The Gazette 1967/71

was neither negligent nor otherwise liable. Lord McDermott D. J. applying Searle v. Wallbank (1947) A.G. 341. said that it was well settled that the owner of land abutting on the highway is not under any duty to maintain his fences or take other steps to keep cattle, such as the de fendant's, which were without any dangerous propensity, from straying onto the highway. Ac cordingly there was no liability in negligence. The second question to arise was whether the plain tiff is entitled to recover in nuisance. The definition of nuisance approved in Jacobs v. London Go. Go. (1950) A.G.361 is "any wrong ful act or omission upon or near a highway, whereby the public are prevented from freely, safely, and conveniently passing along the high way". In this case as there was no negligence and there was therefore no wrongful act or omis sion on which to found an action in nuisance. In the circumstances of this case it is almost impossible to imagine a defendant liable in nuisance who is not also liable in negligence. It was argued by Gounsel that the fact that not one or two but 16 cat:lc broke out onto the high way, was a material factor. This poses the question whether an owner of a mass of cattle which had escaped from his lands onto the highway is subject to a stricter rule of liability than where but a few animals are involved : that is that the owner of cattle was under a duty to take reasonable care to prevent a mass escape from his land onto the highway because by its very nature such an escape would necessarily or in all probability cause an obstruction of the highway. The plaintiff's relied on Gunningham v. Whelan 52. I.L.T.R. 67. In that case the farmer was held liable for 24 cattle had strayed onto the road and in his judgment the judge distinguished the case where the cyclist was injured by one stray cow. The ratio of the judgment was that while an owner is not bound to prevent his cattle or other domestic animals from straying on the highway he is bound to use such care or caution that they will not stray in such numbers as to render the highway positively unsafe or dan gerous but Gunningham and Whe!an is a decision based on negligence and the evidence of negli gence is rather scanty on the face of the report. In the present case the judge was unable to find negligence and therefore Cunningham and Whelan does not apply. There are certa; n statutory offences dealing with stray animals in particular under the Sum mary Jurisdiction (Ireland) Act, 1851. Section 10 (11) and Towns Improvement (Ireland) Act, 31

taken proceedings against an English and West German company alleging passing off in con nection with the name "Zeiss" and further claim ing that the West German company was the property of the plaintiffs as were all its assets. The defendants in the present action had acted as solicitors for the West German company and the plaintiffs now claim that the defendants were liable to account to the plaintiffs for all monies which the defendants either had received or would receive in the future from the West German com pany as fees, costs and disbursments. The point was tried as a preliminary issue under the Rules of the Superior Gourts. Lord Denning M.R. said that the defendants solicitors could not safely conduct litigation with the threat hanging over their heads that they might be accountable for whatever money they received for fees. While in the case of Yeoman Gredit Ltd. v. Latter (1961) 1. W.L.R. Hannan L. J. had said that a preliminary point of law should only be ordered when whichever way it was decided was conclusive of the whole matter. That was imposing too much limitation and it was sufficient to say that where there was a point of law which, if decided in one way would be decisive of litigation, it should be taken as a preliminary point. Accordingly the case was a proper one for the trial of a preliminary issue. In deciding the issue it was held that irrespective of the decision in the main action the defendants would not be accountable to the plaintiffs in respect of any fees costs or disbursements received by them from or on behalf of the defendants in that action so long as the defen dants received such monies in their capacity of solicitors. (Garl Zeiss Stiftung v. Herbert Smith & Go., Dehn & Lauderdale. 112, S.J. 441). Liability for Animals The plaintiff while driving after dark encoun tered cattle on the road, these being the property of the defendant, a farmer whose lands lay on either side of the road at this point. There were 16 cattle in all. A car with its headlights on was coming in the opposite direction to the plaintiff and the plaintiff stopped on his own side of the road and switched his headlights off leaving his sidelights on. The oncoming car frightened the animals and while some of them passed him one jumped on top of the car and broke the plaintiff's windscreen. The plaintiff received a decree in the Gounty Gourt for the amount claimed. The defendant appealed on the ground that he