dissenting:
I do not agree with my brethren that there was any error, in sustaining the objection to the question asked of Mrs. Cudney, on cross-examination, concerning her informing Sevenoakes of her claims. It can hardly be seriously claimed that the silence of the real owner, whose property has been sold by another without her knowledge, can usually, in any way, -affect her right to disregard such tortious *245action. A purchaser cannot protect himself against the real owner, if the latter has not misled him, in making or completing the purchase or payment, by conduct which was inconsistent with the honest incidents of ownership. ■In the case before us, at the time when Mrs. Cudney was asked the question rejected; it only appeared that her horse had been taken from her possession, without her authority or consent, by defendant and John Sevenoakes,, defendant claiming under an asserted chattel mortgage, but it not appearing from whom; that her husband had sold the horse without authority, at a time when they were on a visit to East Saginaw, where he had driven the horse, in a team, from Canada; and that, on the day after the sale, her husband told her of it as they were going to breakfast at the house of Sevenoakes. There was nothing in the case at that time which tended to show that she had reason to believe the horse was not. fully paid for, nor was there any testimony at that time tending to show that Sevenoakes or defendant did any act, subsequent to her ascertaining about the sale, which they would not have done had they known of her claim. "When, therefore, the Court refused to allow her to be asked whether she informed Sevenoakes of her claim, there was nothing to show that such information could have been in any way material. The propriety of its rejection cannot be affected by the subsequent introduction of evidence for the defendant, which might have made it pertinent. It could only be made pertinent by facts relating strictly to the defendant’s case, which, as an estoppel, was, in its nature, one of avoidance; and although the Court might, perhaps, have allowed this case to be opened on a cross-examination' of the plaintiff’s witnesses, yet it is not usual for this to be done until there is something to connect it with, and it is certainly no error in the Court to refuse it. I think the testimony was immaterial when offered, and that, had the question *246been answered in such a way as to show plaintiff had not informed Sevenoakes, the answer would not have affected her claims as they then appeared. It is evident that the Court below took this view of the matter; for when the defence was opened, and facts were introduced which might be claimed to form a foundation for an estoppel against her, the Court admitted evidence that she had not informed Sevenoakes of her rights, and the facts went on this point to the jury. I do not deem it necessary to comment on the weight of the facts proved, as their consideration does not belong to any tribunal but the jury; and there is no reason to suppose, from the record, that the jury were not properly instructed on the subject. There is no exception based upon any such ground, and the Court below must be presumed to have-given them all needful cautions. The charges given were correct so far as they appear, and the charge refused was rightly refused.
While I fully agree that circumstances may exist when silence is not consistent with the duty of an ownér of property, yet I think that such silence can never be material until it appears, at least, that some step has been taken which m'ay have been had in reliance upon it, and this did not appear until after this question had been asked and rejected.
I think the judgment should be affirmed.