
    JAMES KIMMEY v. JOHN MILLAWAY.
    Supreme Court.
    March, 1825.
    
      Clayton's Notebook, 156.
    
   Now on trial at bar, after the counsel on the part of appellant had closed their evidence, Clayton for respondent moved for a nonsuit to be entered against the appellant, and argued in support of the motion that the appellant had not complied with the requisites of an Act of the Legislature of Delaware, passed 13 Geo. II, 1 Del.Laws 180, which makes the fence-viewers in each hundred the sole judges of the damages where the stock of one person trespasses on another.

After hearing counsel on both sides, Johns, C. J., delivered the unanimous opinion of the Court that if any horses, kine, sheep, hogs or any kind of cattle, shall break into any person’s inclosure, the same being found by the fence-viewers to be of sufficient height (four feet and half), then the owner of such horses, sheep, hogs or cattle shall be liable to make good all such damages to the owner of such inclosure as shall be found and awarded by the said viewers, upon their oath or affirmation made before some justice of the peace of the county where the trespass is committed. But the appellant in this case, not having had the viewers on the premises in question, cannot recover, for by the third section of the Act, the viewers are the sole judges of the damages sustained by means [of] any creature’s trespassing; and therefore it is ordered and adjudged that the appellant be nonsuited.

Ridgély and Huffington for appellant. Clayton and Bates for respondent.  