Morrison v. Mitchell

By the Court.

We consider that the plaintiff had such an exclusive possession of the whole crop of wheat while growing and until it was harvested and his landlord’s *326share as rent was severed from it, as would entitle and enable him to maintain an action of trespass quare clausem, fregii for breaking and entering the close in which it was then growing, or being harvested and damaging it, against the succeeding tenant of the farm, the defendant; and as it has been proved that he was informed and well knew that his hogs were continually getting into the fields and seriously damaging the wheat of the plaintiff, it was his duty to have prevented it effectually ; but as he made no effort to do that, the injury done by them was so far willful on his part, as to render him liable in this form of action for it, and not in an action on the case for it, as the result or consequence of his negligence merely. The motion for a nonsuit is, therefore, overruled.

The case then went to the jury and the plaintiff had a verdict.