notify him of his objections, and offer to return it. The retention of the property without doing this, after opportunity to ascertain the defect, is an admission that the contract has been performed.1

Any fraudulent practice by the seller, intended to deceive the buyer, or to induce him to refrain from due examination and inquiry, which, if made, would have shown that the animals would be unfit for the use intended, will amount to a warranty.2

§ 165. The distinction between "hog" and "pork" is one so manifest to ordinary understanding as apparently to need no explanation; but, in contracts for sale of hogs by weight, it appears that the distinction is not so clear. In an Indiana case, a contract for the delivery of "hogs," to be paid for at a certain price per hundred pounds "net," in the absence of any explanatory evidence, was held to refer to dead hogs ready for cutting up, and without blood, hair, or entrails.3

1 Beck v. Sheldon, 48 N. Y. 365.

22 Kent's Com. 484. This distinguished writer says: "The writers of the moral law hold it to be the duty of the seller to disclose the defects which are within his knowledge. But the common law is not quite so strict. If the defects in the article sold be open equally to the observation of both parties, the law does not require the vendor to aid and assist the observation of the vendee. Even a warranty will not cover defects that are plainly the objects of the senses; though if the vendor says or does anything whatever with an intention to divert the observation of the buyer, even in relation to open defects, he would be guilty of an act of fraud."

3 Whitson v. Culbertson, 7 Ind. 195. The suit was on a contract in writing to deliver twenty-five fat hogs at four dollars net per hundred pounds; the defendant failed to deliver them, and plaintiff recovered seventy dollars damages, that being the difference between what he would have had to pay on the contract for the hogs and what he could have sold them for. In the decision the Court says: "The appellant, in his brief, insists 'that a hog is a hog, dead or alive, and that it is hard to make anything else out of a hog but a hog.' We think the reverse of this proposition would be nearer the truth, and that the appellant would be compelled to exert his capacity to the utmost tension before he would succeed in making a log out of a hog; but he would find no difficulty in converting a hog into pork, lard, bacon, carcass, or almost anything else but a hog. "In common parlance, undoubtedly, the term 'hog' is applied, not unfrequently, to the dead as well as to the living.

"This circumstance tends to produce some ambiguity in the contract under consideration. That ambiguity might have been removed by the averment, in the pleadings or proofs upon the trial, of extrinsic facts, which would have demonstrated the intention of the parties."

"We understand that, among hog-dealers, two descriptions are recognized, to wit, gross hogs and net logs; that the gross hog is the live hog, and the net the

But such, in many, if not most, of the hog-raising States, would not be the interpretation, by usage, given to similar language; the general custom being to sell hogs on foot at the weight exhibited by them after driving to market. The term "net" might be well understood to mean what would be their weight at the moment of sale as contradistinguished from what had been their weight when taken from the raiser of the animal; the words "net weight" being used to designate their exact commercial value at the time of sale, when they had suffered all the loss incident to departure from home, driving, and being in strange quarters.

§ 166. The business of preparing pork for market, by killing the hogs, cutting up, dressing, and packing the carcasses, has so far assumed, in some of the United States, the condition of a recognized trade, as to give rise to the custom, by the hog-raiser, of intrusting swine to the hands of persons who make a business of thus fitting the property for sale in the usual course of trade, or for transmission to the established pork markets.

Those who assume this calling, and hold themselves out to the public as being competent to do the work, are regarded by the law as giving a guaranty to those who employ them that they possess the requisite skill, knowledge, and experience which such a business requires, and they are responsible for losses which result from their lack of skill or care in doing the work intrusted to them.1

dead hog, without blood, hair, or entrails, and ready for cutting up. What kind was contemplated in the contract under consideration? As the net hog was to be paid for, the natural inference, unrebutted, would be that the net hog was to be delivered."

1 Forman v. Miller, 5 McLean, 218. This suit was on a contract in which defendants, who were pork-packers, agreed to cut up and pack hogs enough to make fifteen thousand pounds of "prime" and "mess" pork; the price for packing, salt, etc., was duly agreed upon, and the hogs were killed, dressed, and packed by defendants, and delivered to plaintiffs under this contract. When the pork arrived at the place of sale, four hundred and seventy-three barrels were found to be damaged, and unsalable as a first-rate article; there were some circumstances, the heat of the weather, and other ascribed causes, for the pork being bad, but the Court held the packers responsible for the loss, and said: "The weather was, undoubtedly, very unfavorable for pork-packing the season this pork was packed; but the experience and skill of the defendants were relied upon, and they should have acted under a knowledge of such responsibility Under such circumstances, the skill of the defendants is specially required.

§ 167. As to damages by hogs in trespassing upon crops, the common-law rule made the owner liable. The owner could not permit his animals to run at large, and trespass upon the grounds of other persons; and if he did so, such owner generally was liable, for the injuries thus committed, in an action of trespass. The owner of the crops or grounds thus trespassed upon could legally drive away the animals, found damage feasant, from his ground, by such means, and use such force, as might be necessary for that purpose; but if, in driving off the animals, more force was used than was necessary for that purpose, and injury to the animals resulted therefrom, the owner would be entitled to damages resulting from the excess of force.1

The same general principle applies in the United States, but it is, as a rule, much weakened by the statutes prescribing what shall constitute lawful fences, and to the effect that only trespasses which are committed on lands which are inclosed by such fences shall be answered for by the owners of the animals.2

They should have declined killing the hogs if they did not believe the pork could be saved. After this advice, had the plaintiffs directed them to kill and pack the pork, they would have been exonerated from any liability, had they put up the pork as carefully and skillfully as could be done by persons acquainted with the business. Persons undertaking to pack pork are bound to exercise all the skill and care which the business requires. And if any part of the pork packed proves to be unsound, the jury will ascertain whether the unsoundness was attributable to the manner in which it was put up.

"The damages sustained by the plaintiff, for whom the work was done, may be ascertained by comparing the sales of the unsound article with the market price for a good article." (Lawrence v. White, 5 McLean, 108.)

11 Mass. 33; 4 Met. 589; 19 Johns. 385; 3 Wend. 142; 16 Conn. 200.

2 Mardsee v. Sutton, 2 Jones' Law R. (N. C.) 146. In this case, the hogs got into defendant's corn in the night-time; his son and a slave boy beat, drove, and shot them so that they were badly injured; the owner of the hogs brought his action for damages.

The Court held the father of the boy and owner of the slave responsible for the damage done the hogs with his connivance. The language of the decision is: "If a father, at the request of his son, agrees that his slave may go and aid the son in driving hogs out of the son's field, and the son, with the assistance of the slave, willfully and wantonly kills some of the hogs and injures others, the father is not liable in an action of trespass. But if, at the time the father agreed that his slave might go, he knew, or had reason to believe, that the son intended to, or would, kill the hogs, or otherwise injure them, then the father is liable to the owner of the hogs in an action of trespass for the damage done, as an aider or abettor, under the rule, qui facit per alium, facit per se, and in trespass all are principals."

In an action for trespass by hogs, all that the plaintiff can recover is the actual damages sustained; he cannot shut the hogs up and recover, in the same action, pay for their keeping. The measure of damages is what it is at the time it is done; it cannot be estimated upon the basis of what would perhaps, or even probably, be the ultimate result upon the crop when it should become matured; and where the injury is to a growing crop, no regard should be had as to how much the harvest would be affected, except so far as anticipated results give an immediate value to the crop. In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent consequences.

The mode of ascertaining damages, where the question is as to their amount, should be what the growing crop would sell for before and after the damage done; the difference is the proper measure of damage.1

§ 168. The killing of hogs, found damage feasant, is not regarded with favor. Summary modes of obtaining relief

Woodward v. Purdy, 20 Alabama, 379. In an action to recover damages for injuries done to plaintiff's hogs, which had broken into defendant's inclosure, it was held that the defendant cannot recoup for damages done to his crop by the hogs when it appears that his fence was not “a lawful fence," agreeably to the

statute.

1 Sedgwick on Measure of Damages, marginal page 95: note Ibid, marginal page 56 et seq.; Hays v. Christ, 4 Kansas, 350: Christ brought an action against Hays for damages done to his growing crop by defendant's hogs. On the trial the plaintiff was permitted to show what his crop would have been worth in the fall of the year had not the hogs injured it: on appeal, this was held to be error. The Court says: "The only just rule by which the damages, if any had been done to the crop, could be estimated, was to confine the testimony to what it was at the time the trespass was committed."

North v. McDonald, 47 Barb. 528. On the trial, it appeared, upon plaintiff's showing, that certain stray hogs had entered his wheat field; that he had shut them up in a pen, where he had kept them two or three weeks; he showed the damage to have been one dollar, and the cost of feeding the hogs while in his pen to have been another dollar; his suit was for these two dollars, a judgment for which he recovered in the Court of a justice of the peace.

On appeal, this was reversed by the County Court, and the judgment of the County Court was sustained by the Supreme Court. The opinion of the Supreme Court was that the justice erred in receiving evidence of what it was worth to keep the hogs after they had been taken up. That was no legal element of damages which the plaintiff had the right to recover in an action for the trespass. He had no right to keep the hogs in his possession indefinitely and recover for their keeping. By shutting up the hogs in his own pen and keeping them there,

are prescribed by the statutes of the several States, and the common-law action, where the statute law fails to make ample provision, is sufficient to fairly protect the farmer from the rav ages of his neighbor's hogs.1

The law is not for the benefit of one, but for all. It is not its province to furnish an arm for passion, even when most excited by circumstances of aggravation, but to do justice to all, and by its passionless voice declare the rule of abstract right, without regard to the personal feelings of the individual.

From this, it results that, where an act is committed which is characterized by circumstances of oppression and a willful disregard of the law, to the injury of another, exemplary or punitive damages are allowed.2

as detailed by the evidence, he became a trespasser ab initio. It was his own voluntary act, without the knowledge or consent of the defendant.

1 Morse v. Nixon, 6 Jones' Law Rep. (N. C.) 293. Where it was proved that a hog had killed one chicken, and attempted to kill another, and, being found seventy-five yards from where the defendant's chickens usually ran, was destroyed by him, it was held to be error to leave it to the jury whether the hog was of a predatory character, and had the reputation of being a "chickeneating hog," and to instruct them that, if such was the fact, any one had a right to destroy it as a public nuisance.

The opinion of the Court is: "We do not concur in the opinion of his Honor as to the right of killing hogs that are in the habit of eating chickens. The position, that such a hog is a public nuisance and may be killed by any one, is not supported on principle or authority, and, if recognized, would lead to monstrous consequences. Allow such a right, and the peace of society cannot be preserved; for its exercise would stir up the most angry passions, and necessarily result in personal collisions." It may be the killing will be justified, by proving that the danger was imminent, making it necessary, then and there, to kill the hog to save the life of the chicken; but we are inclined to the opinion that, even under these circumstances, it is not justifiable to kill the hog. It should be impounded, or driven away, and notice given to the owner, so that he may put it up." (Cannon v. Hersey, 1 Houston [Del.] 440.)

"If a person impounds swine damage feasant, and kills them while so in his possession, or injures them, so that they afterward die when set at large, it will be such a destruction as will constitute a conversion in law of the property, and trover will lie for it. But if the same is done while the hogs are damage feasant, or running at large, and not so in his possession, trespass, and not trover, is the proper remedy."

2 Sedgwick on the Measure of Damages, marginal page 38; Ibid, marginal page 97; "for, where the act complained of is tainted by fraud, malice, or insult, the jury, which has the power to punish, has necessarily the right to include the consideration of the probable counsel fees in their estimate of vindictive or punitive damages." (Ibid, 455 et seq.; Champion v. Vincent, 20 Texas, 811.)

The law supposes that every trespass committed upon property is necessarily attended with some damage, however inconsiderable the injury; and hence the right to a recovery for a trespass cannot be denied.