Miller v. Clay

STONE, J. The testimony which the plaintiff, Miller, was allowed to give on the trial below, did not relate to any “ transaction with, or statement by'' Burns, defendant's intestate. Hence, it did not fall within the exception to section 2704, Revised Code; amended, Acts 1874r-5, p. 252. The Circuit Court did not err in admitting it. The Revised Code, page 677, furnishes a form of complaint for “trespass in taking goods” which is brief and simple. It contains the averment that the chattel or chattels sued for are “the property of the plaintiff.” One of the-necessary elements of a right of recovery for taking goods, is that the plaintiff shall have a general or special property in them. Possession of personal property, however, in the absence of countervailing proof, is evidence of ownership; and under such circumstances, the law presumes the title is-with the possession.—Donnell v. Thompson, 13 Ala. 440; Governor v. Campbell, 17 Ala. 566; Finch v. Alston, 2 Stew. & Por. 83. Possession, or immediate right to the possession-of a chattel, will support such action against one who takes or injures such property tortiously.—Hare v. Fuller, 7 Ala. 717; Davis v. Young, 20 Ala. 151. The charge in the present case was: “If the jury believe-from the evidence that the property sued for in this action was taken from Miller’s possession by the defendant, James-M. Burns, or under his order or instructions, though he may not have been present, then the defendant is liable in this action.” It will be seen that in this charge one of the facts necessary to be found by the jury was, that the property should have been taken from Miller’s possession. It could not be taken from his possession, unless it was first in his possession; and if in his possession, then it was prima facie' his property. Such prima facie right is good against a wrong-doer; and as the record does not show that Burns had any right or claim to the property sued for, the charge was correct, and full enough. If the proof had tended to-show any right in Burns, the charge would have been too restricted in its area. There is no error in the record, and the judgment of the-Circuit Court is affirmed.