Millen v. . Fawdry

1 N.C. 714

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinions

Whistler. There are three sorts of trespasses with dogs: (1) When a dog is in the habit of killing sheep, and the master has notice and keeps him, and afterwards the dog kills sheep; (2) When the master sets on the dog himself; (3) When the dog, without any usual bad quality and without being set on, assaults a man. And this is not punishable. Tyrringham's case, 4 Co., 38. It is lawful to chase cattle out of one's own land, but not on other persons. Here the commencement was on the defendant's own land, but when the dog went over and did not desist, because he had been set on, trespass lies. He said he recalled him, quam cito id vidisset, etc. But perhaps the dog had much time to chase the sheep, and the master turned away; but if the beasts escaped in another's land, I ought to pursue them freshly. 10 H., 7; 7 H., 7, 1; 25 H., 7. But here he does not say that he did so.

Littleton, The law does not presume that a man shall have so much command over his dog as to be able to recall him suddenly, and there is a difference between a dog and cattle. If a dog goes on your land, you shall have no action. This case resembles that of molliter manus imposuit on a man to put him out of one's own house, and when one does a lawful act, and necessarily something ensues which he could not prevent, trespass does not lie. 21 E., 4, 64. Justification for retaking cattle out of another's land, on their escaping while they were going to the pound. 28 E., 4, 8. Trespass for ploughing another man's land: Justification that he was ploughing his own land, and the horses became unruly and carried the plough on the plaintiff's land, and the horses ate a mouthful of corn. 33 E3., 3, 8. Cattle come from the woods on my land; I chase them out with my dog and recall him; yet he pursues them in the forest and kills them, I shall be excused. *21 H., 7, 8. In this court M. 18 Jac., Jennings and Morsan. Driving other sheep which could not be separated from his own.

CREW, C. J., assented, and cited Knivet's opinion in the case of the pursuit of a pheasant, and 6 E., 4, that putting thorns on one's land so that they fall on another's, is not justifiable. But those are not like this case, for it is impossible to recall a dog or a horse if he will not obey, and in the 6 E., 4, if it were impossible that the thorns should not fall on the other's ground, he shall be excused; and the opinion in the last case that trespass lies, seems hard, because thorns fall ipso nutu, and there is a difference between a dog and other animals. No doubt. No action lies. I may chase cattle out of my land, though a stranger cannot. 12 H., 8. In this court in Popham's time, one justified the pursuing of a fox on another's land, which he started on his land; for it is a noisome animal. Likewise of a wolf. Bracton says that a man outlawed caput lupinum gerit, that is to say, anyone may pursue him. 9 E., 4. If trees grow close to my hedge and the fruit hangs over my neighbor's land and falls there, I may justify the taking it up, provided I do not make a too long stay, and do not destroy his hedges. For fruit naturally falls, and necessity justifies me.