30 N.H. 143 | Superior Court of New Hampshire | 1855
“Aman is answerable for not only his ■ own trespass, but that of his cattle also; for if by his negligent keeping, they stray upon the land of another, (and
It is hardly necessary to remark, but for the course of the defendant’s argument, that the proposition quoted from Blaekstone, relates to the case in which the beasts “ stray upon the land of another,” and not to the case in which they are driven upon it by a stranger; for then the stranger is the author of the wrong, and the horse that he rides, or drives, is the mere passive instrument in his hands, and the owner of it, unless he have lent it for the purpose of the wrong, is as wholly guiltless as any other person. For in that case, the beast does not by the owner’s negligent keeping stray .upon the land of his neighbors.
It is substantially upon this ground that Tewksbury v. Bucklin, 7 N. H. Rep. 518, was decided ; in which it was , held that a party having the custody of the cattle was answerable for the trespass which they committed by straying upon another’s inclosure.
The case finds that the cow “strayed along the road,” and committed the act complained of. It would not be just to hold the party to the strict meaning of a single word, if it appeared by the context to have been used inaccurately; but it appears distinctly that the animal, although driven by Heath some distance from the pasture in the direction of the locus in quo, was not driven upon it so as to be in his hands a mere instrument for committing a trespass. Heath’s-
When Heath abandoned the cow, she was about twelve rods from the lands of the plaintiff. From that period she was no longer under the control of Heath, but was again in the legal possession of the defendant, and under his general custody and control; and like other owners having the care and custody of their beasts at the time, he is answerable in trespass for her act in straying upon the close in question, and grazing there.
The declaration was well. It is not necessary, in such cases, for the plaintiff to describe his close. If the defendant has occasion for a description, he can have it upon filing the proper plea. If he omits to do so, it is presumed that he consents that the plaintiff may prove the act to have been done upon any land in his possession within the limits of the town named in the writ. Wheeler v. Rowell, 6 N. H. Rep. 215; Green v. Jones, 1 Saund. 299, n.
For misdirection of the judge who tried the cause, the verdict must be set aside, arid a
New trial granted.