HUNTING AND TRESPASSING. 365 



not " served on tlie defendant or left at his last reputed or mitted bj- 

 known place of abode," but transmitted to his address by -P"^*- 

 Post, was admitted imder 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 ^^ 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 (s), 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 Coui't 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 afield 

 field open and permit cattle to pass over it. He cannot ^®^* open, 

 distrain them if he has suffered them to come there ; but he 

 commits no breach of duty by leaving the field open (d). 



The following important case decided that where a Pail- Gate of a 

 way Company is by statute boimd absolutely to keep the I^ailyay 

 Gates of its level crossings closed, it is liable for damage open^where 

 occasioned to a trespasser in consequence of one of these there is a sta- 

 Gates having been left open. It appeared that the Y. Pail- tutable obli- 

 way 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 (b) Rickctts v. East and West 

 see Buxton V. North Eastern Railway India Docks and Birminqham June- 

 Co., L. R., 3 Q. B. 549; 37 L. J., tion Railway Co., 21 L. J., C. P. 

 Q. B. 258 ; 18 L. T., N. S. 795 ; 201. 

 16 W. R. 1194. (c) Dawson v. Midland Railway 



{:) Child V. mam, L. R., 9 Ex. Co., L. R., 8 Ex. 8 ; 42 L. J., Ex. 



176 ; 43 L. J., Ex. 100 ; 22 W. R. 49 ; 21 W. R. 56. 

 864. {d) See per Patteson, J., Fawcett 



{a) Wiseman Y.Booker, L. R., 3 v. York and North Midland Railway 



■C. P. D. 184 ; .38 L. T., N. S. 392; Co., IG Q. B. 617 ; S. C, 20 L. J., 



26 W. R. 634. Q. B. 222. 



