The plaintiff’s counsel contended that if *540the ownership of the cattle was, as stated by the defendant’s father, still it would be competent for the jury to find the defendant guilty on account of the cow owned by his wife. But the court instructed the jury otherwise, both because there was no evidence to identify this particular cow as one that was seen in the plaintiff’s pasture, and because the cow was said to belong to the wife.
There were two grounds upon which the court declined to give the instructions desired, and these grounds, we understand, were stated to the jury as the rule that should govern them ; one was, that there was no competent evidence to show the particular cow in question to have been upon the plaintiff’s premises, and the other that she belonged to the defendant’s wife, and on that account, also, the action could not be maintained.
In regard to the trespass, the evidence was that the cows kept in Dudley’s pasture, in the year 1850, and which the witness had seen the defendant drive to pasture, were upon the plaintiff’s close. The other witness stated that the cattle she saw committing the trespass, some of which were cows, she had seen at the Dudley barn. Here was competent evidence from which the jury might find these cows and cattle to belong to the Dudleys. They were kept upon the Dudley farm, and the defendant was seen driving them to pasture. They were in possession of the Dudleys, and there was no evidence tending to show them to be the property of others.
But was the evidence competent to show the cow in question to have been trespassing upon the plaintiff’s premises ? We think if was, and that the jury might well have found from it that this particular cow was with the others. The defendant and his wife worked upon the farm; and nothing shows that they owned property elsewhere; and if this cow had been kept upon another farm, or in a different pasture from the other cows, (a thing very unlikely to happen upon the same farm,) the fact would undoubtedly have *541been shown by the father of the defendant. And when the witness speaks of the cows as Dudley’s, or those which he had seen the defendant drive to pasture, and the defendant’s father says that all the cattle upon the farm that year were his, excepting this eow, we think the inference from the testimony and circumstances of the case to be but fair that this eow was among them, and that the evidence was competent for the jury to consider, and from which they might find this cow to have been trespassing upon the close of the plaintiff. And the ruling of the court, in this respect, was wrong.
The other reason given, that the cow was said to belong to the defendant’s wife, is not so clear. The defendant had a deed of the farm, and his father a life-lease of the same ; and the defendant and his wife lived with the father, and assisted in carrying on the farm, and in all probability this cow was kept there with the other stock. Such appears to be the undoubted fact from the testimony of the father. The cow was in the possession of the husband, and at common law would be his property; and the statement that the eow belonged to the defendant’s wife would be a legal untruth. The personal property of a wife, which she had in possession at the time of the marriage in her own right, such as money, goods and chatties and movables, vests immediately and absolutely in the husband, and he can dispose of it as he pleases, and on his death it goes to his representatives, as being entirely his property. 2 Kent’s Com. 143. And so of whatever personal chattels accrue to the wife during coverture, the law gives to the husband the same absolute rights and powers. Burleigh v. Coffin, 2 Foster’s Rep. 125.
But by the aet of 1846, (Comp. Stat. ch. 159, §§ 12, 13,) the wife can hold property to her sole use, separate and apart from her husband; and inasmuch as the manner in which this cow was held did not appear upon the trial, the court will not presume, contrary to the express statement of *542the witness, that the cow belonged to the defendant’s wife, that she was not held by the wife under some provisions of the statute of 1846.
If the cow were the sole property of the wife, held by her for her separate use, a question might then 'arise whether the animal was not in possession of the husband, so as to make him liable for the trespass. But if not so held, the cow would be the defendant’s, and he would be clearly liable.
But it is unnecessary to express any further opinion in regard to these inquiries. The facts respecting the matter can be brought out on the next trial, and the questions be then determined, if necessary..
The court, in their statement to the jury, appear to have taken it as a fact that should govern the jury, that the cow was the sole and separate property of the wife, and that, therefore, the action could not be maintainedand herein, we think, they erred. It appears to us that the instructions were, in this respect, incorrect, and calculated to mislead the jury,. The verdict must be set aside and
A new trial granted*