
    Roger Wales v. Charles L. Ford.
    CERTIORARI.
    For an injury dono lo plaintiff’s cattle by the horse of defendant while under the charge of a third person, the remedy, if any, is by action on the case and not trespass.
    This case was submitted without argument. The action below was in trespass for that a stud horse of Wales broke and entered the close of Ford, and bit, kicked and injured his horse and mare. It appeared on the trial that when .and for some time before and after the -injury occurred one Hewet had the horse, taking him about the vicinity in' service, but whether on hire or as the agent of Wales did not appear. The justice rendered judgment for $50 damages and costs, which the Common Pleas on appeal set aside and gave judgment for $35 and costs before the justices and costs of appeal.
    
      Lucius Q. 0. LJlmer, for plaintiff.
   Ey the Court.

The action was misconceived. If any action can be sustained it must be in the form of trespass on the case. . It was improper for the Common Pleas to •adjudge- against Wales the costs of the appeal which, in their opinion, was lawfully made from the erroneous judgment of the justice. Whether this error should affect the whole judgment needs not be examined as for the reason •already mentioned the judgment is to be reversed.

Judgment reversed.  