DANIEL CLARK versus EBENEZER CARLTON

THIS was an action of trespass, for taking a stud horse belonging to the plaintiff. It was proved at the trial at the last term of this court in this county, that the horse was the property of the plaintiff, and that he had been let for hire to one Aldrich, for nine days; that before the expiration of the nine days, the defendant, being a deputy sheriff, took the horse upon execution from the possession, and as the property, of Aldrich; and upon a demand made after the nine days had expired, refused to deliver him to the plaintiff''; and the only question was, whether the plaintiff could maintain this action.

The plaintiff, at the time the horse was taken, had neither possession, nor the right of possession; an action of trespass, therefore, which is founded on possession, is not maintainable on the facts of this case. The plaintiff’s remedy was by an action of trover founded on his property in the horse. 4 D. & E. 489, Ward. vs. Macauly & al. — 8 Johnson 432, Putnam vs. Wyley.