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False im- was given into custody, and authorised and assented to his prisonment being so given into custody ; and in any case, X. Y., in giving on a charge of felony.

him into custody, was acting within the scope and in the course of his employment as the defendant's foreman, and for the purposes of the defendant's business.

5. The plaintiff, upon being so given into custody, was taken by the said constable a considerable distance through various streets, on foot, to the Police Station, and he was there detained in a cell till late in the same afternoon, when he was taken to the -- Police Court, and the charge against him was heard before the magistrate then sitting there, and was dismissed.

6. In consequence of being so given into custody, the plaintiff suffered annoyance and disgrace, and loss of time and wages, and loss of credit and reputation, and was thereby unable to obtain any employment or earn any wages for three months.

The plaintiff claims £- damages.

Defence.

Statement of Defence. 1. The defendant denies that he was present at the time when the plaintiff was given into custody, or that he in any way authorised or assented to his being given into custody. And the said X. Y., in giving the plaintiff into custody, did not act within the scope or in the course of his employment as the defendant's foreman, or for the purposes of the defendant's business.

2. At some time about five or six o'clock on the -, being the evening before the plaintiff was given into custody, a large quantity of paint had been feloniously stolen by some person or persons from a shed upon the defendant's yard and premises.

3. At about 5:30 o'clock on the evening of the the plaintiff, who had left work about half-an-hour previously, was seen coming out of the shed when no one else was in it, although his work lay in a distant part of the yard from, and he had no business in or near, the shed. He was then seen to go to the back of a stack of timber in another part of the yard. Shortly afterwards the paint was found to have been stolen, and it was found concealed at the back of the stack of timber behind which the plaintiff had been seen to go.

4. On the following morning, before the plaintiff was given into custody, he was asked by X. Y. what he had been in the False imshed and behind the stack of timber for, and he denied having prisonment

on a charge been in either place. X. Y. had reasonable and probable cause of felony. for suspecting and did suspect that plaintiff was the person who had stolen the paint, and thereupon gave him into custody.

False Imprisonment on the Defendant's Business Premises.

1. The plaintiff is a milliner and dressmaker, and at the time False imof the grievance hereinafter mentioned was in the defendant's

prisonment

on defenemployment.

dant's 2. The defendant is a draper, carrying on his business at premises, Nos. 8 and 9, M. Street, in C.

3. On the 1st of October, 1875, the defendant falsely accused the plaintiff of having stolen a number of valuable feathers, and on the said false charge he caused the plaintiff to be imprisoned in a private room in his business premises in M. Street aforesaid.

4. The plaintiff was unlawfully detained and imprisoned therein for several hours, and was not liberated until the defendant found the said feathers.

The plaintiff claims :-
£100 damages for the said false imprisonment.

.

Action against a Governor of a Gaol for Detaining a Person in

Custody after the Expiry of his Term of Imprisonment. 1. The plaintiff was and is a solicitor residing at

Against the 2. The defendant is the governor of the

Gaol, in

governor of

a gaol for the county of

detaining 3. On the

day of
-, 187—, the plaintiff was arrested

plaintiff

after the on a writ of attachment for non-payment of money, and on that expiry

of his day was committed to the custody of the defendant.

sentence. 4. He remained in such custody until -, 187—, when by force of the statute in that behalf, he became and was entitled to be discharged, and could not by law be detained in custody any longer, as the defendant had notice.

5. There was then no other detainer against the plaintiff to cause him to be detained longer in custody, as the defendant well knew. 6. The plaintiff on the

18—, gave notice

day of

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Against in writing to the defendant, and demanded his discharge from governor of custody, but the defendant wrongfully and maliciously kept and a detaining detained the plaintiff in custody and imprisoned him until plaintiff

when the plaintiff obtained his discharge by an order of the after the expiry

judge. of his

7. In consequence of the premises the plaintiff was greatly sentence.

injured and suffered in his health, and was put to expense in applying to the Court to obtain his discharge, and was otherwise damnified.

The plaintiff claims £500 as damages.

Ferocious Animals (a).

Action for Injury done by Bite of a Ferocious Dog. Claim for 1. The plaintiff is a post-office letter-carrier. The defendant personal is the landlord of the Pump Inn, at B., in the county of injuries caused by a savage dog.

(a) The owner of an animal which is ordinarily vicious, as a lion or a

bear, is liable generally for its acts of ferocity, for he is bound to keep it The gist of

secure at his peril ; but the owner of a domestic animal, as an ox or a the action the keep

dog, is only liable if he knows that the animal is accustomed to do mis

chief. (R. v. Huggins, 2 Ld. Raym. 1583.) The gist of the action is not ing with

the negligent keeping, but the keeping at all with knowledge of the knowledge mischievous propensity. (May v. Burdett, 9 Q. B. 101 ; Jackson v. of the ferocity.

Smithson, 15 M. & W. 563.) The essential ingredients in an action against the owner of a dog or other domestic animal which has injured a man or woman, are-1. that the defendant knew the animal was vicious ; 2. that after this knowledge he continued to keep the animal ; and 3. that it inflicted an injury upon the plaintiff. Knowledge of the vicious nature of the animal need not be brought home to the defendant personally ; knowledge by a servant who has charge of the dog is enough (Baldwin v. Casella, L. R. 7 Ex. 325 ; Applebee v. Percy, L. R. 9 C. P. 647; Glad man v. Johnson, L. J. 36 C. P. 153); and as to the extent of

the defendant's knowledge of the animal's viciousness it need not be What shown that he knew the animal had actually bitten anyone before. It is amounts to sufficient if it has evinced a savage disposition, as by flying at anyone such knowand attempting to bite. (Worth v. Gilling, L. R. 2 C. P. 1.) The fact ledge. that the defendant has warned another to beware of the dog is evidence

that he knew it had a vicious disposition. (Judge v. Cox, 1 Stark. 285.) The defendant is liable though the animal is not really his property, if he knowingly harbours it on his premises ; but where a defendant had done all that was reasonable to get rid of a stray dog which had come on to his premises, he was held not liable for an injury done by it. (Smith v. Great Eastern Rail. Co., L. R. 2 C. P. 4.) A person who keeps a vicious animal about his premises, except for the purpose of protecting his property, which he is entitled to do (Brook v. Copeland, 1 Esp. 203), is responsible though he has taken every precaution, as he fancies, to prevent its escaping and doing mischief. (Jones v. Perry, 2 Esp. 482.)

2. During the month of August, 1877, the defendant kept a Claim for certain mastiff dog in and about his said inn.

personal

injuries 3. The said mastiff dog was of a fierce and mischievous caused by nature, as the defendant well knew.

a savage

dog. 4. On or about the 15th of August, 1877, and while the defendant kept the said dog with the knowledge aforesaid of its fierce and mischievous nature, the plaintiff had occasion in the course of his duty to come on to the defendant's premises, whereupon he was attacked and severely bitten by the said dog.

5. In consequence of the bite and injuries received the plaintiff (here state the damage].

The plaintiff claims £50 damages.

Statement of Defence. 1. The defendant is not the owner of the mastiff dog men- Defence. tioned in the 2nd paragraph of the plaintiff's statement of claim, nor did he during the month of August, 1877, or ever keep the said dog on his premises.

2. The said dog is not of a fierce and mischievous nature.

3. If the said dog be of a fierce and mischievous nature, the defendant says that at the time of the grievance complained of in the statement of claim he was not aware of the fact.

4. The defendant denies the allegations contained in the 4th paragraph of the statement of claim.

5. The defendant further says that if the occurrence mentioned in the 4th paragraph ever took place, the plaintiff at the time was a trespasser upon the defendant's premises.

6. The defendant does not admit the allegations contained in the 5th paragraph of the statement of claim.

Action for Injury done to Sheep by a Dog.

Claim for

injury done 1. The plaintiff and the defendant were at the time of the to sheep

by a savage dog.

Owner of Though a man cannot recover damages for an injury done to himself sheep or by a ferocious dog, unless he can prove that its master knew of its cattle can ferocity, the owner of sheep or cattle can recover for any injury done to recover for his sheep and cattle (including in this term, horses and mares, and per. injury done haps pigs), without averring or proving any such scienter', as it is phrased. to them This is provided by the 28 & 29 Vict. c. 60, to which the pleader is without referred.

proof of scienter.

dog.

Claim for

grievance hereinafter mentioned tenant farmers, occupying injury done adjoining farms at C., in the county of — to sheep by a savage

2. During the night of the 1st of May, 1876, a dog which was kept by the defendant upon his premises broke on to the plaintiff's land and made an attack upon a flock of the plaintiff's sheep and lambs which were therein.

3. Several of the said sheep and lambs were worried and much injured by the defendant's dog, and in consequence the plaintiff has suffered considerable loss.

The plaintiff claims £30 damages.

Fraud (a).
See Misrepresentation.

For Precedents of Defences and Replies on the Ground of Fraud,

see pp. 106, 335, 343, 391, 564–5, 584, 642—3.

What amounts to fraud.

(a) The defence of fraud is available where there has been some con. cealment or deception practised by the plaintiff with respect to the very transaction in question. Where a fraudulent representation constitutes the alleged fraud it must be on a matter which, in the case of simple contract, was substantially the consideration for the agreement. (Mallalieu v. Hodgson, 20 L. J. Q. B. 339 ; Panama, Sc., Mail Co. v. Kennedy, L. R. 2 Q. B. 580.) If the plaintiff has represented that a certain fact or state of things exists, knowing nothing on the subject, and such a fact or state of things does not exist, this will vitiate the agreement. (Behn v. Burness, 32 L. J. Q. B. 204 ; Evans v. Edmonds, 22 L. J. C. P. 211.) A vendee of a term, represented that wanted it for a respectable person, and it turning out that such person was not respectable, it was held that this was a good defence to an action for not delivering possession. (Canham v. Barry, 24 L. J. C. P. 100.) Fraud may consist in allowing a person to continue under a mistake affecting his estimate of the value of the property. (Hill v. Gray, 1 Stark. 434.) But mere concealment by the plaintiff of a defect in a chattel will not avoid a contract where a person is under no obligation to disclose it. (Smith v. Hughes, L. R. 6 Q. B. 597.) If the maker of a chattel makes it with such a defect as to render it worthless, but the defect is patent, and the person for whom it is made have an opportunity of inspecting it before it is delivered, the maker is not guilty of a fraud if he do not point out the defect. (IIorsefall v. Thomas, 31 L. J. Ex. 322 ; but see per Cockburn, in Smith v. Hughes, ubi suprà, 605.) Knowingly permitting a person to remain under a misrepresentation made by a stranger will vitiate the contract. (Pilmore v. Hood, 5 N. C. 97.)

Fraud on the part of an agent in the course of his principal's business will, as a general rule, vitiate a contract. (Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, Ex. Ch.; Mackay v. Commercial Bank of New Brunswick, L. R. 5 P. C. 394.) And where the agent knowingly allowed the defendant to purchase a picture under the erroneous belief that it had been in the possession of an eminent collector, the defence of

Fraudulen misrepresentation of an agent.

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