
    Alexander Young v. Charles Vaughan.
    A drover has a right to drive his herds over the public highways to market; and if, in so doing, the cattle of another person are running at large upon the public road, which they have no right to do, and become accidentally mixed with the drove, and are driven off with it, without his knowledge, he is not liable, in an action of trespass, for taking and carrying them away.
    This was an action of trespass for driving away a cow belonging to the plaintiff. The defendant was the owner of a drove of cattle driven on the highway to market, and in passing near the plaintiff’s .residence, a cow of his by accident fell into the drove and was driven along with it. The defendant, then being in the rear, rejoined the drove several miles above the plaintiff’s residence, when one of his drivers called his attention to the cow, and inquired of him if she belonged to the drove and was one of his cows; to which he replied that she was, and stated when and where he had bought her. She was much like other cows in the drove, which was then driven on and sold in. New Castle County, where the plaintiff afterwards identified and recovered his property, which was returned to him by the purchaser, and the action was brought to recover his expenses in regaining the possession of her.
    For the defendant it was insisted, that it should be shown that the taking was tortious and wrongful, and that he refused to restore the property on demand made for it.
   But the Court

charged the jury, that although it must be shown that the taking was tortious to sustain the action of trespass, yet if the defendant knew she was not his property, or, having his attention called to her in the drove, he failed to exercise proper diligence to ascertain whether she was his or the property of another, the taking was wrongful, and he would be liable in the action; for a drover has a right to drive his herds over the public highways to market; and if the cattle of other persons are at the time running or roaming at large upon the public road, which they have no right to do, and become, mixed with them accidentally and without his knowledge, and are-driven away with them without his discovering it, or having his attention, or the attention of his agents, called to the fact, he is not accountable for taking them away in an action of trespass; but if the facts were otherwise, as had before been stated, he would be liable in such action.

Verdict for the plaintiff.  