Young v. Vaughan

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 *332the 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.