Majority
p. 429Holt against Johnson. NEW-YORK, October, 1817.
Headnote
Where the. plaintiff dis-The h¡sntuwn,i™ut of njítfó/üyTlah t!™ IgiUd nant and the the“iáuer '¡f pounding the horse, might Hse;him, until the day of sale ; J^evioul'tó the liT deknSnt' S o™er‘of Mm ou^VtiS session, it *was tenant badft£o from the defendant to make the still the using the horse ^regMaiity and as by the provi-, sionsof the 10th . section of the act concerning distresses, S-c. sess 36. c. 63.(1 R. L. 436.) the plaintiff was protected from being deemed a trespasser ab initio, the defendant could not treat the distress as a nullity, and. therefore, committed a trespass in taking the horae.IN ERROR, on Certiorari to a justice’s court. 7 J
The defendant in error brought an action of trespass in the court below, against the plaintiff in error, for taking a horse out the harness, while in the possession of the plaintiff below, (the defendant in error.) The defendant below, having proved that the horse was his property, the plaintiff proved, that he, as of certain premises in the occupation of one Soule, had regularly distrained' the horse for rent arrear, while the horse was on the leased premises, and in the charge of Soule the ° tenant, as bailiff for the defendant; that after the horse was 1 1 seized, Soule, who then claimed to be his owner, agreed with the plaintiff, that instead of sending the horse to an open pound the plaintiff might take him home, and use him for his keeping, until the day of sale ; and the plaintiff did so ; and while he was so using the horse, between the time of making the distress and the day of sale, the defendant came and took away the horse, which was the trespass complained of* The "justice save iudg- ; r ¿i. 1 i 1 J b Jb ment tor the piamtm below, x
The judgment was right. The plaintiff below
p. 430
acted in good faith, under the agreement for the use of t~-ie horse made with Soule, who had him in his possession, and who claim~ ed to be the owner. There is reason to believe, from the nature of the bailment, between the defendant Holt, the true owner, and Soule, that Soule had authority, as the agent of the defendant, to make the agreement with the plaintiff for the use of the horse; and if so, the defendant has sustained no injury. But, at most, the using the horse was merely an irregularity, after a regular distress; and the 10th section of the act concerning distresses, &c. (1 ~M R. L. 436.) protects the plaintiff from being deemed a trespasser ab initio, and makes him liable only for the special injury. The defendant, therefore, had no right to consider the distress as a nullity, and in taking the horse he committed a trespass. The judgment must, therefore, be aflirmed.
Judgment affirmed.