Bonner,v,de Loach.

• Decision Date: 01 February 1887
• Citation: 78 Ga. 50,2 S.E. 546
• Parties: Bonner v, De Loach.
• Court: Georgia Supreme Court

2 S.E. 546

(78 Ga. 50)

Bonnerv, De Loach.

Supreme Court of Georgia.

February 1, 1887.

1. Tresspassing Animals—Remedies.

At common law, if, by the negligent keeping of the owner of hogs, they strayed upon the land of another, and injured his crops, it was a trespass for which the owner was answerable in damages; and the party injured might either impound the cattle until the owner should satisfy his damages, or he might bring an action for the trespass. This right of action is not altered by the statutes of this state, except that, in counties where the stock law does not obtain, the damage, in order to give a right of action, must be done on land inclosed by a lawful fence. Where the stock law obtains, provision is made for taking up and impounding animals running at large, and holding them until damages and costs of keeping and maintenance are paid, and a summary remedy is given for damages by proceeding before a justice of the peace; but this remedy is cumulative and not exclusive, and it does not prevent a resort to an action to test his rights in the ordinary courts of justice. Broom, Comm. 775; Code, §§ 1435, 1449-1452, 1454, 5153.

2. Same—Pleading.

The mere averment that the plaintiff was unable to impound and hold the hogs because he could not catch them does not necessarily authorize the inference that the stock law was of force in the county where the suit was pending.

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 0300.

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...