336 



FEROCIOUS AND VICIOUS ANIMALS. 



Cattle straying 

 off highway. 



Liability for 

 trespass by 

 dog. 



strayed into a field belonging to the plaintiff, and kicked 

 his horse ; it was held that the plaintiff was entitled to 

 recover without any proof of scienter (m). So where the 

 defendant's horse injured the plaintiff's mare by biting and 

 kicking her through the fence separating the plaintiff's 

 land from the defendant's («) ; the reason for the decision 

 in each case being, that the damage was the natural and 

 direct consequence of a trespass for which the defendants 

 were liable. In both cases there was evidence of negli- 

 gence, but in the latter case it was held that the defendants 

 were liable, apart from any question of negligence on their 

 part (o). 



The result of the authorities dealing with the liability of 

 the owners of animals for damage done by them under such 

 circumstances is stated to be, " That in the case of animals 

 trespassing on land, the mere act of the animal belonging 

 to a man, which he could not foresee, or which he took all 

 reasonable means of preventing may be a trespass, inas- 

 much as the same act if done by himself would have been a 

 trespass" (p). 



This rule does not, however, apply to damage done by 

 cattle straying off a highway on which they are being 

 lawfully driven, whether such highway is a country road (q), 

 or a town street (r) ; the owner in such case being liable 

 only on proof of negligence. 



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 would appear to be that he is not (s). 



{m) Zee v. ijt%, 18 C. B., N. S. 

 722; 34 L. J., C. P. 212; 12L. T., 

 N. S. 388; 13 W. E. 751. 



(n) Jillis V. Zoftus Iron Co., 

 L. It., 10 0. P. 10; 44 L. J., C. P. 

 24; 31 L. T.,N. S. 483; 23W.E. 

 246. 



(o) The ruling in these cases is in- 

 consistent irith that in Scetchett v. 

 Eltham (Freem. 534 C. P.) as re- 

 ported. According to the report, 

 the declaration stated that the defen- 

 dant kept his horse so negligently 

 that it broke into the plaintifi's 

 close, and bit some of his horses so 

 that "they were spoilt, and died," 

 and a Terdict was found for the 

 plaintiff, but judgment was arrested 

 because no scienter was alleged. It 



is, however, suggested either that the 

 report is erroneous, and it was really 

 an action on the case, or that the 

 decision must be considered as bad 

 law. 



{p) Ellis V. Loftiis Iron Co., 

 L. E., 10 C. P. at p. 13, per 

 Brett, J. 



(q) Goodwin v. Cheveley, 4 H. & N. 

 631; 28 L. J., Ex. 298; 7 W. K. 

 631. 



(»■) Tillett V. rVard, 10 Q. B. D. 

 17; 52 L. J., a. B. 61; 47 L. T., 

 N. S. 546; 31 W. E. 197. 



(s) Brown v. Giles, 1 C. &P. 118; 

 Read v. Edicards, 17 C. B., N. S. 

 245 ; 34 L. J., C. P. 31 ; Pollock on 

 Torts, 4th ed., p. 450. 



