Edward D. Young v. Peter Hoover

Edward D. Young v. Peter Hoover. If cattle be impounded for damage feasant, the badness of the plaintiff’s fence is no justification of pound-breach, but may be given in evidence in mitigation of damages. Trespass and pound-breach. Mr. Marbury, for the defendant, offered evidence of the plaintiff’s bad fence, in justification. Mr. Redin, contra, contended that it was no justification of the pound-breach; and cited Bradby on Distress, 287; Cotsworth v. Bettison, 1 Salk. 247; Lindon v. Hooper, Cowp. 414; 1 Rol. Ab. 674, 1. 5; Co. Lit. 47 b, and Latrobe’s Justice, 135. Mr. Marbury, in reply. If the distress be unlawful, the owner may take them out of pound if it be not locked, only latched, so as no violence be used. Com. Dig. Tit. Distress, D. 2, p. 500. [MAJORITY — The Court] The Court (nem. con.) said that the want of a sufficient fence was not a justification of breaking the pound; but may be given in evidence in mitigation of damages; the Court having before permitted the- plaintiff to give evidence of the ■ actual damage done by the cattle in the plaintiff’s garden in aggravation of damages.