personal property be injured by the immediate act of the defendant, trespass, and not case, is the remedy. A leading case on the subject is Bay v. Edwards, (5 Term R. 648, 9.) And this has been followed by many other decisions. Savignac v. Roome, (6 Term R- ISO.) Ogle v. Barnes, (8 Term R. 190.) Leamy v,. Bray, (3 East 593.1

But it maybe said, that, to support trespass, possession is essential, and that here it is wanting; and the cases of Ward v. JBCanley, (4 TermR. 489.) and Gordon v. Har~ *248 per, (7 Term R. 9.) would seem to sanction the position. But, in truth, these cases do not show that possession is necessary to support trespass, but only that a violation of possession does no wrong, but to the possessor. Now there are cases in which trespass will lie, though there be no possession either actual or constructive in the plaintiff. Generally the owner of a chattel cannot bring trespass or trover against Ms bailee, or against a co-proprietor, (Oo. Lit. 200.) but when the chattel is actually ?.destroyed by the bailee or co-proprietor, trespass will lie. (Cro. Elia. 784. Co. Lit. 57 a. 200. 5 Co. Rep. 13 6. Bull. JV. F. 34, 5. 11 Mass. R. 519. 1 Sawnd. 323. n. 5.)

Ruffin and Hillman, contra.

The assent of an executor, or the delivery of a legacy to a legatee, vests the property in him, and after such delivery the executor cannot recover it hack.

The action in this case is not misconceived. To maintain trespass there must be an actual or constructive possession in plaintiff; and if it be trespass quare clausum fregit, nothing short, of an actual, exclusive possession will suffice.

Thus, trespass will not lie for entering a pew in a Church, because the possession of the pew is not exclusive, as the parson has a right to the possession of the church. Per Butter, in 1 Term R. 430.

There must be a possession either actual or constructive, for trespass is a possessory action. (2 Selwyn JV. P. 1225. note.)

The plaintiff must, at least, have a right to the present possession, Wardv. McCauley, (4 Term R. 489.) This ease is a direct authority to show that, without such right, trespass will not lie. The subsequent case of Gordon v. Harper, (7 Term R. 9.) shows that, under precisely the same circumstances, trover will not lie, but it does not overrule Ward and M‘Cauley, and decide that trespass will. If then neither trespass nor trover will lie, *249'there is no remedy but by case, strictly so called. "When the interest of the plaintiff is reversionary, case lies; trespass will not. (1 Chitty Pl. 133. 142.) The forms of pleading show it. (2 Chitty 336. 342.) The cases cited on the other side, of bailees, co-proprietors, &c. are easily reconciled with the rule for which we contend. In all the cases of bailments, the bailment was for an indefinite period, determinable at the will of bailor; and such eases correspond with the decision of this Court in White v. Morris, (1 Hawks 301.) The cases of co-proprietors are cases of jointenancy, or tenancy in common, in possession, not in reversion. In fact, all the cases cited, except two, are cases in which the party sueing had the present right of possession, and by consequence constructive possession. Those two are cases of trespass brought by lessors, who had created, either an estate at will, or an estate for years. As to the case of an estate at will determinable at the pleasure of the grantor, it is plain from Co. Lit. 57 a., that even at that day it was deemed an exception, and besides it was deemed no estate; and the case of the estate for years mentioned in 11 Mass. R. depends for authority on Rolles Mr. which refers to the year book of Hen. 6. In the reign of Henry 6, an estate for years was deemed valueless. The case in Mass. R. which is the case of a tenancy at will, is in direct contradiction to a case in New York to which it refers; and the reasoning of Chief Justice Parker, to establish the point that a lessor at will may maintain trespass, necessarily, at this day, when tenancies at will are tenancies from year to year, leads him to the conclusion that every lessor may maintain trespass even against his own lessee; and this conclusion is contradicted by every action brought for waste.

But however this may be with respect to the action of trespass, the form of pleading shows that case may also be sustained; for in the precedents of Chitty and Went-. ■worth, of declarations in case for waste, the plaintiff does *250not sot forth the duration of the particular estate, which may be at will, for years, or for life; but simply that the. particular estate is unexpircd, and that he is the rever-gjoncr.

Taxxor, Chief Justice,

delivered the opinion of the Court. — The trespass complained of in this case, was committed on the property while it was in the possession of a hirer for a year; and the question to be decided is, whether an action on the case is the proper remedy. It is too firmly settled, both by principle and authorities, now to be shaken, that possession, either actual or virtual, is necessary to maintain trespass; for the action is properly to obtain a recompenese for the wrong done to the possession, and therefore he who has parted with the right of possession for a limited time, without the power of resuming it, cannot complain that Ms possession is violated. The cases of Ward v. McCau-ley, and Gordon v. Harper, in Term Rep. and the cases decided in this court, establish the rule, that neither trespass nor trover will lie, unless there exists in the plaintiff a right of possession as well as of property. And it seems to follow, very clearly, that trespass could not be maintained, in the present case. It has been argued that trespass will lie, because the injury was immediate on the act done, and consisted in the destruction of the plaintiff’s property. It is true that the injury was immediate to the chattel itself, and also, immediate to its actual possessor; but it was consequential only, as relative to the plaintiff’s property; for he had parted with that for a definite time; and whether it existed or was destroyed, it still continued beyond his control for that period. He would be, ultimately, a sufferer by the loss of Ms reversionary interest, and to that injury the law has adapted an action on the case. This distinction prevails, with one exception,-in real as well as personal property; for both tenant and landlord may have actions against a *251Wrong doer; the first, an action of trespass for an injury to the possession; the last, an action on the case for an injury to the reversion: as when the defendant, by stopping up a rivulet, had flooded an adjacent close, and destroyed great quantities of timber, both remedies were allowed to be pursued, for the damage respectively sustained. The exception adverted to, does not seem to be well established by authority, for the decisions are both ways, relative to the right of a lessor to bring trespass against one who enters on his lessee at will; but supposing the right to subsist, it may be placed on the ground, that the lessor has a virtual possession in that of his lessee, since he may put an end to the estate at his pleasure. I think the opinion appealed from is correct, and that there must be judgment for the plaintiff.

My brethren concur with me in opinion.