The opinion
After an adjournment, the opinion of the Court was drawn up by
Weston C. J.
Regarding the right of property, in them are in controversy, to have been in the plaintiffs, with a right of preemption only in Winn, as whose property she was taken by the defendant, the officer; the case finds, that by the agreement between the plaintiffs and Winn, the latter was to keep her until grazing time. She was taken by the officer in March, before the time of grazing. And this is the only proof of trespass, upon *239 which the plaintiffs rely, to maintain their action. Trespass is a remedy afforded by law, for an injury done to the plaintiffs’ possession. They must show possession actual or constructive, or an immediate right of possession.
In Ward v. Macauley et al. 4 T. R. 480, the plaintiff had let to Lord Montfort a ready furnished house, and the lease contained a schedule of the furniture. Pending the lease, the defendants, sheriffs of Middlesex, seized part of the furniture on execution against Lord Montfort. Trespass was held not to lie against the defendants, because the plaintiff had neither possession, nor a right of possession at the time. The same doctrine was recognized in Putnam v. Wyley, 8 Johns. R. 432, and in Clark v. Carlton, 1 N. H. 110.
As the plaintiffs had neither possession, nor the right of possession, at the time of the alleged trespass, we are satisfied on this ground, that the Judge below was warranted in instructing the jury, that the action was not maintained. We accordingly overrule the exceptions taken by the counsel for the plaintiffs. It has become unnecessary therefore to consider those taken for the defendant, as, if they are overruled, the plaintiff cannot prevail.
Judgment for the defendant.