6 N.H. 213 | Superior Court of New Hampshire | 1833
delivered the opinion of the court.
The mare was in Cory’s dose wrongfully and he had a right to remove her. The only question to be decided, is, whether he made himself a trespasser by an improper exercise of this right. There was no road adjoining his close into which he could turn her. He had only the choice to turn her back into the close of the owner, or to turn her into the woods in the way he did.
In order to turn her back into Little’s close there were two fences to pass. In the other way there were three. But this circumstance is immaterial ; as is also the circumstance that he turned her away in a direction opposite to that of Little’s close. We are not aware of any role of law that made it his duty to turn her out in the way that had the fewest obstructions, or in a direction towards Little’s close.
He took the nearest way to turn her from his own close, and probably the way which was most likely to prevent her return ; and there was no evidence that he did her any injury.
What was the evidence, then, that proved him to be a wrong doer ? WTe see none. He found the beast in his field, and turned her into the road. This is all. There is no colour of pretence that he could be held to be a trespasser for this.
We are, therefore, of opinion, that the court ought to have given to the jury the instructions for which the counsel for Cory asked, and that the judgment must be reversed.
