The Nevada journal., 1858-04-09

|
published for glory. On the preceding
day the case was argued and submitted
to the referee, who finds the following
to be the
FACTS
lst That at the date mentioned in complaint defend
| ant was possessed of hog described in complaint
3D. That plaintiff on said tie was possessed of the
premises to wit, cabbage garden, described also in
complaint.
3. That the hog mentioned did incoutinently rush
through the fence enclosing said cabbage garden and
eat cabbages of plaintiff ito the injury of three
| lars
4th That the forcible entry of said hog was caused
by his innate viciousness and the tempting nature OF
| plaintiffs cabbages.
5th That said hog was inc apabe of withsandng said
temptations at the date of breaking plaintiffs close al
though ell exterior appearances at the time and prior
thereto, indicated he was well dispos, hoggsh kind
| of hog
9th That defendant was not aw are of the intentions
of said hog though plaintiff had eve on him. and
requested defe ndant to send him to the butcher.
7th That plaintiff saw said hog wistfuly eyeing his
cabbages and without committing the oense of assault
and battery could have pitched said hog uto the middle
of next week. to wit, succeeding" week.
If referee is expected to decide a
case on its merits, would not hesitate
in deciding for the defendant. But as
the rules of practice are made to decide
cases otherwise, shall be compelled to
decide the case SO any how. AS the
defendant evinces striking magnanim-
ity in admitting everything in the COM
plant, he makes it difficult to decide in
his favor, but so must do, and be cred
tied with proportionate praise for sur
mounting difficulties. Jarndiee VS.. Jarn-
dice, Boz, 176,-Bardell vs.. Pickwick,
Boz, 310,-Nig VS.. Hollerman, Aab.
corp. March term, Dist Court, New. Co.
The parties to this suit must be deem
ed the absolute owners of the cabbages
and hog in question, though in reality
the cabbages are shown to have sprung
from last years seeds spontaneously,
and the hog acted like "his own man."
In this opinion l am sustained by the
oft quoted, but imposing, hog-latin max
i'm, "sic transit Aogum cabigensis, muy
malo." For if the plaintiff is deemed
the owner of the land, he must be deem
ed equally the owner of the growing
cabbages on the same. "Parum difc-
runt qae re concordant." Again, any
asserted freedom on the part of chat
tel, or cattle, white man is not bound
to respect.-Dred Scott case. possim,-
Stovall VS.. Archy, Supe Reps. Jan.
Term 1S4S.
This case must be decided cum digni-
tate, by the application of the legal max
info impress the ignobHc rulgus with
the profundity of "the lor," viz : Bonus
.juder sscsmdum equum ct bonum judicat,
ct cequitatem stricto juri prgfert." That
is to say, it is the duty of the judge to
decide by his own ideas, and not by law.
This maxim has the sanction of our own
Supreme Court in the Archy case, above
referred to.
In arriving at the value of the grow
ing cabbages l have treated them as
real estate, and strenuousiy contend for
this position, although it has nothing to
do with the case, and by so doing | diff
fer with all authorities ancient and mod
ern.
There is no doubt that the hog broke
The close of the plaintiff, animus t&randi,
with the intention of stealing the cabba-
ges, but what referee can have the har-
diness to witness without a tear in his
eye, young hog, not in robust health,
prosecuted for the first time, for making
a meal on cabbages, daily and nightly
ostcn:ationsly displayed to his swinish op-
tics ? The plaintiff should have built a
better fence, or planted mustard.
The owner of hog penncd adjacent
to a tract of Land OH whie h there is lot
of growing cabbages ought not to be
held liable for the injury done by an
irresistible ebulition of the consuming
disposition Of said hog, produced by in
ordinate tastes of natures implanting.
The owner of the animal cannot be held
to have devoured the cabbages, which
shows the futility of the legal maxim,
qui .tacit per alum. .facit pc, Sc.
Again, the plaintiff had perfect right
to enter the defendants close, kill his
hog. tramplc down his cabbages, and do
all other acts necessary to restrain the