This is not a writ of entry, but an action of trespass quare elausum fregit for trespasses committed by the cattle of the defendant upon the land of the plaintiff.
The evidence on each side clearly shows the commission of the trespasses, as set forth in the plaintiff’s declaration, and on his land, whether the line claimed by the plaintiff or defendant be the true one.
There has been no statutory assignment of the partition fences between these parties or between those from whom they respectively derive their titles. The defendant was bound to keep his cattle on his own land at his peril. This he has failed to do. He is therefore liable in damages. Sturtevant v. Merrill, 33 Maine, 62; Webber v. Closson, 35 Maine, 26.
It is unnecessary, therefore, to consider whether the line claimed by the defendant be the true line or not, as, if it be, his cattle have trespassed by passing over it.
Motion sustained.
Hew trial granted.
Davis, Kent, Walton, Barrows and Danforth, JJ., concurred.