This was an action of book account, originally commenced before a justice of the peace, and came, by appeal, to the county court. Judgment to account having been rendered, an auditor was appointed, who reported, that the account of the plaintiff consisted of a charge for keeping a mare from some of the first days of June, 1835, to March, 1837, and a colt about eight months; that, in March, 1833, the defendant delivered to the plaintiff, who was then constable of Bakersfield, a writ of attachment in favor of the defendant against one James Smith, and directed the plaintiff to make service of said writ, by attaching several articles of property of Smith, among which was the mare in question ; that the plaintiff served the writ according to the directions of the defendant and attached the property designated by the defendant; that the property so attached, including the mare, was thereupon receipted by one Salmon Wires, who, according to the tenor of his receipt, agreed to account for or return the property to the plaintiff, or any other proper officer holding an execution, by virtue of which it could be legally demanded, when he, the said Wires, should be thereto requested ; that, in June, 1835, Smith left the country, and the receiptor, Wires, returned the mare to the officer, during that month, without any demand on the part of the plaintiff, or any other person, and, ^ from June, 1835, to March, 1837,-the plaintiff kept said mare, during which period he used and worked her, without any license from said Smith, or any other person, sufficiently to defray the expenses of her keeping, and without any injury to the mare or detriment to the defendant’s lien upon her, acquired by said attachment ; that, in March, 1837, the mare died, the suit on which she was attached being then pending; that, between June, 1835, and March, 1837, the mare escaped from the pasture of the plaintiff and had a colt, which the plaintiff kept from the last of April, 1836, to March, 1837, when the colt, also, died.

From these facts, the defendant insisted, before the auditor, 1. That he was not indebted to the plantiff, because no demand was made, by the plaintiff, of the receiptor, Wires for the mare, and that the plaintiff was under no obligation and had no right to receive her and charge the defendant for the keeping. 2. That, inasmuch as the plaintiff worked the mare sufficiently to pay for her keeping, he had no right to charge the defendant therefor. The auditor allowed for the keeping of the mare, $ 50,00, and disallowed the charge for keeping the colt.

The defendant filed exceptions to the report.

The county court decided that, from the facts found by . the audiror, there was nothing due to the plaintiff, and rendered a judgment for the defendant; to which decision the plaintiff excepted.

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