
    Kennett v. Durgin.
    The owner or occupant of land, having the custody and control of another’s cattle kept by him, is liable for their trespasses upon land of an adjoining owner.
    Trespass, quare clausum. The referee found that cattle whose owner lived in New York, and which were kept on the farm of the defendant, and under his care and management, broke into the plaintiff’s adjoining close, and there did damage amounting to $12. In the action of which this is a review, the plaintiff recovered judgment for $30, which was satisfied. The court ordered judgment on the report for the defendant for $18 damages and $18 costs. The defendant claimed that on these facts the action could not be maintained against him, and excepted.
    
      J. H. Hobbs, for the plaintiff.
    
      Copeland Edgerly, for the defendant.
   Allen, J.

The owner of cattle kept on land of another, but remaining in his own care and control, is liable for their trespasses on land of a third person; but if the owner or occupant of the land has the custody, he and not the owner of the cattle is liable. Tewksbury v. Bucklin, 7 N. H. 518, 521; Noyes v. Colby, 30 N. H. 143, 153. The defendant owned and occupied the land where the cattle were kept, and had the care and control of them. He was not a mere servant of the owner, acting under his directions, but, as general agent, had charge of the cattle kept there, and was liable for their trespasses.

The judgment in the action before review having been satisfied by the statutes in force when the review was undertaken, the defendant was entitled to recover the amount of reduction of the former’s judgment and costs not exceeding the reduction.

Exceptions overruled.

Smith J., did not sit: the others concurred.  