It is a well established principle of law, that to enable a party to maintain trespass de bonis asportatis, he must be in the actual possession of the property taken, or, being the general owner, have such an immediate right to possession as will be deemed, in law, constructive possession. Ward v. Macauley, 4 T. R. 489. Walcot v. Pomeroy, 2 Pick. 122, 123. Putnam v. Wyley, 8 Johns. 432. In this case, the possession of the schooner, and the right of possession, were in Gerrish, under his charter, at the time of the alleged trespass, if a parol charter is a valid contract.

The plaintiff’s counsel has argued that this case does not stand on the same ground with ordinary actions of trespass, because the suit is against an officer who claims to hold the schooner as the property of a third person; but we are not aware of any such legal distinction. The action is for a tort alleged to have been committed against the plaintiff. He must therefore prove in himself a right to the possession of the property taken ; otherwise, he has not sustained the injury of which he complains. And if he does not prove it, though the defendant may be a wrongdoer, in consequence of taking the property, still for such wrongful act he will be responsible, not to the plaintiff, but to the person who was unlawfully dispossessed of his property. It is not, then, sufficient for the plaintiff to show that the defendant is a mere wrongdoer; but he must show that the wrong has been done to himself.

It is said by the plaintiff’s counsel, that the defendant’s act was the destruction of the entire thing, and consequently the plaintiff can recover, because the general property was in himself. But the seizure of the property is neither an actual destruction of it, nor is it to be so implied. If it were, then replevin would not lie ; because the thing itself could not be replevied. But here the schooner could be replevied by a person wi. .lgfully dispossessed, and his writ would be sustained.

*236It is also argued that, in cases against officers, damages are given for the entire thing, and not merely damages for the taking. This, however, cannot alter the principle of law, upon which actions of trespass are sustained. If the plaintiff had no right of possession, then the taking is not a direct injury to him; and whatever, and against whomsoever, his remedy may be, it is not to be sought in an action of trespass grounded on his mere right of property, without right of possession. Nor are the damages, in such cases, necessarily the value of the thing taken; they are to be measured by the injury sustained.

It is also contended, that by the taking of the schooner the charter was determined, and so the plaintiff had a right to resume the possession of her, and consequently had a constructive possession, and may therefore maintain this action. In this case, there was a parol letting of the schooner to Gerrish, upon time. It was decided in Taggard v. Loring, 16 Mass. 336, that such parol letting is valid, and can be enforced ; and that case has been repeatedly recognized as law. See Thompson v. Hamilton, 12 Pick. 428. Vinal v. Burrill, 16 Pick. 406. So also it has been held that a sale of a vessel by parol is good. Bixhy v. Franklin Ins. Co. 8 Pick. 86. There being, then, a valid contract of letting, the contract was not determined by the unlawful act of the defendant. And in a suit by the present plaintiff against Gerrish, on the contract of charter, proof that the schooner had been unlawfully taken out of Gerrish’s possession, without the act or cooperation of the plaintiff, would be no bar to a recovery. Such a dispossession is no determination of the contract; and the party, who is dispossessed unlawfully, must repossess himself of the property, or obtain its value.

Suppose, in this case, that the plaintiff, instead of commencing an action of trespass, had brought replevin against the sheriff, and had been put in possession of the schooner. He could not retain it, as against Gerrish, and if he should refuse to deliver it to him, Gerrish, being guilty of no laches, could maintain an action against the plaintiff for damages, for *237not delivering it; or he might, perhaps, maintain replevin. Two persons, claiming a chattel under distinct titles, cannot lawfully be entitled to the possession at the same time. The right of possession of one must be paramount, and he only can maintain trespass, in case of a wrongful taking of it by a third person. In the present case, Gerrish was lawfully entitled to the possession of the schooner, at the time of the attachment by the deputy of the defendant, and he, therefore, and not the plaintiff, can maintain an action of trespass for the taking, if there has been a tortious taking. The verdict is to be set aside and a

New trial granted