#### Jesse Squire Junior *versus*William H. Hollenbeck.

In trespass *de boms asportatis,*the defendant may prove in mitigation of damages, that the goods did not belong to the plaintiff, and that they hive gone to the use of the owner, although in taking them the defendant acted without any authority.

Trespass for taking the plaintiff’s mare.

At the trial, before *Putnam*J., the plaintiff proved that the defendant took the mare out of the plaintiff’s possession.

The defendant offered to prove, that the property was in one Crippen, and that one Baldwin, being a creditor of Crippen, caused the mare to be attached by a deputy sheriff, and taken out of the defendant’s possession, and that the mare was sold according to law, and the proceeds applied to the payment of the proper debt of Crippen.

The defendant was a stranger claiming to set up the property of Crippen, a third person, in mitigation of damages, without any authority from Crippen to act for him. The judge ruled against the admission of the evidence offered by the defendant, and the jury found a verdict for the full value of the mare. If this was wrong, a new trial was to be granted. *562
      *Whiting,*for the defendant, cited 3 Dane’s Abr. 351, c. 85, § '

_ *Hall*and *Sumner,*for the plaintiff,

insisted that the defendant in an action of trespass *de bonis asportatis*cannot show property in a stranger, either in bar or in mitigation of damages, unless he acts by authority of such owner. In trover, the ownership of a stranger "may be proved in mitigation of damages. *Graham*v. *Peat,*1 East, 246 ; 5 Dane’s Abr. 553, *c.*172, *art.*1 ; *Hoyt*v. *Gelston,*13 Johns. R. 151, 578 ; *Demick*v. *Chapman,*11 Johns. R. 132 ; 3 Stark. Ev. 1438, 1463; 2 Phil. Ev. (Boston ed. 1822,) 133, note *b*; *Gibbs*v. *Chase,*10 Mass. R. 128. The defendant has his remedy over against the deputy sheriff.

*Per Curiam.*

It is clear that it is not competent to a defendant in trespass for the taking of goods, to plead property m a stranger; and upon sound principle ; for the trespass may be an injury to the possession. The question to be considered is, whether, if the property comes to the use of the owner, evidence of that fact may not be received in mitigation of damages ; and we all think it may be. The reason why a party having possession should maintain trespass is, that he may have sustained injury by being deprived of the goods ; nor should his claim to damages be construed strictly. Ordinarily he is either the owner or answerable over to the owner ; and in either case he is entitled not only to damages for the taking, but also for the value of the goods. Possession is *prima facie*evidence of title, and unless the contrary is shown, it is sufficient to entitle the plaintiff to recover for the value. But here, if the allegation of the defendant can be made out by proof, the plaintiff is not answerable over. The real damage then sustained by him, arises from the injury to his special property, and he ought not to recover for the value of the mare. The evidence which was rejected ought to be received, and the burden wil rest on the defendant to prove satisfactorily the fact alleged, in order to justify a reduction of the damages.1

*JYew trial granted.*

See *Pierce*v. *Benjaminf*14 Pick. 356; *Ingersol*v. *Van Bohkelin, 7*Cowen, 670, 681; *Hallett*v. *Novion,*14 Johns. R. 273.