
    Lawrence Williams against Thomas Belthany.
    “77; 7 Cattle ranging woo3?are“tunn the constructive °0nw^rth*
    This was an action of trover for five head of cattle. The testimony proved that the cattle # # belonged to the wife of the plaintiff before marriage; and it appeared further in evidence, that Williams, the plaintiff, after marriage, exercised the usual acts of ownership: he employed an agent to look after, and attend to them; and who was authorized to sell them by Williams. One Gardner was in treaty with the agent of Williams for the same, on the death of the wife of the plaintiff The defendant interposed a claim; and he attempted to establish by testimony, that before the marriage of Mrs. Williams with the plaintiff, she had given those cattle to him to dispose of as his own property; and that, from thenceforth he had the care, possession, and management of the same; that he had agreed to sell them to Mr. Gardner, and that after the death of Mrs. Williams he had completed the contract by delivering them. Another defence was set up: to wit, That Williams’ wife had died before the action was brought, and without issue; and it was contended that the power which had been given by Mrs. Williams to the defendant, having been exercised, the proceeds of the sale was merely a chose in action, and would not go to the husband, but would appertain to the representatives of the wife, the husband never having reduced the same into possession during the coverture. There was r ^ ° J other testimony not noticed in the brief: viz. declarations by defendant that Mrs. Williams had ruined her proportion of the estate, and that the cbttle should not go, or words equivalent. The presiding Judge charged the Jury in favour of the plaintiff, who found a verdict for him of one hundred dollars. A motion for a new trial is now made, founded on the grounds taken on the trial of the case, and on the additional one, that the charge of the Judge was not as full as it should have been. It seems that testimony was also offered, that two of the cattle had been penned by Williams, the rest being wild, could not be gathered; and previous to the Jury having retired, the Foreman asked the Court whether the possession by Williams of a part of his wife’s cattle, and which he had sold, was not a possession of the whole that she owned ? The brief states, that the Judge answered this question by saying, that there were cases where the delivery of part of the personal property was the delivery of the whole; and it was objected by the counsel, that the Judge in the specific case should have distinctly stated, that the possession of other cattle belonging to the wife was not constructively such a possession of the cattle in question as would vest the right in the husband.
   Thé opinion of the Court was delivered by

Mr. Justice Gantt.

Upon all the circumstances of this cáse, I am decidedly of opinion that no new trial shoüld be granted. Theré is a seeming contradiction in the two grounds of défence taken oh thfe trial, if thferfe had befen á gift ih truth of these cattle, it would have constituted á defencé sufficient in itself for the defendant to have rfested upon. The prfetence of agency, and that he had contracted for the cattle with Gardner, wás completely rebutted by thé testimony. Had this contract befen évér made, it is presumable, íhát Gardner^ during thé liffe-time of Mrs. Williams, who lived upwards of a year after, Would have interposed a claim; and if the gift had been made as pretended; it is equally presumable that in the several acts of ownership which was éxercised by Williams, the plaintiff during the life of his wife, the defendant would have said something about the gift. Upon the whole evidence it is to be inferred, that there was not the slightest foundation for the opposition which was set up to the just and legal claim of the plaintiff, that the defendant was neither the donee nor agent of Mrs. Williams. In relation to the other grounds of objection, thqt the cattle had not been so possessed by Williams as to entitle him to them by virtue of his marital rights, there is as little propriety. He had the same kind of possession that every man has of such property: they were at large in the woods, and passed for his: this was a sufficient possession. So far from the charge of the Judge being liable to be excepted against by the defendant in the matter alluded to, I am of opinion that it was not strong enough for the plaintiff; I think he should have charged unhesitatingly, that without an actual possession of any part, he was constructively possessed of the whole. The defendant is certainly not entitled to the chose in action, of which the brief speaks; but the plaintiff is more justly entitled to the damages which have been recovered for a tortuous conversion of his property. I am of opinion, that the defendant should take nothing by his motion.

Grimke, Colcock, Cheves, Mott, and Johnson, J. concurred.  