¶1(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.
¶2Verdict for plaintiff, $25.
¶3Motion in arrest of judgment, and for a new trial, refused.