| Superior Court of New Hampshire | Jul 15, 1835
delivered the opinion of the court,
It has been urged in the argument, that this action cannot be maintained, because the damage happened through defect of fences which both parties were equally bound to repair ; and the case of. Avery vs. Maxwell has been cited to sustain this ground of defence. But that case does not apply here. That was á case where the animal broke from the. highway into the plaintiff’s enclosure, which is governed by a different rule from cases where animals break from the enclosure of the owner into an adjoining close of another person. 4 N. H. R. 515; 6 Mass. R. 96; 1 Cowen 87, in the note.
. Every man is bound to fence against every thing that may be. lawfully in the highway.. But where two men own adjoining closes, with an undivided partition fence, which both are equally bound to keep in repair, each is bound to keep his cattle on his own land at his peril.
In this case, it did not appear that the partition fence had ever been divided — either party, then, who put cattle into his close was bound to keep them there. 5 Greenleaf 356, Little vs. Lathrop.
. But it is the occupier of a close who is bound to keep the fences in repair, and not the owner. 4 D. & E. 318, Chatham vs. Hampson; 2 L. Raymond 804, The Queen vs. Bucknall; 3 D. & E. 766, Rider vs. Smith.
And the occupier of lands where theré. áre' no fences is bound by the same principle to keep the cattle he puts there upon the land.
The question was, then, who was to- be considered.as the occupier of the defendant’s close, in relation, to James Buck-tin’s oxen ? If the defendant, took the oxen to keep for the owner, and had the custody of them, he must be considered as the occupier of the cióse,, and bound to keep them upon the land. But if James BueMin kept the oxen there hirn-
We are, therefore, of opinion that the evidence which was rejected at the trial ought to have been received, and for this cause there must be
A nett7 trial granted.