Weymouth v. Gile

Appleton, C. J. This is an action of trespass quare clausum fregii. The trespass is admitted. Is the defendant liable ? The defendant depastured five cows on land leased by Mm. While under his charge they escaped 1'rom his premises and committed the trespass, which is the subject matter of this litigation. As occupier he was bound to keep the fences in repair. Tewksbury v. Bucklin, 7 N. H. 518. It was through Ms negligence the cattle escaped. The defendant was a bailee, an agister. Having care and control of the cattle, he might maintain trespass for an injury to them. Bass v. Pierce, 16 Barb. 595. So he would be liable for any injury done by them. Smith v. Jaques, 6 Conn. 530; Barnum v. Van Dusen, 16 Conn. 200. The agister, as well as the general owner of cattle trespassing, are liable in damage. Sheridan v. Bean, 8 Met. 284. So trespass lies against A, if cattle in his custody do a trespass, or against the owner, at Ms election. Com. Dig. Trespass, C. 1. Defendant defaulted. Damages, ‡4. Barrows, Virgin, Peters, Libbey and .Symonds, JJ., concurred.