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.