Warne v. Oberly

• Decision Date: 09 November 1887
• Citation: 11 A. 146,50 N.J.L. 108
• Parties: WARNE v. OBERLY.
• Court: New Jersey Supreme Court

11 A. 146

50 N.J.L. 108

WARNE

v. OBERLY.

Supreme Court of New Jersey.

November 9, 1887.

(Syllabus by the Court.)

On certiorari from appraisement of freeholders for damages done by swine.

Martin Wyckoff, for prosecutor. M. B. Taylor, for defendant.

MAGIE, J. The certiorari allowed to prosecutor has brought before this court a certificate and appraisement of damages made by two freeholders of Warren county, chosen by John T. Oberly, the defendant, to appraise damages done to him by swine owned by the prosecutor. Prosecutor has assigned many reasons against the validity of this certificate. Two of them having, on consideration, been deemed to be fatal to its validity, the remainder have not been considered.

The proceeding purports to have been conducted under the provisions of section 2 of the "Act concerning trespasses by swine," of March 15, 1798, (Revision, 20.) That section provides that, if any person shall find swine trespassing on lands for which he pays taxes, he may put them in a yard or inclosure, and give notice to the owner, if easily to be found, who shall pay double damages to the person injured, to be appraised and certified in writing by two reputable freeholders. * * *" These provisions seem designed to regulate and make more effectual the common-law rights of distress damage feasant when the trespass is done by swine. But a distraint damage feasant could only be justified for the injury done during the trespass when the distraint was made. Previous trespasses, though by the same animals, could not be taken into account, nor could the animals be held therefor. Bradby, Distresses, 140. The act in question does not at all extend the common-law right in this respect, and is plainly to be construed as justifying the distraint only for the damages occasioned at the time when the seizure was effected.

The case shows that these swine had previously trespassed upon Oberly's land, and had not been distrained, but had returned to their owner. The appraisers included the damages resulting from these previous trespasses in the certificate before us, with the damages resulting from the trespass on the occasion of their being impounded. In so doing they proceeded on erroneous principles, and their certificate cannot be sustained.

The particular injury which Oberly claimed had been done him by the swine resulted from their devouring the apples which had dropped from the trees of his orchard in which they had trespassed. The appraisers provided...