Kellogg, J.
The defendant, as deputy sheriff, attached the horse which is the subject of this’ action as the property of one Forsyth on a writ in favor of Sartle against Forsyth. The plaintiff claims that he, and not Forsyth, was the owner of the horse, and under a previous writ of replevin, he- obtained possession of the horse from the defendant. That action was *370dismissed on account of a defect in the replevin bond, but there was no judgment for the return of the property to the defendant, although the defendant might have had such a judgment if he had then applied for it. Collamer v. Page et al., 35 Vt. 387" court="Vt." date_filed="1862-11-15" href="https://app.midpage.ai/document/collamer-v-page-6577446?utm_source=webapp" opinion_id="6577446">35 Vt. 387. At the time when that action was dismissed, the plaintiff had the property in his possession, and was under no obligation oi, duty to return it to the defendant except under a judgment directing its return. (See Pynchon MS. on Replevin in Story’s Pleadings, Oliver’s Edition, p. 450-451.) While the property remained in the possession of the plaintiff, he had neither occasion nor right to resort to a new- action of replevin to establish his title to it. The fact that the defendant did not ask for a judgment for the return of the property would seem to indicate that he did not intend further to assert any right or claim to it. To support the present action, it must' appear affirmatively, that the property subsequently came into the possession of the defendant, and that the defendant asserted a right or claim to it, which was inconsistent with the right claimed by the plaintiff. The returning of the property to the possession of Trull at the same place where it was left by the defendant before it was replevied by the plaintiff under his first writ was not, ipso facto, a restoration of the property to the possession of the defendant, because Trull could be made an agent of the defendant to receive possession of the property only by the defendant’s own act, and not by any act of the plaintiff. The defendant could not be made responsible for the act of Trull in receiving the property back from the plaintiff unless he authorized the act, or adopted it by a subsequent recognition and approval of it. It was, therefore, a material question on the trial, whether the defendant, at the time of his conversation with Mr. Cahoon, which was after the first action of replevin was dismissed, treated the horse as being in his possession or under his control, or asserted any right or claim to the possession of the horse. In respect to this question, the testimony of the defendant was in conflict with the testimony of Mr. Cahoon. Whether the testimony of Mr. Cahoon shows such an assertion of claim by the defendant to the property *371as would justify the commencement -by the plaintiff of a new action of replevin for it may admit of some doubt; but if it was sufficient to make a prima facie case for the plaintiff, we think that the conflicting testimony of the defendant and Mr. Cahoon on this point should have been submitted to the jury, as the finding of the jury might have been in accordance with the testimony of the defendant.
The judgment of the county court for the plaintiff is reversed, and a new trial granted.