#### Hughes v. Giles. Trover for a horse.

A and B both have bills of sale for a horse from a person who had borrowed him for a particular purpose ; A, whose bill of sale is the oldest, has him in possession, B by some means gets him from A, " and sells him to C. A is entitled so recover him of C, in the action of trover.

The case was, A intrusts the horse tó B for a particular pui pose; B remains at Salisbury sometime, and contracts debts with several persons, and gives a bill of. sale for the horse to Hughes, and also to one Brem ; his sale to Hughes is prior to the date of the bill of sale to Brem. Brem by some means gets possession of the *36from Hughes, who had hint, and sells to Giles--ami now amongst other things it was insisted tor Giles, that Hughes ought not to have a verdict against him and reco\er damages, for that a recovery by Hughes, who was not the. proprietor, would be no bar to A, to hinder him from bringing his action at a future- day against Giles, and recovering also. The books indeed say, that he who has a special property may recover in this species of action, as in the case of a carrier, bailee, or finder, a Sheriff who has seized goods in execution, or tiio like ; but the reason is, that those persons are liable over for the goods to a third person, and they are allowed tiiis action, in order that th-y may have it in their power to indemnify themselves, by recovering against the wrong doer, that value which they have to ¡my to the owner; and it is because they are entitled to recover, that they are said to have a special property; but sur-dy if the carrier, bailee, &c. voluntarily sell or dispose of the property, they cannot afterwards maintain an action for it, they are stopped by their own act: hut yet their sale conveys no property, because they had none themselves; and in order to convey an interest or property by sale, the vendor must have the general or absolute property ; a special property only enables him to sue a wrong doer, not to convey the property ; because in so doing he commits a breach of trust, unless where he lias the properly for the purpose of selling it, as in the ease of the Sheriff and then what lie does is only good by virtue of his authority. That the conveyance of such persons in general conveys no property, is proved by this, that if the carrier, bailee or finder sells if, Ids vendee is liable1 to the action of the owner; but in this case, B who sold both to Hughes and Brem, (hough he is liable to A’s action, yet lie cannot recover against either of them ; because as to him they are neither of them wrong doers ; and surely the Plain tiff Hughes cannot be said to have a special property, that comes only by the delegation of the owner, and potestas delegata non potest delegan This is not in the circumstances of a carrier, bailee, &c. or of any of those persons who are liable over by means of a trust; and as there is so such liability over in his case, there is no reason why the law should give him an action to recover against the Defendant. If he should not recover, he can never be charged by A: wiial reason then is there to say he ought to recover, when he has not *37llio general property, and when tin re is no necessity that he should be deemed to have a special one in order to his own indemnification? But per WiLiaius Judg', notwithstanding these arguments, the- Plaintiff has a ¡ight to recovery. Hughes had purchased the property that 33 had, and was in possession: and is to be considc;cd as having a special property, until a better could bo shewn; and no one but the right owner could interfere with his possession, or lawfully deprive him of ir ; this is an advantage which should not be taken from him by a third person — so the Plaintiff had a verdict and judgment. /

Noth. — The case of Laspeyre v. McFarland, N. C. Term. Rep. 187, decides that trover cannot be maintain! d on tin- possession of a chattel, where it appears that the legtl title is in another, and that the Plaintiffs as onlv a trust. But see the cases on this subject collected in 2 Sand. 47 a. note 1. The Court in Laspeyre v. McFarland, seem' Lo intimate that trespass would have lam in that case, and authorities arc cited m Sanders to show tiiat wherever trespass will lie for the wrongful ctkin,< oi goods, trover will also lie ; for one may qualify but not increase a tort.