SUB-TITLE (V): APPLICATION OF THE FOREGOING PRINCIPLES (SUB-TITLES III AND IV) TO PERSONS INJURED WHILE ON THE DEFENDANT'S PREMISES Topic 1. General Principle 708. BLYTH v. TOPHAM. (1608, Cro. Jac. 159.) Action on the case; for that he digged a pit in such a common, by occasion whereof his mare, being straying. there, fell into the said pit and perished. The defendant pleaded not guilty; and it was found for him. The plaintiff, to save costs, now moved in arrest of judgment upon the verdict, that the declaration was not good; for when the mare was straying, and he shews not any right why his mare should be in the said common, the digging of the pit is lawful as against him: and although his mare fell therein, he hath not any remedy; for it is damnum absque injuria: wherefore an action lies not by him. — The whole Court was of that opinion. It was therefore adjudged upon the declaration that the bill should abate, and upon the verdict. 709. BROCK v. COPELAND NISI PRIUS. 1795 1 Esp. 203 THIS was an action on the case to recover damages, for an injury received from the defendant's dog. The declaration stated, that the defendant knowingly kept a dog used to bite, and then set out the injury received by the plaintiff. The defendant pleaded not-guilty. It was given in evidence, that the defendant was a carpenter, and that the dog was kept for the protection of his yard: that he was kept tied up all day, and was at that time very quiet and gentle, but was let loose at night. It was further proved that the plaintiff, who was foreman to the defendant, had gone into the yard, after it had been shut up for the night, and the dog let out, at which time the injury happened, the dog having then bit and tore him. On this evidence Lord KENYON ruled, that the action would not lie. He said that every man had a right to keep a dog for the protection of his yard or house: that the injury which this action was calculated to redress, was where an animal known to be mischievous, was permitted to go at large, and the injury therefore arose from the fault of the owner in not securing such animal, so as not to endanger or injure the public: that here the dog had been properly let loose, and the injury had arisen from the plaintiff's own fault, in incautiously going into the defendant's yard after it had been shut up.. His Lordship added that in a former case, where in an action against a man for keeping a mischievous bull that had hurt the plaintiff, it having appeared in evidence that the plaintiff was crossing a field of the defendant's where the bull was kept, and where he had received the injury, the defendant's counsel contended, that the plaintiff having gone there of his own head, and having received the injury from his own fault, that an action would not lie: but that it appearing also in evidence, that there was a contest concerning a right of way over this field, wherein the bull was kept, and that the defendant had permitted several persons to go over it as an open way: that he had ruled in that case (and the Court of King's Bench had concurred in opinion with him) that the plaintiff having gone into the field supposing that he had a right to go there, and the defendant having permitted persons to go there, as over a legal way, that he should not then be allowed to set up, in his defence, the right of keeping such an animal there as in his own close, but that the action was maintainable. In the chief case the plaintiff was non-suited. THE plaintiff and defendant lived near each other in the country. The defendant was the owner of a wood called Cattleswood, about a mile in length, one end of which adjoined the plaintiff's grounds, within 150 yards of his dwelling house where he had resided for about two years last past. Some time before the plaintiff went to reside there, the defendant had procured half a dozen traps to be made much larger and stronger than those usually set for catching vermin, which he stated at the time to be intended for foxes, or anything that come in the way; and in fact a sheep had been caught in one, and a deer of the defendant's own in another of them. Some of these traps were set in Cattleswood by day and by night, and baited sometimes with fresh, sometimes with stinking flesh. . . . The defendant allowed 2s. 6d. for every fox or badger, and 1s. for every dog which was killed. In one year seven dogs had been taken and killed, which the defendant was proved to have known and approved of. The witnesses stated their opinion, that a dog, on account of the scent, could not pass along the public paths without danger of being drawn by his instinct to the trap. . . . Some of the traps were set in the wood so near to the plaintiff's house, that the baiting and the annis seed might be scented by his dogs which were kept there. Dauncey and Abbott were heard very shortly in support of the verdict, the Court being desirous of hearing the grounds of objection against it. The Attorney General, Garrow, (and C. F. Williams,) in support of the rule, after observing that the time of the trailing round the traps was not distinctly marked in the report; and that in fact it had happened a long time before the plaintiff's dogs were caught (which was not denied); and that there was no evidence that the traps were purposely set to catch the plaintiff's dogs; contended the defendant had a right to set the traps in his own ground, and to bait them, for the purpose of catching vermin; and that he was not answerable if the dogs of other persons unlawfully trespassing on his grounds were caught in the traps. ... Here the traps were set for the lawful purpose of catching vermin in the defendant's own ground; and if the owner of a dog likely to traverse a wood in a quest of game will carry him, or suffer him to trespass, there, without restraint, he must take the consequences. Lord ELLENBOROUGH, C. J. It appears by the evidence reported, that the traps were placed so near to the plaintiff's court yard where his dogs were kept, that they might scent the bait, without committing any trespass on the defendant's wood. Every man must be taken to contemplate the probable consequences of the act he does. And therefore when the defendant caused traps scented with the strongest meats to be placed so near to the plaintiff's house as to influence the instinct of these animals and draw them irresistibly to their destruction, he must be considered as contemplating this probable consequence of his act. . . . GROSE, J. I think there is evidence that the defendant meant to set the traps for dogs as well as other animals; because when dogs. were caught in them, he rewarded his game-keeper at the rate of so much a head. This therefore was fit evidence to be left to the jury of his intention to catch the plaintiff's dogs as well as others. It is true that the traps were set in his own ground; but a man must not set traps of this dangerous description in a situation to invite his neighbour's dogs, and as it were to compel them by their instinct to come into the traps. . . Rule discharged. ... 711. DEANE v. CLAYTON COMMON PLEAS. 1817 7 Taunt. 489 THE defendant was owner and occupier of a wood adjoining a wood of Townsend, divided therefrom by a low bank and a shallow ditch, not being a sufficient fence to prevent dogs from passing from Townsend's wood into the defendant's wood. There were public footpaths through the defendant's wood, not fenced off therefrom. The defendant, to preserve hares in his wood, and to prevent them from being killed therein by dogs and foxes that went in pursuit of hares, kept iron spikes screwed and fastened into several trees in his wood, each spike having two sharp ends, and so placed that each end should point along the course of a hare-path, and purposely placed at such a height from the ground, as to allow a hare to pass under them without injury, but to wound and kill a dog, that might happen to run against one of the sharp ends thereof, the spikes being, from their nature and position, adapted to effect the purpose for which the defendant fastened them there: none of them was at a less distance than 50 yards from any footpath, and some from 150 to 160 yards distant therefrom. The defendant kept notices painted on hoards placed at the outsides of some parts of the woods, that steel-traps, spring-guns, and dog-spikes were set in that wood for vermin. The plaintiff with Townsend's permission, was sporting in his wood, with a valuable pointer; a hare rose in his wood, and was pursued by the dog thereout, over the bank and ditch, into the defendant's wood, and in the pursuit, there ran against one of the sharp spikes, and was killed. The plaintiff endeavoured as much as in him lay to prevent his dog from pursuing the hare into the defendant's wood, but was unable so to do. The plaintiff having brought an action upon the case against the defendant to recover a compensation for the loss of his dog, This cause was tried at the Oxford spring assizes, 1814, before DALLAS, J., when a verdict passed for the plaintiff, damages £15, subject to a point which the learned Judge, on the authority of Townsend v. Wathen, [ante, No. 710,] reserved, whether the action would lie. Accordingly Shepherd, Solicitor-General, in Easter term, 1814, obtained a rule nisi to set aside the verdict, and have a new trial. . . . Lens, Serjt., in the same term, with whom Shepherd, Solicitor-General, was also of counsel, was heard in support of the rule. In the course of his argument he cited Brock v. Copeland, [ante, No. 709.] . . . The Court took time to consider; and in the same term, they directed that the case should be turned into a special verdict, and that it should be again spoken to. Consequently, in Easter term, 1816, the special verdict, being drawn up, was argued by Best, Serjt., for the plaintiff, and Bosanquet, Serjt., for the defendant. The Court having taken time until this day to deliberate, and being divided in sentiment, now delivered their opinions seriatim. BURROUGH, J. first stated the declaration and the special verdict. This case had been argued before I had a seat in the court. The novelty and difficulties attending it had suggested the propriety of further consideration. A second argument was therefore directed, which has taken place in my time. Finding that able judges appeared to entertain opinions on the subject which did not accord with impressions made on my mind, I have read every case, which, in the course of these arguments, was cited at the bar, I have examined, as far as I have been able, the grounds on which they were decided, and I have given the facts stated in the special verdict the fullest consideration, before I formed my ultimate opinion. What the defendant is found to have done must be carefully distinguished from things done to guard a dwelling-house, and enclosed property occupied with it, from the depredations of robbers, or of persons who come thither for the purpose of committing felony, . . . and from persons who come thither for the doing such violence to man as would amount to a breach of the peace, and be indictable as such ... and persons who enter for plunder, have no right to complain, if damage is done to their persons. They are criminal wrong-doers, who enter for the purpose of committing felony or breaches of the peace. Having said this much by way of introduction, I will state more distinctly the principles which govern my judgment. First, I am of opinion, that the acts of the defendant stated in the special verdict were unlawful, and that the plaintiff, having sustained an injury thereby, without any default in him, is entitled to maintain this action. Secondly, I am of opinion, that if the plaintiff had been a trespasser, or otherwise in default, by the entry of his dog on the defendant's premises, as stated in the special verdict, the defendant could in no manner have justified the direct killing of the dog. Thirdly, I am of opinion, that he cannot justify doing that indirectly, which he would not have been warranted in doing directly. As to the first of these propositions, that the acts of the defendant stated in the special verdict were unlawful, and that the plaintiff, having sustained an injury thereby, without any default in him, is entitled to maintain his action. . . . The principle of "Sic utere tuo ut alienum non laedas" is familiar to every one. . . . My second proposition is, that if the plaintiff had been a trespasser, or otherwise in default, by the entry of his dog into the defendant's premises as stated in the special verdict, the defendant could not in any manner have justified the direct killing of the dog. This proposition scarcely requires any authority: common sense is against such an act. Every lawyer knows, that the law has provided ample remedies for such injuries: a remedy "in rem," where the thing doing the damage can be taken, and this secures a satisfaction; but in that case the party distraining cannot kill, injure, or otherwise use the distress, than for its preservation, as milking a cow. . . . The third and last proposition I have to state, is, that the defendant cannot justify killing the dog indirectly, if he could not have justified the doing it directly. In support of this proposition, I need not only resort to the storehouse of wisdom, the common law of England. There I find it written in plain terms, that "Quando aliquid prohibetur ex directo, prohibetur et per obliquum." PARK, J. The facts of this case, as alleged in the first count of the declaration, and as found by the jury, have been so fully stated by my Brother BURROUGH, that I need not repeat the former part. . . I have ever thought it quite clear that no man shall do that indirectly, which he cannot do directly The placing these dog-spears for the express purpose of killing, is, as it appears to me, just the same as if the defendant had placed a man there for the purpose of shooting. Nay, it is worse; for in the one case a man would exercise a discretion. . A case from Cro. Jac. of Blithe v. Topham [ante, No. 708] has been ... |