of the property in suit. The rule is that before a witness can be called upon to give an opinion it must be first shown that he is competent from study, peculiar business or relation to the thing, to have a knowledge of the subject. Town of Independence v. Saunders, 24 Pac. Rep. 506; Nelson v. Insurance Co., 71 N. Y. 453; Jones v. Tucker, 41 N. H. 546; Buffman v. Harris, 5 R. I. 251. An hypothetical question calling for an opinion of a witness must be based on evidence in the case and can only contain such elements as the evidence tends to prove. People v. Vanderhoof, 39 N. H. 28; Meeker v. Meeker, 37 N. W. Rep. 773; Burgo v. State, 42 N. W. Rep, 701; Muldowney v. Railroad Co., 39 Iowa 615. The evidence showed that the vendor exercised the same control over the horse after the sale as he did before, hence appellant was entitled to have the court direct a verdict in his favor. Hesthal v. Myles, 53 Cal. 623; Warner v. Carlton, 22 Ill. 415; Stephenson v. Clark, 20 Vt. 624.
Ball & Smith, for respondent:
The statute has no application to a case where personal property is, at the time of the sale, in the possession or control of a bailee or third person. Thomas v. Hillhouse, 17 Iowa 67; Lansee v. Wilson, 17 Iowa 582; Case vy. Burrows, 54 Iowa 679; Campbell v. Hamilton, 19 N. W. Rep. 220. See the following decisions on the question of delivery and actual possession: Ingalls v. Merrick, 108 Muss. 351; Thorndyke v. Bush, 114 Mass. 116; Hobbs v. Carr, 107 Mass. 532; McKee v. Garcellon, 60 Me. 165; Bridge Co. v. Nye, 60 Me. 372; Sawyer v. Nichols, 40 Me. 212; Farwell v. Smith, 64 Me. 74; Reed v. Reed, 70 Me. 604; Smith v. Chrisman, 91 Pa. St. 428; Norman v. Cramer, 73 Pa. St. 378; Woods v. Hull, 81 Pa. St. 451; Stephenson v. Clark, 20 Vt. 624.
The opinion of the court was delivered by
Corliss, C. J. The plaintiff, as vendee of H. J. McKee, has recovered a judgment against the defendant for the seizure by defendant, as sheriff of Cass county, in this state, under a warrant of attachment against McKee, of a stallion purchased by the plaintiff of McKee prior to such seizure. The defendant,
