
    Medlin v. Balch.
    
      (Jackson.
    
    May 27, 1899.)
    1. Damages. For detention of cow.
    
    One who detains another’s milch cow that has broken into his premises is liable for the damages resulting from such detention.
    2. VeRdict. Not excessime.
    
    A verdict of three dollars for the unlawful detention of a milch cow, for a short period, is not so excessive as to evince prejudice or passion, .or to indicate that anything was allowed for the owner’s mental anguish over his loss.
    FROM MADISON.
    Appeal in error from Circuit Court of Madison County. Levi S. Woods, Judge.
    Hays & Biggs for Medlin.
    W. G. Timberlake for Balch.
   Wilkes, J.

Mr. Balch’s milch cow, in some unaccountable way, broke into a lot where Mr. Medlin kept his cattle. The cow not coming up to be' milked at her accustomed time, Mr. Balch inquired for her, and hired a man to look for her, and advertised for her in the Jaoltson Sun. The advertisement appears to have been inserted in the Sun under the idea that it was constructive notice to the world. Mr. Medlin saw the cow in his pen, but supposed Mr. Pope, his partner, had bought her. Mr. Pope saw the cow in the yard, and supposed that Mr. Medlin had bought her. In the meantime neither of them appears to have looked at the Sun. After some two or three days, in a conference between the two, it was ascertained that neither had bought the cow. Mr. Medlin then tried to find the Ranger, to post the cow, but the Ranger was out on the range, and appears to have been as hard to find as was the owner of the cow. In the meantime Mr. Baleh and his family were suffering for milk, and he was in great mental anxiety for his cow. Some two weeks afterwards a gentleman called at the yard and demanded the cow, but Mr. Medlin refused to deliver her except on an order from Mr. Baleh. It seems fairly inferable, from this fact, that Mr. Medlin had heard she was Mr. Balch’s cow. On production of Mr. Balch’s order the .cow was delivered. Mr. Medlin met Mr. Baleh a short time afterwards and explained to him that he had kept the cow up to find out who she belonged to. This does 'not appear to have satisfied Mr. Baleh, and he sued Mr. Medlin for damages before a Justice of the Peace for meddling with his cow. The Justice, after mature deliberation, gave a judgment for the plaintiff, and the defendant appealed to the Circuit Court. The case was there tried before the Court and a jury, and, after a full hearing, there was a judgment in favor of the plaintiff for three dollars and the costs. The judgment was not an excessive one, but the costs had come to be a matter of more consequence than either the damages or the cow, and so the defendant promptly appealed to this Court, and assigns quite a number of errors.

The case was elaborately presented by two of the ablest counsel of the Jackson bar in arguments that were extended, learned, and exhaustive, at least to the Court, and, after mature deliberation and earnest consultation, this Court has reached a conclusion. The trial Judge charged the jury, in substance, that, so long as Mr. Medlin believed his partner had bought the cow, he was not in error in keeping her in his yard, but when he found out that his partner had not bought her, and that she was somebody’s milch cow that had got into his lot, he ought to have turned her out and let her go home to her calf, and in that way she would have reached her owner.

The trial Judge seems to have proceeded on the idea that the cow would find her owner more promptly than Mr. Medlin would, and we are of opinion that this was good • common sense, and he was not in error in this view of the case. Common sense is always good law, but law is not always common sense. The jury gave a verdict for $3. We do not consider this so excessive as to evince prejudice or passion, and we will not disturb it on this ground. The advertisement and hire of man to make a search were legitimate items to look to in fixing the damages. Nothing seems to have been allowed for Mr. Balch’s mental anguish.

The defendant asked the Court to give some additional charges to the jury, but we think (1) that they are not good law, and (2) the Judge charged the jury correctly, and the jury charged defendant enough for this kind of a case, when the amount of costs is considered.

The judgment is affirmed.  