#### Asa B. Searles, Plaintiff in Error, v. James Crombie, Defendant in Error.

error to lee.

In an action of trespass for taking personal property, proof of right of possession may be sufficient to sustain the action; and although defendant may prove some right to the property in himself or others who assisted in the trespass, it is no justification.

The right of property may be in one person, and the right of'possession in another.

This was an action of trespass, brought before a justice of the peace to recover damages for the wrongful taking of a mare from the possession of plaintiff in error, and taken by appeal to the Circuit Court of Lee county. There was a trial by jury, and a verdict and judgment for the defendant below.

W. E. Ives, for Plaintiff in Error.

_B. H. Tbusdell, for Defendant in Error.

Catón, C. J.

The qualification which the court gave to the plaintiff’s instructions was not right. The principle of the instructions was, that possession without title is sufficient to maintain trespass, and that if the defendant had taken the ■mare from the plaintiff’s possession, the jury should find the ■defendant guilty ; to which the court added this qualification, “ unless the defendant has proved some right to her in himselfj or those who assisted in such taking.” This is not the law. There may be many interests in property which will not justify a trespass by taking it. The right of property may be in one and the right of possession in another. At the very least, the jury should have been told that the defendant, or ■those under whom he acted, should have shown affirmatively that he had a right to the immediate possession, before there ■could be any pretense of a justification for taking the mare from the defendant’s possession.

The, judgment is reversed, and the cause remanded.

Judgment reversed.