The opinion
The opinion of the Court was drawn up by
Shepley J.
— The testimony presented in this bill of exceptions might have authorized a jury to find, that the plaintiff at the time of the attachment was the owner of two cows; and that one of them was taken by the officer to apply the proceeds to the payment of his debts. The question presented for consideration however is not, whether a verdict for the plaintiff was properly authorized by the testimony ; but whether the instructions to the jury were correct, and those requested properly withheld. The first request for instruction was, “ that if the evidence of Turner was believed, the plaintiff had no *449 right to maintain this suit.” According to the testimony of Turner the contract between him and the plaintiff existed only during pleasure, and the plaintiff had a right to take possession of the cow and determine the contract, whenever he pleased : and had also a present right to control her even without putting an end to the contract. When one is the owner of goods and has a right to take immediate possession, he may maintain an action of trespass for taking them. Walcot v. Pomeroy, 2 Pick. 121 ; Lunt v. Brown, 1 Shepl. 236. The second branch of the requested instructions was, that if the plaintiff and Turner “ both held out to the world, that it was the heifer of the plaintiff, that the defendant was justified in making the attachment.”
It was not to the cow attached and now the subject of controversy, that this requested instruction related. And a compliance with the request would have been in effect to declare erroneously the law to be, that if the plaintiff and Turner represented generally, that the plaintiff did own a piece of property, when he did not own it, he would thereby forfeit his right to another piece of property, which he did own.
It is also insisted, that the testimony did not authorize the instruction, “ that the plaintiff had not parted with the possession of the cow, he living with Turner on the place.” Tt is not necessary to inquire, whether this was strictly correct, for the jury were also instructed, “ that if he had parted with the possession, he had such a right to resume it, that he could maintain this suit.” The latter clause of those instructions being correct the former became immaterial, and the defendant was not injured by it.
Exceptions overruled.