¶1The opinion of the Court was delivered by Anderson, Justice.
¶2This cause was tried at the February term of 1852, of the District Court for the County of Sonora. By agreement, it was submitted to the Court, and by the Court decided in favour of the defendant.
¶3The counsel for the plaintiff moved for a new trial, upon the ground that the Court erred in going beyond the pleadings, to find that the plaintiff had received satisfaction for the cattle complained of having been taken away by the sheriff, Brock-man, the defendant in this case.
¶4Also, upon the ground of the insufficiency of the evidence, to justify the decision of the Court, that Henry Fitch was such an agent for plaintiff, as to be able to bind her, by his consent to the levy, &c.
¶5There is no evidence in the record to show that Carson settled with Josepha Fitch, for the cattle taken away by the sheriff. He was not legally liable for the wrong done by the sheriff, if there was any whatever, by the levy and sale, and the taking away of the cattle, unless he had made himself so, by a participation in some form, in the act. The satisfaction, as alleged, seems to have been rather an inference on the part of the Court, *579than a fact proved. It was not pleaded by the defendant, and it was unquestionably error on the part of the Court below, to make that one of the grounds of its decision.
¶6There is no proof that the plaintiff ever assented to the taking away of the cattle by the sheriff.
¶7The Court below appears also to have relied upon the assumed fact, that Henry Fitch was the agent of the plaintiff, and that he had consented to, and approved of, the proceedings of the sheriff.
¶8There is no evidence in the record, that he was an agent, having any such powers. His agency, if any, was for very different purposes, and did not have that extent. The Court therefore erred in treating his agency as plenary, and making it one of the grounds of its decision.
¶9The Court therefore erred in not granting a new trial.
¶10Let the order denying a new trial, by the Court below, be set aside, the judgment reversed, the cause remanded, and a new trial granted, with costs against the defendant.