1. From the finding of the jury under the instructions of the court, it must be assumed, for the purposes of the appeal, that plaintiff was in actual possession of the property in controversy at the time it was taken by the defendants, and this is sufficient to enable him to maintain an action of replevin therefor against a wrongdoer: Faull v. Cooke, 19 Or. 455 (26 Pac. 662: 20 Am. St. Rep. 836); Casto v. Murray, 47 Or. 57 (81 Pac. 883). The court -ruled and instructed the jury that the bill of sale from Frederick to the plaintiff was not sufficient evidence of title to enable him to recover in this action, but they must find for the defendants, unless the plaintiff was in the actual possession at the time the property was taken. The question of the validity of the bill of sale and its competency as evidence are therefore immaterial.
2. It is a settled law in this state that, where an officer attempts to justify the seizure of property in the possession of a stranger to the writ, he must allege and prove facts necessary to support the writ, and that the property belonged to the defendant therein: Guille v. Wong Fook, 13 Or. 577 (11 Pac. 277); Lewis v. Birdsey, 19 Or. 164 (26 Pac. 623); Fisher v. Kelly, *42630 Or. 1 (46 Pac. 146). This rule was not observed in this case, and it was not error, therefore, for the court to refuse to admit in evidence the record in the attachment proceedings.
3. The statement in the affidavit for claim and delivery filed by the defendant, that the alleged cause of the detention of the property by defendants was the seizure by them under an alleged writ of attachment against Frederick, is no part of the pleadings, and cannot aid a defective answer.
4. There was no error in denying the application of the defendants, made during the trial, to amend their answer by pleading the attachment proceedings. Applications of this kind are addressed to the sound discretion of the trial court, and its ruling will not be disturbed except for an abuse of such discretion, which is not shown here: Wallace v. Baisley, 22 Or. 572 (30 Pac. 432).
5. Thére was no error in sustaining the objection, to the following question propounded to the witness Taylor. “Could any reasonable person doing business with Mr. Frederick, in supplying parts of machinery for that machine, know that you controlled it?” It called for the mere opinion of the witness, and not for any facts pertinent to the case.
6. Conversations held by third persons with Frederick, not in the juesenee of the plaintiff or his agent, concerning the-bill of sale from him to the plaintiff, were clearly incompetent, and not binding on the plaintiff.
There being no error in the record, the judgment is affirmed.
