Opposing force to force. Defence to an action. Horse with a rider cannot be distrained. Action of which cannot be justified on the ground of a person breaking into the close, without a request (o). But in case of actual force, as in burglary or breaking open a door or gate, it is lawful to oppose force to force; and if one breaks down the gate, or comes into my close vi et armis, I need not request him to be gone, but may lay hands on him immediately, for it is but returning violence with violence (o). Therefore to Trespass for an assault and battery, it was held that the defendant might plead that the plaintiff, with force and arms and with a strong hand, endeavoured forcibly to break and enter the defendant's close, whereupon the defendant resisted and opposed such entrance, &c.; and it was held that if any damage happened to the plaintiff it was in consequence of the defence of the possession of the close (p). And it is also a good defence to an action for an assault that it was committed in an attempt to take from the plaintiff dead rabbits of the defendant's master, which he refused to give up (q). A Horse cannot be distrained damage feasant if there be a rider upon him; for if such a distress were permitted, it would perpetually lead to a breach of the peace (r). And indeed if a man or woman be riding a Horse, it cannot be distrained at all (s). A man has an action of Trespass against another for riding over his ground, though it do him no damage; for for riding over it is an invasion of his property, and the other has no right to come there (t). land. But not where But where a Dog jumps into a field without the consent a Dog jumps of its master, it is not a trespass for which an action will into a field. Notice under 3 & 4 Vict. c. 24, s. 3. Notice trans lie (u). Under 3 & 4 Vict. c. 24, s. 3, the "Notice not to trespass thereon or therein " must be "served, by or on behalf of the Owner or Occupier of the land trespassed over, upon, or left at the last reputed place of abode of the defendant or defendants." In the case of Bowyer v. Cook (x) the Notice, although (0) Green v. Goddard, 2 Salk. 640. (p) Weaver v. Bush, 8 T. R. 78. (9) Blades v. Higgs, 10 C. B., N. S. 713; 30 L. J., C. P. 347; 11 H. L. C. 621; 34 L. J., C. P. 286. (r) Storey v. Robinson, 6 T. R. 138. (s) Co. Litt. 47 a, cited Parsons v. Gingell, 4 C. B. 550; and see Webb v. Bell, 1 Sid. 440. (t) See per Holt, C. J., Ashby v. White, 1 Smith's L. C. 125. (u) See per Parke, J., Brown v. Giles, 1 C. & P. 119; Read v. Edwards, 11 L. T. 311. (x) Bowyer v. Cook, 4 C. B. 237, n. not "served on the defendant or left at his last reputed or mitted by known place of abode," but transmitted to his address by Post. Post, was admitted under a Judge's Order, and read at the trial. The obligation to make and maintain Fences, both at Maintenance common law and by the Railway Clauses Consolidation of fences. Act (), is only as against the owners or occupiers of the adjoining close. If the company neglect to fence, neither they nor their servants can recover for injury caused by animals straying on their land (2), nor can the tenants of the land (a). And where the plaintiff's Sheep trespassing on A.'s close, strayed upon the defendant's Railway which adjoined, through a defect of Fences which the defendants were bound as against A. to make and maintain, and was killed; it was held by the Court of Common Pleas that the plaintiff could not recover (b). But a person using the lands of an adjoining owner by his permission is in the same position as he is (c). A person whose field adjoins a Highway may leave his Gate of a field field open and permit cattle to pass over it. He cannot left open. distrain them if he has suffered them to come there; but he commits no breach of duty by leaving the field open (d). gation. The following important case decided that where a Rail- Gate of a way Company is by statute bound absolutely to keep the Railway Gates of its level crossings closed, it is liable for damage open where crossing left occasioned to a trespasser in consequence of one of these there is a staGates having been left open. It appeared that the Y. Rail- tutable obliway passed over a Highway on a level, and that there were Gates across each end of the road so crossed by the line of Railway. Some Horses belonging to the plaintiff leaped over the fence of a field, in which they had been placed, into a second field, and from that over a broken gate into a third field, all three being the plaintiff's fields; they then strayed through an open gate of the third field into (y) 8 & 9 Vict. c. 20, s. 68; and see Buxton v. North Eastern Railway Co., L. R., 3 Q. B. 549; 37 L. J., Q. B. 258; 18 L. T., N. S. 795; 16 W. R. 1194. (z) Child v. Hearn, L. R., 9 Ex. 176; 43 L. J., Ex. 100; 22 W. R. 864. (a) Wiseman v. Booker, L. R., 3 C. P. D. 184; 38 L. T., N. S. 392; 26 W. R. 634. (b) Ricketts v. East and West India Docks and Birmingham Junction Railway Co., 21 L. J., C. P. 201. (c) Dawson v. Midland Railway Co., L. R., 8 Ex. 8; 42 L. J., Ex. 49; 21 W. R. 56. (d) See per Patteson, J., Fawcett v. York and North Midland Railway Co., 16 Q. B. 617; S. C., 20 L. J., Q. B. 222. Gate of Station left open where there is no statutable obligation. the highway crossed by the Railway on a level. One of the gates across the end of the road where it was crossed by the line of Railway having been left open, the Horses strayed through it on to the Railway, where they were soon afterwards killed by one of the Company's Trains. An action was brought by the plaintiff against the Railway Company, who contended that the Horses were, under the circumstances, trespassers on the Highway. But it was held by the Court of Queen's Bench, that the plaintiff was entitled to recover the value of his Horses from the Company, because the obligation imposed on them by Statute 5 & 6 Vict. c. 55, s. 9, to keep the Gates closed, was not only against Cattle travelling on the road but also against all Cattle straying there (e). In the preceding case it will be observed that there was an express statutable obligation to keep the gate closed across the road under all circumstances; consequently, the Company were guilty of committing a wrong, in omitting to do so. But under the Railway Clauses Consolidation Act (f), s. 68, the obligation of a Railway Company is merely to fence against the owners and occupiers of adjoining lands, and therefore where some Horses strayed into a high road, and thence into the yard of a Railway Station, the gate of which was open, from which they got on the line through a gap in the fence, and were killed by a train, it was held that the Company were not responsible for the injury, inasmuch as their obligation under 8 & 9 Vict. c. 20, s. 68, is co-extensive only with the Common Law prescriptive obligation to repair fences, which would only render them responsible, if the Horses were using the highway according to the dedication of the owner of the soil (g). So, where a Colt had strayed on to a highway, and whilst being driven home escaped into a Railway-yard and thence on to the line, and was killed, the Company were held liable, as the Colt was then lawfully using the highway (h). But if the adjoining land belongs to the Company, and Cattle stray thence on to the line, and are killed, the Company are not liable; nor if Cattle are by the permission of the Company grazing on the slopes or embankments of (e) Fawcett v. York and North (g) Manchester, Sheffield and Lincolnshire Railway Co. v. Wallis, 14 C. B. 213. (h) Midland Railway Co. v. Daykin, 17 C. B. 126. the Railway, or in a yard belonging to the Company, and stray thence on the line, and are injured (i). There is no obligation upon a Railway Company car- Fence within rying Cattle to provide fences or guards at the station Station Yard. where the Cattle may be landed, between the line and the station-yard, so as to prevent them straying on the line (k). (i) Marfell v. South Wales Railway Co., 29 L. J., C. P. 315. (k) Roberts v. Great Western Rail way Co., 4 Jur., N. S. 1240. PART III. RACING, WAGERS, AND GAMING. CHAPTER I. THEIR HISTORY, RISE, AND PROGRESS IN THIS COUNTRY. The Time of the Pharaohs .... Reign of William the Conqueror Reign of Henry the First... id. Reign of Queen Anne id. Reign of Henry the Second id. Reign of George the First. 378 Reign of Richard the First Reign of George the Second 379 Reign of John id. Reign of George the Third 381 Reign of Edward the Second... id. Reign of George the Fourth id. Reign of Edward the Third.... id. Reign of William the Fourth 382 Reign of Richard the Second id. Reign of Queen Victoria id. Reign of Henry the Fourth id. Reign of Henry the Seventh.... id. Repeal of Duty on Racehorses 385 16 & 17 Vict. c. 119.. 386 Reign of Henry the Eighth Reign of Edward the Sixth The time of DURING the Pharaoh Dynasty the Egyptians seem to the Pharaohs. have been well acquainted with the use of the War-horse, Used mostly for warlike purposes. and from dealers out of Egypt Solomon derived a great supply of Horses, not only for his own use, but also for the purposes of resale to the people living between Palestine and the Euphrates (a). It has been thought, from the name given by the Egyptians to the Horse, that it was introduced into Egypt originally from Persia (b). The most striking feature in the Biblical notices of the Horse is the exclusive application of it to warlike purposes (c), with one exception, when it is mentioned as employed in threshing by trampling upon the strewed grain (d). (a) 1 Kings, x. 28. (b) Smith's Dictionary of the Bible, tit. Horse. (c) Ibid. (d) Isa. xxviii. 28. |