¶1The opinion of the court was-delivered by
¶2The first question made in the case is whether the referee was confined, in the trial of the case, to the same issue and to the same state of evidence, which would have been required in the county court. We think not. In our practice it is understood, that the case is referred, to be tried upon its merits, without regard to the particular issue joined upon the record. The English practice is, I think, in some respects, otherwise. The arbitrator, as he is there called, ordinarily only tries the issues joined upon the record, and which are sent down for trial, upon the nisi prius roll. But the practice has been otherwise in this state; Eddy v. Sprague, 10 Vt. 216; and we do not perceive any sufficient reason to depart from the former practice. And how far the English practice is different, I have not examined. Their practice is far more strict in requiring defences to be specially pleaded, especially under the late rules. That strictness has not met with much favor in this country. The march of events is in a contrary direction.
¶3Nor do we think, that the agreement in this case, that the “ referee shall be governed by the rules of law,” could fairly be con*239strued to apply to the form of the issue joined upon the record. It doubtless is to be referred to the merits of the case.
¶4In regard to the merits of the case, we suppose the case of Clark v. Adams, 18 Vt. 425, must be esteemed pretty much decisive upon all the points raised. The land there was not inclosed by a legal fence, so that the party could have obtained redress by impounding the cattle; and it was considered no obstacle to his driving the cattle off his inclosures by means of a dog, more than medium size, provided he did it in a prudent and careful manner, — all which is expressly found by the referee in the present case. Indeed, that case seems to us, in its facts and circumstances, even stronger than the present; and we must understand, that, if the defendant was guilty of no want of ordinary care in setting the dog upon the cow and in driving her out of the field, which is expressly stated by the referee, he did call the dog off as soon as possible, for that seems necessarily implied in the former finding^ Anw other construction would be a refinement upon the \pua§ useAby RnSu-eferee.
¶5We do not suppose, that it ■^s^pfespensabTl'^bMhe defendant’s right to impound creatures doinai damage in hisJfieklaL that the fence adjoining the highway should l^M^suffremt, such fence
¶6being expressly excepted in tlte Revised Statutes, liiap. 88, § 16. The law was otherwise under tKs 3ji?Sa§^l^flre, yf to neat cattle, but must, I think, be considered a^saj^jfiei^Ujfiat statute.
¶7Judgment affirmed.