Bonner v. DeLoach

• Decision Date: 01 February 1887
• Parties: BONNER v. DE LOACH.
• Court: Georgia Supreme Court

2 S.E. 546

78 Ga. 50

BONNER v. DE LOACH.

Supreme Court of Georgia

February 1, 1887

Error from Talbot county. Action of trespass.

Martin & Worrill, for plaintiff in error.

Willis & Mathews, contra.

HALL J.

This was an action of trespass quare clausum fregit, to which the defendant demurred generally. The demurrer was sustained by the court, and the plaintiff excepted. The declaration avers that the defendant's hogs, some 20 in number, were suffered to run at large, and that they entered several times on his farm, which was inclosed by a lawful fence, and destroyed his crops, consisting of corn potatoes, peas, and sugar cane; the value of each of the different kinds of crops destroyed was given, and amounted to more than a hundred dollars; that the defendant was notified of the damage his hogs were doing, and was required to keep them up, so as to prevent their incursions upon the farm that he gave no heed to the notice, nor paid any attention to the request, but, on the contrary, he suffered them to continue running at large, and maliciously drove them upon plaintiff's premises. Plaintiff further avers that he did not impound the hogs, because he was unable to catch them. He laid his entire damages at $300.

It does not appear whether the stock law was of force in the county of the party's residence; nor, in the view we take of this case, do we think it material whether it was or not. The provisions of the common-law (Broom, Comm. 775) regulating this matter, render the defendant answerable "for not only his own trespass, but that of his cattle also; for if by his negligent keeping, they stray upon the land of another, (and much more if he permits or drives them on,) and they there tread down his neighbor's herbage, or spoil his corn or his trees, that is a trespass for which the owner must answer in damages. The law gives the party injured a double remedy in this case, by permitting him to restrain the cattle thus damage feasant till the owner shall make him satisfaction; or else, by leaving him to the common remedy in foro contentioso, wherein, if any unwarrantable act of the defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages, such, however, as the jury shall think proper to assess." No alteration is made in this law by our statute except that by the former the beasts of the trespasser are not permitted to...