Comerford v. Dupuy

17 Cal. 308

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Baldwin, J. delivered the opinion of the Court

Fields, C. J. concurring.

The judgment must be affirmed. The criticism of the answer in this case cannot be maintained ; at least, the defects suggested were not sufficient to sustain the motion to strike out. We cannot interfere with the discretion of the Court in refusing a new trial.

We think a party cannot recover for injuries done by cattle of / defendant breaking into plaintiff’s close, unless the land entered be inclosed by a fence of the character prescribed in the statute, or at least, by an inclosure equivalent to that described in the statute in /its capacity to exclude cattle. (See Pennsylvania cases cited in respondents’ brief.)

Judgment affirmed.