
    Taylor, Appellant, v. Orndoff.
    
      Estrays — Evidence—Record—Parties—Replevin.
    In an action of replevin to recover a stray horse which had been impounded, it is proper to exclude the record of a proceeding in the Common Pleas setting aside a judgment of a justice of the peace obtained under the Stray Act of April 13, 1807, offered by plaintiff for the purpose of showing that the impounding was illegal, where the record shows that the proceeding was against another person than the plaintiff in the replevin, and that what was done by the magistrate under the Act of 1807, was wholly coram non judice.
    Where an action of replevin has been brought to Secure possession of a horse which has strayed upon defendant’s inclosed lot, and been seized by the defendant to secure compensation for the damage it had done, the defendant may show that he had acquired a lawful' lien upon the horse, and that the owner could not recover possession of it with the consequent destruction of the defendant’s lien, except upon the conditions contemplated by See. 6 of the Act of April 19, 1901, P. L. 88.
    Argued April 9, 1918.
    Appeal, No. 95, April T., 1918, by plaintiff, from judgment of C. P. Greene Co., Sept. Sessions, 1918, No. 58, on verdict for defendants in case of O. M. Taylor v. Isaac Orndoff et al.
    Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.
    Affirmed.
    Replevin for a horse. Before Ray, P. J.
    The opinion of the Superior Court states the case.
    At the trial plaintiff offered in evidence the record of a proceeding in the Common Pleas on certiorari reviewing a judgment of a justice of the peace in a case brought by the defendant against one, Zachariah Taylor, under the Stray Act of April 13, 1807, to show that the impounding was illegal. The judgment was reversed because no notice of the proceedings before the viewers had been given to the defendant in that case.
    The court excluded the offer. (1)
    The court submitted to the jury the question whether the defendants had suffered damages. (3)
    Verdict and judgment for defendants for $2. Plaintiff appealed.
    
      Errors assigned were (1) ruling on evidence quoting the bill of exceptions and (3) in submitting the question of damages to the jury.
    
      Carl J. Crawford, for appellant.
    The record of the Common Pleas should have been admitted: Patterson v. Anderson, 40 Pa. 359.
    In an action of replevin to recover possession of personal property, a set-off cannot be pleaded: National Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582.
    
      James J. Purman, with him Joseph Patton, for appellees.
    The fact that the stray proceedings failed for want of notice of the award to the owner did not make defendants trespassers in impounding the trespassing horses; this record would not show that: Bennett v. Fulmer, 49 Pa. 155; Goundie v. Northampton Water Co., 7 Pa. 233; Winegrove v. Central Penna. Traction Co., 237 Pa. 549; Summers v. Bergner Brewing Co., 143 Pa. 114.
    October 12, 1918:
    The right to set up in this action of replevin, not a set-off, but a claim for the damage the horse had done has been passed upon by this court: Young v. Couche, 52 Pa. Superior Ct. 592.
   Opinion by

Head, J.,

The plaintiff was the owner of a horse which was permitted to stray upon the cultivated land of the defendant and his tenants or croppers. The stray animal was seized and impounded and notice given to the owner that it would be released upon payment of the damages done by the animal. The plaintiff thereupon issued a writ of replevin and the sheriff took the horse and delivered it to the plaintiff, the owner. If the defendants had suffered any damage by the act of the stray animal, they were justified in impounding it and holding it as security for the payment of the damage caused. When the plaintiff sued out his writ of replevin he was of course required to give a bond which thereafter stood as security in lieu of the animal itself. The case thereafter proceeded to trial and the jury rendered a verdict in favor of the defendant for the sum of two' dollars. Judgment was entered thereon and this appeal followed.

In Young v. Couche, 52 Pa. Superior Ct. 592, we fully expressed the views of this court on the interpretation of the Replevin Act of 1901 and the proper practice and procedure thereunder. The application of what was there said to the facts of this case leads to the conclusion the trial was conducted along correct lines. We advert but for a moment to the assignment of error which complains of the ruling of the trial judge in sustaining an objection to the offer of a certain record. That was the ■ record in the Court of Common Pleas reviewing the judgment of a magistrate brought up by writ of certiorari. To the proceeding in question the present plaintiff was no party. There was nothing determined by the action of the court except that what was done by the magistrate and the viewers under the Act of 1807 was wholly coram non judice. It of course could in no way affect the plaintiff who was not a party to it and he was at perfect liberty to begin this action of replevin to recover the possession of his property. Nor was there anything in that record to estop the defendants from availing themselves of their right, afforded by the Act of 1901, to have their damages assessed in this proceeding. The introduction of that record would have tended but to obscure the simple issue on trial and the learned court below was correct in rejecting it. The assignments of error are overruled.

Judgment affirmed.  