* * *

be taken up, to have the benefit of the knowledge and information of the freeholder, and to the exercise of his personal discretion and judgment upon the circumstances of the case, and his personal decision thereon. The father had no right to substitute the information, judgment and discretion of .the son for his own. The son was a mere trespasser; his act was illegal and void, and the subsequent ratification confirmed it only as such, as a void and illegal act, upon which no right to the property can be founded."

The application of the above doctrine to this case, would not only divest Hartman of any right of possession, or claim to compensation, but would make him a trespasser from the beginning.

But we do not base our decision in this case upon either of the two points above mentioned. There is another point in the case that we consider fatal to the judgment below, which is, that soon after the seizure of these horses as estrays, they were put to work by Hartman, and used by him in his business as livery horses up to the day of trial, a period of about two years.

The excuse for this treatment, as given by said defendant, is that they had to be kept twelve months before they could be sold under the estray law, and being kept in the stable, they were put to work so as to make them earn their feed. That Hall, his co-defendant, purchased them at the sale, and after that they were used as his horses.

It is not pretended here that any title passed by virtue of this sale, but it is strongly contended that defendants are entitled to the possession of the horses until the costs, charges and fees prescribed by §§ 2565 and 2566 General Laws are paid by the plaintiff, notwithstanding the fact that the sale was void.

This was the view taken by the District Court, and in accordance with the instructions given on the trial, the jury found the ownership in the plaintiff, and the right to possession in the defendants.

This would be correct if it could be said that the original taking up was lawful, and that there has been since no abuse of the authority granted by the statute. It is well settled that a subsequent abuse of the authority will relate back to the seizure, and render the whole proceeding void from the beginning. If the taking up was unlawful, or if it has subsequently become unlawful, the taker up forfeits all claim to compensation and can not defend an action for possession of the property on this ground.

The rule is stated in Bacon's Abr. p. 451, that "when the law has given an authority it seems reasonable that the law should, in order to secure such persons as are the objects thereof from abuse of the authority, when it is abused, make everything done void, and leave the abuser in the same situation as if he had done everything without authority."

Defendant Hartman, says the horses were put to work, so as to make them earn their feed; his counsel argue that they were gently exercised for the benefit of their health, while the livery stable men and drivers say they were driven to hacks, and worked the same as the other livery horses at the stable.

Defendants' counsel make the further point, that the driving about publicly of estray horses is an advantage to the owner in affording better opportunities for the discovery of the animals, when it is done fairly, and with no intention to deceive, as in this case.

It would be a sufficient answer to this proposition to say the law is otherwise, but as to the driving being an advantage to the owner in this case, we may add the fact is also otherwise.

One of these animals is a bay gelding, without brand, or any distinguishing marks, except that the owner says he had a long, bushy tail when he went away. The other animal is a sorrel mare, having white marks by which she could be easily identified. Now the manner of using them prior to the attempted sale, was such as to render their identification difficult and improbable. The horses were not driven together, but with other animals, the horse being driven in the daytime, and the mare in the night time. When found by the owner, shortly after the sale, the horse had a short tail, and the owner swears that the bushy part of the tail was cut square off. The witnesses for the defense, however, swear that the hair was not cut off after he came to the stable, but that the horse may have worn it off somewhat, as horses usually do when driven to buggies or hacks. Admitting this to be so, the appearance of the horse would be changed, and being driven in livery, with a mate pretty closely resembling him in general appearance, it is doubtful whether the owner would have recognized him if he had seen him on the street.

The finding of the jury, referred to by counsel, that Hartman acted in good faith in respect to the whole transaction, does not alter the facts of the case as they were shown to exist upon the trial. The question involved is not a question of good faith, but a question of law, and, considering it as such, we can not regard the using of these horses, in the manner described by the witnesses, otherwise than as a gross abuse of the authority given by statute. Nor do we think that the supposed necessity, or the supposed benefits assigned therefor, afford any justification whatever.

The statute never contemplated the stabling and grain feeding of estray stock, as is evident not only from the expressions employed about herding and ranching, but from the rate of compensation allowed the taker up. It provides that after filing a certain notice, it shall be lawful for the taker up to "herd and take charge of said stock." General Laws, § 2565.

The next section allows him fifty cents per month for "ranching the said stock." The argument that the continuous working of estray horses in livery, as in this case, may be justified on the ground of necessity, assigning as such necessity that the animals require exercise to preserve them from injury, or a necessity to cut down the expenses of keeping them; or to place it upon the ground of a benefit to the owner, as affording better opportunities for recognition, is not only illusory and absurd, but is in contravention of legal principles.

The law, from the earliest times, has regarded the using of estrays, or distrained animals, as a tort, save only when the use was necessary to their preservation, as in the case of milk cows.

Blackstone says: "When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it has been held that the distrainor is not at liberty to work or use a distrained beast." 3 Black. Com. * 13.

The case of Oxley vs. Watts, 1 Term Reports, 12, cited by counsel for plaintiff in error, was an action of trespass for taking a horse, tried before Lord Mans

field. The defendant justified taking the horse as an estray. It seems that the original taking was admitted to be lawful, but the court held that the subsequent using made the defendant a trespasser ab initio.

In Sackrider vs. McDonald, 10 Johns. R. 252, it was held to be such an abuse of the power of distraining animals damage feasant, to impound them before the damages were assessed, as to render the original seizure a trespass. The opinion was delivered by Kent, C. J., who in discussing the principle of carrying back an abuse of authority to the original taking, says: This was the şettled rule of the common law, and it has been constantly and uniformly acknowledged by the courts, and the distinction is between an entry, authority or license given to one by law, and by the party.

"If the authority be abused, the law, in the first case, adjudges by the subsequent act, quo animo the original entry was made, and makes the party a trespasser ab initio, but not so in the latter case, because the party can not, for any subsequent cause, punish that which was done by his own authority."

The case of Barrett vs. Lightfoot, 1 Monroe, 241, was an action of trespass for illegally riding and killing a stray horse. The defense was that the defendant took up the animal as an estray, under the statute, and previous to the ten days allowed by law to post him as such, caused him to be used in a case of necessity, to send for a physician. Upon demurrer the plea was held bad, and this ruling was sustained upon writ of error.

The question presented for decision was, conceding it to be in general illegal to use an estray before posting, whether this case, by reason of the necessity that existed for the use, formed an exception.

The court was not called upon to decide whether the rule was different after posting, but the reasoning of the court and the authorities cited make no distinction.

The first proposition announced is, that if Barrett acted under the authority of law, in taking up the horse, any subsequent abuse of that authority makes him a trespasser ab initio.

Barrett relied upon a case in Croke James, 148, as authority for using the horse, from which case the court quote the following paragraph:

"It is not lawful for any to use it in any manner, unless in case of necessity, and for the benefit of the owner, as to milk milch kinę, because otherwise they would be spoiled, and so of the like. But to use a stray horse by riding or drawing is tortious, although it were alleged that the common course is to use stray horses with withes about their necks."

Upon the above citation the court comment thus: "It will at once be admitted that the case in Croke goes as well to establish the principle that strays can not in the general be used, as that there may exist such a necessity for using them as to form an exception to the general principle, and render the use lawful. But to have that effect the necessity must, we apprehend, be of a different sort to that which is alleged in the plea of Barrett. The illustration made by the court in the case cited, shows the sense in which the expression, necessity, was intended by them, and proves conclusively that strays can not lawfully be used by the taker up, unless to use them be necessary to preserve them from injury, and for the benefit of the rightful owner. There being,

therefore, no such necessity for using the horse by Barrett, alleged in his plea, the use was illegal and an abuse of the authority of law, and as such the demurrer to the plea was correctly sustained."

The cases of Nelson vs. Merriam, 4 Pick. 249, and Adams vs. Adams, 13 Pick. 384, recognizes the same doctrine of the foregoing authorities, and all are in accord with the ruling that the using of estrays, save as to the exceptions mentioned, is tortious, and that the taker up forfeits his claim for compensation.

These views being in conflict with the theory upon which the cause was tried, and with the instructions of the court below, the judgment will be reversed and the cause remanded for further proceedings. Reversed.

[996.]

THOMAS OWEN vs. ELIZABETH GOING ET AL.

Opinion Filed December 4, 1883.

Order Vacating Judgment.—The action of a court in vacating a judgment at the same term at which it was rendered, is not reviewable in an appellate court.

Effect of Order Setting Aside an Order Vacating a Judgment.-An order, setting aside an order vacating a judgment, does not have the effect of reinstating and reviving the judgment vacated.

Appeal from the District Court of Pueblo County.

PER CURIAM.-The appeal in this case must be dismissed. It is an attempt to have reviewed here an order of the District Court, setting aside a previous order vacating a judgment.

It has frequently been held that no appeal lies to this court except from a final judgment or decree. Higgins vs. Brown et al. 5 Colo. 345; Laws of 1879, p. 226, § 26.

In view of the theory upon which the court below seems to have acted in granting this appeal, we venture a suggestion as to the status of the parties when the cause is remanded.

The judgment in question and the order vacating it were both entered at the same term. Courts have entire control over their judgments during the term at which the same are rendered. They possess a discretionary power to vacate and set them aside at such term and their action in so doing is not subject to review in an appellate court. Freeman on Judgments, § 90, and cases cited.

We are of opinion that, however erroneous the action of the District Court may have been in setting aside the judgment, the order effectively accomplished its purpose and vacated the same. When the court subsequently set aside this order, its action in so doing did not have the effect to revive or reinstate the judgment.

The appeal will be dismissed and the cause remanded, with leave to either party to move in the District Court for final judgment. Appeal dismissed.

[No. 799.]

JOHN DUCKETT, CHARLES LEWIS, JOHN ROSS AND G. W. MCCRAKEN vs. B. F. PRICE, J. W. PRICE, H. H. ABBOTT, JOHN O. Mow, J. M. Lamb, H. M. LIKELY AND W. H. BURCH.

Opinion Filed December 4, 1883.

Injunction Bond-Suit Against Principal and Sureties.—It is no valid objection to an action on an injunction bond that the principal and sureties are sued together in the first instance. Appeal from the District Court of Fremont County.

BECK, C. J.-Appellants brought suit in the court below upon an injunction bond, averring, in their complaint, the dissolution of the injunction, and stating several claims for damages accruing to them by the wrongful suing out of the injunction.

Appellees, who are the principals and sureties upon the injunction bond, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the appellants amended their complaint.

Appelees demurred to the amended complaint, assigning the same ground of demurrer. The court again sustained the demurrer, and appellants declining to plead further, judgment was given for the appellees dismissing the complaint, and for costs; from which judgment the appellants have prosecuted this appeal.

The appellees have made no appearance in this court, and the cause has been heard ex parte. We are, therefore, not advised by the appellees what they rely upon as the fatal defect or defects in the complaint which can be reached by a general demurrer. No damages were awarded on dissolution of the injunction, nor have any been assessed and awarded in any proceeding instituted for the purpose since its dissolution. Courts have held, under dissimilar statutes, however, that no right of action accrued upon an injunction bond until damages were assessed and awarded against the complainants in the injunction proceedings.

Section 139 of our Civil Code provides that this shall not be necessary in cases of this character, but that principal and surety may be sued together, in the first instance, and the damages assessed and awarded in such action.

If, therefore, this objection be relied upon, it is untenable.

We are of opinion that other objections to the complaint, if they exist, should be specially assigned.

The judgment is reversed and the cause remanded for further proceedings. Judgment reversed.