¶1delivered the opinion of the court. .
¶2The only question from the above statement, of any importance for our consideration, is that which respects the plaintiff’s right to maintain this action. Can the plaintiff Holliday, who never had the actual possession of the mules in question, and who was not the general owner, maintain replevin against the defendant, Lewis, who had the mules in his actual custody?
¶3Chitty, in his Treatise on Pleading, says a person having a special property in the goods may support trover against a stranger who takes the goods out of his actual possession; as a sheriff, carrier, factor, a warehouseman, consignee, pawnee, or trustee, or anjagister of cattle: 1 Chitty’s Pleadings 173. There must be actual possession; the goods must be taken from the possession of him who has the special property.
¶4“An action for an injury to personality may also be brought in the name of the person having only a special property or interest of a limited or temporary nature therein. But in this case, the general rule seems to be that the party should have had the possession.” 1 C.’s Pld’ngs 71
¶5Greenleaf, speaking of evidence in trover, says, there must be shown in the plaintiff a right to the present possession of the goods. If he has only a special property, there must ordinarily be evidence of actual possession. 2 Greenleaf Ev. section 640.
¶6In this case, the testimony only shows an authority given to the plaintiff by one Archer W. Gillespie to send for, take and receive any mules or horses which strayed from the party or had been left upon the road by the escort of Commodore R. F. Stockton, under the command of said Gillespie. The plaintiff was merely the agent of said Gillespie, to take and receive the mules or horses that had strayed or been left on the route. He never had these mules in his possession; was not in any way liable over for them to Gillespie, and has no right of action in his own name for them. The court below erred in refusing to give the instructions asked for by the defendant in regard to the plaintiff’s right to immediate possession — also in regard to the right of a person who has a special property to maintain this action, without actual possession hav*407ing been once had. The authorities are ample on this subject, and although, these here cited speak of the action of trover, they are applicable to replevin.
¶7The court erred in giving the instruction to the jury which appears om the record as the first one given. This instruction does not contain the law of the case.
¶8There is much testimony preserved in the bill of exceptions, which is nothing more than hearsay, and it should not have been given to tho jury.
¶9The other judges concurring, the judgment below is reversed and cause remanded tobe further proceeded in accordance with this opinion-