282 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



part of those in charge of the animal."" This decision gave 

 rise to a great deal of discussion. In an article in the Journal 

 of Jurisprudence it was said : "Mr. Justice Stephen observes : 

 '. . . I can see no solid distinction between the case of an 

 animal straying into a field which is unfenced or into an open 

 shop in a town.' The solid distinction between the cases is 

 just this, that it is usual to fence a field in order to keep people 

 out, and it is not usual to fence a shop because it would keep 

 people out, and the shopkeeper wants them to come in. . . . 

 That the owner of cattle is not liable for the trespass of his 

 cattle into an unfenced field adjacent to a highway is not, as 

 has been said by the learned judges in this case of Tillett v. 

 Ward, an exception to the general rule that the owner is lia- 

 ble if his cattle trespass; it is an exemplification of another 

 rule, that a person who neglects a precaution which is or- 

 dinarily employed and which can be employed without inter- 

 fering with the purpose for which the subjects are used, is re- 

 sponsible for the consequences of his own neglect. If the 

 field were properly fenced and cattle were to stray or break 

 into it off the highway, their owner would be liable, just as he 

 is when they stray ofif his own land. This exception, as it 

 has been called, does not extend, or, to speak more correctly, 

 this other principle does not apply to the case of a shop ad- 

 jacent to a street. To fence a shop would be inconsistent 

 with the purpose for which it was intended, and to keep a 

 person on guard from one year's end to the other to prevent 

 the inroad of an occasional ox, is utterly inconsistent with the 

 ordinary conduct of business." ^^^ 



In an article replying to this criticism, it is said : "No doubt 

 the shopkeeper does keep open his door for the reason speci- 

 fied. He incurs the risk of an animal's straying in, because 

 it would be inconvenient for trade purposes to have his door 

 shut. It is, as asserted, usual to keep the door open; but 

 why does it necessarily follow that, if mischief results, he is 



""TillcU V. Ward, lo Q. B. D. 17. "' 27 Jour. Jurisp. (Sc.) 347. 



