Cannon v. Horsey — 6 Del. 440

Majority

p. 440

William N. Cannon v. Nathaniel Horsey.

Headnote

If a person impounds swine damage-feasant, and kill them while so in his possession, or injure them, so that they afterwards die when set at large, it will be such a destruction as will constitute a conversion in law of the property, and trover will lie for it. But if the same is done while the swine are damage-feasant, or running at large, and not so in his possession, trespass, and nqt trover, is the proper remedy.

The provision of the statute in regard to case and trespass has not abolished the distinction between the two actions in such a case.

This was an action of trover to recover the value of certain swine 'of the plaintiff, killed by the defendant. The

p. 441

pleas were, not guilty, the act of limitations, and that the defendant took the swine damage-feasant. To the last plea the plaintiff replied specially, that the defendant’s fences and inclosures were defective and insufficient, by reason whereof, &e. The defendant rej pined, that the fence-viewers had pronounced his fence a lawful fence, and that he thereupon recovered a judgment before a justice of the peace for the damages assessed by them pursuant to the statute, for the' trespass and injury then and there committed by the swine. Surrejoinder by the plaintiff, that the defendant killed the swine, &e. Rebutter traversing the rejoinder of the plaintiff, and issue by the defendant.

The proof was, that the plaintiff’s hogs had been trespassing on the premises of the defendant and that he impounded them, bu,t afterwards -turned them at large, but trespassing upon him again in a short time, he attacked them with sticks and ’dogs, and shot among them with his gun. Three or four of the swine soon afterwards died. It was also, proved-that the defendant had called out the fence-viewers to examine the fences on his premises, and that they had adjudged them to be lawful and pursuant to the statute, and had assessed damages in his favor for the trespass committed.

For the plaintiff, it was insisted that this constituted no defence for killing the hogs.

On behalf of the defendant, the objection was taken that the action for the injury complained of should have been trespass and not trover, as no conversion of the property by the defendant had even been attempted to be shown. For the plaintiff, it was replied that the distinction between case and trespass had recently been abolished by statute, Rev. Code, 379, sec. 11, and that such an objection no longer lay to the form of the action, and if trespass would lie, trover would lie also.

The Court,

charged the jury.: That if the swine were'trespassing on, the premises of the defendant, and broke through his inclosures, which had- been found

p. 442

by the fence-viewers to be lawful and sufficient fences, he had a right to take them up, and it was no conversion oh his part to impound them. But if while they were thus in his possession he killed any of them, or did any injury to them, by reason of which they died after he turned them out, it would, in the opinion of the Court, amount to such a destruction of the property as would constitute in law a conversion of it, and for which the present action would lie. If, however, the defendant killed them in the act of trespassing upon his corn, or shot them while running at large, and when they were not so in his possession, in consequence of which they either then or afterwards died, he. would not be liable in trover, but would be in trespass for the loss which the plaintiff had sustained by it. For the provision of the statute referred to had not abolished the distinction between the two actions, to the, extent suggested by the counsel for the plaintiff. The object of that provision, as we have frequently had occasion before to rule, was simply to abolish the technical and often refined distinction, existing at common law, between actions of trespass on the case for consequential damages and actions of trespass vi et armis for direct and immediate injuries, so far as the forms of the actions merely were concerned in such cases, and nothing more.

C. S. Layton, for plaintiff.

Robinson, for defendant.

Verdict for defendant. '