counting them after the stampede; and in not sending back word, and causing the cattle to be advertised and searched for as soon as the loss was discovered. Instructions covering the views of the respective parties were requested and given, or refused, in accordance with the opinion of the Court in which the cause was tried. A verdict for plaintiff was the result, and, on appeal therefrom, the opinion of the Court, which sustained the judgment, was: “The instruction that the defendant was bound to use the same care in regard to the cattle, which he undertook to drive for hire, that men of ordinary prudence would exercise over their own property under the same circumstances," was correct, and in accordance with numerous authorities. (Cayzer v. Taylor, 10 Gray, 274; Shaw v. Boston & Worcester R. R. Co. 8 Gray, 45; Shrewsbury v. Smith, 12 Cush. 177; Sullivan v. Scripture, 3 Allen, 564; Giblin v. McMullen, Law Rep. 2 P. C. 317.) The degree of care to be required of one who is intrusted with the property of another, for reward, is not less than that which is to be expected of one who deals with his own property. If the first instruction asked for is based upon a recognition of such an obligation, it is only equivalent to that which was given by the Court. But if the comparison with those "engaged in driving cattle for hire" was intended to indicate that one who drives for hire is bound to a less degree of care, "because he is a hireling, and careth not" for his charge, it asked for a rule which has never been recognized either as good law or good morals. The evidence as to the usual practice or mode of proceeding ordinarily adopted by drovers was held at the previous hearing to be admissible upon the question of ordinary care, because it tended to show what had been found, by the experience of others, to be most judicious or expedient in like emergencies, not because they were drovers for hire, as distinguished from owners driving their own cattle. The defendant further insisted that the jury should be instructed that, "if he did do the things that drovers of common prudence, engaged in the same business, ordinarily do, he was not guilty of such negligence as will make him liable in this action." But this is not the legitimate application of evidence admitted to show the usual practice in similar cases. The usual practice is made up of particular instances of conduct, by the limited number of individuals similarly engaged, within the knowledge of the witnesses who may be called to testify. That which is admissible in evidence is, not the particulars, but what the witnesses state, from their own knowledge of those particulars, to be usual, or the course ordinarily pursued. The character for prudence, of those whose conduct or acts go to make up this usual practice, is not required to be shown. It forms no part of the inquiry. The effect and purpose of the inquiry is to aid the jury in forming their judgment of what the party was bound to do, or was justified in doing, under all the circumstances of the case. What had been done by others previously, however uniform in mode it may be shown to have been, does not make a rule of conduct by which the jury are to be limited and governed. It is not to control the judgment of the jury, if they see that in the case under consideration it is not such conduct as a prudent man would adopt in his own affairs, or not such as a due regard to the obligations of those employed in the affairs of others would require them to adopt. It is evidence of what is proper and reasonable to be done, from which the jury are to determine whet her the conduct in question in the case before them was proper and justifiable. We think the instruction asked for, in this particular, was not such as should have been given. The instruction asked for, to the effect that "the defendant was not obliged to make any outlay disproportionate to the compensation he received, to recover cattle that had strayed from the drove without his negligence," and, therefore, that the price he received was "to be taken into account" upon the question of As to what is such care must be ascertained by a fair consideration of the circumstances in each case. Ordinary care must be measured by the character and exposures of the business, and the degree required is higher where a large amount of property is involved than in other cases. For hire, the bailce covenants to do for his employer what, otherwise, he would do for himself to represent him in the matter; and, while he might not be expected to entertain the same degree of feeling of interest in the animals which he would who had raised them, or to whom they belong, he should be impressed with such care and responsibility as is commensurate with the value of the stock. § 150. The right to graze cattle upon open commons is not of so absolute a character as in all cases to exempt the owner of them from risk of such accidents as are incident to the circumstances.1 Thus, where the statutes do not compel railroad companies to fence, it would be unjust to put upon them the whole burden of losses which are liable to occur by injury to animals straying upon the track. Both the company and owner of the animals are in the proper exercise of their calling, and are equal in the eye of the law; to impose upon one party the cost of making due diligence, was inadmissible. The price is undoubtedly graduated by the well known risks of the business, and accepted in view of those risks. The obligation to seek the recovery of straying cattle does not rest upon the ground that that special service is paid for in consideration of the original contract, and, as such, is covered by its consideration. When an emergency occurs to bring that obligation into operation, and make it onerous, he is not justified in any lack of faithful performance, because, in that particular event, his compensation has proved inadequate to the burden. 1 Isbell v. N. Y. & N. H. R. R. Co. 27 Conn. 393; Daly v. R. R. Co. 26 Conn. 591; Brown v. Lynn, 31 Penn. St. 510; R. R. Co. v. Terry, 8 Ohio St. 570; R. R. Co. v. Matthews, 21 Ohio St. 586. There appears, upon an examination of the cases, a liability to criticism in the subject of trespass, being a disregarder, and in treating the matter as though the animal were rightfully in the place where the injury occurred, thereby making the whole question one merely of negligence, and considering the former of no moment, unless it may have some effect in supporting the existence of the latter, or they turn upon some point which avoids due consideration of the proposition, that while the company may owe special duty to those through whose lands their road runs, they are not, in all cases, similarly bound to all who allow their animals to run at large. See opinion of Hall, J. in Keefe v. R. R. Co. Jan. Term, 1875, Sup. Ct. Minn. Knight v. Albert, 6 Barr, 472; R. R. Co. v. Hunnewell, 8 Wright, 378. good the damage done would be to render the ownership of property such as railroads especially annoying and hazardous -would be discriminating and partial.1 1 In Caulkins v. Matthews, 5 Kansas, 191, the plaintiff allowed his horse to go at large. The horse wandered on the uninclosed land of the defendant, and fell into an old well, which caused its death. The Court below charged the jury that "the defendant was liable, if negligent." Judgment was reversed, on the ground that the defendant, at most, could only be held liable for gross negligence. In Railway Co. v. Rollins, 5 Kansas, 167, the plaintiff allowed his cattle to graze upon the open, uninclosed prairie, near the defendant's track-the land on both sides of which belonged to the defendant-and they strayed upon the track and were killed by the train. The Court says: "Ordinarily, when a person allows his cattle to run on another's land, without the owner's consent, the owner of the land is not liable for any injury to the cattle received whilst there, unless the injuries are caused through his gross negligence. But when any person knowingly allows his cattle to run on the land of a railroad company, in the vicinity of a railroad track, he can recover for injuries done to the cattle only through the most gross and wanton negligence of the railroad company." There is, possibly, some little confusion of the terms in the last two cases, but we are to understand by gross negligence such a degree of willful negligence as would lead, in the law, to the implication of willfulness, or wantonness. (Keefe v. Railway Co. Sup. Court Minn. Jan. Term, 1875.) § 154. § 155. Liability of owners where several dogs attack sheep. § 151. Laws for protection of sheep from dogs.-By the statutes of many of the States, sheep are especially guarded from the ravages of their natural enemies, dogs. That sheep may be thus protected, it is made lawful to destroy dogs which are found killing or worrying them. The persons who kill the dogs are held free from suit or prosecution for so doing, and the owner of the offending dog is held answerable, not only for what damage has really been done, but often for a larger amount, by way of a preventive against harboring such dogs. as manifest a disposition to injure sheep. In some of the States, the protection of sheep is made a matter of quasi-police regulation; the county authorities, by proper licenses, restrict the keeping of dogs to such persons as, having animals of that description which they deem of enough value to induce them to answer for their acts, will hold themselves in readiness to respond, in damages, for the misdeeds of their dogs in worrying or killing sheep.1 1 In Alabama, any person who keeps a dog which has been known to kill or worry sheep, is liable to him who owns sheep, for double the amount of damage done to the sheep by his dogs; any person may kill the dog so found worrying or killing sheep, and cannot be punished or made civilly liable for doing so; and if any person keeps or harbors, and allows to run at large, a dog which has by him been known to kill or worry sheep, he is guilty of a misdemeanor, and liable to be fined therefor not more than fifty dollars. (Revised Code of Alabama, 1867, p. 320; Stats. of Alabama, 1872–3, p. 131.) The Statutes of California were, in effect, similar to those of Alabama, until the enactment of the codes, 1872. The appropriate code (Political) does not, in express terms, or by fair implication, continue in force these provisions for the protection of sheep, and no new enactment takes their place. (Stats. Cal. 1870, p. 223; Ibid, 1866, 225; Political Code, Secs. 18, 19.) In Connecticut, when a person has suffered damage by dogs worrying or kill ing his sheep, he gives notice to the selectmen of the town in which the damage has been done, and the selectmen bring suit for him against the owner or harborer of the offending dog; and unless the damage is made good by this suit, the town becomes liable to the owner of the sheep for such damage. To make provision for such liabilities all dogs are licensed, and the revenue from these licenses is held as a fund from which to meet this class of liabilities. (Stats. of Conn. Rev. 1866, p. 668; Stats. of Conn. 1866, p. 109.) In Georgia, by special statute, the owners of dogs which worry or kill sheep are made liable for such damage. (Code of Georgia, 1873, Sec. 2965.) By the laws of Idaho and Minnesota, any person may kill a dog which is found worrying, wounding, or killing sheep, and no prosecution or action of any kind lies against him for the dog. (Laws of Idaho, 4th Session, p. 104; 5th Session, p. 165; Stats. at Large of Minn. p. 593.) In New Hampshire and New Jersey, the towns are liable, under a system much like that in vogue in Connecticut, and a tax, by license upon dogs, is imposed to meet such liabilities; the owner or harborer of the dog which has caused the damage may be sued by the town authorities for the injuries suffered from the ravages of his dog, or of one which he permits to remain upon his premises. (Nixon's Digest of Laws of New Jersey, 1709-1868, pp. 16-23; Gen. Stats. of N. H. pp. 219, 220.) In New Castle County, Delaware, it is lawful to kill dogs addicted to worrying sheep, and a list of all dogs within the county is kept; all dogs are to be either licensed or destroyed, and from the results derived by licensing dogs the county authorities make good the damages suffered by sheep being wounded or killed by dogs. (Laws of Del. 12, pp. 252-254, 282; 13, pp. 135–138.) In Georgia, the owner or harborer of a dog which causes damage by worrying or killing sheep must pay for all such damage. (Code of Georgia, 1873, Sec. 2914.) By the statute of Minnesota (Bissell, 1873, Vol. 1, 593) it is provided that any person may, without incurring liability, civil or criminal, kill a dog found fretting, injuring, or killing lambs, or sheep; and he who owns or has in his possession any dog which kills, wounds, or worries sheep or lambs "shall be liable for the value of such sheep or lambs to the owner thereof, without proving notice to the owner or possessor of such dog, or knowledge by him that his dog was mischievous, or disposed to kill sheep." In Michigan, any person may, without rendering himself liable either criminally or by civil action, kill a dog that he may see chasing, worrying, wounding, or killing any sheep, lambs, swine, cattle, or other domestic animals, out of the inclosure or immediate care of the owner or keeper of the sheep, etc. The owner or keeper of a dog which assaults, bites, or otherwise injures sheep, is liable in double damages therefor to him who owns the sheep, and it is not essential to the recovery that it be shown that he to whom the dog belonged, or who harbored him, knew of his propensity to do such damage or mischief; but plaintiff cannot recover more than five dollars costs. If the owner or keeper of a dog which has been chasing, worrying, wounding, or killing sheep, lambs, |