Daggett, J.
The question to be decided, arises on the 21st section of the statute entitled “ An Act concerning Fences and common Fields,” which is in these words : “ All damage done *532by cattle, horses, sheep or swine, when the fence is sufficient, shall be paid by the owners of them.” Stat. 218. If these cattle and horses were jointly used and possessed, by the defendants, living together, and occupying the same farm, were they the owners of them, within the meaning of the statute? On this point, I am satisfied, that the charge was correct. However the law might be as to a possession for a few hours, yet in a case of use and possession generally, by a father and son, in their condition and employment as joint occupants of the farm, it seems quite reasonable that the statute should receive a construction extending to such use and possession. They are unquestionably owners so as to maintain a joint action of trespass ; and why not to be subject to damages by them done ? On any other construction, any person might have in his use and possession, and under his care and controul, the cattle of another residing at a distance, and perhaps in another state; he might take no pains to restrain them ; suffer them to destroy his neighbour’s grass and grain ; and yet escape all liability to damage. It seems to me reasonable, that he, to whom the use and care and controul of cattle, are confided, should be responsible for damage by them done; and that such is the spirit of the law ; and that he ought, therefore, to be deemed the owner.
I would, therefore, advise, that the rule for a new trial be discharged.
The other Judges were of the same opinion.
New trial not to be granted.