82 So. 112 | Ala. | 1919
"(4) Does not allege the defendant is a resident of the said stock-law district, or was in said district at the time of the wrongs alleged in said complaint."
"(10) For aught that appears the defendant may have been a resident of another district *99 wherein it was permissible to permit stock to run at large, and the said stock may have been permitted to run loose in said district and wandered into the said stock-law district."
Omitting presently unimportant features of the complaint, it is as follows:
"(1) The plaintiff claims of the defendant $20 damages done by the defendant's yellow and white spotted milch cow, to wit, during months of August and September, 1916, in the plaintiff's garden in the town of Brighton, a stock-law district in Jefferson county, Ala., which said damages are more particularly set out as follows: * * *
"And the plaintiff claims a lien on said cow for the satisfaction of said damages and charges."
In substance and effect the objection sought to be pointed by the quoted grounds of the demurrer was that the complaint improperly omitted the essential averment that the defendant was a resident of the stock-law district in which the cow committed the damage complained of. The application of the pertinent, long-accepted doctrine of the decision in Joiner v. Winston,
The decision in Jones v. Hines,
"The statute would but ill accomplish its purposes if it protected the owner or occupier of lands from the trespasses only of cattle owned by those residing within the district, requiring him to fence against, or submit to the trespasses of, the cattle of owners residing in adjoining districts. The designated district would be converted into common pasture for all, except those residing within it."
The writ is granted. The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals.
Writ granted.
All the Justices concur.