176
THE GREEN BAG
every conceivable disadvantage, even catch ing her, as he believed, by the cud, for she had lost it; and he believed she had a right to get another off the boy's folks. Judg ment for defendant. "Gritty " Grimes, Attorney for Plaintiff. 0. N. E. Wright, Attorney for Defendant. Opinion by Attom, J. P. I. The case at Bar would be easy to dis pose of were it not that there is a contest involved. It would be comparatively sim ple if there were not questions of equity as well as law to decide. And infinitely differ ent from the present situation would it be, had there been default for want of appear ance. Opportunity for disposal on such ground having irretrievably passed, and the parties being apparently willing to abide the costs, this squabble will be taken up in as orderly a way as possible, and the court will, to save time, overlook the remark of the plaintiff as he left the court room this noon, to wit: "Double Dod-gast the case, anyhow!!" II. There has been no objection made by defendant to the form of the action. It is one of money demands. It may have been the complainant's motive — not bringing replevin — to avoid the equitable jurisdiction of this court. Equity is still here, and so is the constable. That arm of the court overheard a remark of the complainant given sotto voce after he had been sworn: "The pasture has been bad, the winter is coming on, and I am glad to get her off my hands." Now if he had the grime of fence building off his hands, all would be well. Yet the cow is off his hands only to this extent: the cow was caught by the lasso while she was chewing the $65.00 rag. She was head, neck, and forefeet beyond the border line; and she remained partly beyond the line until the impounding in defendant's yard was complete, by leading her down along the fence and around to the other side. It was an impounding and not a con
version. The cow has no more been con verted than the plaintiff himself. III. To have equity successfully asserted against a party is viewed the same in this court, so far as the condition of such party's hands is concerned, as where, from such con dition, a party seeks it in vain. Had com plainant not been at wilful fault in locating the fence, this case might have been one simply of conversion, and a lien for damages and a winter's feed for a cudless cow might not now be staring the complainant in the face. The cow is his. There is no question about that (see conflicting cases). And the situation is not affected by the probability that she will, metaphorically speaking, eat herself up at his expense, unless he recantswith sufficient penance. IV. There are charges and counter charges of negligence. Negligence will be adverted to in a later number of the opin ion —- also here. Complainant charges carelessness in hanging the lace too near the line. He means the division line. De fendant says his wife did not know it was cow bait. He, in turn, charges complainant with not feeding his cow. While the court is willing to receive complainant's statement that he did feed her, but that it took her, up to the lassoing practice, a long time to chew it, yet we care to dwell neither upon her in his yard as a picture of contentment, nor upon her in defendant's yard as a mere bone of contention. V. Happily there is no question in thiscase involving the ultimate location of the fence on the proper line. If the parties still desire to carry on the dispute after this case is disposed of, they may proceed with it through the winter and beyond grass cutting time all next summer. They seem to have two division lines now to fight it out on, and it may take two summers. So far as the equity of this court is concerned, any appli cable to this involved matter will be ex hausted in the present case. If the fence viewers have none, then the court does not know where these neighbors will find it
