270 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



that the plaintiff's own portion was also out of repair.®^ It is 

 incumbent on the defendant to excuse himself by showing 

 that the animals passed through a defect for which the plain- 

 tiff was responsible, consequently where there is no evidence 

 as to which portion they passed through, both being out of 

 repair, the plaintiff may recover.®* On the other hand, it 

 has been held that the injured party must show affirmatively 

 that the trespass was through the other's portion of the fence 

 or through his own portion, which was sufficient.** The fact 

 that the defendant has actually maintained the portion of the 

 fence through which the cattle entered has been held prima 

 facie evidence to sustain a recovery, in the absence of evidence 

 on the part of the defendant that the plaintiff was bound to 

 maintain that portion.'^" 



If there has been no legal division of the fence between the 

 parties, each is liable, where the common-law rule prevails, 

 for the trespass of his own animals. ^^ And the same is true 



penter v. Cook (Vt), 30 Atl. Rep. 988 [see Same v. Same (Vt.), 41 id. 

 1038] ; Scott V. Grover, 56 Vt. 499; Cowles v. Balzer, 47 Barb. (N. Y.) 

 562; Griffin v. Martin, 7 id. 297; Weide v. Thiel, 9 III. App. 223; Duffees 

 V. Judd, 48 la. 256. 



As to an action on an agreement where there is no prescription, see 

 Nowel V. Smith, Cro. Eliz. 709. 



Where there was a prescription, the tenant could be compelled to fence 

 by the writ of curia claudenda: Fitzh. Nat. Brev., Cur. Claud. 297. 



" Ozburn v. Adams, 70 111. 291 ; Pinnell v. St. Louis, A. & T. R. Co., 

 49 Mo. App. 170. 



In O' Riley v. Diss., 41 Mo. App. 184, it was held that the covenant to 

 construct a division fence was mutual and the plaintiff must show per- 

 formance on his part, but that the contract duty having been waived by 

 both parties, the plaintiff could recover on the defendant's violation of his 

 common-law obligation to keep his cattle in. 



°* Deyo V. Stewart, 4 Den. (N. Y.) loi; Phillips v. Covell, 79 Hun 

 <N. Y.) 210. 



"' Selover v. Osgood, 52 111. App. 260; D'Arcy v. Miller, 86 111. 102. 



™ Colden v. Eldred, 15 Johns. (N. Y.) 220. But see Sturtevant v. Mer- 

 rill, 33 Me. 62. 



" Knox V. Tucker, 48 Me. 373; Thayer v. Arnold, 4 Mete. (Mass.) 589; 

 McKowan v. Harmon, 56 111. App. 368; Angell v. Hill, 18 N. Y. Suppt. 

 824. 



