Deane v Clayton
| Jurisdiction | England & Wales |
| Judgment Date | 17 May 1817 |
| Date | 17 May 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 196
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 1 Moore, 203; 2 Marsh. 577. Approved, Ponting v. Noakes, [1894] 2 Q. B. 286. See Lowery v. Walker, [1909] 1 K. B. 185; [1911] A. C. 10.
[489] deane v. clayton. May 17, 1817. IS. C. 1 Moore, 203; 2 Marsh. 577. Approved, Pouting v. Noakes, [1894] 2 Q. B. 286. See Lmuery v. Walker, [1909] 1 K. B. 185; [1911] A. C. 10.] The Defendant was owner and occupier of a wood adjoining a wood of B., divided therefrom by a low bank and a shallow ditch, not being a sufficient fence to prevent dogs from passing from B.'s wood into the Defendant's wood. There were public (b) Giles v. Harris, 1 Lord Raym. 254. S. C. by name of Giles v. Hart, 2 Salk. 622 Comb. 443. Carth. 413. Holt, 556. 12 Mod. 152. 3 Salk. 343. 7 TAUNT. 49(X DKANE V.CLAYTON 197 footpaths through the Defendant's wood, not fenced off therefrom. The Defendant, to preserve hares in his wood, and to prevent them from being killed therein by dogs and foxes that came thereinto in pursuit of hares, kept iron spikes screwed and fastened into several trees in his wood, each spike having two sharp ends, and so placed that each end should point along the course of a hare-path, and purposely placed at such a height from the ground, as to allow a hare to pass under them without injury, but to wound and kill a dog, that might happen to run against one of the sharp ends thereof, the spikes being, from their nature and positions, adapted to effect the purpose for which the Defendant fastened them there: none of them was at a less distance than 50 yards from any footpath, and some were from 150 to 160 yards distant therefrom. The Defendant kept notices painted on boards placed at 6he outsides of some parts of the wood, that steel-traps, spring-guns, and dog-spikes were set in that wood for vermin. The Plaintiff, with B.'s permission, was sporting in his wood, with a valuable pointer; a hare rose in his wood, and was pursued by the dog thereout, over the bank and ditch, into the Defendant's wood, and in the pursuit, there ran against one of thu sharp spikes, and was killed. The Plaintiff endeavoured as much as in him lay to prevent his dog from pursuing the hare into the Defendant's wood, but was unable so to do. The Plaintiff having brought an action upon the case against the Defendant to recover a compensation for the loss of his dog, the Court of Common Pleas were equally divided in opinion whether the action were maintainable, Gibbs C. J. and Dallas J. holding that it was not, and Park and Burrough Js. holding that the Plaintiff was entitled to recover.-One who finds game on his own ground, cannot justify pursuing it into the land of another. The Plaintiff, in Hilary term, 54th Geo. 3, declared in this court in case, for that whereas, before and at the time of the committing the grievance by the Defendant, as hereinafter mentioned, the Plaintiff was going and passing in, upon, and over a certain wood, or parcel of land, adjoining a certain other wood, or parcel of land, of the Defendant, and separated and divided therefrom by a certain mound or bank of earth, in the parish of Lewkner, county Oxford, with a certain dog of the Plaintiff of grtat value, (to wit) of the value of 501., and he the Plaintiff so going and passing in, upon, and over the first-mentioned wood, piece, or parcel of land, with his dog as aforesaid, afterwards, and before the time of the committing of the grievance, [490] a hare started and jumped up in the first-mentioned wood or parcel of land, in the sight and view of the Plaintiff's dog, and the hare then and there ran in and along the same wood, or parcel of land, over the said mound or bank of earth separating and dividing the same wood from the Defendant's wood, or parcel of land, and unto and into the Defendant's wood, in and along a certain hare-path in the same, and the Plaintiff's dog then and there immediately followed and ran after the hare, in and along the first-mentioned wood, over the mound or bank of earth, and then and there, against the will and inclination of the Plaintiff, ran unto, and into the Defendant's wood, in and along the said hare-path in the Defendant's wood, in pursuit of the hare, yet the Defendant, wrongfully, injuriously, and maliciously, and intending to injure, prejudice, and aggrieve the Plaintiff in this behalf, and to wound, kill, and destroy his dog, and wholly to deprive him of the same, wrongfully and injuriously put, placed, drove, and fixed, and caused and procured to be put, placed, driven, and fixed unto, and into divers trees, and pieces of wood, standing and being in, upon, and near to diver parts of the said hare-path and other bare-paths in the Defendant's wood divers nails, spikes, and iron instruments of great length, to wit of the length of two feet respectively, and for the purpose, and with the intent to kill, wound, and destroy any dog oc doge, running in and along the said hare-paths, or either of them, by means whereof the Plaintiff's dog in following, pursuing, and running after the said hare, in and along the said hare-path in the Defendant's wood, necessarily and unavoidably, and with great force and violence, ran and was forced upon and against the said nails, spikes, and iron instruments; and thereby the dog then and there became and was greatly lacerated, wounded, [491] and injured, and thereby the Plaintiff's dog, being of the value aforesaid, afterwards died, and became and was wholly lost to the Plaintiff. There were other counts, which it is not material to state. The Defendant pleaded not guilty. This cause was tried at the Oxford spring assizes, 1814, before Dallas J., when a 198 DKANE V. CLAYTON 7 TAUNT. 492. verdict passed for the Plaintiff, damages 151., subject to a point which the learned Judge, on the authority of Townsend v. Wathen (9 East, 277), reserved, whether the action would lie. Accordingly Shepherd, Solicitor-General, in Easter term, 1814, obtained a rule nisi to set aside the verdict, and have a new trial. In Michaelmas term, 1815, Vaughan Serjt., with whom Best also was of counsel, shewed cause, citing 2 Ro. Ab. 566, Trespass, K. pi. 1. Co. Dig. Pleader, 3 M. 31. Mitten v. Faudrye, Poph. 161. S. C. W. Jo. 131, by name of Mitten v. Fawlrey; S. C. Latch, 13, by name of Millen v. Haioery, and 119, by name of Milieu v. Fawdry. Eeekmth v. Shordike and Another, 4 Burr. 2092. Dymock v. Allanby, Lincoln spring assizes, 1809 or 1810, cor. Bayley J., Vere v. Lord Cawdor, 11 East, 568. Wright v. Ramscatt, 1 Saund. 84. S. C. 1 Siderf. 336. Churchward v. Sluddy, 14 East, 249. Sutton v. Moody, 1 Ld. Bay. 250. S. C. 2 Salk. 556. 12 H. 8, fol. 9. Meynell v. Cftampernoon, Cro. Car. 228. Corner v. Champness, Taunton spring assizes, 1814, cor. Dampier J. Townsend v. Wathen, ubi supra. 2 lio. Ab. 548, pi. 5. The King v. The Bishop of Bangor, cor. Heath J. Lens Serjt,, in the same term, with whom Shepherd, Solicitor-General, was also of counsel, waa heard in support of the rule. In the course of hia argument he cited [492] Brock v. Copeland, I Esp. 203. Stat. 21 Jtic. 1, c. 16, s. 5. Banington. v. Turner, 3 Lev. 28. Sutton v. Moody, 1 Cora. 34. The Court took time to consider ; and in the same term, they directed that the case should be turned into a special verdict, and that it should be again spoken to (a). Consequently, in Easter terra, 1816, the special verdict, being drawn up, was argued by Beat Serjt. for the Plaintiff, and Boaanquet Serjt., for the Defendant. Best cited, in addition to the authorities referred to on the former occasion, 4 Co. 38 b, Tyrringham's case, 5th res., Anonymous, cor. Mansfield C. J. Guildhall, case against the owner of an ox, which was driven from Essex to London for sale; it was tranquil when it left home, bub being fevered by the journey, it gored the Plaintiff in White-chapel, and held the action lay not. Bosanquet cited, in addition to the former cases, Wadhurstv. Damme, Cro. Jac. 44. utterfield v. Forrester, 11 East, 60. Blithe v. 1'opham, Cro. Jac. 158, 9. S. C. 1 Ro. Ab. 88, pi. 4, line 30. Bro. Abr. Trespass, pi. 345. 2 Ro. Abr. 565, Trespass. Justification, I. pi. 7. Ibid. 568, Trespass excusable, N. pi. 2. Foster, 262, 3. 4 Bl. Com. 192. Kel. 40. 3 Inst. 57 (b). [493] The special verdict stated, that before and at the tima in the declaration mentioned, the Defendant was the owner and occupier of certain woodlands situate in the parish of Lewkner, in the county of Oxford, being parcel of a large tract of wootlland there, and which woodland of the Defendant adjoined on one part to certain woodland belonging to and in the occupation of one Joseph Townsend, Esquire, other parcel of the said large tract, and which woodland of the Defendant was divided from Mr. Townsend's woodland by a low bank or mound of earth, and a shallow ditch, such bank or mound and ditch not being a sufficient fence to prevent dogs from passing from Mr. Townseud's woodland, into the Defendant's woodland: that for a long time before, and also during all the time of the Defendant's possession of his said woodland, there were certain public foot-paths through the said tract of woodland, and through the Defendant's part thereof, which public foot-paths were not fenced off from the land through which they respectively led: that before the time in the declaration mentioned, the Defendant, being possessed of his said woodland, in order to preserve hares therein, and to prevent them from being killed therein by dogs and foxes, did, for the purpose of wounding and killing dogs and foxes that might come into his (a) Chambre J. resigned, and Heath J. died, in the interval between the directing of the second argument, and the hearing thereof, and were succeeded by Park and Burfough, Js. ; (6) It causes sensible regret to forego the opportunity of recording any portion of the learning, aQuteness, and talent, by which each of the arguments on this novel and interesting question...
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