The opinion of the court was delivered by

The ground attempted to be assumed in the defendant’s replication is a departure from the ground assumed in the avowry.

In the avowry the defense is put upon the ground that the animal was taken damage feasant on the inclosed land of the defendant. The replication is also bad for repugnancy. It not only alleges that the parties occupied the two lots in common, but it then proceeds to allege that as early as 1839 the former owners of the two lots made a parol agreement for building and maintaining a division fence between the two lots, and that the division fence was built according to the agreement, and that the proprietor under whom the plaintiff claims, built and maintained his part as a division fence up to the 1st of January, 1851; and that the proprietor and his grantees under whom the defendant claims, built, kept and maintained their part of the fence in good and legal repair from the time it was built up to a period of time subsequent to the time *148the bull was impounded, and that he escaped upon the lot of the defendant over that portion of the fence which the proprietor under whom the plaintiff claims, had built, and which the plaintiff had permitted to go to decay, and that the defendant’s part of the fence had been kept in legal repair until after the seizure of the bull. This is altogether incompatible with the idea that the two lots were occupied in common. As bearing upon an occupancy in common, it was of no account whether the fences were either in whole or in part sufficient and legal, nor was it of any importance whether the parol division of the fence between the former proprietors was legally binding upon the parties to this suit or not. Until this fence had been repudiated by the present owners as a division fence between them, and set at naught, they could not be said to occupy in common.

No repudiation is alleged in the replication, but on the contrary the defendant alleges that his part of the fence had been kept in legal repair up to the time the bull was impounded by him. "We think, then, the replication is insufficient, and that the bull was illegally impounded.

The result is an affirmance of the judgment of the county court.