The plaintiffs’ declaration alleges that the defendant converted to his own use the articles enumerated, the property of the plaintiffs. The answer denies both the conversion and property in the plaintiffs ; and, in a very imperfect manner and with unnecessary verbiage, alleges in substance that the articles were the property of Morris Matson, and were attached by the 'defendant on a writ in favor of the American India Rubber Company against Matson.
The plaintiffs having offered evidence that they purchased the articles of Matson before the defendant took them, one of the plaintiffs, being upon the stand as a witness, was asked by his counsel, “ Did you take possession of the property ? ” It is objected that the question was illegal, because possession consists partly of law and partly of fact. But it is a sufficient answer to this to say that the word is often used merely in reference to the fact, and the defendant could have protected himself from all prejudice by cross-examination. The instructions of the court were a sufficient protection.
The plaintiffs proved that they gave to the defendant notice of their claim. It is not uncommon to give such notices even *519when they are not necessary, and they are admissible in evidence. They are proper in such cases as precautionary measures. 1 Chit. Gen. Practice, 438. The instructions of the court protected the defendant from being prejudiced by this evidence.
Exceptions overruled.