Avery v. Maxwell
Superior Court of New Hampshire
This was an action of trespass for breaking and entering the plaintiiPs close in Gilmanton, and with a certain horse eating up and destroying the plaintiff’s grass.
Read the full summary
This was an action of trespass for breaking and entering the plaintiiPs close in Gilmanton, and with a certain horse eating up and destroying the plaintiff’s grass. The cause was tried here upon the general issue at September term, 1824, when it appeared in evidence, that the locus in quo was situate adjoining a public highway, and that the defendant’s horse, being suffered by Mm to go at large upon said highway, strayed therefrom and entered the said close and did the injury of which the plaintiff complained. The defendant then offered to prove that the horse at the time he so entered said…
1Opinion of the CourtRichardson, C. J.
At common law the owner of a close was not bound to fence against an adjoining close unless by force of a prescription ; but he was at his peril *37to keep his cattle on his own close and to prevent them from escaping,; And if they escaped they might be taken on whatever land they were found damage feasant: or the owner was liable to an action of trespass by the party injured. 6 Mass. Rep. 90, Rust v. Low & a.; 1 Cowen, 79, note a.
But our statute, entitled “ an. act relative to common fields and regulating fences,” sec. 9, enacts “that where any damage shall be done to any person whose fences…
2Cases cited3 opinions
- Stackpole v. HealyMassachusetts Supreme Judicial Court · 1819
- Rust v. LowMassachusetts Supreme Judicial Court · 1809
- Makepeace v. WordenSuperior Court of New Hampshire · 1816
3Cited by5 opinions
- North Pennsylvania Railroad v. RehmanSupreme Court of Pennsylvania · 1865
- Cornwall v. Sullivan RailroadSuperior Court of New Hampshire · 1854
- State v. New-BostonSuperior Court of New Hampshire · 1840
- Towns v. Cheshire RailroadSuperior Court of New Hampshire · 1850
- Woolson v. Northern RailroadSuperior Court of New Hampshire · 1848