Judgment. grand jury, the Attorney-General no doubt will give the Robertson, J. necessary direction therefor, or in case the party prosecuting, does not see fit to apply to him, the direction or consent of a Court or Judge having jurisdiction to give such direction, or to try the offence, can be applied to.

I am clearly of opinion that the Justice has no jurisdiction in this matter; he cannot compel the corporations, or either of them, to appear before him; should he summon them, they need not obey; should they not obey, he cannot issue a warrant to bring them, or either of them before him: although they and each of them are a corporate body, yet their "body" cannot be taken into custody, and the justice has no power to proceed ex parte. The accused must be before the Court when the testimony is given, and the procedure points out what is to be done when the accused does appear, &c. Nor can he, the justice, commit, or detain in custody, nor can he bind over to appear and answer to an indictment; that being so, he has no jurisdiction to bind over the prosecutor, or person who intends to present the indictment, &c.

Then as to the writ of prohibition; I think there is no doubt it can issue to a justice of the peace, to prohibit him from exercising a jurisdiction which he has not. In The Queen v. Herford, 3 El. & El. at p. 136, Cockburn, C. J., says: "I wish to add that we entertain no doubt but that a prohibition may issue to a Court exercising criminal jurisdiction as well as to a civil Court." The question here is: has the justice this particular jurisdiction? For the reasons given by me, I think he has not, and therefore the writs must go to prohibit him from further proceeding in the matters of these complaints. I do not think there should be any order as to costs.

G. A. B.

[CHANCERY DIVISION.]

SHAW ET AL. v. MCCREARY ET AL.

Husband and wife-Animals-Liability of wife of owner of animal feræ naturæ for escape from her separate property-Negligence.

A bear belonging to one of the defendants escaped from premises, the separate property of his wife, the other defendant, where it had been confined by him without objection from her, and attacked and injured the plaintiff on a public street :

Held, that the wife having under R. S. O. ch. 132, secs. 3 and 14, all the rights of a feme sole in respect of her separate property, might have had the bear removed therefrom, and not having done so she was liable to the plaintiff for the injury complained of.

The principle of Fletcher v. Rylands, L. R. 1 Ex. 282, L. R. 3 H. L. 330, ap ied.

THIS was an action brought by John Shaw, an infant, Statement. by Matthew Shaw, his father, as his next friend, and the said Matthew Shaw against John McCreary and Mary McCreary for damages caused by a bear owned by John McCreary and kept on the premises of Mary McCreary, getting out on the public street and attacking and injuring the plaintiff John Shaw.

The action was tried at the Toronto Winter Assizes on January 16th, 1889, before Sir Thomas Galt, C. J. C. P., and a jury.

R. L. Fraser, for the plaintiffs.

Mulock, Q. C., for defendant Mary McCreary.

W. N. Miller, Q. C., for defendant John McCreary.

The evidence shewed that the defendants were husband and wife, and that the husband had brought the bear to the premises where she and her husband resided, they being owned by the wife as her separate estate; that the bear being so kept there, without objection on the part of the wife, had escaped to the street and had attacked and thrown down and severely bitten the plaintiff John Shaw. The learned Chief Justice charged the jury after reviewing the facts, as follows: "Under the circumstances I think the

Statement. defendant McCreary is responsible. The action is brought against him and his wife on the ground that the wife owned the property, and Mr. Fraser pressed me very strongly with the argument that the owner of the property is responsible for anything that takes place on that property, at least for allowing a ferocious animal to be on it. That may be so in ordinary cases, but in my opinion, considering that the owner of the property in this case and John McCreary were husband and wife, I do not think the wife is obliged to disobey the positive injunctions or wishes of her husband. That leaves it, in my opinion, that the responsibility rests on him. I do not submit any question to you except with regard to the damages because the plaintiff is entitled to recover.

The Chief Justice dismissed the action as against the wife.

The jury brought in a verdict in favour of Matthew Shaw for $200, and in favour of John Shaw for $200 against the defendant John McCreary.

The Chief Justice made the following endorsement on the record.

"I dismiss the action against Mrs. McCreary with costs, such costs to be confined to the counsel fee at the trial. The jury assess the damages of Matthew Shaw at the sum of two hundred dollars, and the jury assess the damages of John Shaw at the sum of two hundred dollars."

From this judgment the plaintiffs appealed to the Divisional Court on the ground that they were entitled to recover against the wife Mary McCreary, as well as the husband, and the appeal was argued on February 25th, 1890, before BOYD, C., and FERGUSON, J.

R. L. Fraser for the appeal. The learned trial Judge, was wrong in holding that the wife was not liable for the damage done by the bear, she having allowed it to be kept on her premises, from which it escaped. Her husband could not compel her to permit its being kept there. She

had the right to have it sent away and should have exercised that right. On the contrary, the evidence shews it was kept there with her concurrence and that she fed it there. She could have compelled the husband by injunction to remove the bear, and if she could, and did not, then she must be held responsible for any damage which may result from her neglect. The fact of their living together can make no difference; it does not affect her proprietory rights or liabilities: R. S. O. ch. 132, s. 14. The wife's right of volition cannot be controlled by her husband to the extent of compelling her to keep animals feræ naturæ on her property. I refer to Weldon v. De Bathe, 14 Q. B. D. 339; Symonds v. Hallett, 24 Ch. D. 346; Wood v. Wood, 19 W. R. 1049; Allen v. Walker, L. R. 5 Ex. 187; Donnelly v. Donnelly, 9 O. R. 673; Till v. Till, 15 O. R. 133; Everslie on Domestic Relations, 403.

W. N. Miller, Q.C., for Mary McCreary, contra. The evidence shews that the wife did not object to the presence of the bear, as the husband was a man of strong will accustomed to have his own way. The wife is not liable, because she did not own the bear or have charge of or any control over it. No case goes so far as to shew that a husband has not the right to live with his wife in her house, and so doing he has dominion over her: Schouler on Husband and Wife, § 135; Schouler on Domestic Relations, § 75. The wife has committed no tort and anything she did do, which was merely permissive, was done under her husband's dominion and control. As to the keeping of the animal I refer to Smith on Negligence, Bl. ed. 90; Pollock on Torts, Bl. ed. 316; Rylands v. Fletcher, L. R. 3 H. L. 330.

Fraser in reply.

March 8th, 1890. BOYD, C.:

This case should not have been withdrawn from the jury as to the liability of the defendant Mary McCreary to answer for the injury sustained by the plaintiff. The 6-VOL. XIX. O.R.

Argument.

Judgment. learned Chief Justice ruled that as the husband put the Boyd, C. bear upon the wife's property whence it broke loose and did the injury she was not responsible, because it was her duty to yield to the wishes of her husband.

Apart from the relationship of husband and wife both defendants would be liable, the one as owner and the other as keeper or custodian of the wild animal. In one of the most recent cases I have seen, Huddleston, B., sums up the law substantially thus: If persons choose to keep wild and savage animals (such as a bear, a tiger or a lion,) they do so at their own risk and peril, and if any such animal cause injury to anybody they would be liable for the injuries, and this without notice beyond what the law imports of their savage disposition: Wyatt v. The Rosherville Gardens Co. 2 Times L. R. 282 (February, 1886).

And in a case very much like this where a bear was in question with an alleged reputation for docility and playfulness, Crowder, J., in Besozzi v. Harris, 1 F. & F. 92, (1858), ruled that a person keeping an animal of a fierce nature is bound so to keep it that it shall not commit injury. It does not matter, he said, that the bear appears to be tame and docile, for every one must know that such animals are of a savage nature, and though that nature may sleep for a time it may wake up at any time. An interesting case discussing the liability of owner and keeper is to be found in Cowan v. Dalziel, 5 Ct. of Sess. 4th, Series 241.

The responsibility of keepers (who are not owners) is laid down in a case to which constant reference is made as authority on this head of law of M'Kone v. Wood, 5 C. & P. 1. It is there said that harbouring the animal about one's premises or allowing him to be or resort there is a sufficient keeping to support this form of action.

Apart from any legislation a married woman may be liable for torts committed by her unless she has been acting under the coercion of her husband, and the evidence falls far short of shewing any such state of facts here as to the husband Vine v. Saunders, 4 Bing. N. C. 96; Hyde v. S, 12 Mod. 246; Handy v. Foley, 121 Mass. 259.

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