wrong, and no distress can be made as for damage feasant Proceedings until after notice given to take away the animals. There is one other course, which, if pursued by the owner of the close trespassed upon, deserves our attention. He may think fit to drive away the cattle instead of impounding them. And doubtless he is at liberty to eject intruders in any manner and without risk of consequences, where there has been a trespass, but it is incumbent upon him to consider before he so acts whether he may not himself be under an obligation to fence against invasion. For if he be so liable, the least he can do is to put back the cattle into the place from whence they have strayed, if he be in a condition to ascertain it (q), or to acquaint their owner, and use precautions to prevent injury from happening to them till their removal. The defendant was charged with chasing and driving the plaintiff's sheep, whereby they were damaged. He pleaded that they were wrongfully in his close, upon which he turned them into the highway. The plaintiff replied that the sheep got into the defendant's close through a defect in the fence, and set out a prescription to repair on the part of all those who had occupied the close of the defendant. To this the defendant' rejoined, denying the escape and the defect in the fence. Upon this issue was joined, and the plaintiff had a verdict. But it was sought to arrest the judgment, or have a repleader, because the defendant, although bound to repair, might yet drive out the sheep; he could not, indeed, complain of their being on his close, nor distrain damage feasant where the land lay within the purlieus, or where quite out of the forest; in the former case, the forester might enter, but not otherwise, even although there should be a default of impaling or repair. See Id. Vin. Ab. Tresp. (I. a. 5). (q) See 8 Adol. & El. 117. and Remedies. Proceedings without notice; still as the highway might have been and Remedies. the nearest road to the plaintiff's close, he was justified in placing them there. But the Court held that the escape of the cattle had been caused by the defendant's default, and that he was not justified in driving them into the highway and leaving them without further security, and the rule was refused (r). We proceed to mention the legal remedies which are commonly adopted when a recompense for injury done in consequence of non-repair or of the want of a fence is required. These are principally actions of trespass, upon the case, and distress of the cattle damage feasant. The actions in question are of common right where there is no obligation to repair on the side either of the plaintiff or the defendant, but if the defendant be charged with the duty to fence, they are against common right, and the plaintiff must shew a title by prescription or otherwise (s). Trespass may be maintained where there is an absence of any consideration to repair, but if, for instance, the occupiers of a particular close have been accustomed, time out of mind, to repair it, and a default happens; either trespass or case may be had, the former because it is the plaintiff's ground which is invaded; and case, because the first wrong was a nonfeasance and neglect to repair, and that omission would be the gist of the action, the trespass being only consequential damage (t). A parallel case, although not connected with the question of repair was where the cattle of A. broke the fence of C. B. was injured by this intrusion, but he could not sue in trespass because the assault was made upon another man's fence, (r) 8 Ad. & El. 113, Carruthers v. Hollis and another. (t) Ibid, and, therefore, an action on the case lay for him against Proceedings A. (u). The third course is to distrain the matters which are found upon the land of the party who has been trespassed upon. Mandamus.]-But it should be added here, that, in the case of public bodies or companies, or persons authorized to do certain acts under the provisions of a statute, (as the commissioners of an Inclosure Act,) a mandamus will probably lie to compel the making or repair of fences. As if the commissioners were to make insufficient fences under an act which contemplated the erection of good and permanent enclosures (x). By whom Actions may be brought.]—The next point for our consideration has reference to the parties by whom actions may be brought, and likewise against whom they will lie for damages incurred by reason of the non-repair of fences. A very plain principle is, that neighbours may sue each other where there is no especial consideration on either side to keep up a division between their lands. And it has been shown (y), that even a third person, whose field lies beyond the mere vicinity of the next field, may, nevertheless, bring his action where he himself is not in fault. The true ground with regard to neighbourhood, is that a man, who is plaintiff, must be himself free from blame, as far as the defendant is concerned. For if a man be bound to repair a fence between my land and his adjoining, I may justify in trespass brought by him for damage done by my cattle in consequence of his neglect to fence (≈). A. had land on the side of a large field, and B. had land on (u) Sty. 131. (y) Ante, in this Chapter. (x) 2 Ad. & El. 782. and Remedies. and Remedies. Proceedings the other side. Both A. and B. were mutually bound to fence. A.'s beasts escaped through the default of repair across the large field, and entered B.'s land. Here B. was held entitled to have trespass against A., since as between A. and B., A. was wrong in not keeping up his fence, and was, therefore, bound to meet the consequences (a). So if there had been an obligation for A. to enclose against B., and the beasts of C. crossed over into A.'s land, A. might have trespass, since C. was a trespasser upon B. and thence upon A. (b), otherwise if C. had had common or a way in the land of B. (c) But supposing one C. to have been the owner of the large field, with A. on one side and B. on the other, and that A. was liable to fence against C. and C. against B. Here if the beasts of B. were to cross C.'s field, and come upon A.'s pasture, A. may not have trespass, because there would be no fault in B., the defendant (d). On the contrary, both A. and B. are found neglectful of their obligation to repair (e). But if B.'s beasts were to invade the land of a stranger, the stranger might sue B. and leave B. to his remedy against A. (ƒ) So if A.'s beasts or those of a stranger were to come upon C.'s land under such circumstances, C. might sue A. in trespass as a defaulter, and if C. were to sue the stranger likewise, the stranger in his turn, might bring case against A. for the consequences of non-repair, of course, assuming that he himself lay under no obligation, and that his beasts were lawfully in the place from whence they escaped into the land of C. And, indeed if the stranger's beasts should do (a) Vin. Ab. Fences, (B. 2,) citing Bro. Cur. Claud. pl. 2. (b) F. N. B. 298. (Hale), note (3). (c) Ibid, per Newton, C. J. (d) See F. N. B. 298. (Hale), note (a). (e) Id. ibid, (B. 3.) (f) Ibid. and Remedies. damage in the land of C. through A.'s default, C. might Proceedings also bring an action on the case against A. So if beasts come upon A.'s land from the highway and thence advance upon B.'s land which B. ought to fence, as against A., B. may sue the owner of the beasts, because as between him and the defendant he is not answerable for the conduct of the defendant in allowing his cattle to leave the highway (g). But it is added, that A. shall not have trespass, although the cattle trample on all his closes contiguous to the highway (h), and the reason is, because A. is bound to guard his land from the highway (i), and it is not possible for a driver to prevent an occasional trespass if the land lies open at the side of the road. The cattle are, therefore, lawfully in the highway, and A. is, with reference to repair, a defaulter. So again, if A. be bound to fence on the side of his park, and he buy land adjoining, on the other side of which is B.'s land, but A. is under no obligation to fence against B.; here if B.'s cattle escape into the park of A., A. shall have trespass because as between him and B. there was no default, it being B.'s duty to hinder the cattle from straying upon the land immediately contiguous to his. For a man, (A. for instance) is not bound, without a special agreement to fence against his own land, although in this case A. was obliged to guard his own park before the purchase, by virtue of a particular covenant (j). Bailee.-A gratuitous bailee is competent to sue in (g) Noy. Rep. 107. Harvey v. Gulson. (h) Ibid. But (i) 2 Ro. Ab. 565, pl. 7. F. N. B. Hale, 298, note (a). trespass would lie for A. if he were to give notice to the driver or owner of the cattle, and such notice were not attended to.-Ibid. (j) Vin. Ab. Fences, (D. 4.) |