
    Palmer against West.
    Where A. hired a mave of B. which from the posiessioo of A. and came into the possession of c. by deiiwho hadlaki-.n claiming her of sftiiird*1 per-lost aWrnai¡La<1 if request'll t°*earch for,)^ an action of1 agaXc.for wuuThe nT-ng acrconcerníng hoi/'8tbatradmittingthat c. tile act, which tionabiel (lie3 ipng_«isteiBed ¡'is negiigeiice, portille ac-P’ as ¡¡^special*’ property had ceased, before the mare came into the possession ofc. sustainable at ¡¡e hrought’by" of the mlref
    IN ERROR, on certiorari, from a justice’s court. West brought a special action on the case, in the court below, against Palmer, and declared that he, West, about the 1st of October, 1813, - hired a certain mare of one James Latson, and that the mare . „ _ . . 1 . , ,, . ,, strayed from his possession, and came into the possesion or one Newby, and that while m his possession, Palmer claimed and took the said mare, as the property of some other person, and sold her, whereby he, the plaintiff, was put to great expense in searching for the mare, and had to pay for her twenty-two dollars aH ^ ^-7 ceJ3ts. Palmer pleaded not guilty as to the selling- the mare, and a justification as to the other matters; and the cause was tried by a jury. From the testimony it appeared that West hired the mare from Latson for a few days; that she strayed away from his possession, and was taken up by Newby, and remained in the possession of Newby for three weeks, and that w^^'e *n his possesion, Palmer, who had been requested by one L)cyo to look out for a stray mare which he had-lost, claimed1 the mare in question, as answering the description given by Deyo, but on further inquiry he found that it was not his, and he then advertised her, -and let one Ver Valen have her to keep; and -some time after, Latson came and took her away. It appeared also that all the expenses incurred by West in searching ^or ^-le mare) accrued while she was in the possession of Neivby, and before Palmer had taken her. There was a good deal of e 0 contradictory evidence, whether Palmer sold the mare or not: several witnesses swore that he had confessed to them that he had so Id her to Ver Valen, but Ver Valen swore that he never had; and it appeared that she was delivered up to Latson immediately on his claiming her. tIt appeared that West paid 
      Latson twenty-two dollars and fifty cents, and was at some other expense in searching for the mare. It is however to be inferred from the evidence, that the right of property still remained in Latson, for the mare was proved to be worth fifty dollars, and Latson came and took her away from Ver Valen. The jury gave a verdict for the plaintiff for twenty-five dollars, on which the justice gave judgment.
   Per Curiam.

This suit was not attempted to be supported as an action of trover, but as a special action on the case for negligence in not complying with the requisites of the act concerning strays, (2. N. R. L. 231.) It ivas necessary, therefore, for the plaintiff to show, both the negligence and the injury sustained by him in consequence thereof. It may very well be questioned whether the defendant could be considered as coming within the act. The mare did not come into his possession as a stray; he claimed and received her as the property of Deyo: but admitting that after he discovered that she was not, he was bound to treat her as a stray, and that he did not comply with the requisites of the statute, the plaintiff has sustained no injury in consequence of it. All the trouble.and expense incurred by him was whilst she was in the possession of Newby, and his claim, if any he has, must be against him. The special property or right of possession in West did not, according to the proofs, exceed five or six days; and this time expired long before the mare came into the possession of Palmer; and if he is answerable to any person for negligence in not complying with the requisites of the statute, it must be to Latson, who was the owner of the property; the recovery, therefore, in this action, cannot be sustained, and the judgment must be reversed.

Judgment reversed.  