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GOONERATNA v. POROLIS et al.
D. G., Matara, 2,134.
Damage» done by cattle belonging to several owners—Liability of each owner fcrdamages done by his own cattle—Assessment of damages—Principle ofapportionment.
Where cattle belonging to several owners cause damage together, andit is impossible to ascertain precisely the damages done by the cattle ofeach owner, it is improper to enter a decree against all the defendantsjointly for the total amount of the damages done.
The decree ought to direct payment by each defendant of the amountof damage done by his own cattle only.
If the parties cannot agree as to the share of damages which is to beapportioned to each defendant, the number of cattle belonging to eachdefendant which took part in the trespass should be ascertained, and theamount of damages distributed among the defendants in proportion tothe number of cattle damage feasant, belonging to each.
LAINTIFF sued for damages consequent upon certain cattlebelonging to the two defendants depasturing his lands and
treading upon his citronella plantation and otherwise injuringhis cocoanut plants and pineapple bushes. The plaintiS’s land,being of about 55 acres in extent, was unfenced. He proved thjitthe cattle belonging to the two defendants roamed about his pro-perty together, so that he was unable to state separately whatdamage the cattle of each defend .nt had caused, but the damagesin the aggregate were assessed by two headmen at Rs. 412. Theywere called as witnesses.
The District Judge gave judgment for Rs. 412.
Wendt, for defendants, appellants.
Dornhorst (with Picris), for plaintiff, respondent.
22nd November, 1899. Boxsek, C.J.—
This is an action for damages done by cattle belonging to or incharge of the defendants to the plaintiff’s plantation. The amountof damages proved was Rs. 412, and the District Judge made adecree against the defendants jointly for that amount. Theevidence, however, discloses that the cattle belonging to the two
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defendants that did the damage were not equal in number, andthat being so I think that the decree fails to do justice between theparties. It seems to me that the decree ought to direct payment,by each defendant, of the amount of damage done by his owncattle, and that amount only.
In the term “ his own cattle ” I include cattle of which he wasin charge. That principle of dividing the total amount of damagesamongst owners of trespassing cattle in proportion to the numberof the cattle was laid down nearly thirty years ago by this Courtin a case reported in Vanderatraatcn’s Reports, 1870, p. 51. Itseems to me a sound principle and one which should be followed.
If the parties can agree as *o the share which is to be apportionedto each defendant, the decree may be amended in this Court. Ifthe parties cannot agree, the case must go back to the District Courtto take furber evidence as to the number of cattle belonging toeach defendant which took part in this trespass, and to apportionthe damages amongst the defendants proportionately.
The costs will be borne in the same proportion as the damages.
The plaintiff will have the costs of the appeal.
Withers, J.—I quite agree.
November 8SS.Bonsbb, C.J.
GOONEBATNA v. POEOLIS et al