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decided was that where it was known that hurt to the person was the natural consequence of the animal being loose, the owner should be responsible in damages for such hurt, though where it was not known to be so the owner was not responsible for such damages; but where the damage is, like eating grass and other ordinary ingredients in damage feasant, the natural consequence of the escape, the rule as to keeping in the animal is the same. In Com Dig. "Droit" (M. 2) it is said, that "if the owner of 200 acres in a common moor enfeoffs B. of 50 acres, B. ought to enclose at his peril to prevent damage by his cattle to the other 150 acres. For if his cattle escape thither they may be distrained damage feasant. So the owner of the 150 acres ought to prevent his cattle from doing damage to the 50 acres at his peril.

The authority cited is Dyer, pp. 372-6, where the decision was that the cattle might be distrained; the inference from that decision, that the owner was bound to keep in his cattle at his peril, is, we think, legitimate; and we have the high authority of Comyns for saying that such is the law.

In the note to Fitzherbert, Natura Brevium, p. 128, which is attributed to Lord Hale, it is said:-" If A. and B. have lands adjoining, where there is no enclosure, the one shall have trespass against the other on an escape of their beasts respectively; Dyer, 372; Rastal Ent. 621; 20 Ed. 4, 10; although wild dogs, &c., drive the cattle of the one into the lands of the other."

No case is known to us in which in replevin it has ever been attempted to plead in bar to an avowry for distress damage feasant that the cattle had escaped without any negligence on the part of the plaintiff, and surely, if that could have been a good plea in bar, the facts must often have been such as would have supported it. These authorities, and the absence of any authority to the contrary, justify Williams, J., in saying, as he does in Cox v.

Burbidge (a), that the law is clear that in actions for damage occasioned by animals that have not been kept in by their owners it is quite immaterial whether the escape is by negligence or not.

As has been already said there does not appear to be any difference in principle between the extent of the duty cast on him who brings cattle on his land to keep them in, and the extent of the duty imposed on him who brings on his land water, filth, or stenches, or other thing which will if it escape naturally do damage, to prevent their escaping and injuring his neighbour, and the case of Tenant v. Golding (b) is an express authority that the duty is the same, and is to keep them in at his peril.

As Martin, B., in his judgment below, appears not to have understood that case in the same manner as we do, it is proper to examine it in some detail. It was a motion in arrest of judgment after judgment by default, and therefore all that was well pleaded in the declaration was admitted to be true. The declaration is set out at full length in the report in 6 Modern. It alleged that the plaintiff had a cellar which lies contiguous to a messuage of defendant "and used (solebat) to be separated and fenced from a privy house of office, parcel of the said messuage of defendant, by a thick and close wall which belongs to the said messuage of the defendant, and by the defendant of right ought to have been repaired (jure debuit reparari)." Yet he did not repair it, and for want of repair filth flowed into plaintiff's cellar.

The case is reported both by Salkeld, who argued it, in 6 Modern, and by Lord Raymond, whose report is the fullest. The objection taken was that there was nothing to shew that the defendant was under any obligation to repair the wall, that, it was said, being a charge not of (a) 13 C. B. N. S. 438.

(b) 1 Salk. 21, 360; 2 Ld. Raym. 1089; 6 Modern R. 311.

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common right, and the allegation that defendant de jure debuit reparari being an inference of law which did not arise from the facts alleged. Salkeld argued that this general mode of stating the right was sufficient in a declaration; and also that the duty alleged did of common right result from the facts stated. It is not now material to inquire whether he was or was not right on the pleading point. All three reports concur in saying that Lord Holt during the argument intimated an opinion against him on that, but that, after consideration, the Court gave judgment for him on the second ground.

In the report in 6 Modern it is stated:-" And at another day per totam curiam. The declaration is good; for there is a sufficient cause of action appearing in it, but not upon the word solebat. If the defendant has a house of office inclosed with a wall which is his, he is of common. right bound to use it so as not to annoy another." The reason here is "that one must use his own, so as thereby not to hurt another, and as of common right one is bound to keep his cattle from trespassing on his neighbour, so he is bound to use anything that is his so as not to hurt another by such user."***"Suppose one sells a piece of pasture lying open to another piece of pasture which the vendor has, the vendee is bound to keep his cattle from running into the vendor's piece; so of dung or anything else." There is here an evident allusion to the same case in Dyer as is referred to in Com. Dig. "Droit" (M. 2.) Lord Raymond, in his report, says: "The last day of Term Holt, C. J., delivered the opinion of the Court that the declaration was sufficient. He said that upon the face of this declaration there appeared a sufficient cause of action to entitle the plaintiff to have his judgment; that they did not go upon the solebat, or the jure debuit reparari as if it were enough to say that the plaintiff had a house, and the defendant had a wall, and he ought to repair the wall; but

HILARY VACATION, 29 VICT.

if the defendant has a house of office, and the wall which
separates the house of office from the plaintiff's house is
all the defendant's, he is of common right bound to repair
it. * * * The reason of this case is upon this account, that
every one must so use his own as not to do damage to
another; and, as every man is bound so to look to his
cattle as to keep them out of his neighbour's ground that
so he may receive no damage, so he must keep in the filth
of his house of office that it may not flow in upon and
damnify his neighbour." * * * “So if a man has two pieces
of land which lie open to one another, and sells one piece,
the vendee must keep in his cattle so as they shall not
trespass upon the vendor. So a man shall not lay his dung
so high as to damage his neighbour, and the reason of these
cases is because every man must so use his own as not to
damnify another." Salkeld, who had been counsel in the
case, reports the judgment much more concisely, but to the
same effect. He says:-
:-"The reason he gave for his
judgment was because it was the defendant's wall and the
defendant's filth, and he was bound of common right to
keep his wall so as his filth might not damnify his neigh-
bour, and that it was a trespass on his neighbour as if his
beasts should escape, or one should make a great heap on
the border of his ground, and it should tumble and roll
down upon his neighbour's *** he must repair the wall
of his house of office, for he whose dirt it is must keep it
that it may not trespass." It is worth noticing how com-
pletely the reason of Lord Holt corresponds with that of
Brian, C. J., in the case already cited in 20 Ed. 4. Mar-
tin, B., in the Court below, says that he thinks this was a
case without difficulty, because the defendant had, by let-
ting judgment go by default, admitted his liability to repair
the wall, and that he cannot see how it is an authority for
any case in which no such liability is admitted. But a
perusal of the report will shew that it was because Lord

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Holt and his colleagues thought (no matter for this purpose whether rightly or wrongly) that the liability was not admitted, that they took so much trouble to consider what liability the law would raise from the admitted facts; and it does therefore seem to us to be a very weighty authority in support of the position that he who brings and keeps anything, no matter whether beasts, or filth, or clean water, or a heap of earth or dung, on his premises, must, at his peril, prevent it from getting on his neighbour's, or make good all the damage which is the natural consequence of its doing so.

No case has been found in which the question as to the liability for noxious vapours escaping from a man's works by inevitable accident has been discussed, but the following case will illustrate it. Some years ago several actions were brought against the occupiers of some alkali works at Liverpool for the damage alleged to be caused by the chlorine fumes of their works. The defendants proved that they had, at great expense, erected contrivances by which the fumes of chlorine were condensed and sold as muriatic acid, and they called a great body of scientific evidence to prove that this apparatus was so perfect that no fumes possibly could escape from the defendants' chimneys. On this evidence it was pressed upon the jury that the plaintiff's damage must have been due to some of the numerous other chimneys in the neighbourhood. The jury however, being satisfied that the mischief was occasioned by chlorine, drew the conclusion that it had escaped from the defendants' works somehow, and in each case found for the plaintiff. No attempt was made to disturb these verdicts on the ground that the defendants had taken every precaution which prudence or skill could suggest to keep those fumes in, and that they could not be responsible unless negligence were shewn; yet if the law be as laid down by the majority of