#### * Jonathan Cowing, Plaintiff in Error, *versus*James Snow.

One having the special property in a chattel may maintain trespass against him who takes it out of his possession. — 1 *Chitty,*70, 170, 196, 7th ed.

Error to the Common Pleas for this county, to reverse a judgment of that court, rendered in favor of the said *Snow*in an action of trespass *de bonis asjjortatis,*in which *Snow*was plaintiff and *Cowing*defendant.

The cause was tried in court below upon the general issue; and the facts proved at the trial appear in a bill of exceptions to the direction of the court to the jury, filed by the original defendant, which came up in the case.

The plaintiff, *Snoiv,*was part owner, and agent for the other owners, of the sloop *Flash,*of which one *Barstow*was master, on a *376voyage from *Rochester*to *New York*and back to *Rochester.*When about sailing, the defendant advanced to *Barstow*eight dollars tc purchase for him a barrel of flour, it being agreed that, if the flour should cost more than the money so advanced, *Barstow*should make up the deficiency. On the return of the vessel to *Rochester,*several barrels of flour were brought, and among them one marked with the initials of the defendant’s name, which was landed, and carried to a warehouse owned by one *Moore,*which was used without expense by the inhabitants of the village, by the courtesy of the owner, whose permission for that purpose was not usually asked; nor was the store secured by a lock. The defendant’s boy coming for the flour, *Snow*was forbidden by the master to deliver it, until the freight and the balance due him on the purchase were paid, and was informed by the master that he should hold him, *Snow,*accountable. Of this the boy, and through him the defendant, was informed. Some days after, the defendant took the flour from the store and carried it away, without having seen *Snow,*but having called on another of the owners, and inquired for *Snow,*observing that he would pay what was due as soon as a bill should be presented. After the commencement of the action, the [ * 416 ] defendant * called on *Barstow,*and offered to pay him the freight, &c., but he refused to take it, and referred him to *Snow.*After this the defendant left with another of the owners one dollar seventy-five cents, requesting him to settle the bill, and engaging to make up any deficiency. Still the master refused to receive it. The amount actually due to the master for freight, &c., was one dollar eighty-five cents, and he had deposited the flour with *Snow,*to be delivered on payment of that sum, which it appeared that *Snow*had paid to the master before he brought his action against *Cowing.*The court below directed the jury that, if they believed that *Cowing,*at the time he took the flour away, knew of the directions of the master to *Snow,*not to deliver it until the freight, &c., were paid, such taking amounted to a trespass, and that they should in that case return a verdict for the plaintiff; which they accordingly did.

*Washburn,*for the plaintiff in error,

contended that trespass did not lie in this case. The master was entitled to an action of *assumpsit*for the freight and balance of the cost of the flour. He might also have retained his lien, had he continued his possession but lost it by delivering it over to *Snow,*or permitting it to be carried away. But *Snow,*having neither the general nor special prop erty, had in himself no right of action at all. The general property was in *Cowing;*and the master, so long as he kept possession, had *377a special property, even against Cowing, until the lien was discharged.

*Sproat*and *Holmes*for the defendant in error.

The whole property in the flour was in the master; and after the delivery to *Snow,*the special property was in him, as bailee of the master; and having the legal possession of it, he was well entitled to his action of trespass against *Cowing,*who, in taking it away, was a mere wrong-doer.

*Curia.*

It is very clear that *Barstow,*the master of the vessel,

had a lien upon the barrel of flour for the freight and for the balance of its price due to him; and admitting the general property to have been in *Cowing,*he could not legally * take it out of the hands of *Barstow*until he had paid [ * 417 ] or tendered the sum due. The act of taking, therefore, was a trespass, for which *Cowing*was liable in damages. The only question is, to whom was he liable ? And upon this question we are inclined to think, as it was delivered into the special custody of *Snow,*with directions not to deliver it until the freight, &c., was paid, he had such a special property as would entitle him to the action. The tender after action commenced cannot affect this question, *(a)*

*Judgment affirmed*

(a)

*Lane*vs. *Penniman*& *Tr.*4 *Mass. Rep.*91.— *Portland Bank*vs. *Stubbs & Al.*6 *Mass. Rep.*427. — *Lewis*vs. *Hancock & Al.*ante, 72.