Where a Breaking Horses in a public place. Where a Mad Bull wounds a person. Where a Bull person wear the local authority to place restrictions upon Dogs being at large, if danger from mad Dogs is apprehended (d). Where it was stated in a Declaration, that the defendant kept his Horse so negligently that it broke into the plaintiff's close, and bit some of his Horses, so that "they were spoilt and died," a verdict was found for the plaintiff, but Judgment was arrested because no scienter was alleged (e). But where, through the defect of a gate which the defendant was bound to repair, the defendant's Horse strayed into a field belonging to the plaintiff, and kicked the plaintiff's Horse, it was held that the plaintiff was entitled to recover, as the damage resulted from a trespass for which the defendant was responsible, and, therefore, proof of scienter was unnecessary (ƒ). Where, however, a servant breaking an ungovernable pair of Horses in Lincoln's Inn Fields, ran over and hurt a man, it was held that no scienter was necessary, as a place so frequented by the public was an improper place for Horse-breaking (g). But where a Bull made mad, from having been "cut or hoxed," escaped through the defendant's negligence, and tossed, gored and wounded the plaintiff, and a verdict was found for him, the Judgment was arrested, because there was no scienter alleged in the Declaration (h). And where a Bull passing along a highway, seeing singled out a the plaintiff with a red handkerchief, ran at and gored him, the decision turned upon the question, whether or not the owner of the Bull knew that he had a tendency to run at any person wearing red (i). ing red. Where a Ram injured a person. Where a So, too, in a case in which a Ram, which is an animal known to be mischievous at certain seasons, butted and injured the Plaintiff's wife in the street, the Court of Exchequer held that the owner of the animal was not liable to an action in the absence of evidence that he was aware of its propensity to attack passers-by (k). If through negligence a vicious beast goes abroad, vicious beast after warning or Notice of his condition, and kills a kills a person. (d) As to proof of ownership under this section, see Wren v. Pocock, 34 L. T., N. S. 697. (e) Scetchett v. Eltham, Freem. 534 (C. P.). (f) Lee v. Riley, 18 C. B., N. S. 722; 34 L. J., C. P. 212. See also Ellis v. Loftus Iron Co., L. R., 10 C. P. 10; 44 L. J., C. P. 24; 31 L. T., N. S. 483; 23 W. R. 246. (g) Michael v. Alestree, 2 Lev. 172; S. C. 1 Vent. 295. 90. (h) Bayntine v. Sharp, 1 Lutw. (i) Hudson v. Roberts, 6 Ex. 697. (k) Jackson v. Smithson, 15 M. & W. 563. person, it is the opinion of Hale, that it is Manslaughter in the owner (1). And if he purposely let him loose, and wander abroad, with a design to do mischief, even though it were merely to frighten people and make sport, and the beast kills a man, it is Murder in the owner (1). vicious animal The owner of a vicious animal, after Notice of its Owner bound having done an injury, is bound to secure it at all events, to secure a and is liable in Damages to a party subsequently injured, at all events. if the mode he has adopted to secure it proves insuffi cient (m). to an action for damage. A person who keeps an animal accustomed to attack and He is liable bite mankind, with knowledge that it is so accustomed, is primâ facie liable in an action at the suit of any person attacked and injured by such animal (n). The gist of the action being the keeping of the animal after knowledge of its mischievous propensities (n). And it is not necessary to prove negligence or default in the securing or taking care of it (n). The gist of the action. Not necessary to prove negligence. An unruly If a man has an unruly Horse in his Stable, and leaves open the Stable Door, and the Horse in consequence escapes Horse escapand does mischief, the owner is liable in an action (o). ing from a If a man turn an animal, which he knows to be a Stable. dangerous one, out of a place where he may be restrained, Turning a into a public thoroughfare, and the animal afterwards dangerous animal loose, kills a man, it will be Manslaughter, unless the person accused can show that the act was done in self-preserva- slaughter. tion (p). If a man turn out a Horse, which he knows to be vicious, Turning a upon a Common with a footpath across it, and it kills a vicious Horse child, he is guilty of Manslaughter (q). out on a Common. In an action for an injury by a vicious Bull, the plain- Injury occatiff recovered, although it appeared that the Bull was sioned by a attracted by a Cow the plaintiff was driving past the vicious Bull. field in which the Bull was, and that the plaintiff first struck the Bull on the head to drive him away from the Cow (m). To justify a person in shooting a Dog for worrying his Shooting a Sheep, it is not necessary to prove that he was shot in the Dog for worrying Sheep. (7) See judgment-Rex v. Huggins, 2 Ld. Raym. 1583, cited May V. Burdett, 9 Q. B. 107. (m) Blackman v. Simmons, 3 C. & P. 138. (n) May v. Burdett, 9 Q. B. 101. See also Besozzi v. Harris, 1 F. & F. 92, ante, p. 348. See also Fletcher v. Rylands, L. R., 1 Ex. 265, 281. (0) Michael v. Alestree, 1 Vent. 295. (p) Per Bramwell, B., Reg. v. Shooting a act; but it is sufficient if it appear that he has been accustomed to worry Sheep, and that just before he was shot he had been worrying Sheep, and could not have been otherwise restrained from further doing so (). It has, however, been held that a person cannot justify rying Fowls. shooting a Dog worrying his Fowls, unless it appear that the Dog was in the very act at the time, and could not otherwise be prevented (s). But it would seem that if the transaction had taken place in the person's Poultry-yard, it would be enough to show that the Dog was pursuing the Fowl. Because when a Dog is killed pursuing Conies in a warren, it is sufficient to state that the Dog was pursuing Conies there, and it is not necessary to prove that the Dog could not otherwise be prevented killing them (f). (r) Kellett v. Stannard, 4 Ir. Jur. 50 (Ex. Ir.). (8) Janson v. Brown, 1 Camp. 41. (1) Wadhurst v. Damme, Cro. Jac. 44. CHAPTER III. THE LIABILITIES OF PARTIES HUNTING OR TRESPASSING land. WHERE the Fox, Gray or Otter, and other noxious ani- Fresh pursuit mals, are pursued as Vermin, and the governing object over another's of the pursuers is their extirpation, as such, and not merely the amusement of "a run,' ," the law, as laid down in the older authorities, is to a certain extent correct at the present day. It is laid down that one may justify hunting foxes over Pursuing the ground of another because they are noisome Vermin (a); (a) Nicholas v. Badger, 3 T. R. 259, n.; Gedge v. Minue, 2 Bulst. 62. Vermin. No unneces and also Gray or Otter and other noxious animals, as they are injurious to the commonwealth (b). And in Gundry v. Feltham (c), Lord Mansfield, C. J., said, "By all the cases as far back as the reign of Henry the Eighth, it is settled that a man may follow a Fox into the grounds of another." But a person so hunting must not unnecessarily trample sary damage. down another man's hedges, nor maliciously ride over his grounds; for if he does more than is absolutely necessary he cannot justify it (c). Therefore, pursuing an animal as Vermin does not justify fifty or sixty people following the dogs (d). Digging for a Hunting for amusement. Earl of Essex v. Capel. A man cannot justify entering a close or digging up the soil to hunt or take a Fox, Badger, &c., though it be for the public good (e). So that it appears a person cannot enter another's grounds to find Vermin, nor can he dig it out when it has run to earth. Persons hunting for their own amusement, and going over the lands of another, are trespassers; and Fox-hunters, like all other Hunters, may be warned off (ƒ). This point was decided by Lord Ellenborough in the case of The Earl of Essex v. Capel (g), which settled the law on the subject and has never been questioned. An action of Trespass was brought for breaking, entering and hunting over the plaintiff's lands, and the defence was that the Fox was pursued as Vermin. But Lord Ellenborough said, "The defendant states in his plea that the trespass was not committed for the purpose of diversion and amusement of the chase merely, but as the only way and means of killing and destroying the Fox. Now if you were to put it upon this question, which was the principal motive? Can any man of common sense hesitate in saying that the principal motive and inducement was not the killing of Vermin, but the enjoyment of the sport and diversion of the chase? And we cannot make a new law to suit the pleasures and amusements of those gentlemen who choose to hunt for their diversion. These pleasures are to be (b) Com. Dig. Pleader, 3 M. 37. (c) Gundry v. Feltham, 1 T. R. 337. (d) Earl of Essex v. Capel, Hertford Summer Assizes, 1809. (e) Com. Dig. Pleader, 3 M. 37, and the authorities there cited. (f) Earl of Essex v. Capel, Hertford Summer Assizes, 1809; Bowyer v. Cook, 4 C. B. 236; S. C. 16 L. J., C. P. 180. (g) Earl of Essex v.. Capel, Hertford Summer Assizes, 1809, cited in Chitty on Game Laws, 31. See also Paul v. Summerhayes, L. R., 4 Q. B. D. 9; 48 L. J., M. C. 33; 39 L. T., N. S. 574; 27 W. R. 215, in which this case was discussed and approved. |