#### Samuel Ayer *versus*Bailey Bartlett.

A., being the owner of a factory and the machinery in it, gave a bond to S., conditioned that lie would convey them to S., when certain negotiable notes given as the consideration, should be paid, and that S. should have the possession of the property, so long as he continued to pay the notes as they became due, and no longer, and possession was delivered immediately, pursuant to the bond» Before the first note became due, the machinery was attached as S.’s property, and was removed from the factory by the officer, who, before the removal, had full notice of A.’s title, and the machinery was afterwards sold on execution. A. then brought an action against the officer, in which the declaration contained counts in trover and case. Held, 1. That A. might maintain case for the injury done to his reversionary interest in the machinery 2 2. That the proceeds at the sheriff’s sale were not ihe measure of damages in the action: 3. That the measure of damages was the value of the machinery as it stood in the factory, before its removal.

The court refused to set aside the verdict in this case on the ground of excessive damages, though the amount was nearly three times as much as that produced by the sheriff’s sale.

Whether the count in trover could be supported, *qucere.*

*It*seems, that if S. himself had removed and sold the machinery, A. might have brought trover against the vendee.

A new trial having been granted in this case, (see 6 Pick. 71,) it was tried a second time, before *Putnam*J. The plaintiff had, with the defendant’s consent, added counts in case to the count in trover.

Some evidence, in addition to that stated in the report of the former trial, was given. The machinery, the value of which this action was brought to recover, was attached as Scholfield’s property on November 1st, 1824, and was sold on the execution in January 1825, for $660. The plaintiff demanded the property of the defendant on March 6th, 1826, which was before this action was commenced. Scholfield has never paid any part of his notes to the plaintiff.

It was contended by the defendant’s counsel, that when the machinery was attached and sold, as none of the notes had become due, Scholfield had a right to the possession, and therefore that the plaintiff could not maintain trover ; and also that the plaintiff could not maintain an action on the case to recover any reversionary interest which he had in the property. But the judge ruled otherwise.

It was contended that the transaction was fraudulent, 1. as the contract was intended to delay and defeat Ayer’s own *159creditors ; and 2. as it was intended to give a false credit tr. Scholfield, and to defraud *his*creditors. It was also contended for the defendant, that if after the conditional sale Scholfield the declarations and conduct of the plaintiff were such as to lead persons dealing with Scholfield to believe that he was absolute owner of the property, and were designed and intended to give a false credit to Scholfield, then, as against Ayer himself, the property might be treated as Scholfield’s by his creditors, and attached as such.

The jury were instructed, that if the conditional contract embraced the personal as well as the real property, and was made *bona fide,*it was a lawful contract; but, if colorable, it might be defeated, 1. if made by Ayer to defeat his own creditors; 2. if with intention, (the jury distinguishing between the *intention*and mere operation,) that Scholfield might defraud his creditors ; if made with neither intent, it was valid ; and that the bargain between the plaintiff and Scholfield must be considered as it was on August 13th, 1824, when it was made, and if good then, it must still be considered good., for the purposes of the trial.

With regard to the damages, evidence was produced by the plaintiff tending to show that the value of the machinery exceeded $ 1900 ; and evidence was produced by the defendant tending to show that it was sold at the sheriff’s sale for as much as it was worth ; that the sale was well attended and properly notified. It was also proved, that some one having advised Ayer to receipt for the property and go on with manufacturing, he said, when he went on he would get new machinery.—It was also proved on the part of the plaintiff, that before any of the machinery was removed or taken down,' Bridges, the deputy-sheriff who attached it, was distinctly notified on behalf of the plaintiff, that the plaintiff claimed it as his property, and was also informed of the ground of his claim. — It appeared that the plaintiff had at first attached the machinery as Scholfield’s property, at the same time with other creditors, though he shortly afterwards claimed it as his own.

The jury were instructed, that although the plaintiff had caused the property to be attached as Scholfield’s, still, if afTerwards, on taking other views of his rights, he claimed the *160property as liis own, and seasonably gave the officer notice thereof, and if after this the creditors went on to sell the pruperty, they must put the plaintiff in as good a condition as if the machinery had not been taken, deducting therefrom the value of the use of it to February 1st, 1825, when the first note became due, up to which time Scholfield had a right to the possession.

The jury found a verdict for the plaintiff for $ 1900 damages. A motion was made for a new trial on the ground of excessive damages. A new trial was to be granted if the damages were excessive, or the plaintiff was to become nonsuit if he could not maintain any action.

*Shaw*and Spaulding, for the defendant.

The facts will not support any action by the plaintiff. He cannot maintain either trespass or trover, because he had neither the possession nor the right of possession; 3 Stark. Ev. 1457, 1491 ; *Ward*v. Macauley, 4 T. R. 489 ; *Gordon*v. Harper, 7 T. R. 9 ; *Paine*v. *Whitaker,*Ryan & Moody, 99; 2 Wms’s Saund. 47 *b,*note ; Bull. N. P. 44 ; *Bushel*v. *Miller,*1 Str. 128 ; Com. Dig. *Action upon the Case upon Trover, F.*

An action on the case does not lie. The absolute property in the machinery was vested in Scholfield. The only remedy of the plaintiff, if Scholfield had sold the property himself, was by a personal action against him. Scholfield might have sold before his notes became due, and the sheriff might lawfully do the same. The reversionary interest set up by the plaintiff is inconsistent with the nature of personal property. No precedent can be found of an action to protect such an interest. *Horwood*v. *Smith,*2 T. R. 750 ; 2 Bl. Com. 398, 427, Christian’s note, and 443 ; *Smith*v. *Young,*1 Campb. 439 ; *Dufresne*v. Hutchinson, 3 Taunt. 117.

The bargain between the plaintiff and Scholfield, might be good as it regards themselves, and yet invalid as it respects other persons. *Bartlett*v. *Williams,*1 Pick. 288 ; *Howes*v. *Ball,*l Mann. & Ryl. 288 ; *S. C.*7 Barn. & Cressw. 484. To legalize this arrangement would lock up this property entirely, so that neither the creditors of the plaintiff, nor those of Scholfield, could attach it.

The damages were excessive. The machinery was sold *lot**161its full value, and the amount of the sales was therefore the proper measure of damages. The jury have given the plaintiff damages for the injury which he suffered by the removal of the machinery from the factory ; which are not recoverable in this action, but only in an action of trespass.

*J. Pickering*and *Saltonstall,*for the plaintiff,

to show that the action might be sustained, relied upon the former decision in the case, and also cited *Wheeler*v. *Train,*3 Pick. 255. *Trover*will lie. 2 Saund. Pl. and Ev. 474, 475, 479 ; 1 Chit. Pl. 153 ; *Cooper*v. *Chitty,*1 Burr. 20 ; 2 Wms’s Saund. 47 *a,*note 1 ; *Syeds v. Hay,*4 T. R. 260 ; *Murray*v. *Burling,*10 Johns. R. 172 ; *Baldwin*v. *Cole,*6 Mod. 212 ; *Bristol*v. *Burt,*7 Johns. R. 254 ; *M'Combie*v. *Davies,*6 East, 538 ; *Melville*v. *Brown,*15 Mass. R. 82 ; *Reynolds*v. *Shuler,*5 Cowen, 323 ; 3 Bl. Com. 152 ; 1 Chit. Pl. 149 ; *Smith*v. *Plomer,*15 East, 607 ; *Pattison*v. *Robinson,*5 Maule & Selw. 105 ; 3 Dane’s Abr. 189 ; *Farrant*v. *Thompson,*5 Barn. & Ald. 826. Even if trover does not lie, the counts in case can be supported. *Bedingjield*v. *Onslow,*3 Lev. 209 ; 1 Chit. Pl. 138.

Putnam J.,

at a subsequent day in this term, delivered the opinion of the Court. It has been settled in the former decision of questions of law raised in this case, that the bond was to be considered as a contract for a sale, and not as an actual sale which vested the property in Scholfield.1 It was intended that the property in the factory, as well as in the machinery, should continue in Ayer until Scholfield should have paid the notes, at the times when they should become due, but that Scholfield should have the actual use and occupation of the property so long as he complied with the conditions, and no longer. The attachment and the sale by the defendant were made before the first instalment became due, while Scholfield had the possession and the right to the possession.

*162And, unless the contract were rescinded, it is our opinion, that the plaintiff could not maintain trover for the injury of which he complains.2

Lord *Kenyon*had indeed ruled otherwise in *Ward*v. *Ma*cauley, 4 T. R. 489, but that was an action of trespass, in whicfi the point now under consideration did notarise. And his lordship and all his brethren, in the case of *Gordon*v. *Har*per, 7 T. R. 11, considered that the opinion upon this point m *Ward*v. Macauley, was extrajudicial; and all concurred in the opinion, lhat the plaintiff must have a right to the possession as well as the right of property, to maintain trover.

The case is there put, of a right to use a factory with the machinery, as an interest (more or less valuable) which might be taken by creditors during the term. Now Scholfield had the right to use the machinery and this factory from the 1st of November, when it was attached, until the 1st of February, when the first note fell due ; and if he should have paid that note, then he was to have the use of the factory and machinery until the next note should become due ; and so on, until the whole amount should be paid.

The creditor of Scholfield can be in no better situation than he would have been in himself. If he had taken down the machinery, and removed it from the factory and sold it, such conduct would have been unlawful, and according to the case of *Farrant*v. Thompson, 5 Barn. & Ald. 826, might have been considered as a putting an end to the contract on his part, and a revesting of the possession in the owner by the operation of law, so as to enable him to maintain trover against the vendee.1 And it has been argued for the plaintiff, that the same result should follow a removal and sale by the creditors, or a sheriff on their behalf; that by such acts the contract between Ayer and Scholfield would be terminated, so as to enable Ayer to maintain trover immediately against the officer. It is to be remarked, that the proceedings of the creditors and of the officer, under the processes of law against Scholfield, were *in invitum;*so that what might have been properly considered as *163a termination of the contract, if it had been done by Scholfield himself, might not have that effect if done by others against his will. The case of *Smith*v. Putnam, 3 Pick. 223,2 was determined upon that distinction. But the plaintiff has filed counts in trespass upon the case, which are adapted to the facts proved. He has proceeded at the trial upon the ground that the contract was in force, and the jury were instructed not to allow any damage for the detention of the property from the time of the attachment to the first of February, when the first note should have been paid. It is not necessary therefore to determine, whether or not the contract was terminated by the officer, acting for the creditors of Scholfield.

It has been contended for the defendant, that no action whatever will lie for the plaintiff under the circumstances of this case. Now it has been already decided, that this was a lawful contract which the plaintiff made with Scholfield, and the jury have found that it was an honest transaction. We think that this objection is unfounded. If trover could not, we are satisfied that trespass upon the case could be maintained for such an injury to the reversionary interest in personal property.1 In 1 Chit. Pl. 197, it is said, that case is the proper remedy ; and counts in trespass upon the case may be joined with a count in trover. 1 Chit. Pl. 195, [7th Am. ed. 230,] of *Joinder of dictions.*

We think that the instructions to the jury were correct.

The only remaining consideration is, whether the damages are excessive. The jury have found three times as much as was produced by the sheriff’s sale of the goods by auction.

It is very clear that Scholfield had no right to separate the machinery from the factory and dispose of it during the term. It was to be used in the factory. But the attaching creditors originally proceeded upon the ground that the absolute property in the machinery was in Scholfield, and made their sale *164upon that belief. They were notified, however, of the plaintiff’s claim. The counsel as well for Ayer as for Scholfield, were residing in the same town where the factory stood, and the officer knew the contradictory opinions which those gentlemen held upon the case. The officer was forbiuuen to take down the machinery, or to remove or sell it. But he proceeded to take the machinery front the factory, and to sell it in separate pieces, as if it had been the absolute property of Scholfield. The officer acts at his peril, and is answerable for f>ny mistake. It turns out after a patient examination, that he has sold the property of the plaintiff to pay the debts of Scholfield. The jury were to compensate in damages in this case, upon the principle of placing the plaintiff in as good a condition as if his property had not been taken, deducting the value of Scholfield’s right to use it until the 1st of February ; and there is evidence to prove that it was worth a sum exceeding the amount of the verdict, as it stood connected with the factory. It is obvious that the auction sale in parcels could not be conclusive against the plaintiff. And although we all think that this verdict is for a larger sum than we should have given, yet we cannot say that it is against the evidence or even the weight of evidence.1

The motion for a new trial must be overruled, and judgment rendered according to the verdict.

1

 See *Corlies*v. *Gardner,*2 Hall, (N. York,) 345; *Phelps*v. *Willard,*16 Pick. 32; *Ward*v. *Shaw,*7 Wendell, 404; *Reed*v. *Upton,*10 Pick. 522; *Blood*v. *Palmer,*2 Fairfield, 414 ; *Sawyer*v. *Shaw,*9 Greenleaf, 47; *Reeves*v. *Harris,*1 Bailey, 563; *Barrett*v. *Pritchard,*2 Pick. 516; *Whitwell*v. *Vincent,*4 Pick. 451, 452; 2 Kent’s Comm. (3d ed.) 497; *Meldrum*v. *Snow,post,*441; *Sargent*v. *Gile,*8 N. Hamp. R. 325.

2

 See *Fairbanks*v. *Phelps,*22 Pick. 538,539.

1

 See *Daniels*v. *Pond,*21 Pick 371 ; *Walcot*v. *Pomeroy,*2 Pick. (2d ed | 122,123 and note 1; *Tibbetts*v. Towle, 3 Fairfield, 341.

2

 See 2d ed. 222, 223, notes; *Fairbanks*v. Phelps, 22 Pick. 539.

1

 See *M'Gowan*v. Chapen, 2 Murph. 61; *Hillard*v. Dortch, 3 Hawks, 246; 1 Chitty on PI. (7th Am. ed.) 153.

Case is the proper action for a reversioner against a stranger for injuries done to his reversionary interest in real estate. *Lienow*v. *Ritchie,*8 Pick. 235; *Hall*v. Snotohill, 2 Green, 8; *Randall*v. *Cleaveland,*7 Connect. R. 328; *Elliott*v. *Smith,*2 N. Hamp. R. 430 *Brown*v. *Dinsmoor,*3 N. Hamp. R. 103.

1

 Where the amount of damages is matter of opinion merely, the fact that the jury have fixed them at a greater or less sum than any of the witnesses, is not a ground for a new trial. *Hopkins*v. *Myers,*1 Harper, 56; *Brewer*v. *Tyringham,*12 Pick. 547; *Harvey*v. *Huggins,*2 Bailey, 252; *Park*v. *Hopkins,*2 Bailey, 408 ; *Bodwell*v. *Osgood,*3 Pick. 379; *Shute*v. *Bassett,*7 Pick. 82; *Deems*v. *Quarrier,*3 Randolph, 475; *Douglass*v. *Toucey,*2 Wendell, 352; *Nettles*v. *Harrison,*2 M'Cord, 230; *Mahoney*v. *Frasi,*1 Crompt. & Meeson, 325; *Reed*v. *Davis,*4 Pick. 216; *Neal*v. *Lewis,*2 Bay, 204 ; *Riley*v. *Nugent,*1 Marshall, (Ken.) 431 ; *Sheppard*v. *Lark,*2 Bailey, 576; *Davis*v. *Davis,*2 Nott. &. M'Cord, 81; *Boies v.M‘Allister,*3 Fairfield, 308; *Worster*v. *Proprietors of Canal Bridge,*16 Pick. 547, 548*; Gough*v. *Farr,*1 Younge & Jerv. 477; S. C. 3 Carr. & Payne, 631.