Curia, per Butler, J. The defendants have taken a correct legal position in their first ground of appeal. At the time the horse was sold, the plaintiff had neither an actual nor a constructive possession; without which, be cannot.maintain this action, His possession was not invaded, nor bis right necessarily jeoparded, by the sale of Coonrod and Kidd’s interest in the horse.
When the time had expired for which they had hired the horse, the plaintiff had a right to demand him; and, upon the purchaser’s refusal to deliver him up, the plaintiff could have brought bis action of trover, and upon establishing bis right could have recovered such damages as would have indemnified him for the loss of the horse. Or if the horse had been injured by the purchasers, so as to impair bis value, the owner could have maintained bis action on the case before the time of hiring had expired. These are general principles recognised and enforced in too many judicial decisions now to be disputed.
The case in 4 T. R. 489, and 8 T. R. 432, are explicit on the points. As the plaintiff may vary bis case on another trial, a new trial is granted.