Richard Williams against Erastus Lewis, 3 Day 498

Feb. 1807. Richard Williams against Erastus Lewis. Aconstructive possession in the plaintiff is sufficient, to ⅛⅛⅛ P*38- THIS was an action of trespass for a load of tin ware, On the trial to the jury, it appeared, that the plaintiff had delivered the property, at Hartford, to one Warner, a tin pedlar, with an understanding between them, that the latter was to carry it to Farmington, there take m some other ware, and return to Hartford, The terms on which he was to take the load were then to be agreed upon.

Warner neglected to go to Farmington, but went to a different place, and disposed of the property to the defendant. There was some evidence that the defendant had practised unfair means to obtain it. Goodrich and Edwards, for the plaintiff. Moseley and Perkins, for the defendant. For the defendant it was contended, that the plaintiff could not maintain this action, as he was confessedly not in possession of the property at the time it was taken by the defendant. Swift, Pr.

J. in summing up, said, the question of fact in this case was, whether there had been a sale of the property by the plaintiff to Warner, before it was disposed of to the defendant. If the plaintiff did not sell the property to Warner, the possession of Warner is to be considered as the possession of the plaintiff, and is sufficient to enable him to maintain the action. The jury found a verdict for the plaintiff, which was accepted. Esp. Dig. 383. Dub. edit. 1794. Ward v. Macanley, 4 Term Rep. 489. Vide Smith v, Milles, 1 Term Rep. 475.