Walker v. Wilkinson

35 Ala. 725

Opinion

A. J. WALKER, O. J.

We understand the charge of the court in this ease to be predicated upon the idea, that the lender of a chattel cannot maintain trespass for the taking and carrying it away while in the possession of his bailee. The law unquestionably is, that when a chattel is loaned, the bailor having a right to resume possession at any time, and having the general property in the thing loaned, which draws to it .the constructive possession, may maintain trespass for the asportation of the property by a wrong-doer. — 1 Chitty on Plead. 169 ; Story on Bail. §§ 94, 279 ; 2 Saunders on PI. and Ev. 861; Thorp v. Burling, 11 Johns. 285; Davis v. Young, 20 Ala. 151 ; Nelson v. Bondurant, 26 Ala. 341; Hall v. Goodson, 32 Ala. 277. The ease of Davis v. Young, supra, asserts no principle adverse to the doctrine above stated. In that case, the plaintiff’s right of possession was postponed by the terms of his conveyance to a day posterior to the commission of the trespass; and it differs from this in the fact, that the plaintiff had no right of possession at the time of the trespass, and the possession was not held by another for him as his bailee.

Nonsuit set aside, judgment reversed, and cause remanded.