Shaw v. Commonwealth ex rel. Stratford

The opinion of the court was delivered,

by

— The case of the Commonwealth v. Fourteen Hogs, 10 S. & R. 393, is decisive of the question presented by this record. It was there held that the act, under which these proceedings were instituted, applies only where the swine are voluntarily suffered to go at large, not where they escape from the owner without his default; and if the proceedings do not show *70this they will he quashed. It does not appear from the record in this case that the swine were suffered to run at large by the owner. The phrase “having been running at large,” cannot be regarded as tantamount to an averment that they were “suffered to run at large.” They may have been running at large when found by the seizer, without any default of the owner; and if so, they were not subject to forfeiture. If they were not suffered to run at large, the magistrate had no jurisdiction of the ease, and for want of this essential averment the court below should have quashed the proceedings.

Judgment reversed and proceedings quashed.