and tigers, which a man must always keep chained up at his peril, and beasts that are mansueta natura, and break through the ordinary tameness of their nature, such as oxen and horses. In the latter case, an action lies only if the owner, whether an individual or corporation, has had notice of the mischievous nature of the beast(n). In the former case, an action lies without such notice(o).

There is no distinction between the case of the keeping of an animal which breaks through the ordinary tameness of its nature, and becomes fierce, and is known by the owner to be so, and the keeping of one which is feræ naturæ (p). If a dog has once bitten a man without provocation, or under circumstances which would not excite any dog of good temper to bite, and the owner has notice of it, it is his duty to chain up or muzzle the dog; and if he lets him go about, or lie at the door unmuzzled, and another person is bitten under similar circumstances, the owner of the dog will be responsible for the injury(9). It is not material whether the defendant is the owner of the dog or not. It is enough for the maintenance of the action that he keeps the dog; and the harboring a dog about one's premises, or allowing him to be or resort there, is a sufficient keeping of the dog to support the action. As soon as a dog is known to be mischievous, it is the duty of the person whose premises the dog frequents, to send him away, or cause him to be destroyed(r). The same rule of law prevails with regard to a bull, which is known to have run at a man, and to be therefore dan⚫gerous(s).

262 Effect of putting up a notice to beware of the dog.—The putting up a notice to beware of the dog will not exempt the owner of the dog from liability to a person injured, if it appears that the latter could not read, or did not in fact, read the notice. If the plaintiff was lawfully in a way leading to the house, and was, in point of fact, ignorant of the

(n) Stiles v. Cardiff Steam Navig. Co., 33 L. J., Q. B. 310. Smith v. Causey, 22 Ala. 568. Stumps v. Kelly, 22 I. 140. See Baldwin v. Casella, L. R., 7 Exch. 325, post, p. 212. This rule applies to domestic animals rightfully in the place where the injury is done. If such animals were wrongfully in the place where they did the mischief, the owner is liable without proof that the animals were vicious and the owner knew it. Decker v. Gammon, 44 Me. 322. (0) Rex v. Huggins, 2 Ld. Raym. 1583. Jenkins v. Turner, 1 ib. 110. Mason v. Keeling, 1 ib. 608. Scribner v. Kelley, 38 Barb. 14.

(p) Jackson v. Smithson, 15 M. & W. 565; 15 Law J., Exch. 311

(q) Charlwood v. Greig, 3 C. & K. 48. Marsh v. Jones, 21 Vt. (6 Washb.) 378. Buckley v. Leonard, 4 Denio, 500. McCaskill v. Elliot, 5 Strobh. 196. Loomis v. Terry, 17 Wend. 496. (r) McKone v. Wood, 5 C. & P. 2. See Smith v. Great East. Rwy, L. R., 2 C. P. 4; Trammell v. Little, 16 Ind. 251; Smith v. Montgomery, 52 Me. 178. See Auchmuty v. Ham, 1 Denio, 495; Wilkinson v. Parrott, 32 Cal. 102. By 31 & 35 Vict. c. 56, "The Dogs Act, 1871," stray dogs may be detained by the police, and dangerous dogs destroyed by order of justices. (8) Blackman v. Simmons, 3 C. & P. 138. Clark v. Armstrong, 24 Sc. Sess. Cas. 1315.

notice, and of the danger from the dog at the time he was bitten by it, he will be entitled to compensation in damages(t). 263 Dogs worrying sheep and destroying game." If a man has a dog that kills sheep" (or hunts on his own account and destroys game), "the master of the dog, being ignorant of such quality, shall not be punished for this killing; but if he has notice of the quality of the dog, it is otherwise "(u). By 25 and 26 Vict. c. 59, s. 1, every owner of a dog in Ireland is made liable in damages for injury done to any sheep by his dog, and it is not necessary for the party seeking damages to show a previous mischievous propensity in the animal or the owner's knowledge thereof, or to prove any neglect on the part of the owner. And the law is the same now in England so far as injuries by dogs to sheep and cattle are concerned (28 & 29 Vict. c. 60, ante, p. 23).

The circumstance of a dog being of a ferocious disposition, and being at large, is not sufficient to justify a man in shooting it. To justify such a course, the animal must be actually attacking the shooter at the time he uses his gun(x).

264 Of the keeping dogs reputed to have been bitten by a mad dog.-If, by

common report, a dog has been bitten by a mad dog, "it becomes the duty of the owner of the dog so reputed to have been bitten to be very circumspect" in the keeping of it. Whether the dog said to be mad was mad or not, may be mere matter of suspicion, and yet it is not enough for a defendant to say, "I did use a certain precaution." He ought to put it out of the animal's power to do further mischief(y). 265 Injuries from driving ferocious animals along a public thoroughfare.Where the defendant's bull, which was being driven along the public streets, ran at a man with a red handkerchief round his neck and

(t) Sarch v. Blackburn, M. & M. 507; ante, p. 202. See Sawyer v. Jackson, 5 N. Y. Leg. Obs. 380.

(u) Vin. Arb. ACTIONS, H. pl. 3. Fleeming v. Orr, 2 Macq. H. L. C. 14. See Read v. Edwards, ante, p. 30. Under the Statutes of New York, the owner or possessor of any dog that has killed or wounded sheep is liable for their value without proof of knowledge on his part that the dog was mischievous or disposed to kill sheep. 1 R. S. 704, s. 9; Auchmuty v. Ham, I Denio, 495. Laws of 1867, ch. 814. 2 R. S. 662, s. 14. Osincup v. Nichols, 49 Barb. (N. Y.) 145. Fish v. Skut, 21 Barb. 333.

The same rule is in force under the statutes of Ohio. See Swan's Stat, of 1854, 328; Job v. Harlan, 13 Ohio (N. S.) 485.

(x) Morris v. Nugent, 7 C. & P. 572. Clark v. Webster, 1 C. & P. 104. Perry v. Phipps, 10 Ired. 259. But see Brown v. Carpenter, 26 Vt. (3 Deane) 638; Dunlap v. Snyder, 17 Barb. (N. Y.) 561; Wolf v. Chakler, 31 Coun. 121.

(y) Ld. Kenyon, Jones v. Perry, 1 Esp. 483. Under the statutes of North Carolina an owner is liable in a penalty of fifty dollars for neglecting to kill his dog after it has been bitten by another dog which he has reason to believe was mad. See Wallace v. Douglas, 10 Ired. 79. Any one may lawfully kill a mad dog, or one that is justly suspected of being mad, or is known to have been bitten by a dog which was mad. Wolf v. Chakler, 31 Conn. 121. Putnam v. Payne, 13 Johns. 312.

gored him, and the defendant, after the accident, was heard.to say that the red handkerchief caused the mischief, as a bull would run at anything red, it was held that this was some evidence to go to a jury to show that the defendant knew that his bull was a dangerous animal. "As the circumstance of persons carrying red handkerchiefs is not uncommon," observes Pollock, C.B., "and it is reasonable to expect that in every public street persons so dressed may be met with, we think it was the duty of the defendant not to suffer such an animal to be driven in the public streets, possessing, as he did, the knowledge that if it met a person with a red garment, it was likely to run at and injure him "(z).

The following laws respecting the keeping of ferocious animals, extracted from the Roman law, are not undeserving of attention. "If an ox has a trick of pushing with his horns, and wounds any one, or causes any other damage, the master who has neglected to shut up the ox, or to give such warning that people might avoid it, shall be answerable for the harm he does."

"Those who have horses or mules which kick or bite, must either warn people of their being vicious, or take care to have them well watched, otherwise they will be made liable for the damage they may do. If a dog, who has a trick of biting, is not tied up, or if he gets loose for want of being well looked after, and wounds any one, the master of the dog will be liable to make good the damage. But if a dog or other creature bites or does any damage only because he has been provoked, he who has given occasion to the injury that has happened shall be accountable for it; and if he be the person who has sustained the injury, he is alone to blame. If the beast which has done the damage has been exasperated and stirred up by another beast, the master of the latter beast shall be accountable for the damage."

"Those who have wild beasts-such as lions, tigers, bears, and others of the like kind-ought to keep them so that they can do no harm, and they are answerable for all damage that arises from their not being safely and securely kept"(a).

(2) Hudson v. Roberts, 6 Exch. 699; 20 Law J., Exch. 299.

(a) Domat. liv. 2, tit. 8, s. 2.

SECTION II.

ABATEMENT OF

NUISANCES-STATUTORY REMEDIES AND PENALTIESACTIONS-PROHIBITION-INJUNCTION AND INDICTMENT.

266 Abatement of nuisances.-By the Nuisances Removal Acts (18 & 19 Vict. c. 121(b); 23 & 24 Vict. c. 77; 26 & 27 Vict. c. 117(e); 29 & 30 Vict. c. 90, s. 14, et seq.; and 31 & 32 Vict. c. 115), various provisions are made for the abatement of nuisances affecting the public health. Sect. 8 of the first-mentioned Act defines what are to be considered nuisances within its provisions(cc), and the second part of the statute enables summary proceedings to be taken before magistrates, who are empowered to make orders for the abatement or prohibition of the nuisance(d). All persons having control over the soil on which a nuisance is suffered to exist, are liable to be proceeded against under this statute(e). By the 22d section the local authority are required, in cases where a watercourse, etc., has become a nuisance, to construct a new sewer. They are not, however, bound to follow the course of the old watercourse, but may make the new sewer through private enclosed land, in any direction they think fit, and where no sewer existed previously(ƒ). Various statutory powers for the abatement of public nuisances are also given by the Salmon Fishery Acts (24 & 25 Vict. c. 109(g); 28 & 29 Vict. c. 121)(h), the Smoke Prevention Act (16 & 17 Vict. c. 128), the Burial Acts (20 & 21 Vict. c. 81, and 22

(b) As to the recovery of penalties, before justices, Reg. v. Jenkins, 3 B. & S. 116. And see 28 & 29 Vict. c. 127, post, p. 201.

(c) As to diseased meat, sce Young v. Grattridge, L. R., 4 Q. B. 166.

(cc) See Norris v. Barnes. L. R., 7 Q. B. 537, as to nuisances arising from mines, and the smelting of ores and minerals. The Act applies only to such nuisanees as are injurious to health, such as slaughter-houses, accumulation of refuse, etc., and not to mere nuisances of discomfort, such as the drip of water through a railway bridge on to a highway. Great West. Rail. v. Bishop, L. R., 7 Q. B. 550.

(d) Ex parte Mayor, etc., of Liverpool, 8 E. & B. 537. Reg. v. Bateman, 27 Law J., M. C. 95. Amys v. Creed, L. R., 4 Q. B. 122; 38 L. J., M. C. 22. No previous notice is necessary where proceedings are taken by an inhabitant, and not by the local authority; Crocker v. Cardwell, L. R., 5 Q. B. 15.

(e) Draper v. Sperring, 10 C. B., N. S. 113; 30 Law J., M. C. 225. See Bird v. Elwes, L. R., 3 Exch. 225; Barnes v. Akroyd, L. R., 7 Q. B. 474. Where several persons join in creating a nuisance, see Brown v. Bussell, L. R., 3 Q. B. 251.

(f) Earl of Derby v. Bury Improvement Commissioners, L. R., 4 Exch. 222; 38 Law J., Exch. 100.

(g) Williams v. Blackwell, 32 Law J., Exch. 174; post, p. 199.

(A) The appointment of commissioners and inspectors is continued by 34 & 35 Vict. c. 95 And see 33 & 34 Vict. c. 33.

Vict. c. 1)(i), the Public Health and Local Government Acts (21 & 22 Vict. c. 98; 23 & 24 Vict. c. 77; and 29 & 30 Vict. c. 90, ss. 35 to 55), the Sewage Utilization Acts (28 & 29 Vict. c. 75; and 29 & 30 Vict. c. 90, ss. 1 to 13(j) ), and by the Metropolitan Building Act, 1855 (18 & 19 Vict. c. 122), ss. 69 to 81, which provides for the shoring up and removal of dangerous structures situate in the metropolis and its neighborhood (k). The expense incurred in the removal of nuisances, the construction of sewers, etc., under many of these local Acts, is recoverable either in the county court(), or by order of justices(m).

A man cannot, at the common law, enter upon his neighbor's land, to prevent the commission of an apprehended nuisance, but he may justify a peaceable entry for the purpose of abating and putting a stop to an existing nuisance. Thus, where the plaintiff had set up poles on his own land, in order to build a house which, when erected, would be a nuisance to the adjoining dwelling-house of the defendant, and the latter entered upon the plaintiff's land and prostrated · the poles, to prevent the nuisance, it was held that the entry was wholly unjustifiable(n). But if H builds a house so near mine that it stops my lights, or shoots the water upon my house, or is in any other way a nuisance to me, I may, after previous notice and request to remove the building, enter upon the owner's soil and pull it down, provided the whole house is a nuisance. If part only of the house obstructs my lights and creates a nuisance, I am not justified in pulling down the whole building(0).

Before an entry is made upon the land of another for the purpose of abating a nuisance, notice should be given to the occupier of the land of the existence of the nuisance, and he should be required to abate it himself(p); and the plea justifiying the entry should contain an averment that notice was given to the plaintiff to abate the nuisance, and that he neglected or refused to do it, whereupon the

(i) See Foster v. Dod, L. R., 1 Q. B. 475; and 34 & 35 Vict. c. 33.

(j) See 30 & 31 Vtet. c. 113.

(k) Reg. v. Harden, 2 Ell. & Bl. 191; post, ch. 21. See 32 & 33 Vict. c. 82.

(1) As to proof of the ownership of the premises, Blything Un. v. Warton, 32 Law J., M. C. 132.

(m) As to parties liable to pay these expenses, see Peek v. Waterloo, etc., Local Board, 33 L. J., M. C. 11; Cook v. Montagu, L. R., 7 Q. B. 418.

(n) Norris v. Baker, 1 Roll. Rep. 393, pl. 15.

(0) Rex v. Rosewell, 2 Salk. 459. A person cannot lawfully pull down a building as a nuisance, where the nuisance is not caused by the erection itself, but by the persons who resort there. Miller v. Burch, 32 Texas, 208. Ely v. Superivsors of Niagara Co., 36 N. Y 297. Barclay v. Commonwealth, 25 Penn. St. 503.

(p) Perry v. Fitzhowe, 8 Q. B. 776. Jones v. Jones, 1 H. & C. 1; 31 Law J., Exch. 506,