Kneier

Plaintiff appeals from order refusing a new trial.

*594 The action is to recover the value of a mare, which, it is averred, on the twenty-sixth day of June, 1889, was being pastured for plaintiff at the Learned and Harris ranch, then in charge of one Lowry.

Defendant also had a horse there on pasture, and went to the premises to get his animal. Lowry was not at the house, although on the premises, and defendant with his servant went into the pasture without obtaining actual permission so to do from any one, and drove his horse into the corral for the purpose of catching it. There were several other horses there on pasture besides these two, and some seven or eight went into the corral with defendant’s, and were, of course, locked in while he proceeded to catch his horse. In doing this, his animal became frightened and jumped over the fence, and plaintiff’s mare, attempting to follow, was killed. The real question in the case is, whether defendant is responsible.

The complaint contains two counts. The first charges the defendant with having “ negligently chased and drove about ” plaintiff’s mare, by reason whereof it was injured: The charging part of the second is as follows:…