Millay v. Butts , 35 Me. 139 ( 1853 )

Shepley, C. J.

— The suit is trespass for taking certain personal property. For the plaintiff it was insisted, that if he had proved to the satisfaction of the jury possession of the property at the time of taking, the burden of proof was upon the defendant to satisfy them that it was the property of James Millay. The Court refused so to instruct.

Possession of personal property is sufficient evidence of title, until there be proof of a superior title. Brown v. Ware, 25 Maine, 411. The requested instructions might have been legal and appropriate, if there had been testimony in the case, to which they could have been applicable. But the Court does not err in refusing such instruction, when there is no such testimony. The exceptions state, that there was “ no other evidence of the possession or right of possession in the plaintiff' excepting that tending to show, that he was the owner thereof.” This is equivalent to a statement, that there was no proof of possession, unless he was to be regarded as in possession, because he was the owner of the property. The instruction given upon such a state of facts was correct, that the burden of proof was upon the plaintiff to satisfy the jury, that he was the owner of the property. He could not have been aggrieved by a refusal to instruct in a manner, that would have been legal and appropriate, if there had been testimony introduced, to which the instructions might have been applicable.

It is not now insisted that the instructions respecting an alleged defective return of the officer were not correct.

Exceptions overruled.

Wells, Howard, Rice and Hathaway, J. J., concurred.