trespass to Numerous instances of trespass might be given; Instances of thus in the case of carriers of goods or innkeepers, goods. dealing wrongfully with the goods they are conveying or holding, here are common instances in which an action will lie (). So also if a wrongful distraint is made on goods, this is a trespass (k). person keeping and do injury. If one person lends out to another, or gives to another Duty of to carry, any article of a highly dangerous character, delivering or which, though not naturally dangerous, has yet such dangerous goods to be defects as to make it dangerous, of which fact he is or carried, or ought to be aware, he is liable for any injury done to animals which property thereby (1). And any person who keeps may escape animals or other creatures which may escape and do injury to property, is liable for any injury occasioned by them (m), for it is the duty of the owners to keep such creatures with special care, so that they may do no injury. With regard, however, to animals feræ naturæ, such as rabbits, and with regard also to pigeons, it seems that though a person breeds them on his land, as he only has property in them whilst on his land, he is not liable if they escape, for any injury they may do, the only remedy of the person injured being to capture or destroy them (n). ferocious In the case of creatures which are by their very Injury by nature likely to do injury, the owner is always liable animals, and for any damage done by them; but in the case of animals not animals not of such a character, to make a person ferocious. liable for injuries to property done by them, a previous naturally (i) See as to Carriers, ante, pp. 105-112; as to Innkeepers, ante, pp. 112, 113. (k) As to which, see ante, p. 68, and Semayne's Case there referred to; also as to when a person will be a trespasser ab initio, see ante, p. 70, and the Six Carpenters' Case there referred to. (1) Blakemor v. Bristol and Exeter Ry. Co., 27 L. J. (Q.B.) 167. (m) Rylands v. Fletcher, L. R. 3 H. L. Cas. 330; 34 L. J. Ex. 177. See as to the application of this case, Anderson v. Oppenheimer, 49 L. J. Q. B. (App.) 708. (n) Addison on Torts, 113. scienter or knowledge of the creatures' mischievous propensities must be proved. This is shewn more particularly with regard to injuries to the person (0), but it has also application to injuries to personal property. On the above principle, therefore, that the scienter of the owner must be shewn, it was formerly held that if a man's dog strayed and trespassed on another's land, and by biting, worrying, or otherwise, injured that other's sheep or cattle, unless the owner could be proved to have known that his dog had previously so acted, he was not liable, because it was said the worrying and killing of sheep is not in accordance with the ordinary instinct and nature of the animal (p). The contrary is however now the law, it being enacted (g) that "the owner of every dog shall be liable in damages for injury done to any cattle or sheep by his dog; and it shall not be necessary for the party seeking such damages to shew a previous mischievous propensity in such dog, or the owner's knowledge of such mischievous propensity, or that the injury was attributable to neglect on the part of such owner" (r). Damages, where not exceeding £5, are under the provisions of this act recoverable summarily before a justice or justices in petty sessions. It will be noticed that the words used in the Act are injuries. to "cattle and sheep" only, so that as to injuries to animals not coming under those designations, or to other personal property, the rule as to the necessity of the scienter of the owner still remains law, e.g. in the case of an injury done by one dog to another, this must be proved. It has, however, been decided (certainly as it would appear giving a somewhat extended meaning to the word) that the term "cattle" in the act does include horses (s). (0) See this noticed in chapter vi. “Of Torts arising particularly from negligence," post, p. 371. (p) Addison on Torts, 112, 113. (9) 28 & 29 Vict. c. 60. (r) Sect. I. (8) Wright v. Pearson, L. R. 4 Q. B. 582; 38 L. J. (Q.B.) 312. of scienter contract. The doctrine of scienter in relation to injuries to The doctrine animals has been held not to be applicable to cases does not apply where there is an independent obligation by contract when there is an obligation to take reasonable care; so that where the plaintiff existing by entrusted the defendant with a colt to take care of, and the defendant put it in a field near to where he kept a bull, and the bull gored the colt, it was held that the defendant was liable although he had no scienter of the bull's viciousness, and in fact had always believed it to be a perfectly gentle animal (t). mischievous Although a person is not liable as a trespasser for If a dog of a his dog straying on to his neighbour's lands (u), yet if propensity it be of a peculiarly mischievous propensity which is strays and does injury, the known to him, he is liable for any injury it may do to owner is liable. his neighbour's property (x); and if a dog whose nature it is to destroy game, or who has been trained for that purpose, strays on to another's land and does injury in that way, the owner is liable in respect of all such injury (y). act to kill or or cat, To kill or injure any creature the property of another It is a tortious is a tortious act, for which the person so killing or injure another injuring will be liable, even although the creature be man's dog only a dog or a cat. And it will also be a tortious act to kill the dog of another, although it is actually known to be of a ferocious disposition, and is found going at large; unless, indeed, it is actually attacking a person at the time when it is killed (z). A person is not justified in killing his neighbour's even though it is straying. dog or cat which he finds on his land unless the animal is in the act of doing some injurious act which can only be prevented by its slaughter (a). And it (t) Smith v. Cook, L. R. 1 Q. B. D. 79: 45 L. J. (Q.B.) 122. (x) Addison on Torts, 112. (y) Read v. Edwards, 17 C. B. (N.S.) 245; 34 L. J. C. P. 32. (a) Ibid. Injury done by traps. Instances of conversion. Conversion may be by and even by ratification. has been held that if a person sets on his lands a trap for foxes, and baits it with such strong-smelling meat as to attract his neighbour's dog or cat on to his land to the trap, and such animal is thereby killed or injured, he is liable for the act, though he had no intention of doing it, and though the animal ought not to have been on his property (b). Numerous instances might also be given of conversion, e.g. the appropriation of goods by a bailee, or where one finding anything, refuses to give it up to the real owner on demand made; or where a tenant severs fixtures from the premises of which he is tenant and appropriates them to his own use. On " conversion" the student is again referred to the distinction already noticed between it and a simple trespass (c). A person can be guilty of an act of conversion by an agent's act, his agent; and the ratification of a prior act of conversion originally unauthorized will amount to a conversion by the person so ratifying it, provided the person doing the act professes at the time to be doing it as his agent, and this is an ordinary doctrine applying not merely to conversion, but to other matters generally (d). Thus if A. meddles with the goods of B. and takes them away, professing to act in so doing for C., who gave him no instruction or authority to do so, but C. afterwards acknowledges and ratifies the act, it amounts to his conversion. But, in order to make a ratification have this effect, it must be with the full knowledge of the nature of the act committed, or with an intention to adopt that act at all events (e), so that where a landlord gave a broker a warrant to distrain for rent, and the broker took away and sold (b) Townsend v. Watken, 9 East, 277. (c) Ante, pp. 302, 308. (d) See 1 S. L. C. 379–383 ; and see as to ratification of an agent's act generally, ante, p. 118. (e) 1 S. L. C. 381. a fixture and paid the proceeds to the landlord, who received them without inquiry, but yet without any knowledge of the broker's irregularity, it was held that no such authority appeared as would sustain an action against the landlord (f). demand is person to action for If a person in any way unlawfully meddles with When a and takes away the goods of another, an act of con- necessary to version is at once committed, and an action for such enable a conversion may be maintained immediately against maintain an him. Thus in the case of Cochrane v. Rymill (g), conversion. the plaintiff advanced money to one Peggs on a bill of sale of his effects. The defendant, an auctioneer, without notice of the plaintiff's rights, by the direction of Peggs, sold the effects, and after deducting money he had advanced Peggs on account, paid the whole balance to him. The plaintiff sought to recover the value of the goods on the ground of their conversion by the defendant, and it was held that the plaintiff was entitled to recover, for the dealing with the property and sale by the defendant amounted to a conversion (h). But if goods come to a person's hands lawfully, in the first instance, and he detains them, to enable the owner to maintain an action for conversion, he must first make a demand for such goods, and then, on refusal to deliver them, he may sue for the conversion (i). This demand for, and refusal of, the goods furnishes evidence of a conversion of them either then or at some time previously (k). (f) Freeman v. Rosher, 13 Q. B. 780. (g) 27 W. R. 776, 40 L. T. 744. This case is perfectly distinguishable from a subsequent case of National Mercantile Bank v. Rymill, 44 L. T. 767 (on appeal) reversing decision below, 44 L. T. 307. (h) See also hereon Hollins v. Fowler, L. R. 7 H. L. 757; 20 W. R. 808; Ganly v. Ledwidge, 10 Ir. Reps. (C. L.) 33. It would, however, appear that if in Cochrane v. Rymill the goods had been sent to the defendant, the auctioneer, in the ordinary and usual course of business, the decision would have been different (see National Mercantile Bank v. Hampson, L. R. 5 Q. B. D. 177; 28 W. R. 424; Taylor v. McKeand, L. R. 5 C. P. D. 358; 49 L. J. C. P. 563; 28 W. R. 628. (i) Thorogood v. Robinson, 6 Q. B. 772. (k) Wilton v. Girdlestone, 5 B. & Ald. 847. |