Wayne County NcArchives Court.....S. O. Rogers, H. H. Coor V. 1886
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 9:09 pm

Source: Nc Reports
Written: 1886

H.H. Coor v. S.O. Rogers

From Wayne

September Term 1886

Stock Law — Burden of Proof 

1. Where the statute makes it the duty of the County Commissioners to build 
and keep in repair the fence around the territory embraced by the stock law, 
an owner of stock who resides outside of such territory, is not liable to have 
his stock impounded if found within such territory, unless the County 
Commissioners have kept the fence in good repair. 

2. In such case the presumption is that the fence is in good order, and the 
burden of showing the contrary is on the party alleging it. 

Civil action, tried before Philips, Judge, and a jury, at September Term, 
1886, of Wayne Superior Court. 

This action, begun before a justice of the peace, was brought to recover 
possession of four hogs, which the plaintiff alleged to be his property, and 
he availed himself in the course of the action of the provisional remedy of 
claim and delivery. 

The following is so much of the case stated on appeal, as it is needful to set 
forth here: 

"It was admitted that the stock had been taken up by the defendant while 
trespassing upon and doing damage to his crops, which were situated within the 
stock law territory, described in chapter 115, to such fence and gates 
faithfully. 

We are, therefore, of opinion that the Court erred in refusing to admit the 
evidence offered by the appellant on the trial in respect to the alleged 
ruinous condition of the fence and gate. 

The instructions given the jury were likewise erroneous. The Court should have 
told them in substance, that if the fence and gate were in reasonable repair, 
and in that case, the hogs got through or over them, the plaintiff, although 
the owner of them, would not be entitled to have possession of them until he 
had first paid the costs and charges of taking them up and impounding them; 
that, however, if the fence and gate were out of repair, as alleged by the 
plaintiff, then he would be entitled to recover the possession of his hogs, 
although he had not paid the costs and charges demanded by the defendant. 

The plaintiff is entitled to a new trial, and we so adjudge. To that end, let 
this opinion be certified to the Superior Court according to law. It is so 
ordered. 

Error. Reversed. 


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