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the fence thro which fuch beafts paffed on to the fand, was infufficient, then the plaintiff may on that ground conteft the right of impounding. And in matters of replevin, the ufual disputes refpect the fufficiency of the fence; which I fhall therefore con fider in this place.

All proprietors of lands, are obliged to make and maintain fufficient fences, to fecure their particular inclosures. A fufficient fence, the law determines to be a stone wall four feet high, and a five rail fence, or any other fence equivalent to it. All dividend fences, are to be made and maintained equally by the adjoining proprietors. If either party refufe to make a divifion, the other party may apply to the felect-men, who may divide the fame, and fet the best part to him who erected, or holds under him who erected the fame, and the party refusing to divide fhall pay the expence. The account under the hands of the felect-men fhall be fufficient evidence to maintain the action to recover the fame.

If one proprietor improve before the other, and make the whole of the fence, then when the other proprietor improves, he shall purchase and maintain half the fence. If they difagree, the felectmen fhall divide the fence, and determine what fum fhall be paid by the proprietor laft improving, to him who erected the fence ; and an account under their hands, fhall be fufficient evidence in an action to recover the fame. Such divifions when recorded fhall be effectual in law.

If a proprietor neglects to keep his dividend fence in repair, the perfon injured, nay call on the fence viewers, who finding the fence infufficient, or not made, may after five days notice, proceed to erect and repair the fame, and the negligent proprietor hall pay double expence.

Where a perfon has inclofed his fields, with good and fufficient fences according to law, he may impound creatures doing damage therein, and the owner fhall pay damage and poundage. But damage done by beafts thro the infufficiency of the fence, shall not be recoverable, unlefs done by fwine, or horfes fuffered to go

Statutes, 72.

at

at large on the common, or by unruly cattle, which will not be re-, trained by ordinary fence, or where the perfon voluntarily tref paffes upon, or puts his creatures into his neighbour's inclosure. Then if the party injured, fhall find the creatures doing damage in his enclosure, he may impound and fhall recover damage and poundage, tho his fence be infufficient.

If the beafts of the adjoining proprietor enter upon my land, by the infufficiency of his fence, then they are liable to be impounded in the fame manner, as if they broke through my fufficient fence. The proprietor who owns against a common, or the high-way, muft make the whole fence. In cafe of the impounding of horsekind fuffered to go at large on the common, when the impounder has made oath to the place where he took them, the owner fhall pay damage, unless he can fhew that they were not fuffered to go at large, or entered the field through the infufficiency of the fence, at fome place not adjoining the communs. The right to im pound, and to recover damages for the trefpafs, depends on the fufficiency, or infufficiency of the fence.

a

It has been decided, that where a river not navigable, divides adjoining proprietors, their lands meet in the middle of the river, and where land is fo circumftanced, that a divifion fence cannot be built upon the line, it is a cafe not provided for in the ftatute, and must be governed by the principles of reafon and juftice; which is, that whoever keeps cattle, muft fo keep them as that they do no injury to the property or improvement of others. Therefore if one adjoining proprietor paftures, and the other rows his lands, he that paftures must make the whole of the fence.

On trial, if the iffue be found in favour of the avowant, he is entitled to recover his damages and coft. If for the plaintiff, he recovers his damages and coft. If the perfon replevying, fail to profecute his action, the bond is a fecurity, by force of which, the defendant may recover his damages.

Where an injury has been done by the cattle of any one, to the lands of another, he who receives the injury may either diftrain them damage feafant, or bring his action of trefpafs and recover the damage sustained. But he fhould make his election of his rea medy,

Biffell vs. Southworth, Sup. C. 1791,

medy, for if he diftrains, and the diftrefs efcapes, the action of trefpafs is gone, unless the escape was without his default or neglect, and then it lies.

a If the beafts, impounded fhould die in the pound without any neglect of the impounder, he may recur to his action of trespass to recover his damages. For this would be no fatisfaction of his demand; but if they die by his mifconduct or neglect, he shall have no action for his damages, because he has elected his remedy.

If any creatures lawfully impounded, fhall escape out of the pound, the owner being known, he fhall pay all damages and the poundage; provided that the perfon impounding the fame, give oath that he took them doing damage; to be recovered by action of debt.

Before I close this fubject, I fhall mention the cafes of rescue and pound-breach; which tho not directly comprehended under this head, are fo nearly connected with it, as to come 'properly

under confideration.

If any person shall rescue any creatures taken doing damage, out of the hands of any perfon driving them to pound, or that shall refift the driving them, or that shall by any means convey fuch crea tures out of the pound, or cuftody of the law, whereby the party wronged may be liable to loofe his poundage and damage; such perfon fhall pay and forfeit twenty fhillings for the rescue, and forty fhillings for the pound-breach: three quarters to the town treasury, and one quarter to the profecutor, and the damages to the party injured. And if unable to pay the damages and forfeiture, he may be whipped, not exceeding ten stripes, and affigned in fervice to the party wronged, to pay the damages. If it appears that there was any procurement of the owners of the creatures, that they were abetters, or if it be done by their fervants, or children, the owners fhall pay all daniages and forfeitures, as if they had perfonally done the fame. All complaints must be prosecuted within nine months after the offence is committed.

2. When perfonal property is attached, to be holden to refpond a judgment that may be recovered in the action, it may be replevied.

5 Bacon Abr. 179.

replevied. As a confiderable time may intervene between the time of attaching and rendering judgment, it may be greatly disadvantageous to the owner, to be kept out of poffeffion till final trial. As the creditor has only a right to have his debt secured, it is no injury to him to have the estate returned, if the defendant pledge good fecurity. Therefore if the defendant can procure fufficient bonds, he may obtain a writ of replevin; the authority granting the writ should be very cautious in taking bonds, as they become the furety for the debt, in lieu of the property, and they are refponfible, if they take infufficient bonds.

The fole purpose of this action in this cafe is, to regain the property attached, and there is no pretence of charging any wrong to be done by the attachment: but the fame is acknowledged to be legal. It has therefore become the practice in these cafes, to obtain a writ of replevin, commanding the goods to be re-delivered to the plaintiff in the replevin, by the officer, without alledging a trespass, or demanding damages, and directing the writ to be returned to the court to which the original action is returnable; by which the bond on the writ of replevin becomes a pledge for the debt inftead of the property attached, and is preferved in court for the benefit of the attaching plaintiff, to whom fuch bond ought always to be taken. This writ therefore is framed merely to regain the goods attached, there can be no trial upon it, or any coft. It can hardly be confidered in the nature of an action, but is merely a command from proper authority to restore goods that have been attached, so that the owner may have the benefit of them, upon given perfonal fecurity to refpond the demand.

No perfon has a right to replevy eftate, unless he be both a party to the original suit, and owner of the estate. If my property be attached as the eftate of another, on a fuit against him, I may bring trefpafs, but cannot replevy.

CHAPTER

CHAPTER EIGHTH.

OF TRESPASS.

In this chapter, we are to confider the action of trespass only

N

when applied to things of a perfonal nature.

2. In

In the difcuffion of this fubject I fhall confider, 1. The injuries to perfonal property, for which action of trefpafs lies. what cafes it lies. 3. By whom the action must be brought. 4. Against whom it must be brought. 5. And the pleadings in general.

In the refpect of the injuries for which trefpafs may be fuftained, it may be laid down as a general rule, that all unlawful acts that injure things perfonal, either by the taking them away from the owner, by deftroying them, or by damaging them, are deemed trefpafies. It would be impracticable to specificate every act that may be done, that would come within the legal definition of trefpafs; but the general principle being known, it is easy to apply it to particular cafes. We must remember what the things are, in which the law admits an ownership. Every unlawful ac that is done by a perfon to any moveable thing, in which by law property can be acquired, that is in any poffible fhape a damage to it, is a wrong, for which action lies. Of courfe all animals of a wild nature, cannot be the fubject of trefpafs before a qualified property is acquired.

A perfon may do an injury to the perfonal property of another, not only by his own act, but by the inftrumentality of fomething elfe. For instance, if I fet my dog upon the beasts of another, by which they are injured, action lies. If I chafe beafts that are doing damage, out of my enclofure with a little dog, it is no trefpafs. But if I chafe them with a mastiff dog, and they are injured, it is a trefpafs, becaufe fuch a chafing is unlawful.

a

By the common law, if a dog kill a fheep, no action lies unJefs the owner knew that he was accustomed to bite fheep. But by the flatute, the owners of dogs are liable to pay for the fheer they kill, tho ignorant, that they are addicted to fuch practice. If a

a 2 Roll. Abr. 516.

Con. Car. 254- c Dyer, 25. d Bro. Trefp $4. 2 Rull Abr. 169.

beaft,

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