In addition to the above, speaking for myself alone: There is no evidence to authorize any inference that the plaintiff committed any crime. The plaintiff was in lawful possession of the land as tenant upon which the crops levied on were growing, and had the right to the use of the land as such tenant. He had a right under the law, as it prevailed in that county, to turn his hogs out to publicly graze, and was under no duty to fence his own fields or to keep the fences in repair against the intrusion of his own stock. He had a right to turn his hogs out, even though he knew they would go into the field where the crops were on which the defendant had levied. It does not appear that the crops, after the levy had been made, were left in the plaintiff's custody or care by the sheriff. The crops had been levied on by the sheriff, and it was incumbent on him to preserve and care for them. The plaintiff had committed no act which was an element of a crime. If he had turned his hogs out as claimed, which he had a right to do, and if he had made any openings in the fence surrounding the plaintiff's field, which the sheriff had closed to prevent the entry of the hogs, he committed no act which constituted any element of a crime. The alleged acts attributed to the plaintiff were not criminal as respects the statute penalizing the wrongful sale or disposition of mortgaged property (Code, § 67-9901), or as respects the statute against malicious mischief (Code, § 26-8116), or as respects the statute against obstructing legal process (Code, § 26-4401), or pulling down or removing any fence or enclosure of another without his consent (Code, § 26-3001 (3)), or as respects any other criminal statute.
The plaintiff's alleged acts could possibly fall only under "otherwise disposing" of mortgaged property (Code, § 67-9901), or "other acts of wilful and malicious mischief, in injuring or destroying any *Page 580 other public or private property not herein enumerated" (Code, § 26-8116). The disposition of mortgaged property, which is made criminal, consists in disposition in the nature of a sale of the property. Conley v.State, 85 Ga. 348 (11) (11 S.E. 659); Stenson v. State,43 Ga. App. 582 (159 S.E. 777). In the latter case it was held that killing and eating a hog by a mortgagor is not a disposition of mortgaged property in the sense of the statute which penalizes a disposition of mortgaged property. Certainly, the eating of the mortgaged property by the mortgagor's hogs, even if with the mortgagor's consent and procurement, is not a violation by the mortgagor of the statute penalizing the disposition of mortgaged property. Malicious mischief as respects any act against property, as constituting a crime, must be against the property of another, and must be wilful and malicious. The statute says "wilful" and "malicious." Code, § 26-8116. This contemplates some wilful and malicious act by the person himself. It certainly does not contemplate an involuntary or negative act such as that of turning out the hogs to graze publicly under a right so to do, or making an opening in one's own fence, although he may know that his hogs will get into the field and eat the crop, and he expects them to do so.