
    MATHIS v. McCORD.
    Trespass — contract to keep fences in order — custom—care—record must show error relied upon.
    If the landlord contract to keep up the fences of leased land and fail, remedy is on the contract, not trespass: so if it be the custom of landlou-t. to keep up fences.
    If injury result to the tenants by the indirect acts of another, the remedy is case, not trespass.
    If the record does not show the whole case, or make it appear that the court below erred, the court of error will not presume it.
    Error to the Common Pleas. Mathis, the tenant of McCord, brought quare clausum fregit on the rented land, and treading down grass by McCord’s cattle. Plea, not guilty, with a notice of accord, and satisfaction. On trial, the plaintiff offered evidence and claimed to have proven that McCord agreed to keep the fences in repair— that it was the common custom of landlords to keep up the fences; that McCord’s cattle voluntarily entered through and over the fence into the field. On this, the court below charged the jury, that the plaintiff must prove that the defendant wilfully caused the cattle to enter the fields, or he could not. recover; and if the proof was that they entered without his agency, then, under our law, the injured party must call on the fence-viewers and have the damages assessed on view. There was a verdict for the defendant.
    
      *Bayles for the defendant.
    
      James, for the plaintiff,
    cited 12 Mod. 335; Ham. N. P. 217.
   WRIGHT, J.

If the plaintiff below relied upon the contract to keep up the fences, he should have brought assumpsit. If he relied upon the custom, or the injury resulted indirectly from the defendant’s acts, it was consequential, and he should have brought a special action on the case. In either event he could not recover in trespass. Was the proof as set forth in the bill of exceptions all that was given? This does not appear. Did the cattle do any injury? Was the accord made out? We cannot answer these questions from the record. If other proof were offered, the error, if any, may have occasioned no injury to the plaintiff. If the record shows all the proof, the judgment was rightly for the defendant, for assumpsit or case was the proper remedy, not trespass — if all the evidence is not set out, the charge of the court may have been erroneous, but the record does not show the error, and we cannot presume that the court erred. The judgment is affirmed.  