308 ANIMALS TJRESPASSING AND RUNNING AT LARGE. 



the obligation of proving distinct and independent causes of 

 action, that they might allege the trespass with a continuando, 

 recovering for such injury as they were able to prove to have 

 been done by the defendant's cattle." It was there held that 

 this rule was still in force under the code, and that where the 

 complaint alleged that on a day and on divers other days and 

 times between that day and the commencement of the suit, 

 the defendant's cattle broke into, etc., it was competent to 

 prove any number of trespasses between the day alleged and 

 the bringing of the suit.^*^ 



The plaintiff may recover the value of the crops destroyed 

 at the time of their destruction, but cannot prove what 

 amount of crop he would have had without the injury. ^^" 

 And it v/as held inadmissible for the defendant to prove in 

 mitigation of damages that the crop was grown in shares and 

 the plaintiff withheld a part of the defendant's share.-*' 



A statute authorizing the seizure and sale, without proper 

 judicial proceedings and notice, of an animal found trespass- 

 ing on private grounds is unconstitutional, as such a forfeiture 

 is a deprivation of property without due process of law,^*^ 

 and the same principle extends to an ordinance directing a 

 town officer to take into possession and sell animals running 

 at large, without notice to the owner. ^^^ The rule appears to 

 be that a statute providing for such a summary sale of an ani- 

 mal for the expenses of taking it up and keeping it, is con- 

 stitutional, but in so far as it provides for a sale for a fine or 



^'' Richardson v. Northrup, 66 Barb. (N. Y.) 85. 



'" Gresham v. Taylor, 51 Ala. 505. "'' Frout v. Hardin, 56 Ind. 165. 



'"^ Rockwell V. Nearing, 35 N. Y. 302; Leavitt v. Thompson, 56 Barb. 

 (N. Y.) 542; McConnell v. Aernam, Ibid. 534, and note. 



'"' Varden v. Mount, 78 Ky. 86, where it is said: "The right to forfeit 

 without citation and without hearing can only exist from necessity. That 

 right in this instance should not be extended beyond impounding the 

 hogs. When that is done, the necessity for summary and precipitate 

 action ceases and judicial proceedings looking to forfeiture may then 

 properly begin." 



See also Donovan v. Vicksburg, 29 Miss. 247; Bullock v. Geomble, 45 

 111. 218; Tiedeman Munic. Corp. § 155. 



