the trespass caused by the default, and defendant could not have any control.

over which the Proceedings But the Court and Remedies.

of Exchequer held, that the injury here must be considered to be the immediate consequence resulting from the act, and the rule was discharged (u).

It has been attempted to interpose the liability of third persons as a defence, although the defendant would otherwise have admitted the right of action. The law, however, has not lent a favourable hand to this mode of meeting an action, as we have already seen in the case of the executrix of a clergyman, who objected, but in vain, that certain commissioners had not made her hedges in a sound and permanent condition. She was, therefore, held liable for dilapidations (x). So, again, where a road had been diverted, it became desirable to make a from the new road to the close of A. This was passage done before the stopping up of the old road, but it was necessary, in order to effect it, that B.'s fence should be broken down. B., who was the defendant, gave leave for this purpose, in writing, unstamped and unsealed, and the alteration was made accordingly; the trustees of the road, nevertheless, did not put up either a gate or a fence upon B.'s land. A.'s cattle, consequently, strayed over B.'s land, and from thence into a highway, and other cattle strayed from the highway over B.'s land into A.'s land, whereupon A. sued B. upon the case for this inconvenience and damage. It was admitted that B. had always repaired the fence, but his counsel urged that the nonfeasance of these trustees could not make him responsible, as he had relinquished all his right to them, and had not appealed against their act. But the Court was against him, for as the trustees had no autho

(u) 2 Y. & Jer. 391. (x) 2 Ad. & El. 773.

Powell v. Salisbury. And see 1 Vent. 264.
Bird v. Relph, ante, p. 317.

Y

and Remedies.

Proceedings rity to make the passage over his land without his consent, they must be taken to be agents. He ought to have so stipulated as that the obligation cast upon him by law might be complied with. The postea was delivered to the plaintiff (y). In this case the trustees were wrong doers on two grounds. First, they ought to have secured to the plaintiff a permanent right of way, which was not done, since the license, being by parol, was revocable at will (z). Secondly, they were bound to fence and put out the adjoining lands from trespasses, and this they likewise neglected (a). Not having acted, therefore, in pursuance of the act, the defendant was without redress, for he could not sue them for doing that which he himself had authorized, although the plaintiff might, perhaps, have treated them as trespassers.

(y) 3 Y. & Jer. 308. Winter v. Charter.

(2) Id. 312, 315.

(a) Id. 312, 317.

CHAPTER IV.

Of the Pleadings, Evidence, &c., in Actions relating to
Fences.

We have seen (a) that actions of trespass and upon the case are the most common remedies for damage caused by a nonfeasance in fencing. The issues, however, which are sometimes necessary to raise questions of law between parties upon disputes of this nature can also be raised in replevin when cattle are taken damage feasant. In an action upon the case the plaintiff declares upon his possession of land and states a possession likewise of the land in the defendant (b), by reason of which the defendant ought to have repaired the hedge or fence in dispute. The neglect of the defendant is then averred, and lastly, the damage, whether it be injury to the cattle of the plaintiff from their straying into the defendant's land, or mischief to his own close from the wandering of the defendant's beasts, or of those of other persons, owing to the want of repair, or, perhaps, both of these ill con

(a) Ante, Chapter III.

(b) See 1 Vent. 264, Anon. In this case, likewise, it was determined that the manner of stating the time was good. As that the fence was down from the 23rd of April to the 25th of May, and afterwards, saying also, that the plaintiff's mare was drowned through the defect of the fence. For, 1st, The Court would intend as much after verdict; and 2ndly, They would, at all events, intend it, as the accident was laid to have happened through the defect of the fence, and the objection, therefore, that the fence might have been good on the 28th of May, when the cause of action arose, was held of no avail. See also, 1 Salk. 22.

Pleadings, Evidence, &c.

Pleadings, sequences. It seems, that although there might be an Evidence, &c. agreement to repair, the plaintiff might still declare upon the possession of the defendant (c), and would not be constrained to say that the defendant was bound to repair by virtue of the agreement (d). This statement of possession shews the necessity of disclosing the plaintiff's right to bring this action. As where a mare belonging to the plaintiff met with an accident in consequence of a supposed default on the defendant's part through neglect in mending his fences. The declaration alleged the liability, and stated the damage, but failed to shew that the plaintiff had any right to have his beast in the place whence she escaped, so that here was damnum absque injuriá, and judgment was given for the defendant (e).

In an action upon the case for damage done through the falling of a haystack, by which the plaintiff's horses were killed, the plaintiff employed three counts. 1. Stating the respective possessions of the plaintiff and defendant, and the obligation of the defendant to repair certain fences in order to prevent the escape of cattle, and then alleging that the defendant suffered the fences to be in bad condition whereby the injury occurred. 2. Stating that the haystack mentioned in describing the injury in the first count was in an improper and dangerous state through the default of the defendant, whereby, &c. 3. Stating a depasturing of the plaintiff's grass and herbage by the cattle of the defendant (f). The declaration in trespass merely states the damage

(c) 6 B. & C. 338, per Bayley, J.

(d) See an observation of Littledale, J., id. 333, and the dictum of Bayley, J., id. 338.

(e) Cro. Jac. 158, Blyth v. Topham.

(ƒ) 2 Y. & Jer. 391, Powell v. Salisbury.

Evidence, &c.

without alleging any lawful possession or consideration Pleadings, to repair, and this is the most ordinary form of action where the mischief complained of consists simply of an invasion by the defendant's beasts. For the action upon the case, although in this instance it may be used as well as trespass, is mostly applied to matters of consequential injury, which cannot be the subject of trespass; as the falling down of the haystack (g), the damage to the sheep which the defendant occasioned by driving them illegally into the highway (h), and so on.

An avowry for taking cattle damage feasant is in the nature of a declaration, but the defendant merely states that the place in question was his freehold, or copyhold, &c. (as the case may be,) and that the cattle of the plaintiff in replevin were wrongfully depasturing and doing damage there, whereupon he well avows the taking of the same.

The actions of covenant and assumpsit not unfrequently arise in matters connected with fences upon an alleged breach of covenant or agreement by a tenant. The landlord rightly deems this neglect to be a mischief done to his inheritance, and is entitled to recover accordingly.

Pleas.]-To an action upon the case not guilty may sometimes be pleaded alone.

Defect of Fences.]-The defence of a broken and unrepaired hedge is placed upon the record as an answer to an action of trespass to a plea of distress damage feasant, and also in bar of an avowry. After adverting to the trespasses, the defendant in trespass says, that he was lawfully possessed of a close next adjoining to that of the (g) 2 Y. & Jor. 391. (h) Ante, 8 Ad. & El. 113.