¶1At this term, after a brief argument by Otis and Parker for the plaintiff, and Whitman for the defendant, the opinion of the Court was delivered by
¶2[After stating the action, and the facts.] Upon comparing the evidence with the declaration, we are satisfied that the case agreed has negatived the gravamen alleged by the plaintiff in his declaration, and that in this action the plaintiff cannot recover.
¶3The defendant, by riding the horse beyond the place for which *79he had liberty, is answerable to the plaintiff in trover. For thus riding the horse is an unlawful conversion; and if the horse had been returned to the * plaintiff, the defendant [ * 106 ] might have given it in evidence, in mitigation of damages. As the horse was not returned, the defendant might have recovered the value of the horse in damages. What that value was, must be settled by a jury. If the horse in fact labored under a mortal distemper, although unknown before his death, the damages would have been the value of a horse so diseased. But it would have been incumbent on the defendant to have proved that from any causes the horse was not worth the apparent value; and if he failed to satisfy the jury of the reduced value, the plaintiff ought to recover the apparent value.
¶4According to the facts, the plaintiff’s action is misconceived. It should have been trover, and not case for improperly using the horse. And if this verdict should stand, it would not be a bar to an action of trover for a conversion by riding the horse to a place without the contract.
¶5The verdict must be set aside, and a general verdict entered for the defendant.