Leake County MsArchives Court.....Dickson, Mr 1839
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:32 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Dickson v. Parker.

pages 219-222

Where A, who had an insufficient fence, took up the mule of B, which was doing 
damage in his field, and tied the mule in his stable, and the mule in a 
struggle to escape, was choked to death: Held, A was liable in an action of 
trespass, which is the proper remedy in such case.

Where cattle are found upon land doing an injury, the owner, under certain 
restrictions, is allowed to seize and distrain them, as a pledge for the 
payment of the damages; but this will not be permitted unless the owner of the 
cattle would be liable to an action.

Where some of the witnesses stated, that the property destroyed was worth flve 
dollars, others, one hundred dollars, and others, that it was worth nothing; 
and the verdict was for the defendant: Held, to the jury exclusively belongs 
the province of weighing the testimony and pronouncing the result, and 
although it appears that the preponderance of testimony was a favor of the 
plaintiff, yet tbe appellate court will not, for that reason alone, award a 
new trial.

ERROR to the circuit court of Leak county.

This was an action of trespass to recover the value of a mule alleged to have 
been killed by the defendant. The bill of exceptions, which was taken on the 
trial below, states that the mule had broken into the defendant's close, that 
he then seized and put it into his stable, and tied it with a halter; and that 
in its struggles to escape, it was choked, and died. It is stated that, whilst 
confined, it was well watered and fed. It also appeared that the defendant's 
fence was very indifferent.

The value of the mule was variously estimated by the witnesses. Some stated it 
was worth an hundred dollars; others, that it was worth five dollars; and 
others, that it was of no value. Upon these facts, the verdlict was found for 
the defendant. The plaintiff moved the court for a new trial, which was 
refused. Exceptions were taken, and writ of error to this court.

Hays and Verger, for the defendant in error.

1. There is no error in the record; because, at common law, every man has a 
right to distrain cattle doing damage on his land; 2 Black. Comm. 6 and 7; and 
if, in the exercise of this right, damage is done to the cattle, it is damnum 
absque injuria.

2. The defendant having a right to distrain the mule, if he did it so 
negligently that the mule received any damage in his struggles to escape, 
trespass on the case, and not trespass can be sustained; the injury being 
merely consequential from the negligence at the defendant. The proof in this 
case, therefore, did nor sustain the declaration. Reynolds v. Clarke, Ld. 
Raym. 1399; 1 Wheaton's Selwyn, 332.

3. It is a well settled rule, that, if the verdict of the jury be correct, and 
the law is thereby in that case administered between the parties, a revising 
court, from any error in the charge of the court below, will not send the case 
hack, where they are satisfied the same result will be produced on a second 
trial. Graham on New Trials, 301, and authorities there referred to.

4. The court will not reverse, because the finding of the jury is against 
evidence, unless it be so manifestly wrong, that it exhibits gross ignorance 
or fraud in the jury; and they will not reverse for such finding when it does 
not appear from the bill of exceptions that all the evidence is set out. 2 
Wendell, 352; 5 Ibid. 48; 4 Yerger, 323; 10 Yerger, 501.

Mr. Justice TROTTER delivered the opinion of the court.

The principal error assigned is, the decision of the judge overruling the 
motion for a new trial, on the evidence contained in the record. If the 
defendant's fence had been a lawful enclosure, according to the provisions of 
the act of 1822, which declares what shall be deemed such, there could be no 
difficulty in determining this question. The enclosure, however, was not a 
sufficient one under the law, and the defendant had no authority to take the 
means of redress into his own hands, for any injury he may have sustained in 
consequence of such insufficiency. And yet he seeks to justify the seizure and 
detention of the mule in this case, under the law which allows cattle doing 
damage on another's land to be distrained by the owner. This case presents 
none of the features of a regular distress. It is very true that where cattle 
are found upon land doing an injury, the owner, under certain restrictions, is 
allowed to seize and detain them as a pledge or security for the payment of 
the damages he has sustained. But this, as a means of redress, can never be 
allowed unless in cases where the owner of the cattle would be liable to an 
action. Could the plaintiff have maintained a suit on the facts disclosed by 
the record in the present case? He could not. How then can he justify himself 
under the law of distress? It has been insisted, however, that, be this as it 
may, the action should have been case and not trespass. This argument is 
rested upon the assumption that the taking of the mule in the first place was 
a lawful act. But if there was no right to distrain, then the seizure was 
illegal, and trespass is the proper remedy. Bac. Abr. tit. Trespass, B. If, 
however, it had been a case in which the right contended for did exist, yet if 
the defendant afterward abused or killed the animal, he would become a 
trespasser ab initio. For it is a well settled rule, that whenever a person, 
who at first acted with propriety under an authority or license given him by 
law, afterwards abuses that authority, he becomes a trespasser ab initio. 
Ibid. tit. Trespass. And, therefore, says the same authority, if J. S., who 
has distrained a beast damage feasant, afterwards kill it, he is a trespasser. 
In this case, it is clearly shown that the mule got into the defendant's 
grounds in consequence of the insufficiency of his fence, and if it was 
destroyed by his act, he must submit to pay the owner its value. The 3d sect. 
of the act of 1822, provides, that if any person injured for want of such 
sufficient fence as is required by a preceding section, shall hurt, wound, 
lame, kill or destroy, &c., by shooting, hunting with dogs or otherwise, any 
horses, mares, mules, &c., he shall pay and satisfy to the owner of the beast 
so hurt, &c., double damages. This statute is quite decisive of the question 
of the defendant's liability, and the jury should have found a verdict for the 
plaintiff, for the value of the mule, as ascertained by the testimony. What 
the value was, it was their peculiar prerogative to decide. Some of the 
witnesses have stated that it was worth five dollars; others, one hundred 
dollars, and others that it was worth nothing. To the jury exclusively, 
pertained the province to compare and weigh the testimony, and pronounce the 
result. They have done so, and we are not inclined to disturb their verdict. 
The whole case was before them, with all the circumstances; and although it 
would appear from the bill of exceptions that the preponderance of the proof 
was in favor of the plaintiff, yet we can not, for that reason alone, award a 
new trial. It is not our business to weigh the testimony. It is sufficient 
that we see, upon the record, proof which legally conduced to the verdict 
which was rendered.

Let the judgment of the court below be affirmed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

File at: http://files.usgwarchives.net/ms/leake/court/dickson53wl.txt

This file has been created by a form at http://www.poppet.org/msfiles/

File size: 8.2 Kb