
    [458] [*] COURTER against WOOD.
    ON OEBTIOEABI.
    The action below, was founded on the following state of demand.
    The plaintiff demands of the defendant, $50 for this; that on or about the 24th or 25th day of September last, the defendant took from the yard or enclosure of the plaintiff, a horse, the property of the defendant, (or so considered and called) the said horse shut or tied up by the said plaintiff, for the purpose of having the damages appraised on the subsequent morning ; and that the defendant took, rode, or conveyed the said horse to some place near Caldwell, and there either concealed or sold the said horse, so that he could not come directly to the knowledge of the plaintiff; and that the defendant did commence a suit against the plaintiff, before justice Abraham Woolley, on the 26th day of September last, demanding of the said plaintiff, $100, for the alleged value of said horse, by the defendant, thereby creating costs and causing expenditure, [f] &c., to the present plaintiff as aforesaid, violating all laws of justice, to the damage of the said plaintiff $50, as is said; therefore the plaintiff brings suit.
    The plaintiff below obtained judgment on the aforesaid state of demand; to reverse which, this certiorari was brought.
    
      
       The action below was an Essex county cause.
    
   By the Court.

The state of demand below, is defective in substance; the legal right of the plaintiff below, to take the horse of the defendant, and shut or tie him up, does not appear; it is true that the plaintiff states, it was to have the damage appraised; but what damage, by whom, or to whom done, the record is silent. If the plaintiff below had no right to take the defendant’s horse into custody, then the defendant had a right to take him away, and a good right of action against the plaintiff for taking him ; it is very possible that the plaintiff below had a legal right to take the defendant’s horse into his custody, and keep him there; and if so, he ought to have stated it, as it was the foundation of his action.

Judgment reversed.

Cited in Erving v. Ingram, 4 Zab. 520; Denny v. Quintin, 4 Dutch. 134.  