284 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



merit that might be used against the decision is one based 

 on the habits of animals. The reason for the rule modifying 

 the liability of one driving his animals along the highway is 

 that, it being their habit, from uncertainty or desire of food, 

 to stray somewhat into the adjoining fields, his use of the 

 highway would otherwise be too burdensome and expensive. 

 As it is not their disposition, especially in the case of larger 

 animals, like oxen, to wander through the open doors of 

 houses or shops, the same reason would seem not to hold 

 there and such a case would come under the more general 

 principle that where one of two innocent parties has to suffer, 

 he whose act, though unwittingly, has caused the injury, 

 should be held responsible for it. 



The owner of cattle straying on the metalled part of a high- 

 way is liable to a penalty therefor, though he had the right 

 of pasturage on the sides.^*^ 



Injuries committed by animals while actually in the high- 

 way are treated of elsewhere. ■*** 



76. General Rules Affecting liability; Scienter; Intention; Re- 

 covery — As a general rule the person liable for the trespasses 

 of animals is he who is in control of them at the time whether 

 as owner, tenant, bailee, agistor, etc.^*^ It has been held in 

 Massachusetts and Maine that either the owner or the agistor 

 may be sued at the plaintifif's election,^*'' but this is contrary 

 to the majority of cases, though in New Hampshire it was 

 held that the owner of sheep which had been let to his son 

 was liable for damages from their straying, the court saying : 



Z ^°l^'"S ^' Stocking, L. R. 4 Q. B. 516. '" See § 87, infra. 



'"Smith V. Jaques, 6 Conn. 530; Moulton v. Moore, 56 Vt. 700; Laflin 

 V. Svoboda, 37 Neb. 368; Ozburn v. Adams, 70 III. 291; Eck v. Hocker, 

 75 111- App. 641; Reddick v. Newburn, 76 Mo. 423; Kennett v. Durgin, 

 59 N. H. 560. 



As to a tenant in possession after the expiration of his lease, see Parker 

 V. Thompson (Ky.), 33 S. W. Rep. 628; Toles v. Meddaugh, io6 Mich. 

 398; Morrison v. Mitchell, 4 Houst. (Del.) 324. 



'" Sheridan v. Bean, 8 Mete. (Mass.) 284; Weymouth v. Gile, 72 Me. 446. 



