V. DOG LICENCES.-See REVENUE (EXCISE). VII. CARRIAGE OF ANIMALS.-See CARRIERS. VIII. LIABILITY FOR INJURIES TO ANIMALS. IX. OTHER POINTS, 216. I. PROPERTY IN. Reclaimed and Domesticated.] — Reclaimed animals, feræ naturæ, are the subject of civil remedies for property: therefore where a cat of A. strayed from his premises, and was shot at and killed by B.:-Held, that A., having a property in the cat, an action would lie to recover damages for killing it, the measure of such damages being something beyond the market value of the thing destroyed, if the destruction were attended by circumstances of aggravation. Whittingham v. Ideson, 8 U. C. L. J. 14. Trover will lie for a dog that is lost, and which the defendant refuses to deliver, unless paid for his keeping. Binstead v. Buck, 2 W. BL. 1117. Deer in a park, when reclaimed, become personal chattels and cease to be parcel of the inheritance. Ford v. Tynte, 2 J. & H. 150; 31 L. J., Ch. 177. See Davis v. Powell, 7 Mod. 260. Animals Feræ Naturæ.]-The property in animals feræ naturæ is in the owner of the land on which they are started and captured, and not in the captor. Blades v. Higgs, 20 C. B. (N.S.) 214; 11 H. L. Cas. 621; 34 L. J., C. P. 286; 11 Jur. (N.s.) 701; 12 L. T. 615; 13 W. R. 927. A grant of land in fee by the Crown, and also a licence to depasture cattle on Crown lands (which is in substance a lease), carries with it the right to capture and appropriate all wild animals found on such land. Falkland Islands Co. v. Reg., 2 Moore, P. C. (N.S.) 266; 10 Jur. (N.S.) 807; 11 L. T. 9; 13 W. R. 57. Where cattle had been introduced into an island, and in course of time many escaped and lived in a wild state-Held, in construing a grant by the Crown of the lands that these wild cattle were to be treated as animals feræ naturæ. Ib. II. LIABILITY FOR INJURIES BY. 1. ANIMALS DAMAGE FEASANT. Who may Distrain.]-A. being possessed of a quantity of land in a common field, and having a right of common over the whole field, and B. having also a right of common over the whole field, they enter into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenants to that effect. If, during the term, the cattle of B. come upon the land of A., he may distrain them damage feasant. Whiteman v. King, 2 H. Bl. 4. of land for the purpose that each may take If two persons have the concurrent possession profits of a special nature, and distinct from, but not inconsistent with, the rights of the other, the one cannot distrain the cattle of the other damage feasant. Churchill v. Evans, 1 Taunt. 529; 10 R. R. 600. A tenant holding over after the expiration of his term, cannot distrain the landlord's cattle which were put upon the premises by way of taking possession. Taunton v. Costar, 7 Term Rep. 431; 4 R. R. 481. A. demised to B. the milk of twenty-two cows to be provided by A., and to be fed at A.'s expense on certain closes belonging to A.; A. that no other cattle should be fed there :-Held, covenanting that B. might turn out a mare, and that the separate herbage and feeding of those closes passed to B., and that B. might distrain other cattle of A. doing damage there. Burt v. Moore, 5 Term Rep. 329; 2 R. R. 611. Mischief due to Distrainor.]-A person into whose field cattle have strayed through defect of fences which he was bound to repair, cannot distrain them damage feasant in another field, into which they have got by breaking through a hedge which he kept in good repair, since his neglect was the original cause of the mischief. Singleton v. Williamson, 7 H. & N. 410; 31 L. J., Ex. 17; 8 Jur. (N.S.) 60; 5 L. T. 664; 10 W. R. 174. Where cattle have escaped from an adjoining close into that of the defendant, through defect of fences which he is bound to repair, he is not justified in driving them out into the highway, and leaving them there, although it may be their best way back; and trespass will lie. Carruthers v. Hollis, 8 A. & E. 113; 3 N. & P. A., whaling brig, on a whaling excursion, took its station at a place out of the limits 246; 1 W., W. & H. 264 ; 2 Jur. 871. assigned to the northern whale fisheries; and having engaged B., a native Esquimaux, to assist, sent him out to catch a whale. B. first harpooned the whale, and after his lines were run out, fixed a drog or inflated seal-skin to the end of them, and threw the drog and lines overboard. B. looked out for the whale, but when it reappeared a boat belonging to the A. ship was nearest to it, and first captured it, and claimed the property-Held, that the spot in question was subject to the local custom of the northern whale fishery; and there being no evidence of a contrary custom or agreement between the vessels, the ordinary rule of fast and, loose applied, and this whale being a loose fish at the time, belonged to the A. vessel which first captured it. Aberdeen Arctic Co. v. Sutter, 4 Macq. H. L. Ca. 355; 6 L. T. 229. VOL. I. Position of Person Distraining.] — To support a distress for damage feasant, it must appear that the party distraining had actually got into the locus in quo before the cattle had got out of it. Clement v. Milner, 3 Esp. 95. Actual Damage Done or Apprehended.]-Semble, that an animal doing damage to the freehold is doing such a damage as will justify the distraining of the animal damage feasant, provided that the animal is then actually doing the damage, or having done some damage, it is necessary to detain the animal in order to prevent its doing further damage. Wormer v. Biggs, 2 Car. & K. 31. But if the owner of the freehold seizes an animal which has done damage to the freehold, but which has ceased doing so, and it is not 7 necessary to detain the animal to prevent further damage, and the owner of the freehold detains the animal and feeds it for several days, and then sells it for its value, the owner of the animal is entitled to recover the full value of the animal, without any deduction for the feeding, as the owner of the freehold seized the animal in his own wrong. Ib. Distress damage feasant may be taken for injury done to chattels upon the land, as well as to the land itself. An action of trespass is not maintainable so long as the distress is detained. Roscoe v. Boden or Boden v. Roscoe, 63 L. J., Q. B. 767; [1894] 1 Q. B. 608; 10 R. 173; 70 L. T. 450; 42 W. R. 445; 58 J. P. 368. Reasonable Time for Removal.]-Cattle were being driven along a road in the dark; some of them strayed into a field of the defendant's through a gap in the fence; the driver went on with the rest, and put them in a place of safety, and then returned to take those which had strayed, but which the defendant by that time had distrained. He, in an action for the taking, pleaded that he had distrained the cattle damage feasant, and that he had not distrained until a reasonable time had elapsed to remove them :Held, that a reasonable time meant not merely a reasonable time for the act of removal, but what was reasonable under all the circumstances of the case, and that this was for the jury to determine. Goodwyn v. Cheveley, 4 H. & N. 631; 28 L. J., Ex. 298; 7 W. R. 631. S. C. at Nisi Prius, 1 F. & F. 313. What May Not be Distrained.]-Cattle or goods in the actual use of a party cannot be distrained damage feasant. Field v. Adams, 4 P. & D. 504; 12 A. & E. 649; 1 Arn. & H. 17; 10 L. J., Q. B. 2; 4 Jur. 103. A horse cannot be distrained damage feasant, if there is a rider upon him. Storey v. Robinson, 6 Term Rep. 138; 3 R. R. 137. If a sufficient tender is made before the distress, the remedy is replevin or trespass; if after the distress (and before the impounding), detinu. 1b. Where an animal distrained as damage feasant is impounded on private premises. and not in a common pound, a subsequent tender of sufficient compensation for the damage actually done is good; and if the distrainor, by demanding an excessive sum for damages as the condition of his release of the animal, obtains payment of such sum from the owner, such payment is not voluntary, and the sum paid may be recovered in an action for money had and received. Green v. Duckett, 52 L. J., Q. B. 435; 11 Q. B. D. 275; 48 L. T. 677; 31 W. R. 607; 47 J. P. 487. But detinue will not lie for goods impounded damage feasant, where a tender of amends has been made after the impounding. Singleton v. Williamson, 7 H. & N. 747; 31 L. J., Ex. 287; 8 Jur. (N.S.) 157; 5 L. T. 645; 10 W. R. 301. Where cattle distrained damage feasant are in a private pound, and the distrainor admits they were about to be forwarded to a public pound, a tender of amends made while they were in the private pound is not too late. Brown v. Powell, 4 Bing. 230; 12 Moore, 454; 5 L. J. (0.s.) C. P. 159. To Whom Made.]-Where the distrainor's wife has been in the usual habit of acting as his agent in such matters, and makes a distress of cattle damage feasant, in his absence, a tender of amends to her will be sufficient. Brown v. Powell, 4 Bing. 230; 12 Moore, 454; 5 L. J. (0.S.) C. P. 159. Authority of Servant to Distrain.]-To an action for taking the plaintiff's horse, the defendant pleaded that the horse was damage feasant on his land. The horse was proved to have been wrongfully distrained by the servant of the defendant on the highway and not on his land-Held, that no primâ facie case was made out that the defendant had authorised the disWag-tress in question, by proof of his having on other occasions authorised his servant to distrain cattle damage feasant on his land; and that he had not adopted the act of his servant by pleading a justification of it. Lyons v. Martin, 3 N. & P. 509; 8 A. & E. 513; 7 L. J., Q. B. 214; 1 W. W. & H. 500. But a horse may be distrained damage feasant, although he is led by a person at the time. staff v. Clack, Cambridge Sum. Assizes, 1826, MS. Action for taking the plaintiff's dog; plea, distress, damage feasant in a close; replication, that the dog when taken was in the actual possession of the plaintiff's son and servant B., and under the personal care of and being used by B.: -Held, that the averments in the replication were insufficient, as applied to a dog, to shew such user of it as exempted it from seizure. Bunch v. Kennington, 1 Q. B. 679; 4 P. & D. 509; 10 L. J., Q. B. 203; 5 Jur. 461. Tender of Amends.]-No action lies against one who distrains cattle damage feasant for impounding them instead of accepting a compensation for the damages, tendered before the cattle were impounded. Anscomb v. Shore, 1 Taunt. 261; 1 Camp. 285. Nor can an action be maintained for detaining cattle distrained damage feasant, where a tender of sufficient amends was made after the cattle had been impounded. Sheriff v. James, 1 Bing. 341; 8 Moore, 334; 25 R. R. 647. Where cattle are distrained as damage feasant, the owner cannot, without tendering amends, pay under protest an excessive sum demanded for damage, and recover the amount as money had and received to his use. Gulliver v. Cosens, 1 C. B. 788; 14 L. J., C. P. 215; 9 Jur. 666. Denying Defendant's Title to Land.]-In an action for taking and driving the plaintiff's cattle, to which there was a justification that the defendant was lawfully possessed of a close, and that he took the cattle there damage feasant; the plaintiff may specially reply title in another, by whose command he entered. Taylor v. Eastwood, 1 East, 212. Cattle Escaped from Highway-No Fence.]A plea in bar of an avowry for taking cattle damage feasant, that the cattle escaped from a public highway into the locus in quo, through the defect of fences, must shew that they were passing on the highway when they escaped; it is not sufficient to state that being in the highway, they escaped. Dovaston v. Payne, 2 H. Bl. 527; 3 R. R. 497. No Negligence.]-An ox belonging to the defendant and while being driven by his servants through the streets of a country town entered the plaintiff's shop, which adjoined the street, through the open doorway and damaged his goods. No negligence on the part of the persons in charge of the ox was proved :-Held, that the defendant | owners of the mare against A. and B., that if they was not liable. Tillett v. Ward, 52 L. J., Q. B. bonâ fide and honestly intended to sell the mare 61; 10 Q. B. D. 17; 47 L. T. 546; 31 W. R. 197; under 5 & 6 Will. 4, c. 59, s. 4, they were en47 J. P. 438. titled to notice of action, and to have the venue laid in the proper county; but, on those facts, the judge would not nonsuit, but left it to the jury to say whether the defendants meant bonâ fide to act upon the provisions of that statute, and that if they did they were entitled to a verdict. b. Pound and Poundage. Duty of Pound-keepers.]-A pound-keeper is bound to receive everything offered to his custody, and is not answerable whether the thing was legally impounded or not. Badkin v. Powell, Cowp. 476; and see Brandling v. Kent, 1 Term Rep. 60. Ib. A party impounding cattle distrained damage feasant, and supplying them with food while so impounded, may sell any one or more of them, and apply the produce in discharge of the value Trespass does not lie against a pound-keeper of such food, by 5 & 6 Will. 4, c. 59, s. 4. merely for receiving a distress, though the ori-Layton v. Hurry, 8 Q. B. 811; 15 L. J., Q. B. ginal taking be tortious, unless he exceeds his duty and assents to the trespass. Ib. A declaration on 1 & 2 Ph. & M. c. 12, s. 244; 10 Jur. 616. The 5 & 6 Will. 4, c. 59, ss. 4 and 19, did 2, stated that C. distrained a horse of the not apply to all cattle taken under all circumplaintiff, damage feasant, and impounded it instances, but only to cattle or animals impounded a public pound, in the county of Surrey, of which the defendant was keeper, and the defendant impounded the horse for one whole distress, and being keeper, he demanded, and took from the plaintiff for keeping in the pound the distress, to wit, 38., being more than 4d. for one whole distress, "whereby, and by force of the statute in such case made and provided, an action accrued to the plaintiff, being the party grieved, to demand and have from the defendant 51." :Held, on motion in arrest of judgment, that the declaration was bad for want of an allegation, that the act done by the defendant was "against the form of the statute." Fife v. Bousfield, 8 Q. B. 100; 2 D. & L. 481; 13 L. J., Q. B. 306; 8 Jur. 734. As to Feeding Animals.]-See next case. Supply of Food.]-The 5 & 6 Will. 4, c. 59, s. 5, did not give any person a right to any payment; it merely allowed charitable persons to supply food to impounded cattle, without being liable to an action for doing so. Mason v. Newland, infra. Sect. 5 of 12 & 13 Vict. c. 92, by which every person who shall impound, or cause to be impounded or confined, in any pound or receptacle of the like nature any animal, shall provide and supply during such confinement a sufficient quantity of fit and wholesome food and water to such animal, does not apply to the keeper of the pound in which the animal is impounded. Dargan v. Davies, 46 L. J., M. C. 122; 2 Q. B. D. 118; 35 L. T. 810; 25 W. R. 230. The distrainor who supplies the food may either apply to a magistrate to allow any sum not exceeding double the value of the food, or may sell the cattle; but no magistrate ought to allow more than the actual value of the food, if the owner of the cattle was willing to supply the food himself. Mason v. Newland, 9 Car. & P. 575. Right of Sale.]-If cattle is sold under 5 & 6 Will. 4, c. 59, s. 4, the distrainor can only get the single value of the food, and not the amount of the damage for which the cattle were distrained, as all the overplus beyond the value of the food and the expenses of the sale is to be returned to the owner of the cattle. Ib. A mare was distrained, damage feasant, by A., and detained by the pound-keeper, B., for several days. B. supplied the mare with food while in the pound, and A. and B. joined in selling the mare for the keep :-Held, in trover, by the or confined in cases where the distrainor had a right to distrain, or at least some colour for it. Machell v. Ellis, 1 Car. & K. 682. Sufficiency of Pound.]-A person who distrains cattle is bound to impound them in a proper pound; and if the usual pound is in an unfit state, he must find another. Bignell v. Clarke, 5 H. & N. 485; 29 L. J., Ex. 257; 2 L. T. 189. Distrainors are bound to see that the pound to which they take the distress is in a fit state to receive it; and, therefore, if the pound is wet and muddy the distrainors are liable for any damage thereby caused to the distress. Wilder v. Speer, 3 N. & P. 536; 8 A. & E. 547; 7 L. J., Q. B. 249; 1 W. W. & H. 378. In an action for abusing a distress by putting the animals distrained into a muddy pound, whereby they were injured, it is no defence that the place was the manor pound, and was generally lb. in a proper state. Pound-Breach and Rescue.]-If a distrainor takes the distress of the place where it was originally impounded, for the purpose of making an unlawful use of it, the owner may interfere and take it out of his possession without rendering himself liable, either for a rescue or for pound-breach. Smith v. Wright, 6 H. & N. 821; 30 L. J., Ex. 313; 7 Jur. (N.S.) 1169. In an action for rescous of goods, distrained for toll, under the authority of a statute, which gives a right to distrain particular goods only, the declaration must state that the goods taken were such as the plaintiffs were empowered to distrain. But a declaration for pound-breach of such goods is sufficient, though it discloses no right of distress. Parrett Navigation Co. v. Stower, 6 M. & W. 564; 8 D. P. C. 405; 9 L. J., Ex. 180. Where cattle are distrained damage feasant, and put into a sufficient pound, and escape without default or neglect of the distrainor, he may bring pound-breach. Smith v. Wright, 6 H. & N. 821; 30 L. J., Ex. 313; 7 Jur. (N.S). 1169. An action on 2 Will. & M., sess. 1, c. 5, s. 4, to recover treble damages for pound-breach, is not a penal action within 21 Jac. 1, c. 4, s. 4. Castleman v. Hicks, 2 M. & Rob. 422; Car. & M. 266. In an action for pound-breach, founded upon 2 Will. & M., sess. 1, c. 5, and 11 Geo. 2, c. 19, s. 8, the allegations in the declaration, that the premises on which the goods were seized and impounded were held of the plaintiff as landlord, and that rent was in arrear, are material allegations, because they show how the plaintiff was the person grieved by the pound-breach. Berry no difference between a corporation and an indiv. Huckstable, 14 Jur. 718. vidual; and whatever is notice to a person competent to receive it, is notice to the corporation. Stiles v. Cardiff Steam Navigation Co., 33 L. J., Q. B. 310; 10 Jur. (N.S.) 1199; 10 L. T. 844; 12 W. R. 1080. The plaintiff distrained the defendant's cattle damage feasant, and went to apprise the defendant; during his absence the cattle escaped for half an hour into the defendant's ground, whence the plaintiff, on his return, drove them to his own yard. The defendant having taken them thence: -Held, no rescue, as the leaving the cattle in the defendant's ground was an abandonment of the distress. Knowles v. Blake, 5 Bing. 499; 3 M. & P. 214; 7 L. J. (o.s.) C. P. 228. If a hayward takes cattle which are straying in a common or a lane, and they are rescued as he is taking them to the pound, this rescue is indictable; but if the hayward takes cattle which are damage feasant in the enclosed land of any private occupier, the rescue of them before they get to the pound is not indictable; as in the latter case, till the cattle get to the pound, the hayward is to be considered the mere servant of the occupier. Rex v. Bradshaw, 7 Car. & P. 233. A plea of recaption upon a rescue must aver that the recaption was on fresh pursuit. Rich v. Woolley, 7 Bing. 965; 5 M. & P. 663. 2. MISCHIEVOUS ANIMALS. Evidence of Scienter.]-It is not necessary, in order to sustain an action against a person for negligently keeping a ferocious dog, to shew that the animal had actually bitten another person before it bit the plaintiff it is enough to shew that it has, to the knowledge of its owner, evinced a savage disposition by attempting to bite. Worth v. Gilling, L. R. 2 C. P. 1.7 An act of ferocity by a dog, if known to his master, renders him liable for any future acts of ferocity, though of a different nature; so, where in an action against M. for the value of sheep destroyed by M.'s dog, there was evidence that four years ago he had attacked and bitten a child, and that it was known to M. :-Held, that M. was liable for the damage caused by the destruction of the sheep. Getting v. Morgan, 5 W. R. 536. In an action to recover damages for the bite of a dog, it is not sufficient merely to show that the dog is ferocious to the knowledge of the defendant, but it must also be shown that the dog has a ferocious disposition directed against mankind. Osborn v. Chocqueel, 65 L. J., Q. B. 534; [1896] 2 Q. B. 109; 74 L. T. 786; 44 W. R. 575. The plaintiff was engaged in digging a hole in a garden of a house adjoining that of the defendant T. The gardens were separated from one another and the adjacent gardens by low walls. A dog belonging to the defendant T., which had been taken out by the other defendant, S., in returning, sprang over the wall, under which the plaintiff was working, and falling into the hole, injured the plaintiff :-Held, that as the dog was not shewn to be mischievous to the knowledge of the owner, the plaintiff had no cause of action against either of the defendants, either for tres a. Injuries to Human Beings. Animals Naturally Fierce.]-In an action to recover damages for personal injuries sustained by the plaintiff from an elephant which was exhibited by the defendants, the jury found that the defendants did not know the elephant to be dangerous-Held, that the defendants were liable, as the animal did not belong to a class which, according to the experience of mankind, is not dangerous to man, and therefore the owner kept such an animal at his own risk, and his liability for damage done by it was not affected by his ignorance of its dangerous character, Filburn v. People's Palace Co., 59 L. J., Q. B. 471; 25 Q. B. D. 258; 38 W. R. 706; 55 J. P. 181-pass or breach of duty. Sanders v. Teape, 51 L. T. 263; 48 J. P. 757. See Mansfield v. Baddeley, 34 L. T. 696. C. A. A person keeping an animal of a fierce nature is bound so to keep it that it shall not commit injury; when, therefore, such an animal does an injury, the owner is liable, though shewn that it had never evinced any fierceness; but evidence of its tameness was received, under particular circumstances, in reduction of damages. Besozzi v. Harris, 1 F. & F. 92. Tame Animals-Scienter.]-A person who keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is primâ facie liable in an action at the suit of any person attacked and injured by such animal, without any averment in the declaration of negligence or default in the securing or taking care of it. May v. Burdett, 9 Q. B. 101; 16 L. J., Q. B. 64; 10 Jur. 692. In an action for keeping a mischievous dog, by which the plaintiff's child was bitten, a report that it had before been bitten by a mad dog is evidence that the defendant knew him to be mischievous. Jones v. Perry, 2 Esp. 482. It is not sufficient to shew that the dog was of a savage disposition, and usually tied up, and that the defendant promised to make a pecuniary satisfaction to the plaintiff after he had been bitten by the dog. Beck v. Dyson, 4 Camp. 198; 16 R. R. 774. In an action for negligently keeping a dog, proof that the defendant had warned a person to beware of the dog lest he should be bitten, is evidence to go to a jury, of the allegation that the dog was accustomed to bite mankind. Judge v. Cox, 1 Stark. 285; 18 R. R. 769. The gist of the action is the keeping of the Proof that the dog is of a furious disposition, animal after knowledge of its mischievous pro-and had bitten cattle, is no evidence of the depensities. Ib. S. P., Hogan v. Sharpe, 7 Car. & P. 755. Where a horse strays on a highway, and, without apparent reason, kicks a child, no action will lie against the owner of the horse, unless he knew that the horse was likely to commit such an act. Cox v. Burbidge, 13 C. B. (N.S.) 430; 32 L. J., C. P. 89; 9 Jur. (N.s.) 970; 11 W. R. 435. With respect to questions of scienter, there is fendant's scienter; but a promise by the owner of the dog, on being informed of the injury it had done, to make compensation, is some evidence of it, to go to the jury, but of the slightest degree. Thomas v. Morgan, 2 C. M. & R. 496; 4 D. P. C. 223; 1 Gale, 172; 5 Tyr. 1085; 4 L. J., Ex. 362. An averment in a declaration that the defendant's dogs were accustomed to worry and bite |