Colden v. Eldred
New York Supreme Court
IN ERROR, on certiorari to a justice’s court. The defendant in error brought an action of trespass in the court below against the plaintiff ih error, for damage done to his grain by the sheep of the latter. The plaintiff below proved the trespass and damages, and the defendant below offered proof to show, that the sheep had been dis-trained and impounded by the plaintiff; the evidence being objected to, was excluded by the justice. A verdict was found for the plaintiff below.
1Per curiam
The only question in this case is, whether the defendant ought not to have been permitted to prove that the sheep had been distrained and impounded for the same trespass. The remedy, by distress, given by the statute, is cumulative, and the plaintiff may, if he pleases, pursue the common law remedy by action of trespass. Had the plaintiff followed up his remedy by distress, according to the provisions of the statute, or had the merits of his right to recover been tried, it would have been a bar to the action of trespass. But the defendant’s offer did not go far enough. The distress offered to…
2Cited by16 opinions
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- Lampert v. Laclede Gas-Light Co.Missouri Court of Appeals · 1883
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