QUEEN'S BENCH DIVISION (ENGLAND). Before COLERIDGE, C. J., and WILLIAMS, J. SANDERS V. TEAPE and SWAN. jumping into a field without the consent of its master, is not a trespass for which an action will lie. In Beckwith v. Shordike, 4 Bur., 2093, it was held that an involuntary trespass Animal Negligence-Injury caused by dog-may be justified, but not a voluntary one, and Liability of owner, and of person in charge of dog. The plaintiff, a laborer, was digging a hole in the garden of a house adjoining that of the defendant, T. There was a small wall, only three feet high, between these gardens. This wall belonged to the defendant, T. The plaintiff was engaged in doing some work at the bottom of the hole. Three dogs belonging to the defendant, T., had been taken out by the other defendant, S., and as the defendant S. was returning, the dogs ran through a gate into a garden adjoining the one where the plaintiff was at work. As the dogs were running about in playfulness, one of them, a large Newfoundland dog, jumped over the wall, and jumped or fell into the hole where the plaintiff was working at the time in a stooping posture. The dog fell on the nape of the plaintiff's neck, causing injuries through which he was unable to work for some time after. The defendant, T., had offered the plaintiff a couple of sovereigns as compensation, which was refused. In an action for these injuries against the defendant T., as the owner of the dog, and against the defendant, S., as having the dogs in charge, Held, that, inasmuch as the dogs were not shown to be mischievous to the knowledge of the owner, the plaintiff had no cause of action against either of the defendants, either as for trespass or as for any breach of duty. The appeal was from a decision of the Bloomsbury County Court holding that there was no evidence to go to the jury in support of the plaintiff's case. LORD COLERIDGE, C.J. It seems to me to be clear that the learned County Court judge was quite right, and it must be manifest upon ordinary principles of common sense that he was so. An action under the circumstances of this case is quite preposterous. It was an action against a person who kept a dog, because the dog, jumping about playfully, jumped over a low wall and into a hole where the plaintiff happened to be at work. On referring to the authorities, it is manifest that such an action could not be maintained. In Mason v. Keeling, I Ld. Raym. 606, the well known case in the time of Lord Raymond and Lord Holt, it was held that an action would not lie against a man for mischief done by his dog, unless he knew that he had done mischief before, or was of a mischievous nature; and the same principle has also been laid down by Parke, B., in our own time. In Brown v. Giles, 1 C. & P. 118, it was held that a dog, though the verdict there was for the plaintiff, this arose from the jury finding that the trespass was an intentional trespass and not a mere involuntary accident. The result of all these cases is, that if a dog, going about, commits an injury or does any mischief, the owner of the dog will be liable only if the dog was of a mischievous nature and he was aware of that fact; but if there be no evidence of that, then no action will lie. Here there is no suggestion of any proof of the mischievous nature of the dog. The only thing suggested as a scienter is, that the owner of the dog offered the plaintiff a couple of sovereigns as a compensation; but this was entirely from his own good nature, and not because he was liable in point of law. I am of opinion, therefore, that the plaintiff has shown no cause of action, and that this appeal should be dismissed. WILLIAMS, J. I am of the same opinion. If a man keeps horses and other animals, he is bound to keep them on his ground; and if he does not, he may be liable to an action of trespass. There is an exception to this when they are on a public highway, as they have a right to be there, and then the owner is bound to use ordinary care. But in the case of dogs, pigeons and the like, the case is dif ferent; if a dog, not being exceptionally mischievous, acting in playfulness, goes over another man's land, there is no trespass, and the owner of the dog would not be liable. Here, so far as the defendants are concerned, the occurrence was purely accidental and involuntary, and no action lies against them in respect thereof, either as for a trespass or for any breach of duty. Appeal dismissed. RECENT U. S. DECISIONS. Fire Insurance-Oral Application-Conditions of Policy-Silence as to Incumbrancesby agent. Where insurance is applied for Notice and proof of loss-Statement changed orally, and the applicant is unaware of any provision in the policy regarding incumbrances, and is not guilty of any misleading conduct, his bare silence cannot be deemed a misrepresentation; and if the agent in such case did not read the policy to the applicant, or call his attention to the clause relating to incumbrances, the existence of a mortgage would be no impediment to a recovery from the insurance company. When an insurance policy contains clauses requiring notice to be given, preliminary proof of loss to be furnished, and submission to an examination, in order to sue upon the policy, the insured party does not lose his right to sue, where, upon such examination being made, and the statement reduced to writing, he refuses to sign because of other statements added by the agent, and the company afterward refuse to allow him to sign, though he offers to sign the whole statement prepared by the agent. O'Brien v. Ohio Ins. Co. Sup. Ct. of Mich. Dec. 1883 -Amer. Law Record, 152). Fire Insurance Transfer - Forfeiture.-1. The written assent of a fire insurance company to a transfer of a policy does not operate as a waiver of a prior forfeiture of the policy by a breach of one of its conditions, although the agents of the company were fully aware of the breach at the time. 2. The assent to a transfer of the policy is a mere assent to the substitution of the assignee to the rights of the assignor, and in no wise increases them. So if the assignor had no right in the policy by reason of a forfeiture at the time of the assignment, the assent to the transfer revived nothing and gave no rights to the assignee. Ins. Co. v. Garland. (Sup. Ct. of Ill., Jan. 1884-13 Amer. Law Record, 255). GENERAL NOTES. The admirers of 'Sir Roger,' Orton, or however he may be called (says the Law Journal), who may consider him a fit representative of themselves in Parliament should not be discouraged by the statement which has been made that he, like Davitt and O'Donovan Rossa, is disqualified. These gentlemen, it is true, were ticket-of-leave men, and were not allowed to sit in the House of Commons, and Sir Roger' is a ticketof-leave man, but there the likeness ends. They had been convicted of felony, but he has only been convicted of perjury; and the House of Commons draws the line at felons, but admits perjurers. There is no law to prevent a ticket-of-leave man being returned to Parliament, if any constituency should take a fancy to that class of representative, and would overlook the fact that at any moment the Home Secretary may revoke the licence and consign their member to prison. The doctrine of the English Courts first established in the Singer Sewing Machine case, to the effect that where a patented machine becomes known to the public by a distinctive name during the existence of the patent, any one at the expiration of the patent may make and vend such machines, and use such name, and no one, by incorporating such name into his trade mark, can take away from the public the right of so using it, has been recently reviewed and followed by the Ohio Supreme Court Commission in Brill v. The Singer Manuf'g Co. (Ohio Sup. Ct. Com., June 3d, 1884), and it was held that where machines, during the time they are protected by a patent, become known and identified in the trade by their shape, external appearance or ornamentation, the patentee, after the expiration of the patent, cannot prevent others from using the same modes of identification in machines of the same kind manufactured and sold by them.-Daily Register. The case of the three Greeks charged at the Thames Police Court with having in their possession certain statuary, said to be the property of the King of the Hellenes as treasure-trove, raises questions of law of some interest. The men cannot be tried in England for stealing the statues, because the English criminal courts have no jurisdiction to try a foreigner for an offence committed abroad. They cannot be sent back to Greece to be tried, for the simple reason that this country has no extradition treaty with Greece. The only offence which there is any pretence for saying that they have committed in England is that of receiving goods knowing them to have been stolen ; but in the eye of the English law the statues cannot be considered as stolen. In order to convict a man as a receiver, a theft by some one must be capable of being proved in an English court, which for the reason given is impossible. The law which governs the taking of the statuary in Greece is the law of Greece, and no such mongrel offence is known to the English law as that of receiving goods in England knowing them to have been stolen according to Greek law. The right of property in the statues stands on a different footing. If the statues were wrongfully taken in Greece they are wrongfully held in England, and the King of the Hellenes may prove his case in a civil conrt.-Law Journal. It is announced that the Queen has been pleased to confer upon the Right Honourable Sir John Macdonald the distinction of Knight Grand Cross of the Order of the Bath, in recognition of his eminent services to Canada and the empire. The Gazette (Montreal) says: The occasion selected for the bestowal of this mark of great honour is most fitting, the fortieth anniversary of Sir John's entrance into public life. The dignity is an exalted one. The Order of the Bath is one of the most ancient and honourable in heraldry, and though it fell into disuse for a time in the seventeenth century, it was revived by George I in 1725, and is now the second order in rank in England, the first being the Garter. By the statutes then framed for the government of the order, it was declared that besides the sovereign, a prince of the blood, and a great master, there should be thirty-five knights. The order was exclusively a military one down to 1847, when it was placed on its present footing by the admission of civil knights, commanders and companions. The order is divided into three classes, and it is to the first of these, that of the grand cross, that Sir John Macdonald has been raised, he having previously been decorated with the second class, that of Knight Commander. The civil list of the first class is limited to twenty-five, and Sir John's promotion leaves still one vacancy in the number. Among those upon whom the honour has been conferred in recent years are such distinguished men as Lord Dufferin, Sir Edward Thornton, Sir Bartle Frere, the Earl of Lytton, Sir Stafford Northcote, Lord John Manners, Sir Robert Peel, the Marquis of Hertford, Earl Sydney, and Viscount Halifax. The Legal News. therefore, entitled to a trial before he can be punished for an attempt to escape. This is the course adopted in this Province. Several VOL. VII. NOVEMBER 29, 1884. No. 48. prisoners were tried for attempt to escape at THE LAW REPORTS. The January parts of the series of Reports announced some time ago will be issued Dec. 6. They have been held back somewhat longer than at first proposed, partly because it was thought desirable to make the date of issue more nearly agree with the date which the numbers bear, and partly in order that some of the latest decisions of the Court of Queen's Bench sitting in appeal might be included in the first issues. We are grateful to a number of esteemed correspondents for the commendation they have bestowed upon our undertaking, and we have given due consideration to such suggestions as have been made. Of these the only one to which we need refer here was that the decisions of the City of Quebec should be included in the system. We do not think this advisable at present. A complete report of the Quebec cases would involve extra volumes and an additional staff of reporters at that city. We do not think it wise to imperil the success of the undertaking by giving it too great an extension at the outset. The Quebec cases, however, as far as they can be obtained, will be published in the LEGAL NEWS as heretofore. PRISON DISCIPLINE. the last term of the Court of Queen's Bench in this city. On conviction, they were sentenced to an additional term of imprisonment, with forfeiture of good conduct privileges. Apart from this absence of authority there is the question whether the local legislatures have the right to make laws awarding hard labor, flogging or other degrading punishments. This question has already been discussed at considerable length in our pages. See pp. 49, 121, 169 and 177 of this volume. THE "MIGNONETTE" CASE. 'That, on July 5, 1884, the prisoners, with one Brooks, all able-bodied English seamen, and the deceased, an English boy, between seventeen and eighteen, the crew of an English yacht, were cast away in a storm in the high seas 1,600 miles from the Cape of Good Hope, and were compelled to put into an open boat; that in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist on; that on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day, when the act now in question was committed; that on the twelfth day the remains of the turtle were entirely consumed, and for the next eight days they had nothing to eat ; that they had no fresh water except such rain as they from time to time caught in their oilskin capes; that the boat was drift The Manitoba Law Journal, in reference to the case recently noticed in our columns, points out that there does not appear to be any statute, order-in-council, or rule which assumes to permit the whipping of prisoners. The punishments enacted (under the authority of a local statute) for breaches of prison discipline, are (1) The hard bed; (2) Breading on the ocean, and was probably more and water diet; (3) The dark cell, and ball and chain; (4) Chaining to the floor. Not only is corporal punishment not mentioned anywhere, but Rule 21 provides another punishment: "Prisoners attempting to escape and thereby endangering their lives will be subject, under the statutes, to a further term of imprisonment." The prisoner is, than 1,000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was refer to the Court.' The prisoners were then liberated on bail, themselves in 100%., and one surety for each in a like amount, to appear at the assizes for Cornwall next after a decision of the Queen's Bench, if that Court consider the crime of murder has been committed. The record will be drawn up, and the Crown will apply for a writ of certiorari to remove it into the Queen's Bench Division, when it will be argued as a Crown motion. NOTES OF CASES. COURT OF QUEEN'S BENCH. MONTREAL, Nov. 19, 1884. and BABY, JJ. GAUDIN (plff. below), Appellant, and ETHIER (deft. below), Respondent.* Tithe-Right of curé-Purchaser of unthreshed grain. Held, confirming the judgment of Chagnon, J., (6 Legal News, 165), that the tithe is due by the person who has harvested the grain, and not by him who has merely threshed and fanned it. not consulted; that on the day before the act in question Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and, in point of fact, there was no drawing of lots; that on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy, that their lives should be saved, and Dudley proposed if no vessel was in sight by next morning, the boy should be killed; the next day, no vessel appearing, Dudley told Brooks he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. Stephens agreed to the act, but Brooks dissented from it; that the Before DORION, C.J., MONK, TESSIER, CROSS boy was then lying in the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to being killed; that Dudley, with the assent of Stephens, went to the boy, and telling him his time was come, put a knife into his throat and killed him; that the three men fed upon the boy for four days; that on the fourth day after the act the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration; that they were carried to the port of Falmouth, and committed for trial at Exeter; that if the men had not fed upon the body of the boy, they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act there was no sail in sight, nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy or one Capias-Déclaration-Exception à la formeof themselves, they would die of starvation; that there was no appreciable chance of saving life, except by killing some one for the others to eat; that assuming any necessity to kill any one, there was no greater necessity for killing the boy than any of the other three men; but whether, upon the whole matter, the prisoners were and are guilty of murder, the jury are ignorant, and 2. That the privilege of the curé for tithes on the crop subject thereto exists so long as it remains in the possession of the person who has harvested it, but ceases when the grain has passed into the hands of a third party in good faith for valid consideration. Pagnuelo, Taillon & Lanctot for Appellant- COUR DE REVISION. MONTRÉAL, 31 mai 1884. Coram SICOTTE, PAPINEAU, JETTÉ, JJ. MORANDAT V. VARET.* Délai. Jugé: Que les délais pour faire une exception à la forme à un bref de capias et aux procédés faits sur icelui devaient compter seulement du jour du rapport fixé dans le bref, et non pas du jour où le bref avait été rapporté au greffe sur un ordre du juge. * To appear in the Montreal Law Reports, 1 Q.B. est suffisante aux termes du par. 4 de la lère sect. de l'acte des licenses de 1878. 2. Que même dans le cas où le demandeur comme hôtellier dans le bref de sommation, a déjà pris une saisie-arrêt avant jugement accompagnée d'une déclaration, le capias émané dans la même cause, pour les mêmes raisons, doit aussi être accompagné d'une déclaration. C. A. Vilbon, pour le demandeur. C. Lebeuf, pour le défendeur. COUR DE REVISION. Coram TORRANCE, DOHERTY, PAPINEAU, JJ. LECLAIRE et al. v. FOREST.* Composition et décharge—Caution solidaire. Jugé: Que dans le cas de composition et décharge entre un débiteur et ses créanciers, lorsque l'acte a lieu non pas à raison de l'intention des créanciers de donner au débiteur le montant de ses créances, mais parce qu'ils ne peuvent pas avoir plus, la dette naturelle continuant à exister, la caution solidaire n'est pas déchargée. T. & C. C. De Lorimier, pour le demandeur. Mercier, Beausoleil & Martineau, pour la défenderesse. 2. Que la section 95 du dit acte s'applique non seulement aux personnes licenciées pour la vente des boissons enivrantes, mais aussi à celles qui en vendent habituellement sans licence. 3. Que l'action autorisée par les sections 96, 97 et 98 du dit acte est une action en indemnité d'un caractère purement civil, et est soumise aux règles ordinaires de la procédure. 4. Que cette action peut être indistinctement soumise à la cour ou à un jury, aux choix des parties. 5. Que le demandeur doit alléguer et prouver que le défendeur savait, au moment de la vente, que la personne à laquelle il avait vendu était la personne désignée dans l'avis qu'il a reçu. Pelletier & Cie. pour le demandeur. Mercier, Beausoleil & Martineau pour le défendeur. COUR DE CIRCUIT. MONTRÉAL, 8 sept. 1884. Coram LORANGER, J. OUIMET V. GRAVEL. Lettre d'avocat. JUGE: Que dans l'espèce, le coût de la lettre d'avocat n'est pas exigible et ne peut être recouvré en justice du débiteur à qui elle a été écrite pour lui demander le paiement de sa dette. Par sa déclaration le demandeur allègue entre autres choses: Que le défendeur lui est endetté de la somme d'une piastre et demie, pour le coût d'une lettre d'avocat qu'il aurait fait écrire au défendeur, son débiteur, par l'entremise de ses procureurs et avocats, messieurs Ouimet, Cornellier & Lajoie. Que le défendeur s'est reconnu le débiteur du demandeur en payant la dette réclamée par la dite lettre, mais qu'il a refusé de solder le montant dû au dit demandeur pour honoraire sur la dite lettre. Que pour se soustraire au paiement de la dite lettre, le dit défendeur a usé de fraude et de dol envers le commis du demandeur en |