Hunter v. Carter ( 1871 )

Opinion by

Judge Peters:

The evidence shows that appellees were in the actual possession of the mare sued for at the time she was taken, and the general rule as to personal .property is that bare possession without the absolute or strict legal title confers a right of action against a mere wrong-doer having no right and not clothed wtih any authority from the real owner, 1. Chit; pleadings 151. Here no evidence was introduced to show that appellants had acquired the title of the United States government or of Col. True, and in the absence of such proof, appellee’s possession gave him a right to recover, consequently the instructions asked by appellants' were properly overruled, and if they borrowed the mare from appellee, the instruction given on his motion was more favorable to appellants than it should have been in as much as the jury was told if they borrowed her and returned her within the time stipulated for her return, the law was for them, regardless of her condition at the time they returned her.

Wherefore the judgment must be affirmed.