¶1The court are of opinion that the directions to the jury were right. The mortgage was an actual, though conditional transfer and conveyance of the cattle and goods, by which the property vested immediately in the mortgagee, defeasible on a condition subsequent; and there being no stipulation that the possession should remain with the mortgagor, the right of possession followed as incident to the right of property, and the possession of the mortgagor was that of the mortgagee. And it made no difference as to the property and the possession, and the legal rights of the mortgagee therein, whether the debt for which they were hypothecated was due or not. Woodruff v. Halsey, 8 Pick. 333.
¶2Knox took nothing, by his subsequent bill of sale from Clark, but a right of redemption. The agreement between Clark and Boise, of 13th of March, to accelerate the payment of the note, could not be injurious to Knox, because it did not affect the right of possession that was in the plaintiff before ; nor the right of redemption, which, as against Knox, he could not foreclose till sixty days after April 1st 1844, the time originally fixed by the mortgage.
¶3If any reliance was placed on a second agreement, made by the plaintiff at the time of the memorandum, for accelerating the payment of the note, that the mortgagor should retain *44possession, it must be taken in connexion with the other part of the supposed agreement, viz. if Knox did not interfere ; then, when Knox did interfere, such general right of possession, if otherwise established, was at an end. Nor do we think there is any ground for the suggestion made at the trial, that before bringing an action there should have been a demand made. The direction was, that if the property was secretly and fraudulently withdrawn by the defendants, to defeat the plaintiff of his rights, the plaintiff could maintain this action; and the jury, by finding for the plaintiff, have found that it was so fraudulently withdrawn. A demand is often necessary in trover, when the original taking was not tortious, to prove a conversion, which is the gist of the action. But we are not aware that a demand is ever necessary to maintain trespass, in which the gist of the action is a tortious taking. If a tortious taking is not proved, the action cannot be maintained ; if a tortious taking is proved, a demand would not be necessary, even in trover. Bul. N. P. 44. Thurston v. Blanchard, 22 Pick 20.
¶4Exceptions overruled.