
    James Hook v. Edward Robison.
    THIS was an action of indebitatus assumsit for 50l. had and received.
    Young, for the plaintiff,
    offered to prove, that Hook and Robison exchanged horses, Hook giving with his horse 8l. That, it afterwards appearing, that the horse which Hook had received from Robison, having been stolen from one Rhinberger in Maryland, was reclaimed by him, Hook had given him up to the owner, and now brought this action, to recover the money which he had given to Robison, and also the further sum of 26l. Virginia money, which, he proposed also to prove, Robison had afterwards received, for the horse he got from Hook and sold to another.
    
      Woods and Purviance, for the defendant.
    The action is for money had and received, we cannot admit evidence of a horse had and received.
    President. The evidence is clearly proper and must be admitted.
    The evidence was then given, as stated.
    
      Woods, The plaintiff, having given up the horse to Rhinberger, without any verdict or suit, has no right to call on the defendant now for the value of him; as it has never been established, that the defendant had not a good title to him, at the time of the sale. No man’s property shall be taken from him, but by trial by jury. Were it otherwise, the plaintiff’s cruel and indelicate treatment of the defendant, in having him indicted for a felony of which he was acquitted, ought to prevent any recovery by him, and subject him to the costs of the prosecution. The acquittal on this indictment is evidence, that the defendant had the property of the horse.
    Young, for the plaintiff.
    
      Hook had his option to contest the property of the horse with Rhinberger, or give up the horse, and sue Robison. We are not now trying an action for a malicious prosecution.
    
      
      
        Robison had been indicted in Washington for stealing Rhinberger’s horse, and acquitted, chiefly for want of Rhinberger's testimony to prove that the horse was really stolen ; so that it appeared only that he was claimed by Rhinberger as stolen from him.
    
   President. 1. It is true, the plaintiff might have kept the horse, till Rhinberger compelled him by law to give him up. But then he must have run the risk of paying the costs of that law suit, and of never recovering this additional loss from Robison. His not taking this method is no injury to the defendant; for he may now prove, that the horse was his; and, if he do so, Hook will recover nothing.

2. You ought not, in this collateral action, to punish Hook for a malicious prosecution. Robison may seek his remedy for that, and if he think it proper, perhaps yet will. If he do, Hook must answer or pay for it. Now, he is not obliged to explain it. Your making him pay now might be making him pay twice.

On Certiorari.

PROCEEDINGS of a justice of the peace in three or four a actions for debts before him, having been removed by writs of certiorari, the judgments and proceedings were set aside; because the summonses did not state any day, on which the defendants should appear before him.  