¶1The demurrer to the complaint was properly sustained. Whether the action be deemed to be in the nature of an action of trespass, trover, or trespass on the case, the complaint is defective in substance. The lease of the sheep constituted a bailment for hire; and during the term of the lease, the lessee was entitled to the exclusive possession. *617The alleged trespass was committed during the term, when the lessee was in the actual, and was entitled to the exclusive possession as against the plaintiff, his lessor. It is well settled that a person having neither the possession nor the right to the possession of personal chattels, cannot maintain trespass or trover for an injury done to the property. (2 Hilliard on Torts, 502; Edwards on Bailments, Sec. 315; 2 Green. Ev. See. 616; Story on Bailments, Secs. 394,93; Putnam v. Wiley, 8 John. 434; Muygridge v. Eveleth, 9 Pick. 233.)
¶2If intended to be in the nature of an action of trover, the complaint is defective in substance. It does not aver a demand and refusal to return the property, nor a conversion of it by the defendants; but only that they “unlawfully, fraudulently, willfully and maliciously” took it from the possession of the plaintiff’s bailee or lessee, and “do still unlawfully, fraudulently, willfully, and maliciously withhold and detain a portion of the aforesaid property (specifying it), from the possession of plaintiff.” Whether the defendant took the sheep “ unlawfully” was a question of law, and not the statement of an issuable fact. If they took them “fraudulently,” the facts constituting the fraud should have been averred. Otherwise no issuable fact is stated. They may have taken them “willfully and maliciously,” without a conversion. If the complaint be regarded as in the nature of a complaint in trespass on the case, for the injury caused to the sheep by defective feeding, it states no cause of action. If this injury was caused while the lessee was entitled to the possession under the lease, the right of action was in him, and not in the plaintiff, for the reasons already stated. In an action of trover or trespass, he might have recovered the value of the sheep with interest, or in replevin, the sheep in kind, with such damage as they had suffered during their detention." The complaint does not state whether this damage occurred before or after the plaintiff became entitled to the possession; and the rule being that all pleadings must be construed most strongly against the pleade», we must assume that the damage occurred while the lease was in force, and before the plaintiff *618became entitled to the possession. In that event the lessee only could maintain the action.
¶3Judgment affirmed.
¶4Mr. Justice McKinstry delivered the following concurring opinion, in which Mr. Chief Justice Wallace concurred.
¶5The action is brought for a trespass de bonis asportatis committed while the lessee of the plaintiff was in the actual possession, and entitled to the exclusive possession of the personal property taken and carried away.
¶6There is no averment in the complaint, nor was there any proof that the claim of the lessee for damages was assigned to the plaintiff. I agree that the judgment should be affirmed.