Spencer, J.
Being of opinion that an action of trespass cannot be maintained under the circumstances of this case, I shall confine myself exclusively to the consideration of that question.
The schooner was seized by Van Bewen, for a violation of law, and the defendant offered to show, that he gave no orders for that purpose, but that Van Beuven, after he had seized her, reported to the collector what he had done, who directed him to detain her. Whilst the vessel was lying under this seizure, and in the custody of the officers of government, the defend» [382]*382ánt, who was one of the custom-house officers, with the leave of yan jjeuTEn<¡ an¿ with the knowledge that she was thus seized, took her, made use of her for two days, and then returned her to place from whence she was taken. It was ruled at the triaj, that the improper use of the vessel, while under seizure, and1 in the custody of the officers of government, rendered the defendant liable for the original seizure, and 'made him a trespasser ab initio, and subjected him to damages, to the value of the vessel at the time of, her seizure.
There are no facts implicating the defendant as an actor in the seizure of the vessel, or which show the least cooperation by him in that act, any further than the general fact, that he was one of the custom-house officers.
It cannot be pretended, that the custom-house officers are liable for the acts of each other. Between them, the relation even of master and servant does not exist; and if it did, and the defendant was the superior, which he clearly was not, the acts of Fan Beuren, without his knowledge or assent, either before or after the act, would not make him a trespasser. “ If my servant, without my notice, puts my beasts into another’s land, my servant is the trespasser, and not I.” Kiel. 3. c. 20 Viner, 460. (2. p.1.)
But it is insisted, that the schooner being in the custody of the law, the use or abuse of her, by the defendant, though with the license of the officer who took her, rendered the defendant, and all concerned, trespassers ab initio, and that, therefore, the plaintiffs can maintain trespass against the defendant.
This point is not defensible, unless the defendant is implicated in the first taking, and that he is not the facts plainly show. In every case to be met with in the books, the court, in considering who shall be deemed a trespasser ab initio, for the abuse of a legal trust, confine the action for such an act, to those who were either the actors in the first taking, or to such as by the relation they stood in to the first takers, made themselves parties, by their assent before or after the act. It would be palpably absurd to say, that a man totally unconcerned with the original caption of goods, shall, for an after act to those goods, be deemed to have originally taken them. Such absurdity and bad logic is not chargeable to our law. On a point so clear I have not thought it necessary to refer to the numerous cases and elementary writers on the action of trespass.
[383]*383Still, however, it is contended that Van Beuren, having no right to use the vessel, could impart none ; and the plaintiffs having the general property, possession followed it, and that both uniting, they could maintain trespass against the defendant, and more especially, as the defendant knew the vessel was under seizure.
It is, undoubtedly, a well-settled rule, that to enable a party to maintain trespass, whether upon lands or on goods, he must have either the actual or constructive possession, at the very time of the commission of the injury. This point came under full consideration in Putnam v. Wyley. (8 Johns. Rep. 432.) We there approved of the decision in Ward v. Macauley, (4 Term Rep. 483.) and said, “ that case was no more than a recognition of the settled principle, that a plaintiff cannot bring trespass for taking a chattel, unless he has the actual or constructive possession at the time. He must have such a right as to be entitled to reduce the goods to actual possession when he pleases.”
In the case of Ward v. Macauley, Lord Kenyon said that the distinction between trespass and trover was well settled. The former is founded on possession; the latter on property; and he held, that as the plaintiff had no possession of the chattels, when the supposed trespass was done, his remedy was by action of trover, founded on his property in the goods; and in Gordon v. Harper, (7 Term Rep. 11.) he retracts that part of his opinion, that trover would lie under the circumstances of the case, but confirms his former opinion in every other respect.
When the defendant took the vessel, the plaintiffs were clearly dispossessed of her; nor had they then a right to reduce her to actual possession, for she had .been seized under the authority of the law, and was then in the custody of the law, adversely to the plaintiffs’ claim of property. Still, however, it is urged, that Van Beuren was, at all events, a trespasser ah initio, by his licensing the defendant to use the vessel, and that this act reinvested the plaintiffs with their first right of property, and also the right to reduce the vessel to their immediate possession ; and it is, consequently, contended, that the rule laid down in Putnam v. Wyley is not infringed by sustaining this action. It seems to have been forgotten by the counsel who urged this argument, that Van Beuren’s giving leave to the defendant to take iflie vessel, is not an act which would even render him a tres[384]*384passer ab initio. It was the act of taking her and using her* which alone could produce that effect; • and not until after the commission of that act, would Van Bcuren have violated the authority given him by law to seize and hold the vessel. The-act of taking and using the vessel is indivisible; when the defendant first entered on it, it must be admitted the plaintiffs had neither the possession nor the right to reduce the vessel to their possession, and, therefore, at that time, they had no right to bring trespass. To maintain that trespass would lie against the defendant, the counsel must be driven to the necessity of splitting up the defendant’s act, and making him a trespasser, not for-entering on board the vessel and casting off her fasts, but for sailing in her. This mode of considering and treating the ao»" tion, may well be pronounced an anomaly in the law of trespass, without precedent, and without authority. The true and only test is, to consider whether, when the first act was done, which consists of a series of acts, the defendant was guilty of trespass towards the plaintiffs. If he was not, then he cannot in this case be so afterwards. It is not necessary to consider how far the defendant might be a trespasser, if he had afterwards wilfully destroyed the vessel. That is not this case.
I might stop here, resting on the decision of this court, in Putnam v. Wtjley, but as the counsel argued this cause with a zeal which I by no means disapprove, I will see whether, in deciding that this action is not maintainable against this defendant, we do not decide in strict conformity with general and well-settled principles. !
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Spencer, J.
Being of opinion that an action of trespass cannot be maintained under the circumstances of this case, I shall confine myself exclusively to the consideration of that question.
The schooner was seized by Van Bewen, for a violation of law, and the defendant offered to show, that he gave no orders for that purpose, but that Van Beuven, after he had seized her, reported to the collector what he had done, who directed him to detain her. Whilst the vessel was lying under this seizure, and in the custody of the officers of government, the defend» [382]*382ánt, who was one of the custom-house officers, with the leave of yan jjeuTEn<¡ an¿ with the knowledge that she was thus seized, took her, made use of her for two days, and then returned her to place from whence she was taken. It was ruled at the triaj, that the improper use of the vessel, while under seizure, and1 in the custody of the officers of government, rendered the defendant liable for the original seizure, and 'made him a trespasser ab initio, and subjected him to damages, to the value of the vessel at the time of, her seizure.
There are no facts implicating the defendant as an actor in the seizure of the vessel, or which show the least cooperation by him in that act, any further than the general fact, that he was one of the custom-house officers.
It cannot be pretended, that the custom-house officers are liable for the acts of each other. Between them, the relation even of master and servant does not exist; and if it did, and the defendant was the superior, which he clearly was not, the acts of Fan Beuren, without his knowledge or assent, either before or after the act, would not make him a trespasser. “ If my servant, without my notice, puts my beasts into another’s land, my servant is the trespasser, and not I.” Kiel. 3. c. 20 Viner, 460. (2. p.1.)
But it is insisted, that the schooner being in the custody of the law, the use or abuse of her, by the defendant, though with the license of the officer who took her, rendered the defendant, and all concerned, trespassers ab initio, and that, therefore, the plaintiffs can maintain trespass against the defendant.
This point is not defensible, unless the defendant is implicated in the first taking, and that he is not the facts plainly show. In every case to be met with in the books, the court, in considering who shall be deemed a trespasser ab initio, for the abuse of a legal trust, confine the action for such an act, to those who were either the actors in the first taking, or to such as by the relation they stood in to the first takers, made themselves parties, by their assent before or after the act. It would be palpably absurd to say, that a man totally unconcerned with the original caption of goods, shall, for an after act to those goods, be deemed to have originally taken them. Such absurdity and bad logic is not chargeable to our law. On a point so clear I have not thought it necessary to refer to the numerous cases and elementary writers on the action of trespass.
[383]*383Still, however, it is contended that Van Beuren, having no right to use the vessel, could impart none ; and the plaintiffs having the general property, possession followed it, and that both uniting, they could maintain trespass against the defendant, and more especially, as the defendant knew the vessel was under seizure.
It is, undoubtedly, a well-settled rule, that to enable a party to maintain trespass, whether upon lands or on goods, he must have either the actual or constructive possession, at the very time of the commission of the injury. This point came under full consideration in Putnam v. Wyley. (8 Johns. Rep. 432.) We there approved of the decision in Ward v. Macauley, (4 Term Rep. 483.) and said, “ that case was no more than a recognition of the settled principle, that a plaintiff cannot bring trespass for taking a chattel, unless he has the actual or constructive possession at the time. He must have such a right as to be entitled to reduce the goods to actual possession when he pleases.”
In the case of Ward v. Macauley, Lord Kenyon said that the distinction between trespass and trover was well settled. The former is founded on possession; the latter on property; and he held, that as the plaintiff had no possession of the chattels, when the supposed trespass was done, his remedy was by action of trover, founded on his property in the goods; and in Gordon v. Harper, (7 Term Rep. 11.) he retracts that part of his opinion, that trover would lie under the circumstances of the case, but confirms his former opinion in every other respect.
When the defendant took the vessel, the plaintiffs were clearly dispossessed of her; nor had they then a right to reduce her to actual possession, for she had .been seized under the authority of the law, and was then in the custody of the law, adversely to the plaintiffs’ claim of property. Still, however, it is urged, that Van Beuren was, at all events, a trespasser ah initio, by his licensing the defendant to use the vessel, and that this act reinvested the plaintiffs with their first right of property, and also the right to reduce the vessel to their immediate possession ; and it is, consequently, contended, that the rule laid down in Putnam v. Wyley is not infringed by sustaining this action. It seems to have been forgotten by the counsel who urged this argument, that Van Beuren’s giving leave to the defendant to take iflie vessel, is not an act which would even render him a tres[384]*384passer ab initio. It was the act of taking her and using her* which alone could produce that effect; • and not until after the commission of that act, would Van Bcuren have violated the authority given him by law to seize and hold the vessel. The-act of taking and using the vessel is indivisible; when the defendant first entered on it, it must be admitted the plaintiffs had neither the possession nor the right to reduce the vessel to their possession, and, therefore, at that time, they had no right to bring trespass. To maintain that trespass would lie against the defendant, the counsel must be driven to the necessity of splitting up the defendant’s act, and making him a trespasser, not for-entering on board the vessel and casting off her fasts, but for sailing in her. This mode of considering and treating the ao»" tion, may well be pronounced an anomaly in the law of trespass, without precedent, and without authority. The true and only test is, to consider whether, when the first act was done, which consists of a series of acts, the defendant was guilty of trespass towards the plaintiffs. If he was not, then he cannot in this case be so afterwards. It is not necessary to consider how far the defendant might be a trespasser, if he had afterwards wilfully destroyed the vessel. That is not this case.
I might stop here, resting on the decision of this court, in Putnam v. Wtjley, but as the counsel argued this cause with a zeal which I by no means disapprove, I will see whether, in deciding that this action is not maintainable against this defendant, we do not decide in strict conformity with general and well-settled principles. !
“ Trespass does not lie for goods which a man has lawfully» though the possession of him from whom he had them was' wrongful: as if A. takes the horse of another and sells it to B.y< trespass does not lie against B.” (Com. Dig. Trespass, D. 396.) “ It a man takes my horse by force and gives it to S'./or if S. takes it from him with force, in this I shall not have trespass against the second offender, for the first offender had gained property by the tort;” per Brian and his companions. (Br. Tres. 358. 20 Vin. 462. R. 3. p. 1.)
In Case v. Goes, (3 Caines’ Rep. 261.) the plaintiff sued the defendant for cutting and carrying away logs, after notice of title, and after being forbidden. The defendant justified under a license from one Bull, who, at the time of the trespass, was im possession under a writ of restitution, awarded On ap indictment [385]*385against the plaintiff for a forcible entry, which was afterwards quashed for irregularity, and re-restitution awarded. The point was, whether the defendant was answerable to the plaintiff In trespass, for an act done whilst he was out of possession, notwithstanding the defendant had full notice of the plaintiff’s title, azid was forbidden. The court unanimously held, that trespass would not lie. Bull was considered a trespasser by relation, and answerable for the damages; and with respect to the doctrine of relation, it was held that it should not extend to strangers, but applied only to the same parties, and annulling an act, ab initio, to advance a right; that the defendant’s being warned could not affect the question, and it was enough tha6 Bull was in possession.
This case fully shows, that the doctrine of relation is not to be extended to the defendants; and it bears strongly on the point, that the plaintiff cannot maintain trespass for an act done whilsS he was dispossessed of his vessel, by legal authority, and with the leave of the person holding possession. It may be objected that it is inapplicable to trespass de bonis asportatis. But I perceive no difference, in principle, between the two actions, as to the point now under consideration. In the case of personal property, if the general owner parts with the possession, and the bailee has a right to use the thing, the general owner cannot maintain trespass for an injury done by a stranger; the right of possession being in reversion.
So as to lands; the lessor or party out of possession, If the lands be held adversely, cannot maintain trespass, because, in the one case, his right is reversionary, and In the other, it is suspended. We have carried the principle, as to real property, further than has been done in England; and we allow the owner to maintain trespass without actual entry, on the principle, that the possession follows the ownership, unless there be an adverse possession.
In whatever light, therefore, this case may be considered, the plaintiff cannot maintain the action; and there must be a new trial, with costs, to abide the event of the suit
Thompson, Gk J. and Taxes, J. wer e of the same opinion*
Van Ness, J.
Whether this suit can be maintained strictly an the principle that t,fe@ defendant is a trespasser by rc-lsdlo’». [386]*386it is sot material to inquire; because I think he is liable, 1b this form of action, on another ground.
It has long been well settled, that actual possession is not necessary to enable the owner to maintain trespass or trover, as it respects personal property. It is. otherwise, where the suit is brought for trespass upon real property. There the gist of the action is the injury to the possession; and unless the plaintiff was in actual possession at the time the injury was committed, trespass cannot be supported.
This rule has been rigidly adhered to, even in cases where it might haye been dispensed with, without interfering with the reason upon which it was founded: as in the case of Bennett v. Ward, (3 Caines’ Rep. 259.) Campbell v. Arnold, (l Johns. Rep. 511.) Tobey v. Webster, (3 Johns. Rep. 463.) But for an injury done to a personal chattel, the person who has the general property, provided he is entitled to immediate possession, may support this action, although he has never had actual possession. The general property draws to it the possession so as to enable the owner to maintain trespass. And this rule holds even by relation; as in cases of executors and ■ administrators, who may maintain trespass for an injury done to the goods of their testator, or intestate, after his death, and before probate or administration. So may a legatee, after the executor has assented to the legacy, for a trespass committed before such assent.
The law creates a constructive possession in the owner, in all these instances, .sufficient to maintain the action. The only exception is, when the general owner parts with his possession, in such a manner as to give the bailee a right to use the thing, and where the right of possession rests in reversion only. (2 Saunders, 47. in note, and cases there cited. Smith and mother v. Miller, 1 Term Rep. 475. Gordon v. Harper, 7 Term Rep. 9.)
In the case of Ward v. Macauley, (4 Term Rep. 439.) Lord Kenyon expressed an opinion, that there was a distinction between the actions of trespass and trover; that the former was founded on possession, and the latter upon property; but in Gordon v. Harper, a few years after, he retracted this opinion, to which he acknowledged, upon further consideration, he could hot subscribe.
[387]*387The plaintiffs, in this case, were the undisputed own-'¿rs of the schooner, until she was unlawfully seized by Fan Beuren„ I say unlawfully, because, as she was acquitted in the district court, were it not for the certificate of probable cause, Van Beuren might have been prosecuted as a trespasser for the original taking. This certificate, however, can, in no way, protect either Van Beuren or the defendant against an action for their illegal use of the vessel after the seizure. That Van Beuren became a trespasser, from that moment, ab initio, is not questioned. The cases cited on the argument are decisive on that point. The certificate of probable cause would afford him no protection against an action of trespass founded upon the abuse of his authority. “ When the law has given an authority or license, it seems reasonable that the same law should, In order to secure the persons, who, without their direct assent, are made the objects thereof, from all positive abuse of such authority or license, make the same void from the beginning, and leave the abuser thereof In the same situation as if he had acted without any authority or license.” (6 Bac, Ab. tit. Trespass, B.) I cite this book, because in no other Is the law, on this subject, laid down with equal precision and accuracy.
From the moment, therefore, Van Beuren lent this vessel to the defendant, his official character was lost, and he is to be treated like any other private individual, who wantonly and illegally wrests from another Ms property. The law will adjudge, by the subsequent tortious act, quo animo the first taking was made; for, acta exteriora indicant interiora secreta. (Six Carpenters’ Case, 8 Rep. 145.)
This being the situation in which the law has placed Van Beuren, let us see how the defendant stands, who is also a custom-house officer. He had, it appears, a country seat, about eight miles from the city of Nem-York, from which he was desirous to remove the furniture to his town house-; and for this purpose he applied to Van Beuren for the use of the plaintiff’s schooner, who consented that he might take her. The defendant, accordingly, brought his furniture in the vessel, from his country seat to the city, and employed her, in plying between the two stations, for about two days; well knowing that Fan Beuren had no other right to the vessel than what he derived from the original seizure, and knowing also, (for every [388]*388man is presumed to know the law,) that he was guilty of a wrong t0 the plaintiffs, when he made use of their property f°r his own private purposes and accommodation, without their consent.
The vessel ceased to be in the custody of the law, after Fan Beuren had parted with her to the defendant, for a purpose utterly repugnant to his duty, as a public officer, and by which he, confessedly, became as much a trespasser as if he had acted without any authority or license from the beginning.
While this vessel was in the employment of the defendant, he held her by wrong, and the plaintiffs had a clear and incontestable right to resume the possession of her, if they were disposed to exert it, wherever they found her. This right results "as a direct and necessary consequence of that principle of law by which Fan Beuren is -deemed to be a trespasser ab initio. He stands “ in the same situation as if he had acted without any authority.” Like every other trespasser, his possession was tortious; and the owner might, at his election, either have affirmed the possession and property in him, by bringing an action of trespass, or he might have brought replevin, to have the thing taken restored to him, and recover his damages for the first taking. This was so decided in the case of Hopkins v. Hopkins; (10 Johns. Rep. 369.) and the same doctrine. Will be found in Bishop v. Montague, (Cro. Eliz. 824.)
A moment’s consideration will show, that if the plaintiffs were entitled to the possession as between them and Fan Beuren, they are equally so as between them and the defendant. What right had he to the possession of the vessel ? If the plaintiffs could have taken her from Fan Beuren after he became a trespasser, does it not follow, that they had the same power after she came into the hands of the defendant, in consequence of an act flagrantly illegal, to which both he and Van Beuren were parties ?
It seems to be admitted, that the defendant is bound, in some form of action, to compensate the plaintiffs for the use of the vessel. Does not this demonstrate his possession of her to have been tortious and illegal ? And here it is material to observe, that if a person is once liable as a trespasser for an illegal taking of the goods of another, he shall answer for their full value, unless they are restored to the owner; in which case [389]*389She restoration may be given in evidence, in mitigation, but not in bar of the suit. I can see no reason, therefore, why the defendant, as well as Van Beuren, is not liable;, in this form of action, for his illegal and unjustifiable use and employment of the vessel, as a distinct and independent trespass.
That she was not in the possession of the plaintiffs when (he defendant took her, forms no objection to the established principles which I have before stated. In support and illustration of those principles, in addition to the cases already cited, I refer to Bird and others v. Clark, (3 Day's Rep. 277.) Williams v. Lewis, (Ib. 498.) Lotan v. Cross, ( 2 Camp. N. P. Cases, 464,) Chapman v. Thumblethorp, (Oro. Eliz. 329.) and note to Wilbraham T. Snow, (1 Siderfin, 438.)
If the principles upon which I have placed this cause are well founded, it follows that the judgment of the district court, and the certificate of probable cause, were both properly excluded.
With the order to pay the trifling sum which remained in that court, the plaintiffs have no concern. A recovery in this suit, if the vessel had not been sold, would have vested the title to her in the defendant; and as the money, in consequence of the sale, stands in the place of the vessel, the defendant probably would have a right to the proceeds.
The certificate, as I have before observed, protects the seizing officer from an action for the original taking only, and this protection is personal to him. It is no defence to this action, nor could even Van Beuren shelter himself under it, if the suit had been against him, he having, by his misconduct, put himself out of the provision of the act of congress. I acknowledge that this is a case not devoid of difficulty; yet, I think, the better opinion is, that trespass can be maintained against this defendant, and that, therefore, the verdict ought not to be disturbed.
Pi ass, J. was of'the same opinion.
New trial granted.
1 Chatty;s Pl. 173.