Fitch

The opinion of the Court was delivered by Anderson, Justice.

This 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.

The 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.

Also, 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.

There 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, *579…