*417Thé opinion of the Court was delivered by

Upon all the circumstances of this cáse, I am decidedly of opinion that no new trial shoüld be granted. Theré is a seeming contradiction in the two grounds of défence taken oh thfe trial, if thferfe had befen á gift ih truth of these cattle, it would have constituted á defencé sufficient in itself for the defendant to have rfested upon. The prfetence of agency, and that he had contracted for the cattle with Gardner, wás completely rebutted by thé testimony. Had this contract befen évér made, it is presumable, íhát Gardner^ during thé liffe-time of Mrs. Williams, who lived upwards of a year after, Would have interposed a claim; and if the gift had been made as pretended; it is equally presumable that in the several acts of ownership which was éxercised by Williams, the plaintiff during the life of his wife, the defendant would have said something about the gift. Upon the whole evidence it is to be inferred, that there was not the slightest foundation for the opposition which was set up to the just and legal claim of the plaintiff, that the defendant was neither the donee nor agent of Mrs. Williams. In relation to the other grounds of objection, thqt the cattle had not been so possessed by Williams as to entitle him to them by virtue of his marital rights, there is as little propriety. He had the same kind of possession that every man has of such property: *418they were at large in the woods, and passed for his: this was a sufficient possession. So far from the charge of the Judge being liable to be excepted against by the defendant in the matter alluded to, I am of opinion that it was not strong enough for the plaintiff; I think he should have charged unhesitatingly, that without an actual possession of any part, he was constructively possessed of the whole. The defendant is certainly not entitled to the chose in action, of which the brief speaks; but the plaintiff is more justly entitled to the damages which have been recovered for a tortuous conversion of his property. I am of opinion, that the defendant should take nothing by his motion.