Proceedings and Remedies. case of damage for neglect to repair a fence. This point was adverted to and recognised in a case where the plaintiff's brother sent him a horse to take care of. The plaintiff turned the horse out, after dark, into his close, but, on the following morning the animal was found dead in the close of the next neighbour, the defendant, having fallen from the one into the other. An action on the case being brought, the defendant admitted that he had neglected to repair his fence, but the defence was, that the plaintiff had not such a property in the horse as would entitle him to maintain the action. The Court, was, however, against him, for a gratuitous bailee is under an obligation to run no unnecessary hazard. In this case, the plaintiff owed it to the owner of the horse not to put it into a dangerous pasture, and, in the absence of a proper degree of care he was liable for any damage which might result. Then the defendant having by his negligence rendered the field unsafe, became answerable to the plaintiff for the death of the horse (k). Owner of Inheritance not in general liable.]-The owner of the inheritance is not liable for the defect of fences. This was considered quite a clear point where it appeared that another person was tenant in possession under the defendant in an action on the case for nonrepair (7). "It is so notoriously the duty of the actual occupier to repair the fences, and so little the duty of "landlord, that, without any agreement to that effect, "the landlord may maintain an action against his tenant "for not so doing, upon the ground of the injury done "to the inheritance. And deplorable indeed would be "the situation of landlords, if they were liable to be 66 "harassed with actions for the culpable neglect of their Proceedings " tenants." (7) But if there were an agreement on the and Remedies. part of the landlord to repair, the case would be altered, and, to avoid circuity of action, the landlord would be held answerable. As where the plaintiff met with an accident in consequence of a hole in the foot pavement, upon which he sued the owner, and not the occupier of the house. The defence was the action should have been brought against the actual occupier, and that the occupier ought, as between himself and the public, to see that the repairs were duly made, although the landlord might be under the obligation to repair, and Cheetham v. Hampson was cited as authority. To this authority the Court fully agreed, but here was the fact that the landlord, not the occupier, was bound to this repair, and therefore as the tenant would have a remedy against the landlord, there would be an encouragement of double actions if the plaintiff were to have judgment of nonsuit (m). Executor of Vicar.]-The representative of a beneficed clergyman is liable for dilapidations of fences (n), although the burden be imposed by a modern Act of Parliament, and although other persons ought, perhaps, to have made better fences in the first instance. As where land was allotted to a vicar under an Enclosure Act in lieu of tithes and was to be well and sufficiently fenced as the commissioners should direct, but subsequently are to be repaired by the vicar and his successors. An action on the case (1) Id. 319, by Lord Kenyon, C. J. (n) 4 M. & S. 183. Young v. Munby, where the question was whether the executor could be sued in separate actions for dilapidations of the house, gates, and hedges, and likewise for dilapidations of the chancel, and of a pew. Proceedings having been brought against the executrix, it was alleged and Remedies. in defence that this charge of repair thrown on the vicar by a modern act could not survive as against the representative, and further, that the fences had not been well made according to the provisions of the act, being calculated to last for three or four years only. But the Court decided against the defendant, the executrix. For, first, the action was not brought upon the provision of the act which directed the vicar to repair the fences, but upon the liability arising upon the law and custom of England, and that law and custom must certainly attach upon this allotment of land. This custom is not a custom from time immemorial, but merely the common law. This determination would not compel a vicar to fence where land came to him unfenced, but here the ground became the vicar's in an enclosed and fenced state, and, if so, even without the direction in the act, the common law would attach upon it, and oblige the vicar to keep up the enclosure for the benefit of his successors. Then, secondly, if the fence were improperly made, a mandamus might, possibly, have been enforced against the commissioners; but no interference took place, and as a period of four months was awarded by the act within which parties aggrieved by the proceedings under it might appeal, the executrix was too late to relieve herself in any way from the consequences of the supposed neglect (0). Defences.]-The next subject for discussion is the nature of the defences which are tendered in opposition to actions for non-repair. Of these the principal and most common is where in answer to the plaintiff's action the defendant places an allegation upon the record that (0) 2 Ad. & El. 773. Bird v. Relph. and Remedies. the tenants and occupiers of the close where the trespass Proceedings was committed have been always accustomed to repair the fences immediately contiguous to that close, and that the fence in question was out of repair for want of proper amendment, whereby the defendant's cattle escaped into the close of the plaintiff. This is the plea of defect of fences (p), a plea available by one who has an interest in the land adjoining as a common path, highway, license, lease, &c. (q). It is not, however, necessary to enlarge upon this mode of defence in this place, because the subject has been already in a great measure exhausted in the chapter of repair, and also above, where the parties who may bring actions have been particularly mentioned. It will be remembered, that the material principle was that the plaintiff should not himself be a defaulter as to the obligation of repair, but that where he lay under no such charge, he might proceed against the owner of beasts trespassing on his ground, and might resist any action against him for damage happening to the cattle by reason of the trespass. The plea of defect of fences would apply to the first class of these cases where the plaintiff himself appears to be in fault, but would be unsuccessful where it cannot be proved that there is any claim upon him, either by agreement or prescription, to make the fence, or do the amendments pointed out. It should, notwithstanding, be noticed here, that although there may be, as between the plaintiff and the defendant, such a default as might prevent him from suing the defendant upon ordinary occasions, yet if the plaintiff can make out that the defendant's beasts were unlawfully in the close from whence they strayed into the land of the plaintiff, it seems that the plea of defect (p) See Vin. Ab. Trespass (I a 3). (q) F. N. B. 298. Hale (n. 3). Proceedings of fences will not avail the defendant (r). For the defendant shall not take advantage of his own wrong to justify an injury which might not have happened if his cattle had been in their right pasture. Another defence has been that, upon an exchange of lands between the plaintiff and the defendant, the plaintiff had actually agreed to make and keep up the fence, but that he had failed to do so, whereupon the defendant's beasts strayed, and so the defendant justified the trespass. But the Court held, that this agreement was not a bar to the action of trespass. Had it even been by deed, it would not have been a bar, and it was added that the defendant should be put to his action of assumpsit for the breach of this agreement (s). However, Popham, C. J., did not assent to this opinion of his brethren, holding, that the plaintiff was under an absolute obligation to make the fence after his pledge, as much as though he had been under a prescription, and, therefore, that the action for non-performance was not the sole remedy on the part of the defendant, since he might likewise well justify in trespass (t). Another line of defence has been, that the damage done was too remote to effect the defendant. The fences of the defendant were out of repair, and the horses of the plaintiff broke into the defendant's close by reason of the defect. A haystack fell down whilst the animals were there, and killed them. After a verdict for the plaintiff in an action upon the case, it was moved to arrest the judgment by reason of the remoteness of the injury, and it was alleged that the mischief ought not to depend upon a substantive event which took place subsequently to (r) By Wilmot, C. J. 3 Wils. 126. (s) Cro. El. 709. Sir A. Nowel v. Smith. (t) S. C. |