Whether or not the escape of the animal is due to my negligence is altogether immaterial. I am clearly liable for the trespass, and for all the ordinary consequences of the trespass, subject to a distinction which is taken very early in the books, that the animal is such that the owner of it may have a property in it which is recognizable by law." Then the judgment of Willes, J., is to the like effect. "The important circumstance in this case is that the act was not in accordance with the ordinary instinct of the animal, which was not shown to be of a mischievous disposition. Does, then, the fact of the horse being on the highway make any difference? No doubt, if the horse was trespassing there, the owner of the highway might have an action against the owner of the horse. So, possibly, the owner of the horse might be liable to an indictment for obstructing the highway, or to a fine. But that is not the cause of the mischief here. It comes round, therefore, to the question, whether the owner is liable for an act of this sort done by an animal not of a naturally vicious character, and which is not found to have been accustomed to commit such mischief." In this connection the well-known judgment of Blackburn, J., in the case of Fletcher v. Rylands (1866) L. R. 1 Exch. 265, 14 L. T. N. S. 523, may be referred to. He there said: "The law as to 'cattle' seems to be perfectly settled from early times; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their escape; that is, with regard to tame beasts, for the grass they eat and trample upon, though not for any injury to the person of others, for our ancestors have settled that it is not the general nature of horses to kick or bulls to gore; but if the owner knows that the beast has a vicious propensity to attack man, he will be answerable for that too." The learned judge had Cox v. Burbidge, supra, and other similar cases before him, and I take it had said to himself: "This is not the case of injury done by a vicious horse with proof of scienter on its owner's part. It is the case of a domestic animal which is in fact not vicious. It is not the case of trespass on the adjoining owner's property and injuries done by the trespass through defects in the defendant's fence. It is not a case of an attack upon the person of the plaintiff by some ferocious animal; it is simply

what is called an action for damages for negligence where the injury resulted from some breach of duty towards the plaintiff on the part of the defendant." "Having had those cases brought to my attention," the learned County Court judge goes on to say, "I do not think that the circumstances of this case connect the injury done with the negligence which I have found in turning a young horse, though a quiet animal, into a field the hedges of which were defective." If that is so, his judgment was rightly entered for the defendant, and it becomes unnecessary to consider what qualifications ought to have been added to his proposition to make it right in law to say that there was negligence in the sense of a breach of duty towards the plaintiff in putting the young horse, though a quiet animal, into a field the hedges of which were defective.

The result is that the plaintiffs' appeal fails because, without discussing at large authorities which I think are well settled and well known, it is plain that they never obtained from the County Court judge an integral part of the finding of fact which constituted a proper cause of action. The appeal will therefore be dismissed, with costs.

This case is no doubt one of owners and occupiers of land

[126] Bankes, J.: I agree. very considerable importance to adjoining a highway. I think that the law really with regard to such persons and their liability for straying animals upon the highway is very well settled, and I think that the learned judge quite correctly appreciated what the law was, and correctly applied it. The law undoubtedly is different with regard to a straying animal which is known by its owner to be a dangerous animal, and the law applicable to an animal which is a quiet, inoffensive, domestic animal, or, at any rate, an animal not known by its owner to be dangerous. I do not propose to say anything with regard to the liability of an owner of a dangerous animal which is found straying on the highway and causes damage to a passerby, because that question does not arise in this case. The question in this case has reference only to an ordinary domestic animal, which the County Court judge had found to have been a quiet animal, and, at any rate, not known to be dangerous.

The plaintiffs were ordinary passers-by on the highway, and if they meet with an accident on the highway from collision with a straying animal, in order to succeed against the owner of that animal, assuming it to be a quiet, inoffensive animal, and not known to its owner to be dangerous, they have got to establish that the injury of which they complain was the result of some breach of duty towards them on the part of the owner of that animal.

First of all, What is the duty of an owner or occupier of land adjoining a highway with regard to keeping animals off the highway, or fencing his land so as to prevent animals getting on to the highway? By common law there is no such duty at all, and we have not to-day heard any argument as to whether any duty can be created under the highway act. I am not going to consider that for the purpose of my judgment. Suffice it to say by common law the owner or occupier of land adjoining a highway is under no duty to fence so as to keep his animals off the highways. The plaintiffs, therefore, in this case seem to me to fail in establishing the first point which is necessary to establish; namely, any duty as between the owner of this animal and themselves. The County Court judge in my opinion was wrong in saying that he thought the defendant was guilty of negligence in law in turning the young horse, although a quiet animal, into a field the hedges of which were defective. But be that as it may, in order to succeed in this case the plaintiffs would certainly have to show, even assuming that the owner of this horse had been guilty of negligence in allowing it to get on to the highway, that the horse was one which, to its owner's knowledge, was of a disposition likely to cause the particular damage complained of. The County Court judge has, according to my reading of his judgment, found that fact against the plaintiffs, and, therefore, whether he was right or wrong in his first finding, in my opinion, it was necessary for the plaintiffs to establish the second proposition to which I have referred. Not only did they fail to establish it, but the County Court judge upon the evidence found against them on it.

On those grounds I think the learned County Court judge was quite right, and in this particular case the plaintiffs have entirely failed to show that there was any duty on the owner of this

animal as between himself and the plaintiffs, and that the plaintiffs therefore wholly failed in establishing the case which they sought to establish against the defendant.

Appeal dismissed.

Solicitors for the plaintiffs: Norris, Allens, and Chapman, for T. H. Smith, Audlem.

Solicitors for the defendant: J. M. Voss, for A. E. Whittingham, Nantwich.

Note. For annotation of the question involved in JONES V. LEE, see note to HADWELL V. RIGHTON, ante, 115.

[ENGLISH DIVISIONAL COURT.]

IN RE GIBBS.

MARTIN v. HARDING.

[1907] 1 Ch. 465.

Also Reported in 76 L. J. Ch. N. S. 238, 96 L. T. N. S. 423.

"Residuary legatee" - Real

Will-Construction estate-Specifio disposition of entirety at date of will — Subsequent acquisition of further real estate Intestacy - Extrinsic evidence.

Testatrix, by her will dated in 1891, after giving a pecuniary legacy "free of income tax," and specifically disposing of certain real estate "free of legacy duty," "bequeathed" a freehold cottage to E. J. H. She then directed that all her household furniture and other chattels should be sold, reserving the right to E. J. H. to retain any special articles she might wish for, "all else to be sold." Then, after disposing of her jewelry, she concluded, "I leave the aforesaid E. J. H. my residuary legatee." All the real estate which she possessed at the date of her will was thereby specifically disposed of. She died in 1903, having in the meantime purchased other real estate:

Held, that in considering whether the naming of a "residuary legatee" constituted a residuary devise, the fact that at the date of the will the testatrix possessed no real estate other than that specifically and completely disposed of must be borne in mind; but that there was not sufficient context in this will to modify the prima facie meaning of the term "residuary legatee;" and, consequently, that the subsequently

acquired real estate did not pass to E. J. H., but was undisposed of by the will.

(February 21, 1907.)

THE testatrix, H. L. Gibbs, by her will dated March 25, 1891, gave and bequeathed to her niece Ann James and to her niece. Mary Elizabeth James 300l. "free of income tax" to be equally divided between them. She further gave to them certain cottages in Stratford-on-Avon "with power to sell or otherwise as they may agree also free of legacy duty." Then, after making various specific bequests of furniture and giving certain pecuniary legacies, she continued: "And to my dear friend Emily Jane Harding, of Elm street, Stratford-on-Avon, I bequeath my freehold property known as the Cottage Old Town Stratford-onAvon, with stabling, coachhouse, garden, etc., in short, all appertaining to the same. At this date, March 25, 1891, there is 4007. remaining on mortgage of property in Wood street, belonging to and in the occupation of [466] Mr. William Shakespeare (Stratford-on-Avon), this I direct to be called in. Also a mortgage of 3001. granted to the late William Barnes-Eaves by the late James Ward. This I have received notice of repayment on or before the 27th of April next 1891, out of the above sums I direct that the mortgage of 5001. due to Mr. John James Nason on my property the Cottage Old Town Stratford-on-Avon be paid off and the deeds handed over to the aforesaid Emily Jane Harding. Further, I desire that all my household furniture, ornaments, glass, china, pictures, and other chattels (reserving the right to the aforesaid Emily Jane Harding to retain any special articles she may wish for) may be sold either privately or by auction, curiosities also. My dear father's portrait I wish given to Ann James aforesaid and the plate marked AAB. The salt cellars so marked I give to Emily Jane Harding. All else to be sold." Then, after disposing of certain articles of jewelry, she continued: "I leave the aforesaid Emily Jane Harding my residuary legatee and executrix, and I appoint Charles E. Martin as executor with Emily Jane Harding. All moneys belonging to me at the time of my decease I desire to be paid in to my executrix and executor, and all my just debts discharged."