Dent v. Ross

Chalmers, J., delivered the opinion of the court. The refusal of the court below to grant plaintiff in error a ■continuance cannot be noticed here. It was. not excepted to nor made grounds for new trial in the court below. The case was this: Plaintiff in error, who was defendant below, impounded and assumed to hold two mules belonging to plaintiff below, which he alleged were trespassing upon his fields. He claimed to hold them under § 1922 of Code, until he should be paid the statutory allowance of 75 cents jper day for keeping them; though the weight of the testimony seems to establish that he declared that he would not surrender them until he should receive payment for the ■damages which he had sustained, which damages, he asserted, amounted to $22. He had no lawful fence on one side of his plantation, he and his neighbor having agreed that they would build no partition fence, but would keep up their stock, so that the animals of neither should trespass upon the other. Plaintiff below, who was the owner of the mides, was a tenant on the adjoining plantation, and had notice of this agreement and assented to it. He violated this agreement and frequently turned loose his mules into his own fields, from which they wandered into those of plaintiff in error. Did this authorize plaintiff in error to impound and hold them, or justify his demand for the statutory allowance for keeping them? "VVe think not. This right is purely statutory, .and stricii juris, and can only be exercised when the animal lias broken through a lawful fence. When a party contracts with his neighbor that as between "themselves they will build no fence,, but that each shall keep [192] up his stock, there is upon both a like obligation, which the law will enforce in an action for damages or other appropriate-proceeding ; but it does not authorize the injured party to-resort to a remedy of a highly penal character, provided for a wholly different case. Plaintiff below was, therefore, entitled to-maintain his writ of replevin without having paid or tendered either the 75 cents per day or the $22, which he says defendant below demanded of him. The action of the court in the giving and refusing of charges-conformed substantially to this view, and was correct. It is claimed that the damages allowed ($150) were excessive. They seem large, but the mules were detained more than six months, and the amount is less than that proved. It is urged that the judgment was erroneous in awarding-damages against the sureties on the bond executed by defendant, below for the detention of the mules, since there was no recital in the bond that the sureties should be bound for damages. The bond is in strict conformity with § 1530 of the Code,, and by § 1533 it is provided that damages shall be awarded against the obligors and sureties in such bonds. Judgment affirmed.