The first question is, whether the property be the plaintiff’s, or his son’s. If his son’s, the plaintiff has suffered no damage, and can recover nothing. If the plaintiffs’, you will find in damages the value of the property taken, but no more ; for, having left the property in possession of his son, he gave reason to believe, that it was his son’s, and an officer, under such circumstances, ought not to be punished.
2. Possession is evidence of property, or of a fraudulent collusion between the owner and possessor ; and he, who gives the credit, must bear the loss. The question then will be, whether Moses Hall, in leaving this property in the possession of his son, did any thing more, than is usually done, without implying any right ; or, whether he meant it as an advancement to his son ; or, though he did not mean it so, whether he gave reason to believe this, and, thereby, gave a false credit to his son. If he either meant that the cattle in question should be the property of his son, or that this should be believed, you will consider the property as accompanying the possession, and you ought to find for the defendant.
The Jury found a verdict for the plaintiff, damages 43l. 17s. 6d.
Note. A nonsuit was moved for at the next term. But as the court, to induce the parties to a compromise, had given no opinion, when these notes were concluded ; I have incorporated the arguments and observations on the motion for a nonsuit after verdict, with those made on she trial.