
    Andrew Roberts vs. Thomas Wentworth.
    In an action of trespass against an officer, for taking and carrying away goods, which he has attached and claims to hold as the property of the plaintiff, the officer is not estopped to deny the property of the plaintiff in the goods.
    An instruction to the jury, in an action of trespass for taking and carrying away goods, that, in order to entitle the plaintiff to a verdict, he must show a title to the property, or to some part of it, at the time of the alleged trespass, is not erroneous.
    It is no ground of exception, that paroi evidence was improperly admitted to prove a fact, which was fully proved by other competent evidence.
    This was an action of trespass brought against the defendant, one of the constables of the city of Lowell, for taking and carrying away certain goods and Chattels of the plaintiff, alleged in the writ to be of the value of $210.50.
    At the trial, before Bigelow, J., in the court of common pleas, it appeared, that the goods and chattels in question, at the time of the taking, were not in the possession of the plaintiff, but- were packed up and placed in a railroad car to be carried from Lowell to Boston, where they were taken by the defendant.
    The defendant, among other things, offered to prove, that after the goods were taken by him, and before the date of the plaintiff’s writ, the plaintiff was admitted to take the poor debtor’s oath, as appeared by the magistrate’s certificate, in due form, which was produced. It also appeared, that upon examination, in answer to questions proposed to him before the magistrate, the plaintiff stated on oath, that he was not worth twenty dollars, and had no property whatever. These questions and answers were not reduced to writing. The plaintiff objected to this evidence, but it was admitted by the court. There was no evidence in the case to show the value of the goods.
    The presiding judge instructed the jury, upon this evidence, that, in order to entitle the plaintiff to recover, it must be shott n, that at the time of the alleged trespass, he had a title to the property or some part of it set forth in his writ; otherwise their verdict must be for the defendant. The jury thereupon returned a verdict for the defendant, and the plaintiff excepted.
    
      L. Gale, for the plaintiff.
    
      W. Rogers, for the defendant.
   Wilde, J.

There is, we think, no question, that the instruction to the jury was correct. It is objected, that the goods were taken by the defendant by virtue of a writ against the plaintiff, and were attached as his property, and therefore that the defendant is estopped to deny that they were the plaintiff’s property. But we think otherwise; for if the attachment was made by mistake, supposing the goods to be the plaintiff’s property, when they were not, there can be no reason why the plaintiff should be entitled to an action for taking property to which he had no title.

It was objected, that the instruction to the jury, that to entitle the plaintiff to recover, he must show that at the time of the alleged trespass he had a title to the property, or to some part of it, was incorrect, and might mislead the jury ; the word title being a word of an indefinite meaning. But we think there is no foundation for this exception. A party may have a title to property although he is not the absolute owner. If he has the actual or constructive possession of property or the right of possession, he has a title thereto, although another party may be the owner. But if the plaintiff had not the possession, nor the right of possession, nor the right of property, he certainly could not maintain his action. An objection was made to the paroi evidence of the plaintiff’s examination before a magistrate on his application to be admitted to take the poor debtor’s oath. But this objection is immaterial as all the material facts proved by the paroi evidence were fully proved by the magistrate’s certificate.

Exceptions overruled.  