Christie v. Corbett , 34 How. Pr. 19 ( 1867 )

By the court, Marvin, J.

By the Code (§ 99), the action is commenced when the summons is served. At the time this action was commenced, the horse was in the actual possession of the plaintiff. The defendant had returned the horse, and made no further claim to detain him. It seems to me that this simple statement must decide the case. The action was to recover the possession of the horse, wrongfully detained. At the time the action was commenced, the wrongful detention had ceased, and the plaintiff was in full possession of his property. As I understand it, the learned justice at the circuit was of the opinion, and so charged, that if the defendant, by turning the horse into the jdaintiff’s lot on Sunday morning, intended to return the horse to the plaintiff’s possession, and the plaintiff accepted the horse, and took him into possession for that purpose, the action could not be sustained.

The counsel for the defendant, in view of this charge, claimed that there was no question .for the jury, but that the court should dispose of the case. The counsel was, I think, right: Assuming that there was some importance in the question of the intention of the parties, I think the evidence was so decisive, that the court should have decided the case. It appears that the defendant took up the colt as a trespasser, and was proceeding under the act of 1862, and had incurred some costs. He was willing the plaintiff should have the horse, on paying the costs. This the plaintiff was unwilling to do. Counsel was taken in Batavia, on Saturday, when the defendant was probably advised that the statute under which he was proceeding would not protect him, and he concluded to restore the horse to the plaintiff. He did this on Sunday morning, by putting him into plaintiff’s pasture, adjoining the highway, and he notified the plaintiff thereof.

What objection did the plaintiff make, as he states as a witness ? He says: “ I objected to his turning him back in that way; that he was a young horse, and would not be contented ; it was Sunday morning; he turned him into the lot next to the road, not the lot he was pastured in.” In another place.he says: “ I took the horse from my lot, and put him in my stable.” Now as I understand this evidence, there was an absolute, unqualified return of the horse, and the plaintiff unqualifiedly accepted him. The only objection he made was, that “ the colt was put into the wrong pasture; that he was a young horse, and would not be contentedand thereupon he went and caught the colt, and put him in the stable. I do not see any occasion for the remark of the judge, that u the act of the defendant in turning the horse upon another lot of the plaintiff’s premises, was in itself a wrongful act on his part.” But if this was even so, the plaintiff waived it, and went and took the colt and put him in the stable.

There was no question for the jury. The court should have decided the matter, and non-suited the plaintiff, or directed the verdict for the defendant. The jmy must have found, under the charge, that the defendant did not intend to return the horse to the plaintiff’s possession, or that the plaintiff did not accept the horse, or take him into his possession for that purpose; a finding, as I think, directly against the evidence. We are, however, examining the case only upon the exceptions. I think the exception to the refusal to non-suit was well taken; also to the refusal to direct a verdict.

This case does not belong to the class of cases referred to by the plaintiff’s counsel, where the defendant has wrongfully parted with the property to a third person, before the commencement of the action. (Brockway agt. Burnap, 16 Barb. 309; Nichols agt. Michael, 23 N. Y. R. 264.)

In this case the defendant restored the horse to the plaintiff) who took him into his possession, and had full power and control over him before the action was commenced.

There must be a new trial, costs to abide the event.