swarb.co.uk - law index
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Animals - From: 1200 To: 1799
This page lists 7 cases, and was prepared on 02 April 2018.
ÂThe Case of Swans [1572] EngR 403; (1572-1616) 7 Co Rep 15; (1572) 77 ER 435
1572
Animals, Constitutional
A prescription to have all wild swans, which are ferae naturae and not marked, building their nests, breeding, and frequenting within a particular creek, is not good.
All white swans not marked, having gained their natural liberty, and swimming in an open and common river, may be seised to the King's use by his prerogative.
A swan is a Royal fowl, and whales and sturgeons are Royal fish.
Every one who hath swans within his private waters hath a property in them.
A man may prescribe to have a game of swans within his manor, and may prescribe that his mans may swim within the manor of another.
A swan may be an estray.
Cygnets belong equally to the owner of the cock and the owner of the hen, and shall be divided betwixt them.
[ Commonlii ]
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The case of Swans (1592) Co Rep 15b
1592
Animals, Land
Wild animals belong to nobody even if found on land.
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Mitchil v Alestree [1726] EngR 590; (1726) 1 Vent 295; (1726) 86 ER 190 (B)
1726
Twisden, Wylde JJ
Negligence, Vicarious Liability, Animals
In an action upon the case brought against the defendant, for that he did ride an horse into a place called Lincoln’s Inn Fields, (a place much frequented by the King’s subjects, and unapt for such purposes) for the breaking and taming of him, and that the horse was so unruly, that he broke from the defendant, and ran over the plaintiff, and grievously hurt him, to his damages, &C.
Upon not guilty pleaded, and a verdict for the plaintiff, it was moved by Simpson in arrest of judgment, that here is no cause of action: for it appears by the declaration, that the mischief which happened was against the defendant’s will, and so damnum absque injuria; and then not shewn what right the King’s subjects had to walk there; and if a man digs a pit in a common into which one that has no right to come there, falls in, no action lies in such case.
Curia contra, It was the defendant’s fault, to bring a wild horse into such a place where mischief might probably be done, by reason of the concourse of people. Lately, in this Court an action was brought against a butcher, who had made an ox run from his stall and gored the plaintiff; and this was alledged in the declaration to be in default of penning of him.
Wylde said: "If a man hath an unruly horse in his stable, and leaves open the stable-door, whereby the horse goes forth and does mischief; an action lies against the master."
Twisden: "If one hath kept a tame fox, which gets loose and grows wild, he that kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature."
1 Citers
[ Commonlii ]
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Scamler v Johnson [1729] EngR 214; (1729) T Jones 227; (1729) 84 ER 1230 (A)
1729
Agriculture, Land, Animals
Trespass quare clausum fregit, & herbam suam depastur. The defendant pleaded that J. Ramsey, long before the trespass, was seised of an ancient messuage with the appurtenances, and prescribed for common of pasture, in the plaintiff's close for his cattle, levant and couchant on tbe said messuage, with the appurtenances, and made title to the wife of Ramsey for her life, who bad entred & adhuc seisata existit, and conveyed to himself the said messuage at, the will of the wife, and justified utendo communia praedict'. Whereupon the plaintiff demurred. And Sanders for the plaintiff said, that the prescription is not good, for cattle cannot be levant and couchant on a messuage. Holt for the defendant, that the prescription is good, and a messuage comprehends the curtilage, which may be an acre or more, on which the cattle may be levant and couchant. And per Cur. the prescription is good, for it is not a common appendant but appurtenant, and such commori is usual in the county of Lincoln, and other counties, and that this is maintainable better for cattle levant and couchant than otherwise, 2. It was objected that the life of Frances ia not aver'd, and if she be dead, the defendant her lessee at will hath no title, But non allocatur; for (adhuc seisita existit) is a good averment of her life.
[ Commonlii ]
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Keeble v Hickeringall [1738] EngR 472; (1688-1710, 1738) Holt KB 17; (1738) 90 ER 907
1738
Torts - Other, Animals
1 Cites
1 Citers
[ Commonlii ]
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Keen v Whistler [1795] EngR 2266; (1795) 1 Str 534; (1795) 93 ER 683 (C)
1795
Animals
Trespass for chasing his cow, and his domestick fowls, viz. hens, geese, &c. with dogs, which dogs were used to bite tame fowl, by whose biting they were killed. On not guilty, verdict for the plaintiff; and he had his full costs, because this is not a trespass wherein the right of the freehold may come in question.
[ Commonlii ]
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Dovaston v Payne [1795] EngR 4015; (1795) 2 H Bl 527; (1795) 126 ER 684
10 Jan 1795
CCP
Land, Torts - Other, Animals
A plea in bar of an avowry for taking cattle damage-feasant, that the cattle escaped from a public highway into the locus in quo, through the defect of fence, must show that they were passing on the highway when they escaped; it is not sufficient to state that being in the highway they escaped.
1 Citers
[ Commonlii ]
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