
    Watson Sherman v. Addis E. Kilpatrick.
    
      Trespass by animals — Exemplary damages.
    
    Exemplary damages cannot be allowed in an action for trespass by animals, where the declaration claims no such damages, even though defendant has rescued the animals by force from, the plaintiff's keeping.
    Error to Leelanaw. (Itamsdell, J.)
    Oct. 16.
    Oct. 28.
    Case. Defendant brings error.
    Affirmed.
    Pratt, Hateh <& Paris for appellant.
    
      James P. Adsit for appellee.
   Sherwood, J.

The parties in this case were neighbors and farmers. The colt of the defendant trespassed upon the land of the plaintiff, and while doing damage thereon was taken up by the plaintiff and impounded in his barn, there being no public pound in the township. This was done on the 11th day of October, 1881. After the impounding, and about seven o’clock in the evening, the plaintiff gave the defendant written notice that he had taken up his colt, and would like to have him come and get it and pay the damages. About six o’clock the next morning the defendant came and took the animal away, against the protest of the plaintiff, and without paying any damages, using force to obtain possession of the property.

The plaintiff brought suit before a justice of the peace to recover his damages for the injury done by the colt, and his fees and charges for impounding. On the trial the justice rendered a judgment for the plaintiff for the sum of $13.00, made up as follows: $3 actual damages, $10 exemplary damages, and in addition thereto $5.40 costs. The defendant removed the judgment into the circuit court for the county of Leelanaw by certiorari, wherein the judgment was affirmed and the proceedings are now before us for review.

The defendant claims no exemplary damages should have been allowed, and in this he was correct. The plaintiff in his declaration only claims for his actual damages and charges before the rescue; ten dollars were allowed as exemplary damages, which must be deducted from the amount allowed, and with this modification

The judgment will be affirmed without costs.

The other Justices concurred.  