16S ANNUAL. REPORT OF THE Off. Doc. 



portion of ttie ex^jense of building a new or repairing the old fence 

 should be borne by each part}-; and they should set forth the sum, 

 if any, which, in their judgment, either one ought to pay to the 

 other, in case he should neglect or refuse to repair or build his pro- 

 portion of the fence — a copy of which certificate it was their duty 

 to deliver to each of the parties; and if any of -the i^rties refused 

 or failed, within ten days after copy of the certificate of the viewers 

 had been delivered to him, to proceed to repair or build the fence 

 as required, the party aggrieved had a right to build the fence, and 

 bring suit against the delinquent party for value of the same, be- 

 foie any justice of the peace, or alderman, and recover as in action 

 for work, labor, service rendered, and materials found. 



It follows, therefore, that if any adjoining owner does not keep 

 up his half of the i>artition fence, and my cattle get through and in- 

 jure his crop, he has no redress against me, since his own neglect 

 was, in part at least, the cause of his injury. 



But at common law, if my cattle escape through my neighbor's 

 defective fence, and stray upon the lands of another, and there in- 

 jure his crop, I am liable in damages to him, though my own half of 

 the fence is good, because, so far as third persons are concerned, I 

 am bound to keep my cattle on my own land; and if I have any 

 redress at all, it is against my neighbor who failed to keep up his 

 part of the partition fence. At common law, also, if I turn my cattle 

 into the road, and they wander upon the lands of another, or if 

 some careless person, crossing my farm on a hunting or fishing ex- 

 cursion, leave down my bars, and my cattle escape into the high- 

 way, and thence into my neighbor's grain field, I am liable to him 

 for damages they may cause. On the other hand, if you are driving 

 your cattle along the road, and. without any fault of yours, they 

 run upon the land of another, and you drive them out as soon as 

 you can, you are not responsible for the damage done, because you 

 had a right to drive them along the highway, and if you exercised 

 proper care and attention, you could do no more. The law recog- 

 nizes a difference between, being lawfully and unlawfully on the 

 highway. 



The common law, is, as I have stated, that every man is bound to 

 keep his cattle on his own land; and this is the rule in this State, 

 unless the acts of Assembly impose duties upon land owners other 

 than those of the English common law. Under the provision of the 

 act of 1700, which has recently been repealed, the owner of cattle 

 was held liable for all damages caused to the owner of enclosed land, 

 if he fenced according to law; and it has been held under that act 

 that unless improved lands are enclosed by a fence, the owner is in 

 default, and cannot maintain trespass for damage by roving cattle; 

 and the owner of improved lands must fence them, both to restrain 



