David Weymouth vs. Samuel M. Gile.
Piscataquis.
Opinion July 22, 1881.
Trespass. Gattle.
The agister, or general owner of cattle, is liable in trespass for damage done by the cattle under his charge.
' ON agreed statement of facts which are sufficiently stated in the opinion.
Henry Hudson, for the plaintiff,
cited: Cooley, Torts, 340 ; 1 Thompson, Negligence, 196, 209, 213; Hoyes v. Golby, 30 N. H. 143; JBarnum v. Van JDusen, 16 Conn. 200; Sheridan v. Bean, 8 Met. 284.
*447A. G. Lebrohe and W. E. Parsons, for the defendant.
The defendant had no such possession of the cows as would be necessary to mate him liable in this action. There was no contract by which he was to have the care and custody of the animals. Their several owners took them home each night and returned them to the pasture in the morning. Tie had neither a general nor special property in them.
It is only when the agistor has the possession, care and custody of the animals that he is liable in trespass for damage done by them. Cooley Torts, 340 ; Sheridan v. Bean, 8 Met. 284.
Appleton, C. J.
This is an action of trespass quare clausum fregii. The trespass is admitted. Is the defendant liable ?
The defendant depastured five cows on land leased by Mm. While under his charge they escaped 1'rom his premises and committed the trespass, which is the subject matter of this litigation. As occupier he was bound to keep the fences in repair. Tewksbury v. Bucklin, 7 N. H. 518. It was through Ms negligence the cattle escaped. The defendant was a bailee, an agister. Having care and control of the cattle, he might maintain trespass for an injury to them. Bass v. Pierce, 16 Barb. 595. So he would be liable for any injury done by them. Smith v. Jaques, 6 Conn. 530; Barnum v. Van Dusen, 16 Conn. 200. The agister, as well as the general owner of cattle trespassing, are liable in damage. Sheridan v. Bean, 8 Met. 284. So trespass lies against A, if cattle in his custody do a trespass, or against the owner, at Ms election. Com. Dig. Trespass, C. 1.
Defendant defaulted. Damages, ‡4.
Barrows, Virgin, Peters, Libbey and .Symonds, JJ., concurred.