Opinion
Spring Sessions, 1833.
APPEAL from the decision of a justice of the peace.
Hamilton, for appellant.
Wales, for respondent.
This was an action of trespass for worrying a cow with dogs so that she died. It appeared by the evidence, that the piff's. cow had been trespassing in the deft's. close, and that he stoned her, and set dogs upon her; but there was some doubt whether her death was occasioned by this conduct of the deft., or from a surfeit in eating corn.
The Court charged the jury
That if a cow be found trespassing on another's property, the owner of the property may impound her, or sue for damages, or drive her out; but in driving her out he must use only necessary violence, or he becomes himself a trespasser. and liable in damages to the owner of the cow. If the deft. in this case beat the plff's. cow and mangled her with dogs as he is charged, he is a trespasser though the cow was in his corn field, and the plff. ought to have damages, to the value of the cow, if her death was occasioned by his act; and, if not, to the amount of the injury. If however, in turning her out of his field, he used only the necessary force, and her death arose from other cause the deft. ought to have a verdict.
Verdict for appellant, defendant below.