trespass by a man's cattle is equivalent to trespass by himself.

The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven: in such case the owner is liable only on proof of negligence (n); and the law is the same for a town street as for a country road (o). Also a man may be bound by prescription to maintain a fence against his neighbour's cattle (p).

"Whether the owner of a dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as is the case with an ox," is an undecided point. The better opinion seems to favour a negative answer (q).

ous or

animals.

Closely connected with this doctrine is the responsibility Dangerof owners of dangerous animals. "A person keeping a vicious mischievous animal with knowledge of its propensities is bound to keep it secure at his peril." If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species (r). If the animal is of a tame and domestic kind, the owner is liable only on proof that he knew the particular animal to be "accustomed to bite mankind," as the common form of pleading ran in the case of dogs, or other

(n) Goodwin v. Cheveley (1859) 4 H. & N. 631, 28 L. J. Ex. 298. A contrary opinion was expressed by Littleton, 20 Edw. IV. 11, pl. 10, cited in Read v. Edwards, 17 C. B. N. S. 245, 34 L. J. C. P. at p. 32.

(o) Tillett v. Ward (1882) 10 Q. B. D. 17, 52 L. J. Q. B. 61, where an ox being driven through a town strayed into a shop.

P.

Fire, firearms, &c.

wise vicious; but when such proof is supplied, the duty is absolute as in the former case. It is enough to show that the animal has on foregoing occasions manifested a savage disposition, whether with the actual result of doing mischief on any of those occasions or not (s). But the necessity of proving the scienter, as it used to be called from the language of pleadings, is often a greater burden on the plaintiff than that of proving negligence would be; and as regards injury to cattle or sheep it has been done away with by statute. And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog (t).

The word "cattle" includes horses (u) and perhaps pigs (v).

The risk incident to dealing with fire, fire-arms, explosive or highly inflammable matters, corrosive or otherwise. dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those which subject the actor to strict responsibility. Sometimes the term "consummate care" is used to describe the amount of caution required: but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuc

(s) Worth v. Gilling (1866) L. R. 2 C. P. 1. As to what is sufficient notice to the defendant through his servants, Baldwin v. Casella (1872) L. R. 7 Ex. 325, 41 L. J. Ex. 167; Applebee v. Percy (1874) L. R. 9 C. P. 647, 43 L. J. C. P. 365.

(t) 28 & 29 Vict. c. 60 (A.D. 1865). There is a similar Act for Scotland, 26 & 27 Vict. c. 100. See Campbell on Negligence, 2nd

ed. pp. 53-55. Further protection against mischievous or masterless dogs is given by 34 & 35 Vict. c. 56, a statute of public police regulations outside the scope of this. work.

(u) Wright v. Pearson (1869) L. R. 4 Q. B. 582.

(v) Child v. Hearn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100 (on a different Act).

cessful diligence on the defendant's part was held to exonerate him.

As to fire, we find it in the fifteenth century stated to Duty of keeping in be the custom of the realm (which is the same thing as the fire. common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour (x). In declaring on this custom, however, the averment was "ignem suum tam negligenter custodivit :" and it does not appear whether the allegation of negligence was traversable or not (y). We shall see that later authorities have adopted the stricter view.

The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house (z). Here too it looks as if negligence was the gist of the action, which is described (in Lord Raymond's report) as case grounded upon the common custom of the realm for negligently keeping his fire." Semble, if the fire were carried by sudden tempest it would be excusable as the act of God. Liability for domestic fires has been dealt with by statute, and a man is not now answerable for damage done by a fire which began in his house or on his land by accident and without negligence (a).

The use of fire for non-domestic purposes, if we may

(r) Y. B. 2 Hen. IV. 18, pl. 5. (y) Blackstone (i. 431) seems to assume negligence as a condition of liability.

(z) Tubervil or Tuberville v. Stamp, 1 Salk. 13, s. c. 1 Ld. Raym. 264.

of Anne to a like effect; 1 Blackst.
Comm. 431; and see per Cur. in
Filliter v. Phippard. It would
seem that even at common law the
defendant would not be liable
unless he knowingly lighted or
kept some fire to begin with; for
otherwise how could it be described
as ignis suus?

(a) 14 Geo. III. c. 78, s. 86, as interpreted in Filliter v. Phippard (1847) 11 Q. B. 347, 17 L. J. Q. B. 89. There was an earlier statute

Carrying fire in locomotives.

coin the phrase, remains a ground of the strictest responsibility.

Decisions of our own time have settled that one who brings fire into dangerous proximity to his neighbour's property, in such ways as by running locomotive engines on a railway without express statutory authority for their use (b), or bringing a traction engine on a highway (c), does so at his peril. And a company authorized by statute to run a steam-engine on a highway still does so at its peril as regards the safe condition of the way (d).

It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found acceptance (e). In New York it has, after careful discussion, been expressly disallowed (ƒ).

(b) Jones v. Festiniog R. Co. (1868) L. R. 3 Q. B. 733, 37 L. J. Q. B. 214. Here diligence was proved, but the company held nevertheless liable. The rule was expressly stated to be an application of the wider principle of Rylands v. Fletcher; see per Blackburn J. at p. 736.

(c) Powell v. Fall (1880) 5 Q. B. Div. 597, 49 L. J. Q. B. 428. The use of traction engines on highways is regulated by statute, but not authorized in the sense of diminishing the owner's liability for nuisance or otherwise; see the sections of the Locomotive Acts, 1861 and 1865, in the judgment of Mellor J. at p. 598. The dictum of Bramwell L. J. at p. 601, that Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247, p. 430, above, was wrongly decided, is extra-judicial. That

case was not only itself decided by a Court of co-ordinate authority, but has been approved in the House of Lords; Hammersmith R. Co. v. Brand (1869) L. R. 4 H. L. at p. 202; and see the opinion of Blackburn J. at p. 197.

(d) Sadler v. South Staffordshire, &c. Tramways Co. (1889) 23 Q. B. Div. 17, 58 L. J. Q. B. 421 (car ran off line through a defect in the points: the line did not belong to the defendant company, who had running powers over it).

(e) It appears to be held everywhere that unless the original act is in itself unlawful, the gist of the action is negligence; see Cooley on Torts, 589-594.

(f) Losee v. Buchanan (1873) 51 N. Y. 476; the owner of a steamboiler was held not liable, independently of negligence, for an explosion which threw it into the

The gun went off
The owner was

arms:

Dixon v.

Loaded fire-arms are regarded as highly dangerous Firethings, and persons dealing with them are answerable for damage done by their explosion, even if they have used Bell. apparently sufficient precaution. A man sent his maidservant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl; she loitered on her errand, and (thinking, presumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. and the child was seriously wounded. held liable, although he had used care, perhaps as much care as would commonly be thought enough. "It was incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doing harm" (g). This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character altogether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if

loaded fire-arms are left within the reach of children or fools, no consequence is more natural or probable than that

plaintiff's buildings. For the previous authorities as to fire, uniformly holding that in order to succeed the plaintiff must prove negligence, see at pp. 487-8. Rylands v. Fletcher is disapproved as being in conflict with the current of American authority.

(g) Dixon v. Bell (1816) 5 M. & S. 198, and in Bigelow L. C. 568. It might have been said that sending an incompetent person to fetch a loaded gun was evidence of negligence (see the first count of the declaration); but that is not the ground taken by the Court (Lord Ellenborough C. J. and Bayley J.).