Early v. Fleming

| Mo. | Mar 15, 1852

GrAftiBliE, Judge,

delivered the opinion of the court.

Early sued Eleming before a justice of the peace, and stated his case to be for three hogs, but whether sold to the defendant, or killed, or taken away by the defendant, is not mentioned in the statement. The justice’s docket shows the nature of the demand to be for stock of plaintiff shot by defendant.

The parties having had a trial before the justice, in which the plaintiff succeeded, the defendant appealed to the Law Commissioner. Before the Law Commissioner, a trial was had, which resulted in a verdict and judgment for defendant, from which the plaintiff appealed to this court.

It appeared, before the commissioner, that the plaintiff’s hogs were in the defendant’s inclosure, which was on the Mar-amec river, and that the defendant shot them. The defendant’s field was not inclosed with a fence, such as is required by statute. The Maramec was very high and partly overflowed the defendant’s field.

The commissioner, at the request of the defendant, instructed the jury, that (t if they believe, from the evidence, that the defendant’s fence, owing to the high water, would not have been able to keep out from his inclosure the plaintiff’s pigs, whether said fence had been a legal one or not, they will find for the defendant.”

1. It is not attempted in argument to sustain an instruction so entirely erroneous as this. The man who kills his neighbor’s stock, must place himself exactly within the protection of the statute that allows such vengeance.

2. Eor the appellee, it is insisted that the statement or bill of items before the justice, is not sufficient, as it does not purport to be for the killing of hogs. All formality is dispensed with, in the statement o£ the cause of action before justices of the peace, and here, the parties manifestly understood the nature of the plaintiff’s demand.

Let the judgment be reversed, and the cause remanded.