'632 LIABILITY IRRESPECTIVE OP FENCING LAWS. 



is treated as an owner.^^^ Thus, one in possession of an 

 animal taken up as an estray may recover for its death owing- 

 to the defendant's neghgence; '^^ even though, while at- 

 tempting to comply with the law, he failed to post the animal 

 in the proper manner.^^^ Where the plaintiff had possession 

 of a mule that he had not paid for, but considered his, and 

 paid for after it was killed, it was held that he had a special 

 property in the mule and could recover its full value.^^® It 

 was held in Tennessee that the assignee of a cause of action 

 against a company for killing stock may sue in the name of 

 the party whose property was injured, for the assignee's 

 -tise.^^® In Mississippi it was held that an action for the kill- 

 ing of animals, being ex delicto, cannot be brought in the 

 name of one for the use of another.*^" A father cannot re- 

 cover damages for the killing of stock owned by his 

 son, though the latter is a minor.^^^ One whose horse was 

 frightened by the negligence of the company and ran over 

 a third person who recovered damages against him, may re- 

 cover from the company.^*^ 



The company is not liable for stock killed by one of its 

 locomotives which was at the time being used by its servant 

 ^without authority, for his own purposes and outside of the 



''" New York, C. & St. L. R. Co. v. Auer, io6 Ind. 219. 



Where the plaintiff, a constable, had seized a horse under a distress 

 ■ warrant, and it escaped to the railway and was killed owing to the defend- 

 ant's negligence, semhle, the plaintiff had sufficient property in the horse 

 -to entitle him to sue: Simpson v. Great Western R. Co., 17 U C Q B 

 .57- 



™ Peoria, P. & J. R. Co. v. Mclntire, 39 111. 298. 



'=' Chic. & N. R. Co. V. Shultz, 55 111. 421. 



"' St. Louis, I. M. & S. R. Co. V. Taylor, 57 Ark. 136. 



"'' E. Tenn., V. & G. R. Co. v. Henderson, 1 Lea (Tenn.) i. 



An assignee may sue in his own name: Galveston, H. & S. A. R. Co. v. 

 Freeman, S7 Tex. 156. 



"" Kan. City, M. & B. R. Co. v. Cantrell, 70 Miss. 329. 



'" Morris v. St. Louis, K. C. & N. R. Co., 58 Mo. 78. 



-"' Nashua I. & S. Co. v. Worcester & N. R. Co., 62 N. H. 159. 



