*340Upon the law arising from these facts, which the Court will deliver to you, you will find your verdict.
In order to maintain trespass for a chattel, the plaintiff must shew that the property was in him at the time of the taking; you have therefore to inquire, whose was the property of this horse on tii® 26th of March, 1799.
We learn from the witnesses, that in the month of January preceding, the property was incontestibly in the defendant by bona fide purchase.
No person in a legal view can be divested of his property except by his own contract, or the operation of law.
Here it is apparent the defendant hath not parted with his right by contract. Has he been divested of it by operation of law? Was his loaning this horse to Aaron Heacock putting his property in such a situation as would render a sale by the borrower operative against him? For it is true the legal owner of property may place it in such a situation as that he may be divested of it legally without his consent. As where a person acquires a right to a chattel by fair purchase, and leaves it in the possession of the vendor, a subsequent sale by the vendor will enure in favour of a second purchaser, if he is ignorant of the first transfer. >
But had the defendant, by his loan to Aaron Heacock, thus exposed his property ?
The plaintiff contends that he has; for he says he purchased this horse in open market. He has cited several cases from the English books to shew, that the sale of property thus purchased shall be valid against the owner.
Wlrat sales shall be considered to have been made in market overt.One case cited is of property purchased in a shop in the city of London; but this'appears to have resulted from the custom of that city, and custom only protects the sale of such property as by prescriptive right has been vended in such shop.
The other cases are of goods vended at certain fairs or statute markets; but it appears that these fairs and markets are held on stated days, that there are known officers attached to them, in whose books entries are made of the property exposed to sale. Thus from their very nature they become places where those who have lost property will naturally resort to find it; and if they neglect, there seems some shew of reason why they should not afterwards claim it from an honest purchaser.
But in this State we have no such city customs; no prescriptive rights to vend particular articles in particular places; no fiiirs or statute markets.
The only cases of sale which can with propriety be said to be made in overt market with us, are sales made under the probate act upon writs of execution, and of goods found, or estrays, which being regulated b}r statute, public advertisement made, and the sale effected by the known officers of government, or under the express provisions of the laws, ought to enure against the owner.
But it is observable, the purchase by the plaintiff was made in a foreign dominion, and the question will arise, whether a chattel, eloigned from an inhabitant by an inhabitant, and then sold to a third inhabitant of this State in a foreign dominion, shall vest the property in the purchaser. The Court consider it would not.
A person may recapture his properly in such manner as may constitute a trespass.■ The principle of law is, that he who loans property, which is eloigned by the borrower and sold to 1 a third person, is not by the sale divested of his interest in the property.
The converse doctrine would tend to abridge that friendly intercourse among men which ameliorates society ; for if the law is, that a man must consider, that every time he loans his horse to a poor neighbour to go to the mill, or to call aid to his wife in the hour of nature’s difficulty, that he risks the sale of the property by the borrower, you will consider how far this will tend to restrain those'acts of neighbourly kindness, which, when exercised by the opulent towards the poor, assume a portion of that charity which is the ornament of Christian and social life.
The only question then remaining in this cause for your consideration is, whether the defendant in this case took his own property under such circumstances as constitute a trespass.
To recapture property of which a person hath been unlawfully deprived; is a natural right, sanctioned by the laws; but he must retake his property without breach of the peace, “ for the public peace is a superior consideration to any man’s property. ” If I find my horse in a public place, I may lawfully seize him, but I cannot justify the breaking the close of another to take him. If, therefore, the Jury find that there has been any breach of the peace in the mode of recapturing a man’s property, they will give damages for the trespass alone, that is, for the injury done by the act of taking unlawfully, but not for the value of the property taken. In this case there does *343not appear to have been any . breach of the peace in the defendant.
, W. C. Harrington and Amos Marsh, for plaintiff Maniel Chipman, for defendant.The plaintiff’s counsel represent this as a hard ease on the side of their client.
Here are two honest men, one.of whom is to suffer a loss, and you are to judge who shall sustain it. He who merely loaned his horse to a neighbour to perform a journey, or he who purchased the property of the borrower. The law bids the purchaser in such case to beware. Caveat emptor, look to it, buyer, that he from whom you purchase has a right to sell.
It is also said, that if the loaner of property is thus protected, it will open a door to imposition and fraud; that the owner may procure some person to vend his property, then recapture it, and share' the gains with the supposed borrower.
If the least collusion between the - defendant and Aaron Heacock had been shewn in this cause, the Court would have directed you to find not merely retributive but exemplary damages for the plaintiff.
As the case now is, we consider the cause clearly with the defendant.
Verdict for the defendant — His costs.