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ever, with reference to the case in question, where the mischief was worrying sheep, the remedy was certainly by an action; but T. E. must have observed, (ante, pp. 392–3, vol. i.) that such is the law adduced by T. P., who does not indeed cite the Commentaries, but with others Cro. Car. 487, the identical case quoted by Blackstone himself.
'T. E. next quotes 1 Saund. 84, S. C. 3 Salk. 139, "that where a mastiff falls on another dog, the owner of that dog cannot justify killing the mastiff, unless there was no other mode to save his dog; as that he could not take the mastiff off:" and this law is relied upon as supporting the decision of the learned judge in Wells v. Head. But is there not obviously an immense inequality in the aggravation, and an absence of analogy between a dog's having repeatedly worried sheep, under the circumstances in Wells v. Head, and one dog's falling upon another? For aught there appears to the contrary, it might have been the first time the mastiff furiously fell on another dog, and nobody ever contended that for the first offence a dog might lawfully be shot even for having worried sheep. A mastiff's worrying another dog, by no means indicates it to be under the influence of that dangerous, fierce, and unruly propensity which the law intimates would justify its destruction. And it may be doubted whether the law would justify the killing a mastiff, however frequently it worried another dog, such not being the mischief contemplated by the law when it speaks of "doing mischief by worrying sheep or the like." There is moreover this peculiarity to be observed — in considering the legality or otherwise of killing a mastiff dog, viz. the law regards a mastiff as one of the four species of dogs in which a man may have a property sufficient to maintain trover for it. Cro. Eliz. 125, Cro. Jac. 44. To kill such a dog merely to preseve a worthless cur might very possibly be deemed illegal. Is then T. E. correct when he thinks that the principle on which the case in 1 Saund. 84 was decided, would equally apply to Wells v. Head?
'Now, as to the supposed illegality of the defendant's having shot the dog after it had worried the sheep, I would observe that, although true it is the dog had, pro hac vice, ceased to worry the sheep, had it not been shot would it have ceased to worry sheep? Being unrestrained, would it not still have been subject to the same animus, the same mischievous propensity, and still have had the power to worry them? This, then, I contend, is the correct view of the case, and it was the continuance of this danger towards the defendant's flock which justified his shooting the dog, without reference to the precise moment when it was shot.'
The question presented in the above case is really a very curious, and in its analogy to cases that will readily be conceived, a very important one.
The difficulty of guarding a jury against the influence of popular rage.—Trial of Witches. In North's Life of Lord Keeper Guilford, p. 129, 4to ed. the biographer says, 'He (the Lord Keeper) was never more puzzled than when a popular cry was at the heels of a business for then he had his jury to deal with, and if he did not tread upon eggs, they would conclude sinistrously and be apt to find against his opinion. And for this reason he' dreaded the trying of a witch. It is seldom that a poor old wretch is brought to trial upon that account, but there is at the heels of her, a popular rage that does little less than demand her to be put to death. And if the judge is so clear and open as to declare himself against that impious, vulgar opinion, that the devil himself has power to torment and kill innocent children, or that he is pleased to divert himself with the good people's cheese, butter, pigs, and geese, and the like errors of the foolish and ignorant rabble; the countrymen (the triers) cry, this judge hath no religion, for he doth not believe in witches, and so to show they have some, hang the poor wretches: all which tendency to mistake, requires a very prudent and moderate carriage in a judge.'
Execution against the members of Corporations.
[The following case recently decided in the King's Bench in England, is analogous to many that occur in some of the states on the laws relating to corporations.]
'Lord Tenterden C. J. said, the Court had considered the application on the part of Sir Abraham Bradley King, to be discharged out of custody, in which he had been placed, under an execution issued on a judgment, against the Secretary of the St. Patrick's Insurance Society. The action was brought on a policy of insurance, against the secretary, who was the person appointed to sue and be sued on behalf of the company; and judgment having given against him, the execution was taken out, not against him, but against Sir Abraham Bradley King, who was stated to be a member of the company; and this was done on the ground, that by a statute, which gave the company some of the incidents of a corporation, it was enacted, that on judgment against the secretary, execution might be taken out against any of the members of the company. No leave of the Court had been applied for, nor had
any suggestion been entered on the roll, that Sir A. B. King was a member of the company; and it was contended, that although the act authorized the issuing execution against any member on judgment against the secretary, that there ought to be an application to the Court for leave to enter a suggestion on the roll; or, that by some mode or other previous notice ought to be given to the person against whom it was intended to take out execution, in order to give him an opportunity of demurring or pleading and the Court was of opinion, that the law was so. Certain documents had been handed in to the Court, to show what had been the course adopted by the court in Ireland. From this he collected, that the course in the Irish Court of Common Pleas was, to allow a person who had obtained judgment in these cases, to take out execution against another person than the defendant, at his peril, as to whether the person against whom the execution was taken out was or was not a member. But that was contrary to the course of the King's Bench in Ireland, as appeared from an elaborate judgment pronounced by the Lord Chief Justice. The effect of that was, that a suggestion ought to be entered on the record, in these cases, in order to give the person, against whom execution was intended to be taken out under such circumstances, notice, so as to enable him to plead or demur as the case might be. Unless this was done, there would be an incongruity on the record, the judgment appearing to be against one, and the execution against another, without any reason assigned. In actions against the hundred, it was not unusual on a judgment against A and B to issue an execution against C and D; but then that was different from the present case, for there, the action, although nominally against A and B, was, in fact, against the whole hundred, which was represented by A and B. But where the party was not on the record, it was fitting that a suggestion should be entered, so as to put the record in a proper form, to enable that party to demur or plead, and try the question, whether he was a member or not; or any other question that might be available for his defence. He was, therefore, of opinion, that Sir A. B. King was entitled to his discharge from the execution.
Littledale J. said this was no hardship on the plaintiff; for, supposing that he had brought the action against Sir A. B. King himself, he must prove that Sir A. B. King was a member; and it was but just that Sir A. B. King, or any other in his situation, should have an opportunity of showing that he was not a member, or of setting up any other proper matter of defence.
Ex parte Sir A. B. King, in the case of Bartlett v. Fentum, Secretary to the St. Patrick's Ins. Company. H. T. 1831. K. B.
VOL. VI.-NO. XII.
Whether the Darlington and Stockton Railroad is a nuisance. An indictment has been preferred at the York assizes against the proprietors, agents, &c. of the Darlington and Stockton railroad, as being a nuisance, by reason of the steam-engines and cars frightening horses passing upon the common highway. A verdict was taken that it was a nuisance, unless it was justified by the act of parliament granting the charter. The question for the whole court will therefore be, whether the coming too near to the public road, (that is within about 50 feet, for a mile and three quarters) is justified by this act of incorporation. The King v. Pease and others.
Mr. Williams (with whom was Mr. Heaton) said that this was an indictment for a nuisance. It appeared that some gentlemen, for their private emolument, and upon a speculation for that purpose, were by an act of parliament empowered to erect a railway from Darlington to Stockton; and they were, by the first act of parliament, to lay it in a given line, with a power to deviate to the extent of one hundred yards from the projected line. The prosecutors were gentlemen residing in the neighborhood, magistrates of the county,and some other persons, who, either in their own persons or by their own persons or by their property, had sustained injury from this undertaking. That the railroad had existed since 1825, and that part of the defendants were committee-men, and active in the management of the railway on the line, was past a doubt. Complaints were early made of the nature of the railroad, and of the effects it was likely to produce upon the king's subjects travelling on the turnpike road from Yarm to Stockton. The main grievance which was complained of was that for upwards of a mile and three quarters this railroad, with the locomotive engines upon it, runs parallel to the turnpike road, at an average distance of about fifty feet between the railroad or tramway and the crown of the road on which his Majesty's subjects are in the habit of travelling. In some cases the distance was only 30 feet, and in others 100 feet; but averaging 50 feet a mile and three quarters. If it had been the misfortune of any of the jury to be near one of those engines, and particularly on horseback, they would be aware of the antipathy of the horse to these conveyances. If he should prove that the machines frequently frightened horses, and caused them to plunge or turn back, to overturn vehicles, or run away over the fences, and that horses were obliged to be put into a barn till the engines passed, who had afterwards come out sweating as they do after hearing a distant cannonade, he apprehended he should be entitled to their verdict.
Mr. Pollock said he would admit that, if the whole of the property on each side of the road belonged to the defendants, it would not justify their crossing the road, as they did in many places, but for the act of parliament.
His Lordship said that in that case it would resolve itself into a mere point of law, as to what were the powers given by the act.
Mr. Williams said he was glad to hear the observation of his learned friend, as it would afford much facility in shortening the case. If the defendants legally could not cross the road, à fortiori they could not justify running parallel to it for nearly two miles.
The learned gentleman then called several witnesses to prove that wagons drawn by six horses, coaches drawn by four horses, and lesser vehicles, had been overturned in consequence of the fright of the animals by the locomotive engines. The same cause frequently made saddle horses plunge, rear, start aside, or turn round and gallop a considerable distance.
Mr. Ayres, a wine merchant at Stockton, deposed that the horse that he was driving in a gig took fright while passing one of the locomotive engines, in consequence of the fireman beginning to stir up the fire, which caused the chimney to emit sparks and smoke.
Mr. Pollock submitted that the incautious stirring of a fire by the defendants' servant, when a wine merchant was passing in a gig, could not be given in evidence against the defendants. Under the act of parliament passed in 1821 they had an absolute right to erect the road, and therefore could not be guilty of nuisance for doing so. By the act of parliament in 1823 they had a clear right to use locomotive engines.
Some other witnesses were then examined, after which his Lordship said he thought the cause might be brought into a shorter compass than going into the whole case. It was rather a question of law as to what were the powers given by the act.
Mr. Pollock was ready to admit, and did admit, that it was a nuisance but for the act of parliament; and he would take a speIcial verdict to that effect.
Mr. Williams saw no objection to that course unless a question was to be raised as to the excess of the nuisance, in which case he must be at liberty to bring forward evidence to that point. Mr. PollockThen my learned friend must go on with his
Other evidence was then given as to the frequent accidents occasioned by the locomotive engines; and