314 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC. 



The land-owner cannot impound cattle that enter through 

 a breach in a fence which he is bound to repair, ^^ though it 

 may be immaterial that his own part of a division fence is out 

 of repair where the animals break through the other part.^* 

 And where he has agreed to keep a portion of the division 

 fence in repair, he cannot impound animals entering through 

 a defect, though it may be unlawful for animals to run at 

 large.^* 



One fencing government land with his own in violation of 

 a statute cannot detain cattle found in the enclosure under a 

 statute authorizing the impounding of trespassing animals.^^ 



83. Manner of Impounding; Remedies of the Owner — The ani- 

 mals taken up must be driven to the pound within a reason- 

 able time ^^ and with reasonable diUgence,^^ and these ques- 

 tions are for the jury. In the latter case it is said : "A person 

 who first lawfully distrains cattle is entitled to retain them 

 in custody until he can deliver them into the custody of the 

 pound-keeper. He is entitled so to keep them as will enable 

 him surely to deliver them to such keeper. Were he in dan- 

 ger of losing that custody by driving them in the darkness of 

 the night when it would be easy for them to escape and when 

 there was reasonable danger that they would, we do not see 

 that he might not keep that custody by shutting them up until 

 they could be safely driven. He would have no right un- 

 reasonably to delay and without necessity keep them from 

 the pound. His duty is to give all reasonable diligence and 



^Akers v. George, 6i 111. 376; Hitchcock v. Tower, 55 Vt. 60; Coor v. 

 Rogers, 97 N. C. 143. And see McSloy v. Smith, 26 Ont. 508. 



Or that the adjoining cattle-owner is not liable to repair: Eastman v. 

 Rice, 14 Me. 419, under a statute. 



^ Hine v. Munson, 32 Conn. 219, under a statute. 



" Hopkins v. Ott, 57 Mo. App. 292. And see Field v. Bogie, 72 id. 185. 



See § 72, supra. 



" Taylor v. Buford, 8 Utah 113. "' Drew v. Spaulding, 45 N. H. 472. 



" Angell V. Simmons, 10 R. I. 418. 



