Colden v. Eldred — 15 Johns. 220

Majority

p. 220

Colden against Eldred.

Headnote

The remedy by distress and sale of beasts, damage feas ant, given by statute, sess. 36. c. 35. s. 19. (2¿V.ft.L.134.) does not take away the common law remedy by action of trespass.

Vt here beasts damage feasant have been dis-trained, or e-yen impounded, the dis-trainer may relinquish the proceedings by distress, before-satisfaction for the damage which has been sustained, and bring an action of trespass.

In an action for trespass by cattle, it is matter of defence, and to be shown by the defendant, that the fence which the in repair was defective.

IN ERROR, on certiorari to a justice’s court.

The defendant in error brought an action of trespass in the court below against the plaintiff ih error, for damage done to his grain by the sheep of the latter. The plaintiff below proved the trespass and damages, and the defendant below offered proof to show, that the sheep had been dis-trained and impounded by the plaintiff; the evidence being objected to, was excluded by the justice. A verdict was found for the plaintiff below.

The only question in this case is, whether the defendant ought not to have been permitted to prove that the sheep had been distrained and impounded for the same trespass. The remedy, by distress, given by the statute, is cumulative, and the plaintiff may, if he pleases, pursue the common law remedy by action of trespass. Had the plaintiff followed up his remedy by distress, according to the provisions of the statute, or had the merits of his right to recover been tried, it would have been a bar to the action of trespass. But the defendant’s offer did not go far enough. The distress offered to have been proved does not appear to have been followed up by the plaintiff; there might have been some irregularity which rendered it necessary for him to abandon it; and the mere distress, or even impounding, if relinquished, would be no satisfaction for the injury. This part of the defence was, therefore, properly excluded. The evidence showed, very satisfactorily, that the sheep got over that part of the fence which for several years had been kept up by the defendant as his part of the

p. 221

division fence; and this was enough, at least, prima facie, What the situation of the fence was, or whether there were any rules or regulations of the town on the subject, does not appear. It, however, was matter of defence, and to be shown, on the part of the defendant, if any thing existed which would excuse the trespass. The judgment must, therefore, be affirmed.

Judgment affirmed.