REPAIRING PRIVATE ROADS. 133 



ohUgatioii to fence, eucli must take care that his cattle do not enter the 

 land of the other. The one cannot distrain the cattle of the other 

 damage feasant {Ghurcldll v. Evans). And ^^^r curiam in the case of 

 Tenant v. Golchvin : ''- There is a great diversity between a prescrii^tion 

 to put a charge upon a man to repair his fence, and to excuse one from 

 trespass, for such cliarge must be bj prescription. Every one must use 

 his own, so as thereby not to hurt another ; and as of common right one 

 is bound to keep his cattle from trespassing on his neighbour, so he is 

 bound to use anythiug that is his so as not to hurt another by such 

 user. Suppose one sells a piece of pasture, lying open to another piece 

 of pasture which the vendor has, the vendee is bound to keep his cattle 

 from running into the vendor's piece ; so of dung, or anything else." 



In an action on the case for not repairing a private road leading 

 through the defendant's close, it is sufficient for the plaintiff to allege 

 that the defendant as occupier of the close is bound to repair {Rider v. 

 Smith). But if the defendant prescribe in right of his own estate, he 

 must show the estate in right of which he claims the privilege {ih.). 

 The Court of King's Bench here were clearly of opinion that the decla- 

 ration sufficiently charged the defendant by reason of his possession. 

 And jjcr Buller J. : " The distinction Avas between cases where the 

 plaintiff lays a charge upon the right of the defendant, and where the 

 defendant himself prescribes in right of his own estate. In the former 

 case the plaintiff is presumed to be ignorant of the defendant's estate, 

 and cannot therefore plead it ; but in the latter the defendant, knowing 

 his own estate, in right of which he claims a privilege, must set it forth. 

 In Rex V. Buclnudt, Lord Holt O.J., said : ' Where a man is obliged to 

 make fences against another, it is enough to say omnes occupatores ought 

 to repair, &c., because that lays a charge upon the right of another, 

 which it may be he cannot particularly know.' And notwithstanding 

 two out of the three judges were of a different opinion in Holhatch v. 

 Warner, yet several subsequent cases have been determined on the 

 distinction. In 1 Yentr. 264 an anonymous action on the case against 

 a defendant for not repairing a fence, where the allegation was that the 

 tenants and occupiers of such a parcel of land adjoining the plaintiff's 

 have time-out-of-mind maintained it, &e., Holt moved in arrest of judg- 

 ment * that the prescription is laid in occupiers, and not shown in their 

 estates; and that hath been judged naught in 1 Cro. 155, and 2 Cro. 

 665.' But the Court said : ' It is true there have been opinions both 

 ways, but 'tis good thus laid, for the plaintiff is a stranger andpre- 

 sumed ignorant of the estate ; but otherwise it is, if the defendant had 

 prescribed.'" 



It was held hy Erle^., and Crompton J., in Reg. v. Sir John Ramsdcn, 



