Fitzwater v. Stout

The opinion of the court was delivered April 21, by Coulter, J. The four errors assigned amount to this, that the court submitted to the jury the facts, whether George W. Fitzwater and John Fitzwater, the younger, participated in any acts after the cattle were taken to Thompson’s, and whether they participated in the sale subsequently made, and whether a demand was made of the cattle; there being no evidence to implicate the defendants in these conclusions. But the case was fairly enough submitted to the jury as to these matters of fact. There was undoubtedly some evidence, as to John, and it was distinct as to George W. The court told the jury that they might find against either of the defendants, if the testimony did not warrant a finding against both. It is unnecessary to go over the case, further than to say, that from the commencement to the closing scenes, John, the elder, and his two sons were actors in concert, and spoken of by the witnesses as the Fitzwaters who drove away the cows. And one of the witnesses testifies that he was present when cows were demanded of the Fitzwaters, when they were locked up in Thompson’s stable. This evidence is not [25] very distinct, but under tbe circumstances it ought not to have been excluded from the jury. Jt was at least a spark. The proceedings under the stray law, were in no sense complied with, except in taking the cows and locking them up. Under what process or by what authority they were sold, does not appear. Even if Fitzwater, the elder, was right in taking the cows of Stout, his tenant, trespassing on his field, and locking them up by himself and his sons, they had no right to keep them during pleasure, sell them as they pleased, unless by some Brehon law not recognised by our courts. A poor man lost his property against law. We see nothing in the record which requires the judgment to be disturbed. Judgment affirmed.