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.