It has been shown in the first Lecture how this liability for
cattle arose in the early law, and how far the influence of early
notions might be traced in the law of today, Subject to what is
there said, it is evident that the early discussions turn on the
general consideration whether the owner is or is not to blame.
/2/ But they do not stop there: they go on to take practical
distinctions, based on common experience. Thus, when the
defendant chased sheep out of his land with a dog, and as soon as
the sheep were out called in his dog, but the dog pursued them
into adjoining land, the chasing of the sheep beyond the
defendant's line was held no trespass, because "the nature of a
dog is such that he cannot be ruled suddenly." /3/
[118] It was lawful in ploughing to turn the horses on adjoining
land, and if while so turning the beasts took a mouthful of
grass, or subverted the soil with the plough, against the will of
the driver, he had a good justification, because the law will
recognize that a man cannot at every instant govern his cattle as
he will. /1/ So it was said that, if a man be driving cattle
through a town, and one of them goes into another man's house,
and he follows him, trespass does not lie for this. /2/ So it was
said by Doderidge, J., in the same case, that if deer come into
my land out of the forest, and I chase them with dogs, it is
excuse enough for me to wind my horn to recall the dogs, because
by this the warden of the forest has notice that a deer is being
chased. /3/
The very case of Mason v. Keeling, /4/ which is referred to in
the first Lecture for its echo of primitive notions, shows that
the working rules of the law had long been founded on good sense.
With regard to animals not then treated as property, which in the
main were the wilder animals, the law was settled that, "if they
are of a tame nature, there must be notice of the ill quality;
and the law takes notice, that a dog is not of a fierce nature,
but rather the contrary." /5/ If the animals "are such as are
naturally [119] mischievous in their kind, he shall answer for
hurt done by them, without any notice." /1/ The latter principle
has been applied to the case of a bear, /2/ and amply accounts
for the liability of the owner of such animals as horses and oxen
in respect of trespasses upon land, although, as has been seen,
it was at one time thought to stand upon his ownership. It is
said to be the universal nature of cattle to stray, and, when
straying in cultivated land, to do damage by trampling down and
eating the crops, whereas a dog does no harm. It is also said to
be usual and easy to restrain them. /3/ If, as has been
suggested, the historical origin of the rule was different, it
does not matter.
Public-domain text, read in full here on John Shaqi.
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