Dewey, J.
Many of the rulings asked for by the defendant become immaterial, inasmuch as the jury have found that the fronts of the boots were not the property of Littlefield. The case under this finding presents itself thus; The defendant, as an officer, had taken into his possession certain property, consisting of boots finished and stock for boots not worked up, upon a warrant alleging that the fronts had been stolen from Littlefield; but, on examination of the case before a magistrate, the complaint not being supported, the plaintiff was discharged. In this state of the case it was the duty of the officer to return to the plaintiff the property which he had taken from him. It is said that this was properly omitted to be done, by reason of ie plaintiff’s agreement that the boots might remain in the defendant’s hands for three weeks, in order that it might be determined to whom the fronts belonged. But this was denied by the plaintiff. Whether this contract was one in which Littlefield participated as a party does not distinctly appear. If there was a mutual agreement between Littlefield and the plaintiff that the property should remain in the possession of the defendant three weeks, then the defendant had a good defence to the suit of Littlefield, and ought not to have suffered the action of Littlefield against him to go by default. If it was the sole assent of the plaintiff given to the officer, who had no interest in the property, then the plaintiff had a right to withdraw it and demand the property of the defendant, as he did. But the defendant not only refused to deliver it to him on this demand, but subsequently permitted the same to be taken by a constable from him, upon an execution upon a judgment in favor of Littlefield against the defendant, by whom the same was passed into the hands of Littlefield, but not sold on the execution. Upon these facts the jury might properly find that the defendant had been guilty of a conversion of the property. We see no ground for exceptions as to the ruling of the court upon this point.
The only ground for exceptions is as to the matter of variance. It was objected on the part of the defendant that, as the plaintiff had brought his action alleging a conversion of three dozen pairs of boots, and as by the evidence it appeared that a portion of the articles thus converted were mere stock for boots, in various stages of manufacture, and not finished boots, the latter were not included in this declaration, and that for so much the plaintiff could not recover in the present action. We think this instruction should have been given.
The error is, however, one only affecting the amount of damages. A new trial must be had as to the damages, confining the same to the compensation for the boots taken; and as to the ruling upon this point the exceptions are sustained. See Kent v. Whitney, 9 Allen, 62.
Exceptions sustained.