ANIMALS are divided by the common law into two classes, domestic (or tame) and wild. The former term denotes such animals and birds as live in association with man by habit, to wit, horses, cattle, sheep, goats, pigs, poultry, dogs, and cats; the latter includes not only savage beasts like the inhabitants of the jungle but also deer, hares, rabbits, foxos, pigeons, wild fowl and fishes.
There is a great distinction between the two classes. Domestic animals are the subject of absolute property, and though they stray the ownership of them remains. Only a qualified property is possible in wild animals, which is lost if they rogain their natural liberty. If a wild animal is killed an absolute property in it vests in the owner. Therefore if a trespasser kill rabbits or hares the property in them is in the owner of the property or the person to whom he has granted his rights. Nobodys Property
Being the subject of property, domestic animals can be the subject of larceny. Cattle and sheep stealing, for example, was for a long time a capital offence, and it is still a felony punishable by 14 years penal servitude. All animals (including wild animals in confinement) which have value and are owned by any person are now subject to larceny by statute. A wild animal unreclaimed and free, as, for example, a fox, cannot be made the subject of larceny, because the owner of the land has only a qualified property in it, that is a right to take it into his possession, and until he does so the fox is said to be nullius in bonis, or, in popular phrase, nobodys property.
A DOMESTIC animal is assumed to be harmless, and therefore the owner of it is not liable for any mischief contrary to its nature which it may commit. Negligence on his part may bring liability where it can be shown that he has knowledge of the animals vicious character. Proof of this knowledge (usually referred to as scienter) makes him answerable for all damage the animal causes, and there-fore a person who keeps a ferocious dog does so at his peril.
It is often said that a dog is entitled to his first bite. A more correct statement of the law is contained in the following extract taken from Halsburys Laws of England: In order to recover for the bite of a dog on a human being it is necessary to show that the owner had notice of the disposition of the dog to bite mankind; that the dog had previously bitten a goat is not enough; though to prove a general savage or ferocious disposition towards mankind, and that it was in the habit of rushing at people and attempting to bite them, is sufficient without proof of any actual previous bite.
In several cases it has been held sufficient proof of scienter that the dogs vicious character was brought to the notice of the owners servant, not any servant, that is, but the particular servant who had charge and control of the dog or the premises where the animal was kept. Contributory negligence may be pleaded in defence so that a person who ill-treats a dog cannot recover.
It is not contributory negligence, however, to pat a dog; with regard to cats there must also be evidence of scienter. A claim against the owners of a tea shop for injury caused by a cat, not known to be vicious to mankind, to a customer who entered the shop with a dog, failed. In bringing any claim regarding damage caused by animals it is essential to make sure that the owner is sued. Actions against householders when it has been proved that the animal, though kept on the premises, belonged to some other member of the family, have been dismissed.
Negligence is Actionable
Negligence by the owner ia always actionable, entitling the injured party to damages without proof of scienter. Strict proof is required, and as negligence must depend on the particular circumstances, it is difficult to generalize on the matter. To couple large dogs on a leash without having proper control, or to leave a horse unattended in a public street, have been held to be negligence. Where a dog was left in a parked motor-car and, becoming excited, smashed some glass and injured a passer-by, the court found the owner not guilty of negligence.
No proof of negligence or scienter is required in regard to injuries caused by wild animals. A trespasser has no right of action. A person without permission crossing a field where a bull or stallion is kept, or an intruder bitten by a savage dog, has no claim to compensation. Any person on the premises innocently, for example, a postman or tradesman, who ia injured, may recover.
THE general rule of law is that the owner of an animal is bound to take care that it does not stray upon the land of his neighbour, and is responsible for the consequences of any trespass it may commit, -whether the escape of the animal was due to his negligence or not. No action can be maintained for damage resulting from an escape due to the Act of God (for instance, where fences are destroyed by a storm), or to the act of the plaintiff, for of a third person for whom the defendant is not responsible. Therefore, if cattle or sheep stray into a garden devouring all the produce, the farmer or owner is not liable if he show that it was the duty of householder or his landlord to keep the garden properly fenced. Trespass is committed when any part of the animal is over the boundary, so that when a horse bites another animal over a hedge or kicks through a wire fence, the owner is liable.
Dogs and Cats
The law takes account of all animals natural propensities and awards damages for trespass by cattle and horses, because they must by trespassing cause damage.
Dogs and cats by the habit of nature, tend to stray, but as they are not likely to do substantial damage in ordinary circum-stances, no action can be brought in respect of their trespasses. The owner of a dog who wilfully sends his dog on anothers land, after game or rabbits, is liable to the same extent as if he had himself trespassed.
A claim for damages resulting from the loss of poultry and pigeons eaten by a trespassing cat failed; on the other hand, when pigeons kept in a dove-cot flew over an adjacent cornfield and ate the corn, following their natural propensity, the owner of the pigeons was held liable for loss of the corn.
As has been pointed out, a man has a qualified ownership in rabbits on his land, although they are wild animals. A claim for damages caused by rabbits to adjoining property failed. It would have succeeded if it had been shown that tame rabbits which had escaped caused the damage, or that the landowner had placed upon his land a larger number of rabbits than could find food upon it.
ANIMALS ON A HIGHWAY
DOMESTIC animals may pass lawfully on a public highway and their owner is not liable for any injury or accident they may cause unless he is negligent. Many decisions have been given on this point in the courts, but in all of them the need for establishing negli-gence on the part of the owner has been emphasized. A hen straying on the road was frightened by a dog belonging to a third party and flew between the spokes of the wheels of plaintiffs bicycle, causing him injury. It was held that the owner of the hen was not responsible. Trespassing Animals.
Trespassing animals may be seized and distrained if they are causing damage, or in the old phrase, damage feasant. After seizure, the animals may be impounded, either in the common pound or on the distrainers own land, and held to secure the payment of compensation for the damage. Dogs may be impounded.
IT has already been pointed out that the owners of dogs are not liable for damage caused in trespassing. This is by the common law as interpreted by the judges in the courts. There is a statutory liability apart from this in regard to cattle and poultry. Scienter need not be proved in such cases, for the owner is deemed to be liable. Owner is widely interpreted to mean the occupier of the house where the dog is kept. Cattle includes horses, mules, asses, sheep, goats, and pigs; poultry includes domestic fowl, turkeys, geese, ducks, and pigeons. Damage not exceeding £5 may be recovered summarily as a civil debt.
When a Dog is Dangerous A dog which has injured cattle or poultry is deemed a dangerous dog and any court of summary jurisdiction may order it to be destroyed if it be not kept under proper control. Under a local act in the metropolitan area a dog which has bitten or attempted to bite any person may be ordered to be destroyed by a magistrate. Mad dogs may be placed under restrictions, failure to observe which is punishable by a fine.
Although a dog may do considerable damage, especially in a garden, no person is justified in killing or injuring a trespassing animal unless he can prove that he acted to protect some person or valuable property in peril at the moment. Poison and Traps
An attacking dog may be killed in self-defence. A civil or criminal action, if cruelty be used, may follow the destruction or injury of a dog. To poison a dog or domestic animal without reasonable excuse and without the owners consent is an offenco punishable by a fine of £5 or one months hard labour. Traps for trespassing dogs are not unlawful providing they are not baited so as to tempt the dog to destruction, but to place spring guns or any form of trap dangerous to human life on any land is a crime.
Straying dogs may be destroyed after detention by the police for seven days. It is the duty of any person finding a stray dog to take it to a police station. If he does not, but harbours it, he will be responsible for any damage it may cause if it be ferocious, and may find himself charged with the offence of stealing by finding or summoned for keeping a dog without a licence. The penalty incurred by a person who finds a stray dog and does not hand it over to the police is £2. Injured dogs or domestic animals may be slaughtered by the police on a veterinary surgeons certifi-cate that it is cruel to keep them alive.
Dog licences, costing 7s. 6d., must be taken out for every dog over six months old unless it be kept to guide a blind person or solely for tending cattle or sheep. The licence expires on the 31st December each year and must be produced to any police or revenue officer within a reasonable time. A penalty of £5 is imposable for keeping a dog without a licence. Every dog while on a highway must wear a collar with name and address of the ownor; otherwise the owner incurs a heavy fine.