Blaisdell v. Stone

Dob, C. J. The referee has irot found that the title of the farm stock passed from the defendant to his son. The defendant was the general owner of the sheep. His son, as bailee, had the possession and care of them on the farm of which he was tenant. ‘They did not escape into the plaintiff’s land from a highway in which they were rightfully and carefully driven. Mills v. Stark, 4 N. H. 512, 514; Brown v. Collins, 53 N. H. 442; Hartford v. Brady, 114 Mass. 466; Gardner v. Rowland, 2 Ired. 247; Good *509 wyn v. Cheveley, 4 H. & N. 631. They were not taken from the bailee’s possession and driven into the plaintiff’s premises by a trespasser. Noyes v. Colby, 30 N. H. 143, 153. For the damage done by them while straying from their pasture, the plaintiff is entitled to compensation. By the ancient common law of England, agistment did not relieve the owner from liability. This rule may have originated in barbaric ideas not now accepted as a ground of legal obligation. Holm. Com. Law 1-38, 116-119, 156. And the question may be whether the rule, unsupported by its primitive reasons, has no-existing foundation in the succession of common customs, common necessities, or common sentiments, in which many common-law principles have an origin and a development that are continuous, authorized, and inevitable. The plaintiff was not legally entitled to actual or constructive notice of the bailment of the defendant’s sheep. And under the present conditions of New Hampshire agriculture, there may be less hardship in the defendant’s liability than in a new rule putting-the task of discovering the bailment, before suit, upon all persons-entitled to damages in such cases. It may be reasonably necessary that the risk of entrusting the custody of cattle to an irresponsible bailee, should so rest upon their owner as not to deprive injured third persons of the benefit of a common-law action, if the bailee is unable to pay the damages. The ancient rule, that the injured party may, at his election, maintain trespass against the owner or his bailee, is not so clearly devoid of modern reason as to require a decision that it has ceased to exist. Judgment for the plaintiff. Stanley, J., did not sit: the others concurred.