Animals.
376
Sect. 2. it is ordinarily in their nature to commit {u). The liability is an Trespass by absolute liability independent of negligence, unless the escape or Animals, trespass was involuntary (x) or caused by an act of God (y), or was due to the act or default of the plaintiff (z), or of a third person for whom he is not responsible {a). In practice the question usually turns upon the question whose duty it is to maintain the fence between two properties. The liability is limited to the reasonable and natural consequences of the animal escaping (b). Defences.
820. The owner of cattle, therefore, has a good defence if he can prove that the plaintiff was under some obligation to maintain the fence on his land and that the animals trespassed owing to the fault of the plaintiff (z) in not maintaining the fence or that it was the duty of a third party, such as a railway company (a), under whom the plaintiff held, to fence; or indeed, as it is suggested, simply that it was not his duty to keep the fence in repair. It is naturally to
be expected that when cattle, sheep, poultry, and the like, stray into a neighbour's land or garden, they will devour his grass, corn, or vegetable produce, and their owner is liable for the damage (b). It is in the ordinary course of nature that one horse should kick another, especially a strange one, when loose in a field, and the damages are not too remote therefore the owners of a trespassing mare that injured a horse in this way (c), and of a stallion which bit and kicked a mare through a wire fence (d), were held liable for the damage ; and it is apprehended that if two geldings or mares get together, and injury ensues, the damages are not too remote. It is a trespass if any part of the animal crosses the boundary of the properties, whether it gets through the fence (e) or stretches its neck over a ditch (/). It is not, however, in the ordinary course of
(u)
The modern decisions all agree in making the liability in trespass apart from
negligence.
See per Brett,
J., in Ellis v.
Loftus Iron Co. (1874), L. E. 10 C. P.
10, at p. 13, citing Com. Dig. Trespass, C. ; and per Tillett V. Ward (1882), lO Q. B. D. 17, at p. 19. Sir
Com. ment
says
Lord Coleridge, C.J., in William Blackstone (3 Bl. Perhaps the most accurate state-
negligence. in an early case of trespass {8tar v. Rookeshy (1710), 1 Salk. 335), where the Court resolved that "either trespass or case lies: trespass because it was the plaintiff's ground and not the defendant's and case because the first wrong was nonfeasance and neglect to repair, and that omission is the gist of the action, and trespass is only consequential damage." In an earlier case, Anon. (1675), 1 Ventr. 264, the declaration was in case in defectu fensuc. xii.)
of the
law
tlie liability is
is
The question is now settled, but it has something more than an academic because in an action of trespass it would lie upon the defendant to plead and prove that he was excused by the fact that he was not liable to repair the fence, whereas in case the plaintiff would allege and prove the duty to repair, and this may have an important bearing on the burden of proof in an action at the present day. (x) Y. B. 37 Hen. 6, 37 pi. 26 Milhn v. Fawdry (1625), Poph. 161 Beckwith V. 81iordike (1767), 4 Burr. 2092. iy) See Powell v. Salishury (1828), 2 Y. & J. 391. (z) See Singleton v. Williamson (1861), 31 L. J. (ex.) 17. (a) Wiseman v. Booker (1878), 3 C. P. D. 184. {I) Per Williams, J., in Cox v. Burbidge (1863), 13 C. B. (n. s.) 430, at p. 438. (c) Lee Y.Riley (1865), 18 C. B. (n. s.) 722: {d) Ellis V. Loftus Iron Co., supra. (e) Compare Ellis v. Loftus Iron Co., supra ; Wiseman v. Booker, supra. If) Ponting v. Noakes, [1894] 2 Q. B. 281. rarum.
interest,
