Kusel v. Sharkey

By the Court, Crockett, J.: The appeal in this case must be decided on the judgment roll alone. The motion for a new trial was founded on the ground—first, that the findings were not justified by the evidence; second, errors inlaw occurring at the trial; third, that the findings were contrary to the law and the evidence. But there were no specifications in the statement as required by section one hundred and ninety-five of the Practice Act, [5]and it must therefore be disregarded. The only defense relied upon by the defendant is, that the hogs, which constitute the subject matter of the action, were taken up whilst damage feasant on his land, and that at common law as well as by the provisions of the Act of March 26th, 1857 (Stats. 1857, p. 106), he was entitled to take them up and hold them until the owner paid the damages they had caused together with the cost of keeping them; and that he was so holding them at the commencement of this action, having, up to that time at least, complied strictly with the requirements of the above mentioned Act. The fact, which lies at the foundation of the defense, is that the hogs were taken up whilst damage feasant on the defendant’s premises, and we can look only to the findings to ascertain whether this fact existed. The only finding on this point is that the plaintiff was the owner of the hogs, and found them in a pen on the defendant’s premises, and that the “defendant had caught the said hogs in traps on his land, and had hauled them in wagons to the pen above mentioned, where he fed and watered them until the 15th day of September, 1870.” The Court, it is true, further finds that when the plaintiff demanded the hogs the defendant refused to deliver them unless the plaintiff would pay the damages “claimed by the defendant for trespass alleged to have been committed by said hogs on his land, and for taking up, keeping, and feeding said hogs, amounting to about the sum of seven hundred and eighty-nine dollars, and that the plaintiff refused to pay said amount or claims, or any sum whatever, and denied the defendant’s right to take up said hogs.” The Court further finds that on the next day the defendant turned over the hogs to the possession of a Constable, who advertised them for sale, selected three persons “to act as appraisers and assess the amount of damages claimed to have been done by said hogs to the premises of defendant,” and that the appraisers, without having been [6]