The objection to the evidence given by the witness^, Shadrack Parsons, that his brother, the plaintiff, had possession of the saw mill, &c. is without foundation. It is not denied that the question of possession was material, but the objection is, that it was a mixed one, of law and fact, and that the witness should only have been permitted to testify as to the facts constituting possession. I think the objection is too nice. The evil apprehended—that of the witness misjudging the meaning of the word possession—can always be guarded against by a cross-examination. It is a word in very common use, and its signification in a popular sense well understood; and although, under some circumstances, it may be difficult to apply it with . safety and certainty, in the great majority of cases there is no difficulty; and where there is, a cross-examination will always set the matter right.
The more important question arises upon the judge’s charge, flit is supposed he erred in instructing the jury that it was notz material which party had the right to the possession of the shingle mill. In this I do not perceive any error. Admitting the defendant had such right, it most clearly would not justify him in committing an assault and battery upon the plaintiff for ✓ the purpose of reducing his right to actual possession. If he had the possession in fact, the law would justify him in using/ violence, if necessary, in order to defend his possession ; and so the jury were instructed. It cannot be necessary to refer to authorities for the purpose of establishing these propositions. $
The true question, under the circumstances, was, which party had the actual possession at the time the assault was committed.
If the defendant had, and the assault was in defense of that possession, he was justified, unless he used more force than was necessary. If the plaintiff had the actual possession, the de- ; fendant was not justified, no matter how perfect his right of ; *594possession. Upon this question of actual possession, there was evidence given on both sides, and it was a proper one to submit to the jury.
It is fair to infer from the bill of exceptions, that other instructions than those mentioned were given by the judge to the jury. It states that “the judge among other things charged the jury that,” &c. I think we are bound to assume that the question of actual possession was properly left to the jury, unless the contrary appears. And oven if he had wholly omitted to say any thing on the subject, it would be no ground of objection, unless the defendant’s counsel had called his attention to it and requested him to charge the jury on the question. He certainly stated the law correctly. He told them that a man might lawfully defend himself in the possession of property. It was equivalent to saying that if the defendant was in possession, he was justified in the use of all necessary force to protect his possession. That was all the defendant had a right to ask, on that subject. If he wished the attention of the jury directed to any particular fact, question or aspect of the ease, and desired the advice of the judge thereupon, he should have so requested. In the absence of any such request, the verdict should not be disturbed, unless for some mistake of law committed by the judge, affirmatively appearing upon the bill of exceptions. (Dunlap v. Patterson, 5 Cowen, 243. Douglass v. McAlister, 3 Cranch, 298. Smith v. Carrington, 4 Id. 62. Vasse v. Smith, 6 Id. 226. Burtch v. Nickerson, 17 John. 217. Ward v. Lee, 13 Wend. 41. Gardner v. Picket, 19 Id. 186. Ford v. Monroe, 20 Id. 210. Simpson v. Downing, 23 Id. 316. Stafford v. Bacon, 1 Hill, 532. Underhill v. Pomeroy, 2 Id. 603.)
The question of the right of possession was litigated upon the trial, and evidence given upon it on behalf of each party. It was proper, as affecting the question of actual possession, and perhaps upon the question of damages ; at all events, no objection was made to it by either party. The judge submitted the evidence on that subject to the consideration of the jury. Upon the whole, I am not able to perceive that any error was commit*595ted by the judge at the trial, and think the order granting a new trial should be reversed, and that the plaintiff should have judgment upon the verdict.
[Monroe General Term, September 5, 1853.Welles, Seldom and T. R. Strang, Justices.]
Ordered accordingly.