for a trespass causing substantial damage the owner would be liable. In the case of a landowner or his servant shooting a trespassing dog it is, however, necessary in order to avoid liability under the Malicious Damage Act, 1861 (a), to show that the act complained of was done in a bonâ fide belief that it was essential for the protection of property (b). To revert to trespass by animals, in the case of Farrer v. Nelson (c), Pollock, B., dealing with a question of damage by rabbits, expressed himself in terms with which it would be difficult to reconcile the case of Bowlston v. Hardy (d). "I will first deal," he said, "with the question whether an action can be brought by a neighbour against any person who collects animals upon his land so as to injure the crops of the neighbour, and I should say that beyond doubt such an action would lie, and that the rule upon which it would be founded would be not so much negligence as upon an infraction of the rule sic utere tuo ut alienum non ladas." The question, therefore, in the case of game also may still be considered to be open; and it is certainly difficult to see why the Courts should hold damage caused by dogs or game to form any exception to the general rule. With regard to game, however, it is to be observed that in order to bring the defendant within the general principle laid down in Fletcher v. Rylands, it must be shown that the game complained of is his game. It will not be enough for this purpose that it has come from the defendant's land; he must have actively interfered to bring about its existence there, as by bringing it upon his land from elsewhere, or perhaps by artificially increasing the quantity naturally present by destroying the vermin that would in the ordinary course of things prey upon it. Mere neglect to kill the game down would probably impose no liability, for it could not in such case be regarded as his game. In cases of animals doing damage of a kind which it is no part of their ordinary nature to do it is essential, in order to render the person keeping them liable therefor, to show that he had knowledge of a peculiar vicious tendency in the animal to do (a) 24 & 25 Vict. c. 97, s. 41. K. B. 714; and see Armstrong v. Mitchell, (1903) 88 L. T. 870. damage of that particular kind. It not being usual for dogs (a), or horses (b), or rams (c), or bulls (d) to attack human beings, the plaintiff complaining of such injury from such animals must establish that the defendant knew they were exceptionally savage and prone to injure mankind (e). It is not necessary, in order to sustain an action for a bite given by a savage dog, to show that the dog has actually bitten another person before it bit the plaintiff, it is enough to show that it has to the knowledge of the defendant evinced a savage disposition by attempting to bite (ƒ). Nor, it is presumed, is the peculiar vicious tendency in a dog, knowledge of which will render the owner liable, confined to a tendency to bite. It probably extends to any known vicious habit likely to cause damage, such as the not uncommon habit of rushing out of a gate and barking at passing horses, whereby the horses become frightened and bolt. In one case of nisi prius where the plaintiff was driving a mare past the defendant's house when the defendant's dogs rushed out barking and snapping at the mare's heels, which caused her to plunge and kick whereby she eventually fell down and injured herself, Bramwell, B., directed the jury that if the dogs were mischievous and the defendant knew it he was liable (g). The jury found for the plaintiff, and no attempt seems to have been made to disturb the verdict. But in such cases it would always be a question of degree whether the fear inspired in the horse was under the circumstances natural, or whether it was due to exceptional timidity on its part. Where the owner of a dog Where appoints a servant to keep it, it is not necessary that the owner owner's should have personal knowledge of the dog's ferocity, the know- servant ledge of such servant is enough (h). But knowledge of a servant not appointed to keep it will not per se suffice to charge the (a) Mason v. Keeling, (1699) 12 Mod. 332. (b) Cox v. Burbidge, (1863) 13 C. B. N. S. 430. (c) Jackson v. Smithson, (1846) 15 M. & W. 563. (d) Hudson v. Roberts, (1851) 6 Ex. 697. (e) See Osborn v. Chocqueel, (1896) 2 Q. B. 109. (f) Worth v. Gilling, (1866) L. R. 2 C. P. 1. (1) Read v. King, Times, Jan. 27, 1858. Quare whether since the statute 28 & 29 Vict. c. 60 (as to which, see above, p. 447), the owner would not be liable in such a case without any special knowledge of a mischievous propensity in the dog. (h) Baldwin v. Casella, (1872) L. R. 7 Ex. 325. scienter of sufficient. master, though if under the circumstances it would be the duty of such servant on becoming aware of the animal's ferocity to inform the master, which in each case is a question for the jury (a), then the fact that the servant knew of it would be some evidence of actual knowledge on the part of the master (b). Nor is it necessary in order to charge a person for injuries caused by a savage dog, that he should be the owner; it is sufficient if he keeps it; and by harbouring the animal about the premises or allowing it to resort there, he sufficiently keeps it to render himself liable (c). The alternative orders mentioned in s. 2 of the Dogs Act, 1871, which provides that "the Court may make an order directing the dog" (if found in fact to be dangerous)" to be kept by the owner under proper control or destroyed," are purely permissive and not obligatory upon the Court. Consequently justices have jurisdiction to order a dangerous dog to be destroyed without giving the owner the option of keeping it under control (d). How long an owner of an animal, known by him to be likely to do damage, remains liable for injuries committed by it after it has escaped from his possession has never been determined. It is suggested in the Institutes (e) that the liability would cease with the loss of possession. "Si ursus fugit a domino et sic nocuit, non potest quondam dominus conveniri, quia desiit dominus esse ubi fera evasit." There is no authority, however, for any such limitation in our law, and the true rule would seem to be, that the owner's liability continues until some other person has assumed the dominium of the animal, and has also become aware of its dangerous propensities, at which point the liability for future accidents will be transferred to the new dominus. It is even doubtful whether, where the owner of an animal which he knows to be savage sells it without disclosing that fact, his liability would not continue until the purchaser becomes aware of it, on the same principle as that upon which a person is held liable who knowing a gun to be loaded puts it into the (a) Per Lord Coleridge, Applebee v. Percy, (1874) L. R. 9 C. P. p. 658 (b) Applebee v. Percy, (1874) L. R. 9 C. P. 647. (e) M Kone v. Wood, (1831) 5 C. & P. 1. (d) Rex v. Dymock, (1901) 49 W. R. 618. (e) Bk. iv. tit. 9. hands of a person who does not know it, whereby an accident happens (a). Although in all the above-mentioned cases of non-natural Exceptions to general user of land, removal of support, and keeping of beasts, such liability. acts of user, removal, or keeping, are primâ facie done by the doer at his peril, in the sense that his liability is independent of any question of negligence, yet it is not absolute, and in answer to an action for damage arising from such acts it will be open to him to set up by way of defence that the proximate cause of the damage was either what is usually termed the act of God, or the act of foreign enemies, or some other kind of vis major, in respect of which he has no remedy over. An accident is said to be the result of the act of God when "it Act of God. is due to natural causes directly and exclusively, without human intervention, and such that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected" (b). In the first place the term act of God is strictly limited to those classes of inevitable accidents "which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause" (c), such as storms or floods; it does not include the spread of fire, except where the origin of the fire was due to lightning (d). Secondly, if the particular natural disturbance is such that its occurrence might reasonably have been foreseen, the prevention of the injurious consequences flowing from it must have been practically impossible; it is not essential that it should have been physically impossible to prevent them, it will be sufficient if the precautions necessary for that purpose would under the circumstances of the case have been unreasonable (e). Or, thirdly, if the means necessary to ward off the effects of the particular act of nature would not have been unreasonable, then its occurrence must have been so improbable that it could not reasonably have been foreseen. "The mere fact that a phenomenon has happened once, when (a) Dixon v. Bell, (1816) 5 M. & S. 198; and see Sullivan v. Creed, (1904) 2 Ir. R. 317, C. A. See below, pp. 464, 8qq. (b) Per Mellish, L.J., Nugent v. Smith, (1876) 1 C. P. D. P. 444. (c) Per Cockburn, C.J., Nugent v. 27. (e) Nichols v. Marsland, (1875-6) 2 Ex D. 1. Foreign enemies. it does not carry with it or import any probability of a recurrence, when in other words it does not imply any law from which its recurrence can be inferred, does not place that phenomenon out of the operation of the rule of law with regard to the act of God. In order that the phenomenon should fall within the rule it is not necessary that it should be unique, that it should happen for the first time. It is enough that it is extraordinary, and such as could not be reasonably anticipated" (a). It has been doubted whether the exception of the act of God applies to the case of keeping a wild beast, whether for example, a man who kept a tiger would not be liable if lightning broke its chain and it got loose and did mischief (b); but it is to be observed that there is nothing wrong per se in keeping a wild beast. "A man has a right to keep an animal which is fera naturæ, and nobody has a right to interfere with him in doing so, until some mischief happens " (c). If the keeping of a thing be in fact per se wrongful, as where explosives are kept in breach of the regulations of the Explosives Act, the act of God would probably be no defence. It seems to be generally admitted that the act of foreign or as they are generally termed "King's enemies" will equally with the act of God excuse a breach of a duty imposed by law (đ). The ground upon which the exception of King's enemies rests seems to be that there is no remedy over against them. In the leading case on this subject it is laid down generally that "where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him" (e). For the acts of war committed by the subjects of a state at war with this country there is no remedy over, such acts not being tortious. According to Story (ƒ), (a) Per Fry, J., Nitro-Phosphate, &c., Co. v. London, &c., Dock, (1878) 9 Ch. D. p. 515. (b) Per Bramwell, B., Nichols v Marsland, (1875) L. R. 10 Ex. p. 260. (c) Per Platt, B. Jackson v. Smithson, (1846) 15 M. & W. p. 565. (d) River Wear Commissioners v. Adamson, (1876) 1 Q. B. D. 546; 2 |