
    Jacob Morgan vs. William Ide & another.
    A refusal of the presiding judge to rule, on a motion to that effect, made by the defendant before offering any evidence, that the plaintiff, on the evidence introduced by him, cannot maintain his action, is not a subject of exceptions.
    A father, owning certain horses and carriages, put them into the possession of his son to enable him to earn his livelihood, making no stipulation as to the length of time during which the son should keep the property, and telling him that whenever he (the father) should be put to any expense on account of it, he should take it away and sell it. The son established a livery stable accordingly, paying the expenses himself, and taking the profits to his own use ; and on one occasion let a horse and carriage to go to a particular place; but the hirer drove them to another place, where they were attached as the son’s property, on a writ against him, and the attaching officer refused to give them up, when demanded by the father. It was held, that the father had such a right of posses sion as entitled him to maintain trover for them against the officer.
    This was an action of trover for a horse and buggy, tried before Merrick, J., in the court of common pleas.
    From the evidence on the part of the plaintiff, it appeared that the horse and buggy were his property ; that this horse and buggy with certain other horses and carriages were put by him into the possession of his son, Jacob Morgan, Jr., for the purpose of enabling him to get a living; there was no oargain between them relative to the property, or the length of time the son was to keep it, but the plaintiff told him that whenever he (the plaintiff) was put to any expense on account of it, he should take it away and sell it. Jacob Morgan, Jr., thereupon put the horses and carriages into a stable in Providence, and kept a livery stable there, and from time to time, as he had opportunity, let the horses and carriages and took the hire thereof to his own use; he provided hay and grain for the horses, and had a sufficient quantity on hand to support them, at the time of the alleged taking and conversion of the horse and buggy by the defendants.
    It also appeared, that on the 21st day of June, 1848, while Jacob Morgan, Jr., so had possession of the horses and carriages, he let the horse and buggy to one Stever Perkins to go about three miles, to a place called Swan’s point, in Providence, but that Perkins did not go to Swan’s point, but instead thereof, drove the horse in said buggy to the town of Seekonk, in this county, and that on the same day of the letting and very soon after his arrival there, the horse and buggy were attached by Ide, one of the defendants, on a writ against Jacob Morgan, Jr., in favor of the other defendant, and by his direction, as the property of said Jacob Morgan, Jr., and that as soon as the said Jacob Morgan Jr., knew where the property was, after the attachment, he informed the plaintiff thereof, and the plaintiff went with him to Seekonk, and there, in his presence, demanded the horse and buggy of the defendants, but they refused to deliver them to him, and afterwards sold the same on the writ. The plaintiff commenced this action after this demand.
    Before offering any evidence, the defendants asked the court to rule, as matter of law, upon the foregoing facts, that the authority or license of the plaintiff to his son, not having been revoked, and no act having been done by him to cancel the same, before the time of the demand, the possession of the property was in the son, and that the plaintiff had no such right of possession as would entitle him to maintain this action.
    The court declined so to rule, and thereupon the defendants excepted to this refusal of the court.
    
      C. I. Reed, for the defendants.
    In order to maintain trover the plaintiff must have at the time of the conversion the actual possession or the right to the immediate possession of the property. Foster v. Gorton, 5 Pick. 185; Hunt v. Holton, 
      13 Pick. 216; Fairbank v. Phelps, 22 Pick. 535. The son had a virtual lease of the property, in consideration that he would take care of and pay the expenses of keeping it, &c.; and it makes no difference whether the hiring were for a time certain or for any stated price or not. Fairbank v. Phelps, 22 Pick. 535; Smith v. Plomer, 15 East, 607. There being a hiring of the property, the son had the actual possession and the right of possession, and the plaintiff had no right to the immediate possession as against the son until he had first demanded the property or in some way revoked the authority or license of the son, and therefore the plaintiff cannot maintain this action. Cases cited above; and Corfield v. Coryell, 4 Wash. C. C. 371; Muggridge v. Eveleth, 9 Met. 233; Soper v. Sumner, 5 Verm. 274; Gordon v. Harper, 7 T. R. 9; Ayer v. Bartlett, 9 Pick. 156; Ward v. Macauley, 4 T. R. 489; Lunt v. Brown, 1 Shepl. 236; Filter v. Shotwell, 7 W. & S. 14; Hunter v. Westbrook, 2 Car. & P. 578. The demand on the defendants was not such a notice as would determine the contract between the plaintiff and his son. Smith v. Plomer, 15 East, 607.
    
      C. B. Farnsworth, for the plaintiff.
   Shaw, C. J.

In an action of trover for a horse and buggy, after the plaintiff’s evidence was in, and before offering any evidence on their part, the defendants asked the court to rule, as matter of law, upon the facts stated in the bill of exceptions, that the plaintiff could not maintain the action, which the court declined to do. Thereupon the defendants excepted to the refusal of the court so to rule.

What further proceedings took place, whether the defendants offered evidence, whether the court instructed the jury, and what those instructions were, does not appear. If any such instructions were given, no exception in matter of law was taken to them. It is very clear, we think, that this exception cannot be sustained. It is in effect a motion for a nonsuit on the plaintiff’s evidence. Although a judge may direct, or, to speak more precisely, advise a nonsuit, when the plaintiff’s evidence is in, if in his opinion the jury, on any just view of the evidence, could not find a verdict for the plaintiff, yet it is purely a matter of discretion; he is never bound to do so, and in many cases, it is most advisable to submit the evidence to the jury, with suitable instructions, in regard to the law applicable to such case. A refusal to direct a nonsuit, therefore, is no ground of exception. Farnum v. Davidson, 3 Cush. 232

But, it may not be improper to add, that upon the evidence stated, we can see no reason why the plaintiff should not recover. His right of property was not contested. When he lent the horses and carriages to his son, it was under an express reservation of his right to resume the possession; the son, by accepting the loan of them, under this notice, assented to the owner’s right so to reclaim the possession. The cases cited by the defendants’ counsel, are those of a lease, of a parting with the right of possession, by an agreement for a certain time, so that at the time of the demand, he had no right of possession. One of the most recent, perhaps, the strongest case cited for the defendants, is that of Muggridge v. Eveleth, 9 Met. 233. It was an action of trespass for a vessel, by the general owner, against the sheriff; and it appeared that at the time of the attachment, the vessel was chartered to a third person for a term of time, not expired, by a parol agreement, held to be binding and valid. All that is necessary in this case is, to show that the plaintiff had a right of possession when he made his demand.

If it were suggested that Perkins, who hired the horse and carriage of Morgan, Jr., had a right of possession for the time being, it appears by the facts, that he hired the horse and carriage to go to a particular place in Providence, that instead of going to that place, he went in another direction, out of the state of Rhode Island, into this county, where the attachment was made. If there was no collusion between the hirer and the attaching officer and creditor, of which the circumstances would seem to raise some suspicion, proper to be considered, if material, by a jury, yet by this deviation, he had forfeited all right of possession, acquired by the hiring.

Exceptions overruled.  