Bradish v. Schenck

Headnote

Letting =IW¡ a^shigie^cmp, to Mease^of the ót"nei- alone e,,,a-action of tras- : ion’to join the be uíitcn ‘a.ivanjb|'at¿ meilt

IN error, on certiorari, from a justice’s court. Schenck brought an action of trespass against Bradish, before the justice, for damage done by the hogs of the defendant, by breaking into the enclosure of the plaintiff, and destraying his corn, &c. And the plaintiff produced the certificate of the fence-viewers, appraising- the damage, pursuant to the act, (24th sess. c. 78. s. 16.) at 7 dollars, The defendant pleaded, that the plaiAtiffliad distrained the hogs, and impounded them before the commencement of the suit; and that the plaintiff was not in possession of che land on which the trespass was alleged to have been committed.

It was proved that one Curtiss took the land of the plaintiff, and planted it with corn, upon shares. The hogs of the defendant were twice driven out of the field, and were afterwards impounded by the plaintiff, and about five days thereafter replevied. The action of replevin, grounded on the original distress damage feasant, was withdrawn soon after it was commenced^ but it did not appear why it was withdrawn, or whether it was settled before the commencement of the action of trespass. The jury found a verdict for the plaintiff, on, which the justice gave judgment.