
    Crawford and Smith vs. Bynum.
    When the defendant, in an action of trespass, offered to prove the right of property in a third person, but the bill of exceptions did not set out the evidence, or show that the plaintiff had not a possessory right to the property: Held, that the evidence offered was irrelevant, and that the court will presume that the evidence was of such a character as to authorize the judgment given by the court below.
    This is an action of trespass for taking personal property. The declartition is in the usual form; the defendants below pleaded jointly not guilty; and Smith pleaded separately, justification as a constable, by virtue of an execution founded on a judgment in favor of his co-defendant, Crawford, against one Gordon. Upon these pleas issue was taken. A verdict and, judgment were rendered for the plaintiff below, and a motion for a new trial which was overruled. The bill of exceptions does not set out the proof in the. cause, but it shows that in the progress of the trial, the defendants below offered to read an execution in favor of Hays against Williams, with a levy endorsed thereon, for the purpose of proving the title of the property in controversy to have been in one Williams and not in the plaintiff Bynum. This evidence was excluded by the court.
    
      G. J. Pillow, for plaintiffs in error.
    
    The material question for the consideration of the court is, ought not the court to have received the proof offered and let it havegone to the jury. In 2 Selwynn’i Nisi Prius, 493, &c. it is laid down that in the action of trespass, any proof which would show the right or title of the property sued for, to be in any one else than the plaintiffs is competent. The same doctrine is also clearly laid down in 3 Starkie’s Evidence, 14, 55-6, 706. If the proof offered and rejected by the court would have had any tendency to defeat the plaintiffs action, it ought to have been received. In the action of trespass, a man may maintain the action either upon !iis right of property or upon the bare naked possession, if he have the right to that possession. In this cause there was no possession, but the plaintiff relied upon his right of property. If the property sued for had been his, he ought to have recovered; but if not his, be ought not to have recovered. The issue then on the trial being, was it the plaintiffs property or that of some one else, it was clearly competent to have shewn the right of property to have been in William Williams; and yet this proof the circuit judge excluded from the jury. The proof should have gone to the jury, and its effect, in law towards defeating the action should have been determined by the court in its charge to the jury. On this ground the circuit court erred in not granting a new trial; no principle being better settled than that if proof is neglected which ought to have been received, a new trial should be granted.
    
      Jl. O. P. Nicholson, for defendant in error.
    Under the plea of justification the execution could not be read, because it was a different execution from that described in the plea. Under the plea of not guilty, the execution was properly rejected, because the execution was not accompanied by the judgment on which it was founded, which was essential. 5 Burrows, 2631: Martyn vs. Pod-gerand others, 1 Lord Ray. 733: 2 John. Rep. 47.
    The levy endorsed on the execution was not admis-sable evidence to prove that the title to the property was in Williams.
    This being an action for damages to the possession of the plaintiff below, and nothing more being required than possession or the right of possession by the plaintiff, to maintain his action, this court cannot see that the proof showing the right of property not- to be in the plaintiff, could be relevant. The, proof, in the cause not being set out, this court will presume that the plaintiff below had the possession or the right of possession, and therefore that he was entitled to recover, although the right of property was in an other.
   Green, J.

delivered the opinion of the court.

This is an action of trespass for taking with force and arms various articles of furniture, the property of the plaintiff.

On the trial the defendant offered to prove that the property seized belonged to a third person, and not to the plaintiff. This proof was rejected by the court, to which the defendant excepted, and prosecutes this appeal in error.

No part of the evidence is set out in the bill of exceptions, so that we are unable to perceive that this testimony offered could have been relevant. If the plaintiff had previously proved that he was in possession of the property when the trespass was committed, or had a right to the possession, that would entitle him to the action: proof that the property taken was owned by another, could not deieat it. It follows that in such case, the proof offered would be irrelevant and incompetent. As the party excepting has not set out the whole case, we are to presume that it was of such a character as to authorize the judgment the court gave.

This is not like the cases cited from 3 Starkie, 1456, where the defendant may prove that the premises belonged to another, by whose authority and license he entered.

Judgment affirmed.  