173 / 736
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
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