Johnson v. Daws

(nem. con.) instructed the jury, that if, from the evidence, they should be of opinion that the defendant’s horses strayed, or were stolen, from the commons of the city of Washington ; that they were found by him on the premises of the plaintiff, and by him there confined; that the defendant demanded them, and the plaintiff refused to deliver them; that thereupon the plaintiff applied to the justice of the peace for advice and direction to regain his said property, by a civil remedy; that the justice advised him to make the affidavit; and that, .thereupon, he did make the affidavit upon which the warrant was issued, under which the horses were retaken and delivered to the defendant; and the defendant, upon being called upon, said he, did not mean, and never did mean, to prosecute the plaintiff *285criminally, then the plaintiff is not entitled to recover in this action. See Cohen v. Morgan, 6 D. & R. 8; 1 Har. Dig. 295, S. C.

Verdict for plaintiff, $25.

Motion in arrest of judgment, and for a new trial, refused.