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defendant to repair, and had been erected by the occupier of his farm immediately preceding him, some seven or eight years ago; and that, being broken in two pieces, the plaintiff had given notice to the defendant to repair it about three weeks before the occurrence which gave rise to the action, and had apprised him that it was his duty to repair it. It appeared further, that the defendant's horses, and particularly a large gray mare of his, had on several occasions passed through this gateway along the plaintiff's portion of the occupationroad, and thence through a small gateway opening from the occupation-road into a meadow-field of the plaintiff called the Rye Bank, and thence through a hedge into another field of the plaintiff called the Pasture, being the field in which the plaintiff's horse had been left sound and well on the evening of the day in question; that the last*724] mentioned gateway was a small one (1 yards wide) for the plaintiff's cows to enter the close called the Rye Bank, from the occupation-road; and that there was a gate reared against the opening, and stones placed against it on the field side, to support it; but that, if a horse pushed his breast against it, the gate would fall down; and it was in evidence that the defendant's horses (including the gray mare) had on several previous occasions pushed the gate down, and entered the plaintiff's land through the gap. It further appeared, that, on the night before the horse was found lamed, this gate had been fastened by one of the plaintiff's sons: further, that the hedge separating the two fields of the plaintiff (the Rye Bank and the Pasture) had been of sufficient strength during all the summer previous to prevent the plaintiff's cattle from passing out of one field into the other. This gate was found thrown down, and recent footmarks of a horse were observed on the morning of the 26th of October on each side of it, and traced across the close called Rye Bank, and through the hedge into the field called the Pasture; and, in the latter field, close to where the plaintiff's horse was found standing on three legs, strong marks of horses "scuffling" were observed, and patches of black and of gray hair were found at the same spot, corresponding with the colour of the plaintiff's horse, which was black, and with that of the defendant's gray mare.

The plaintiff's horse was discovered standing on three legs, as before mentioned, at about 8 o'clock on the morning of the 26th of October; and, on being examined by a veterinary surgeon, it was found that the off hind-leg was broken, a compound fracture, and that a piece of the bone had been taken out. The horse was obliged to be killed; and, on a post-mortem examination, the bone exhibited an appearance of having been struck, and a piece of it knocked out by a violent blow.

*725]

Such shoes as the defendant's gray mare had on, it was in evidence, might have caused it. The ordinary shoe of a horse would not have caused the injury; nor could the plaintiff's horse have caused the injury to itself.

About 12 o'clock the same day, the plaintiff's sons, accompanied by the veterinary surgeon, went to the defendant's stable, and there found his servant fomenting the off hind-leg of the defendant's gray mare with hot water. There were "abrasions," principally inside the thigh, down the leg, towards the hock. Hair was found knocked off in seve

places; and the colour of the mare corresponded with that of the patches of gray hair found in the field.

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The defendant's mare was a large powerful animal of 17 hands high; and its shoes had attached to them large strong "caulkins,' formed by the shoes being turned down at the heels. The plaintiff's horse was about 15 hands high.

There was no evidence of the defendant's mare being a vicious one. No evidence was given on the part of the defendant, except as to the value of the plaintiff's horse.

A letter was put in, dated the 28th of October, 1864, from the plaintiff's attorneys to the defendant, charging the death of his horse to have been occasioned by a kick from the defendant's mare, and claiming compensation; to which no answer had been returned.

On the close of the plaintiff's case, the attorney for the defendant submitted that there was no evidence to go to the jury, and invited the Judge's attention to the case of Cox v. Burbidge, 13 C. B. N. S. 430. The Judge decided there was evidence for the jury, and that it was not necessary for the plaintiff to prove that the gray mare [*726 of the defendant was a vicious animal; that there was a distinction betwixt the two cases; that it might not be in the ordinary course of nature for a horse to kick a child, but that it was so for one horse to kick another, particularly a strange one, when they met in a field. And, on summing up to the jury he told them that the case depended mainly on circumstantial evidence; that there was no direct evidence bringing the plaintiff's horse in contact with the defendant's, and showing that the defendant's mare caused the injury; but that he thought there was sufficient evidence for them to take the case into consideration, and in the exercise of their judgment to consider whether sufficient grounds of complaint had been made out by the plaintiff; that the plaintiff was bound to furnish them with reasonable evidence from which they might presume that the defendant's mare was the cause of the accident: that that was one question; but, in order to make the defendant liable, supposing that his mare had done the mischief, it must be shown that the defendant's mare was wrongfully on the plaintiff's land; and that, if the defendant was bound to repair the gates, it was also his duty to keep his cattle from trespassing upon other persons' land. He then directed the attention of the jury to the fact that no evidence or explanation had been offered on the part of the defendant as to where the gray mare was on the night in question, or what she was doing; that he certainly expected that same evidence would have been adduced on this point; that it might be reasonably expected that some evidence would be given which would answer the presumption that the defendant's mare did the mischief; that where she was that night, and why the defendant's man was found fomenting the gray mare's legs, were circumstances which might reasonably have some weight in *the matter. He further

told them that the three points for consideration were,-first of [*727

all, and mainly, did they think the circumstances given in evidence were sufficient to satisfy them that the defendant's mare caused the death of the plaintiff's horse? If so, then came the next question, whether the defendant was liable. His mare would become a trespasser as soon as it passed the gate leading to the plaintiff's portion

of the occupation-road. The main difficulty was, whether there was sufficient evidence to lead them to a conclusion that it was the defendant's mare that did the mischief. It was entirely a matter for their consideration. It did not require that the evidence should be as strong and exact as would be required to convict a man charged with murder; but still that it should be such reasonable evidence as men of ordinary capacity would act upon as between man and man. The question had arisen whether the defendant was liable, supposing that plaintiff did not give evidence of notice to the defendant that his mare was a violent animal. He was of opinion, he said, that had nothing to do with the present question. He added, that if the defendant's mare got into the plaintiff's field, whether the plaintiff's horse began to kick first or not did not affect the question, if the defendant's mare was a trespasser. And that it was for the jury to consider,-first, whether the death of the plaintiff's horse was caused by the defendant's mare, -secondly, whether the defendant's mare was trespassing,—and then the amount of damages.

The jury found a verdict for the plaintiff, damages 147.

The defendant gave notice of appeal on the following grounds:"1. That there was no evidence to support the claim of the plaintiff: *"2. That the Judge was wrong when at the end of the *728] plaintiff's case he determined that it was not necessary for the plaintiff to prove that the gray mare of the defendant was a vicious animal:

"3. That the Judge was wrong when at the end of the plaintiff's case he determined that there was evidence for the jury in support of the case, if the plaintiff proved that the gray mare of the defendant had committed a trespass by entering the fields of the plaintiff, and had whilst committing that trespass kicked the horse of the plaintiff:

"4. That the Judge misdirected the jury, and particularly when he observed that no evidence or explanation had been offered on the part of the defendant as to where the gray mare was on the night in question, or what she was doing, and that he certainly expected that some evidence would have been adduced on this point, and that it was reasonable to expect that the jury should have some evidence which would answer the presumption that the defendant's mare did the mischief; and further, when he said, that, whether the defendant's mare was a violent animal or not, he was of opinion that had nothing to do with the question, nor if the defendant's mare got into the plaintiff's fields, whether the plaintiff's horse began to kick first or not."

J. B. Maule, for the appellant.(a)—There was no evidence to

(a) The points marked for argument on the part of the appellant were as follows:"1. That the plaintiff below adduced no evidence of any cause of action against the defendant below (the now appellant) at the hearing of the plaint:

"2. That the road mentioned in the case as passing from the appellant's to the respondent's farm, was a public road, and not an occupation-road, as alleged:

"3. That there was no evidence given to support the statement that the gate across the said road at the point where the same road passes from the appellant's farm on to the respondent's farm was one belonging to the appellant to repair:

"4. That the verdict was against evidence, in this, that the fence mentioned in the case as dividing the respondent's closes therein respectively called Rye Bank and the Pasture, was proved to be, and is stated to have been, of sufficient strength during all the summer previous to

warrant the jury in finding that the defendant's mare did the damage complained of, or that the defendant was legally liable, inasmuch as it was not proved that the mare was to his knowledge [*729

vicious or accustomed to kick other horses. This subject was very much discussed in the recent case of Cox v. Burbidge, 13 C. B. N. S. 430 (E. C. L. R. vol. 106). There, the defendant's *horse, being [*730 on a highway, kicked the plaintiff, a child who was playing there: there was no evidence to show how the horse came on the spot, or what induced him to kick the child, or that he was accustomed to kick: and it was held that there was no evidence from which a jury would be justified in inferring that the defendant had been guilty of actionable negligence. Erle, C. J., there says: "To entitle the plaintiff to recover, there must be some affirmative proof of negligence in the defendant in respect of a duty owing to the plaintiff. But, even if there was any negligence on the part of the owner of the horse, I do not see how that is at all connected with the damage of which the plaintiff complains. It appears that the horse was on the highway, and that, without anything to account [*731 *for it, he struck out, and injured the plaintiff. I take the well-known distinction to apply here, that the owner of an animal is answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it. Thus, in the case of a dog, if he bites a man or worries sheep, and his owner knows that he is accustomed to bite men or to worry sheep, the owner is responsible; but the party injured has no remedy unless

the time of the alleged cause of action, to prevent the respondent's and therefore also the appellant's cattle from passing into the "Pasture" in which the respondent's horse is said to have been found with his leg broken:

5. That there was no evidence by what means the respondent's horse had broken his leg: and no proof was given of the appellant's mare ever having been in or near the respondent's 'Pasture Close' when the leg of the respondent's horse is said to have been there broken:

"6. That the respondent gave no evidence, even upon the assumption that the appellant's mare had strayed into the Pasture Close,' that the appellant knew that his mare was, or that his mare actually was, of a vicious nature and given to kicking, or had any tendency to acts of that kind, and to acts which are not in the ordinary course of the nature of a horse or mare to do: "7. That the Judge, in summing up the plaintiff's case to the jury, erroneously told them that no evidence on the last head was required to support the plaintiff's cause of action:

"8. That the Judge was in error in telling the jury that some evidence should have been given by the appellant, and an explanation offered by him at the trial, as to where the appellant's mare was on the night in question, or what she was doing, to answer the presumption that his mare did the alleged mischief:

9. That the Judge ought not to have left to the jury the question whether there was sufficient evidence to lead them to the conclusion that it was the appellant's mare that did the alleged mischief:

10. That the Judge was in error in instructing the jury that the respondent not having given evidence of knowledge in the appellant that his mare was a violent animal, had nothing to do with the question :

"11. That the Judge should have told the jury that there was no evidence to support the respondent's plaint, or the alleged liability of the appellant in the said plaint:

"12. That the Judge should have told the jury that the gate leading into the close called Rye Bank of the respondent, opening from the alleged occupation-road, was proved and admitted by his own case to have been at the time in question out of repair and in a state insufficient to keep closed the small opening of the gateway, being reared only against such opening, and was a gate which was repairable by himself, and that by reason of the want of proper repair of such gateway, even upon the assumption of the respondent's own case, he had thereby, by reason of want of proper repair to such gate, contributed to the alleged mischief for which he sought to recover damages against the appellant."

the scienter can be proved." And Williams, J., says: "We must assume that the injury to the plaintiff was caused by the horse having viciously kicked him, as a horse of ordinary temper would not have done. Taking that to be so, I am of opinion that the plaintiff cannot maintain the action, because he has not shown that the defendant knew that the horse was subject to that infirmity of temper. That brings the case within the ordinary rule, by which it is established that the owner is not liable unless it can be shown that he was aware of the irritable temper and vice of the animal." Willes, J., takes a somewhat wider range; but he winds up with saying,-"The important circumstance in this case is, that the act is not in accordance with the ordinary instinct of the animal, which was not known to be of a mischievous disposition." There was no evidence here that the defendant's mare was in the habit of kicking. Every one who knows anything about horses, knows that kicking is the exception. [KEATING, J., referred to Read v. Edwards, 17 Č. B. N. S. 245 (E. Č. L. R. vol. 112), where it was held that an action lies against the owner of a dog, who, knowing the animal to have a propensity for chasing and destroying game, permits it to be at large, and the dog in consequence "breaks and enters" the plaintiff's wood, and chases and destroys young pheasants which are being reared there under domestic hens.] There the scienter was proved.

*Horace Smith, contrà.(a)-In Cox v. Burbidge, the plain*732] tiff failed to show the breach by the defendant of any legal duty. Here, however, there was abundant evidence of breach of duty in the defendant, in permitting his fences to be out of repair, and that, in consequence of that breach of duty, the mare strayed into the plaintiff's close and did the damage complained of: Star v. Rookesby, 1 Salk. 335. The Court there say: "Either trespass or case lies; trespass, because it was the plaintiff's ground, and not the defendant's; and case, because the first wrong was a non-feasance and neglect to repair, and that omission is the gist of the action; and the trespass is only consequential damage." In Powell v. Salisbury, 2 Y. & J. 391, the plaintiff declared in case against the defendant for not repairing his fences, per quod the plaintiff's horses escaped into the defendant's close, and were there killed by the falling of a haystack: and it was held that the damage was not too remote, and that the action was maintainable. Apart from viciousness, that case is not distinguishable from the present. Anonymous, 1 Ventr. 265, and Rooth v. Wilson, 1 B. & A. 59, are to the same effect. It was not a question whether the mare was vicious or not. The defendant would have been equally liable if the mare had lain down, and the plaintiff's horse had fallen over her and injured himself.

Maule, in reply.-Most of the cases referred to turned upon the question whether the injury was sufficiently proximate. Here, how*733] ever, the question *is, whether the liability existed in the first instance. This is not a claim for the consequential result of a trespass. If it had been a plaint for a trespass, the question of remote

(a) The points marked for argument on the part of the respondent were as follows:"1. That there was evidence to go to the jury in support of the plaintiff's claim :

"2. That the defendant was liable for the injury done by his mare, whether the mare was vicious or not."

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