The opinion of the Court was drawn up by
Rice, J.Trespass for taking and carrying away a certain lot of machinery, &c. The case comes up on report and exceptions. The plaintiff is understood to claim title to, or the. right to have possession of, the articles sued for, by virtue of a mortgage from one Leonard E. Craig to him, dated Sept. 28, 1856, and recorded Oct. 2d, 1856. It is also understood that the defendant claims to justify as an officer, having attached the property on a precept, Dec. 9, 1857, in favor of one Cummings, and against the said Leonard E. Craig. The mortgage is not made part of the case. We are consequently ignorant of its» terms. Nor do the pleadings show that the defendant justifies as an officer; nor is there any evidence that, at the time of the attachment of which complaint is made, Cummings had any existing legal claim against Leonard E. Craig.
The case does show, however, that the plaintiff had possession of the property in controversy, by his agent, Leonard E. Craig, at the time of the attachment. That possession was sufficient to entitle him to maintain trespass against a mere wrongdoer, a naked trespasser, in which light the defendant stands before us.
It also appears in the case, that the plaintiff took his mortgage to secure the payment of a note for $500. To show that this note had been paid, the defendant was permitted to prove by Mr. Burgess, subject to plaintiff’s objection, that Leonard E. Craig, who was the agent of the plaintiff, and, as we infer, had charge of the property covered by the mortgage to the plaintiff, said that “ he had received, for what he *419had disposed of then, (summer of 1857,) over six hundred dollars in cash.” These declarations, under the rule laid down by a majority of this Court, in Bank v. Steward, 37 Maine, 519, were erroneously admitted.
Objections have also been taken to other instructions, based, however, principally upon the mortgages referred to in the case. These mortgages not being before us, we are unable to determine whether those objections are well taken or otherwise, - jExceptions sustained—
Verdict set aside, and
New trial granted.
Tenney, C. J., and Appleton, Goodenow, Davis, and Kent, JJ., concurred.