¶1*424The opinion of the court was delivered by
¶2By the terms of the lease, Leonard acquired only a conditional right to the cow. This conditional right would not become absolute, until performance by him of the conditions in the lease on which his right depended. He does not appear to have performed them at the time he sold the cow to the plaintiff, and probably his sale, if he had had no other title, would not have given the plaintiff any right as against the defendant, to take the cow away from the farm. For this reason, it might be difficult to uphold the charge of the court which led to the general verdict. But our statutes authorize the taking of a special verdict. Gen. Sts. 266, § 35. And when taken, it is the duty of the court to render the proper judgment upon the facts found by it. The case does not show that any exception was taken to the admission of evidence, or to the charge of the court, or to any decision by which the special verdict was arrived at, except that the defendant excepted to the submission of a special verdict to the jury at all; and in this respect there was no error. ■
¶3Inasmuch as there may have been error in reaching the general verdict, the correctness of the decision overruling the motion in •arrest, is to be determined upon the facts of the case, as settled by the special verdict. The case shows that there was no dispute but that Leonard sold the cow to the plaintiff, nor but that the defendant took the cow out of the possession of the plaintiff. The special verdict settled that the cow was given to Leonard by the defendant, and that the gift was perfected by delivery, and the amount of damages. The facts undisputed and those found, show that the plaintiff had the right to, and the possession of, the cow, and that the defendant took her out of his possession, and the damages; and these facts entitled the plaintiff to the judgment rendered.
¶4Judgment affirmed.