
    Abel Wheelock versus William Wheelwright.
    Where one hires a horse to go an agreed distance, and goes beyond that distance, he is liable in trover for an unlawful conversion of the horse.
    The declaration was in case, and alleged that the defendant, on the 15th of January, 1806, hired a horse and sleigh of the plaintiff to ride from Boston into the country four miles, and to return at seven o’clock in the evening: yet the defendant so carelessly and immoderately drove and rode the said horse and sleigh, and neglected to take proper care of said horse, and exposed him after said immoderate driving and riding for so long a time to the extreme coldness of the weather, that by means thereof the said horse died, and the said sleigh was broken, &c.
    The defendant pleaded the general issue of not guilty, and the cause was tried on the review at the last November term in this county, before the Chief Justice, when a verdict was found for the plaintiff, subject to the opinion of the Court, upon the following case agreed by the parties, viz. On the 15th of January, 1806, between 3 and 4 o’clock in the afternoon, the weather being extremely cold, the defendant hired of the plaintiff in Boston the horse [*105 ] mentioned in the declaration, with a * sleigh, to ride to the Punch Bowl in Brookline, distant about 4 j miles, the defendant saying that he should return by 7 o’clock in the evening. No express price for the hire was agreed upon. After the defendant had rode to the Punch Bowl, and tarried there about 15 minutes, he rode on about 4i miles further to Watertown. After staying there until past 9 o’clock in the evening, he returned with the horse and sleigh to Gen. W.’s door in Boston, one of the general’s family being in the sleigh, after 10 o’clock. Having remained at the general’s about five minutes, he took the horse and sleigh to return them to Wheelock; and having rode about two rods, the horse, after rearing up, fell dead on one of the shafts of the sleigh, which was broken by the fall. The sleigh was returned to Wheelock, and notice given by Wheelwright that the horse was dead. It was agreed that the defendant did not ride the horse immoderately, or neglect to feed or cover him properly with cloths.
    If the Court should be of opinion that on this evidence the plaintiff can, in this action, recover damages on account of the horse it was agreed the verdict should stand; otherwise it should be set aside, and a general verdict entered for the defendant, and judg ment be rendered accordingly.
   At this term, after a brief argument by Otis and Parker for the plaintiff, and Whitman for the defendant, the opinion of the Court was delivered by

Parsons, C. J.

[After stating the action, and the facts.] Upon comparing the evidence with the declaration, we are satisfied that the case agreed has negatived the gravamen alleged by the plaintiff in his declaration, and that in this action the plaintiff cannot recover.

The defendant, by riding the horse beyond the place for which he had liberty, is answerable to the plaintiff in trover. For thus riding the horse is an unlawful conversion; and if the horse had been returned to the * plaintiff, the defendant [ * 106 ] might have given it in evidence, in mitigation of damages. As the horse was not returned, the defendant might have recovered the value of the horse in damages. What that value was, must be settled by a jury. If the horse in fact labored under a mortal distemper, although unknown before his death, the damages would have been the value of a horse so diseased. But it would have been incumbent on the defendant to have proved that from any causes the horse was not worth the apparent value; and if he failed to satisfy the jury of the reduced value, the plaintiff ought to recover the apparent value.

According to the facts, the plaintiff’s action is misconceived. It should have been trover, and not case for improperly using the horse. And if this verdict should stand, it would not be a bar to an action of trover for a conversion by riding the horse to a place without the contract.

The verdict must be set aside, and a general verdict entered for the defendant.  