Ernst Fletcher, J.
1. This appeal is preferred by the defendants against the decision of the learned Subordinate Judge of the Court of the Assam Valley Districts, dated the 31st March 1916, affirming the decision of the Munsif at Jorhat. The plaintiff brought the suit to recover damages for injuries inflicted on his elephant and for consequential damages by reason of his being deprived of the services of his elephant. The facts found by the Judge are these:-- This elephant had been turned out under a state of partial control by having its feet tethered on to the grazing ground belonging to the plaintiff. The elephant was not properly secured: that is the finding, and the elephant went to the property of the defendants and caused damages. So, the plaintiff being guilty, in the opinion of the learned Judge, of negligence in turning out his elephant without being properly secured, the defendants were entitled to use force to remove the elephant from their premises and to prevent it from committing damage to their property. Up to that extent, the learned Judge seems to me to have found in favour of the defendants. But what the learned Judge has found then is this: He found, to my mind in distinct terms, that the injuries inflicted upon the elephant were excessive and were not such as were requisite or necessary for preserving the rights of the defendants. Of course, the defendants were not entitled to inflict injuries more than what were reasonably necessary for the purpose of preserving their property and for removing the plaintiff's elephant from their property. The injuries were inflicted, according to the findings of fact, by Kali, Dao and fire. Injury by spear might have been an act done on the spur of the moment, hut the blow from the Dao and the mischief by fire were matters that would take some time having regard to the nature of the elephant's bide. I think the learned Judge was dearly right in finding that, the injuries were excessive and that, therefore, the elephant had been damaged and the plaintiff was deprived of its services owing to this excessive act of the defendants. In that view of the case, the present appeal must fail and be dismissed with costs.
2. I agree.