for the chase and chained when not in pursuit of game; that when shot he, followed by his master, and by S, who had joined in the chase in accordance with a previous understanding between the two, was in pursuit of a fox which he had just driven to cover and about which he was playing, out of sight and hearing of his master but near S. Held, that the dog when shot was not "running at large." Wright v. Clark, 50 Vt. 130; s. c., 6 Repr. 409; 28 Am. Rep. 496. The court, after citing the above case, say: "This is so recent and so full a definition of these words that nothing further need be added. The dog is the most tractable of animals, and yields most readily to restraint other than physical. The voice and look of his master are often more potent to restrain him than cord or chain. He is often trained so that at his master's command he will remain by and guard his property for a whole day in the absence of his master, or go out of sight and miles away and gather in his flocks and herds. Different species have special instincts which render them particularly susceptible to training and restraint in - certain directions. The trained hound, when pursuing the fox or deer with and at his master's bidding, is no more 'strolling without restraint' or 'wandering, roving or rambling at will' than a boy while going on an errand at his master's command. Either, when out of sight and hearing of the master, have it in their power to 'stroll without restraint' or 'rove at will;' but neither do, so long as they continuously and rigorously pursue the thing commanded. Hence the fact that the dog when shot was out of sight and hearing of his master is not determinative of whether he was running at large.' If the plaintiff's testimony gained credit, when shot, the dog was in hot pursuit of the fox in obedience to the command of the plaintiff, with all his instincts urging him thereto as each bound brought nearer and nearer the coveted prize. We do not think such a dog thus run ning is, within the meaning of the statute, running at large." Jennings v. Wayne, 63 Me. 468 (vol. 1, supra, 891). And see In the case of stock killed upon a railroad track, it was said in Hinman v. Chic. R. I. & Pac. R. Co., 28 Iowa 494: "In our opinion, the words 'running at large,' as used in the section above named, import that the stock are not under the control of the owner; that they are not confined by enclosures to a certain field or place, nor under the immediate care of a shepherd or herdsman; that they are left to roam wherever they may go. Now, if they are left in an enclosure which is insufficient to restrain them, they are evidently 'running at large,' for they are not under the control of the owner. If placed in such an enclosure and they escape from it and go upon the track of an unfenced railroad they will be considered as 'running at large.' And see, to the same effect, Hammond v. The C. & N. W. R. Co., 43 Iowa 168. his Where a penalty was imposed on suffering rams to run at large, the court said, in Goener v. Woll, 26 Minn. 157: "We think that the statute uses the words 'at large' in the sense of 'without restraint or confinement,' in accordance with the definition given in Webster's Dictionary. The principal object of the statute we take to be the protection of the owners of ewes, both as respects the breed of lambs and the time of yeaning. Now, whether a ram is allowed to go at large-that is, without restraint or confinement-upon owner's land, or upon other lands, the risk to owners of ewes in the neighborhood still exists; and the only way to put an end to it is to so confine or restrain him that he cannot roam where he pleases. This may be done by keeping him in an enclosure, by tying him, by watching him, and perhaps in other ways. It seems to us, therefore, that there can be no doubt that the words 'at large' are used in the sense before indicated. It follows that if a ram is suffered to go about without restraint or confinement, even though it be upon land belonging to his owner, or of which such owner has a rightful use, he runs at large within the meaning of the statute." Cattle driven along a road in charge of a herder, which, in passing, casually eat of the grass growing on the roadside are not "estray" or "running at large," nor are they rendered so by the fact that the herder accidentally falls asleep while attending to them. Thompson v. Corpstein, 52 Cal. 653. And see Bertwhistle v. Goodrich, 53 Mich. 457, where it was held that cattle in anybody's charge are not "running at large." If the marshal of a town seizes sheep as "running at large" within its limits, and on trial of an action to replevy them, testifies that there was a boy with the sheep but he did not know what he was doing, while several persons testify that the boy was herding the sheep and had them under his control, there is not such a conflict in the evidence as will justify a court in finding that the sheep were "running at large." Spect v. Arnold, 52 Cal. 455. 10 Metc. Compare Com. v. Dow, A sucking colt, following its mother, which was in the plaintiff's control, strayed and was injured by defendant's train. Held, that the colt under such circumstances must be deemed to have been "running at large." "The fact that the colt was a sucking colt and its mother was in the control of the plaintiff did not, we think, hold that the colt was in such control. It might perhaps under ordinary circumstances be expected to follow its mother, but there was nothing but its own inclination to restrict its freedom and prevent it from straying, and we think that it must be deemed to have been running at large." Smith. The K. C. St. J. & C. B. R. Co., 58 Iowa 622. A steer with eighty cattle was being herded by a boy, who left them for an indefinite period and went home. Another boy returned and drove the cattle hurriedly across a railway track, without noticing the steer, which had separated from the rest and been left behind, and subsequently was killed while crossing the track." Held, that the steer was "running at large." Vallean v. Chicago, M. & St. P. R. Co., 36 N. W. Rep. 760 (Iowa). A team of horses attached to a sleigh and wandering on the prairie at night, driven by a man in a drunken stupor, are not "live stock running at large." Grove v. Burlington etc. Co., 39 N. W. Rep. 248 (Iowa). A dog following its owner is not “running at large." Spence v. City of St. Catharines, 23 Can. L. J. 167, where it is said: "Several cases can be found under the act against horses or cattle being at large upon any highway within half a mile of any railway unless in charge of some person to prevent their loitering or stopping at the intersection (20 Vict., ch. 12, 16). See Cooley v. G. T. R. Co., 18 U. C. R. 95; Markham v. G. W. R. Co., 25 U. C. R. 572. In these great stress was laid on the necessity of the animals being in charge of some person, and upon the object of public safety contemplated by the legislature. In the case of Hillyard v. G. T. R. Co., 8 Ont. R. 583, it was held that a colt which was injured by a wire fence of defendants could not be said to be running at large, as it was following its dam, which was being led by a man with a halter In Welsh v. The C. B. & Q. R. Co., along the road, as that is the customary 53 Iowa 632, it is said: "The evidence way and the universal custom ought to shows that when the horse was injured give the rule. I have found some cases he had on a bridle with the rein over in the American reports, but they do his head, and a halter rope, which was not appear to be uniform. The untied and dragging. It is urged that council have chosen to use the word the animal was not running at large 'roam' in their by-law, and this word within the meaning of the statute. The may narrow, although it cannot extend, court instructed the jury as follows: the meaning of the word in the act, The words "running at large," as used which is run at large.' I do not, how- in the statute, import that the stock are ever, see that there is any appreciable not under the control of the owners; difference in the two words. I think that that they are not confined by enboth mean 'wandering about at will,' to closure to a certain field or place. adopt the expression made use of by nor under the immediate care of CHIEF JUSTICE ROBINSON in the a shepherd or herdsman; that they are passage I have already quoted, and I left to roam wherever they may go. cannot think that a dog following its But where an animal escapes from the owner or other person having charge of control of the owner, and cannot be it can be said to be wandering about at caught by the owner, then such animal will or to be roaming or running at would be running at large within the large; its general course is governed meaning of the statute.' This instrucby its master, although it does run tion is correct; and we think the jury backward and forward while accom- was fully warranted in finding that the panying him, and it is controlled by his animal was running at large, notwithwill." And see McAneany v. Jewett, 10 standing he had on the bridle and halter Allen (Mass.) 151 (vol. 1, supra,S91-2). strap. It does not appear that he was (See ANIMALS). For other uses of the word see note I. within the personal or physical control of anyone." Whereas, in Coles v. Burns, 21 Hun (N. Y.), the court said: "The phrase running at large' implies permission or assent, or, at least, some fault on the part of the owner. When animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them, they cannot be said to be running at large. Statutes must have a sensible construction, with reference to the evil to be remedied by them. For example, animal may be running at large, although, when seized, they were walking or lying down. A horse that has thrown its rider in the highway and escaped, a cow turned out of a pasture at evening and going home, droves of sheep, hogs or other cattle being driven to market, though for a moment unattended by the drover, can hardly be said to be running at large, within the meaning of the statute. Nor, in our judgment, were the plaintiff's horses running at large when the trespass complained of was committed. The defendant's horses escaped from his premises without his knowledge, and, as far as it appears, without any fault or negligence on his part. Immediately after their escape he sent a servant in pursuit of them, when they were found, within a very short time, upon the defendant s premises. The escape was a mere accident. Such a case cannot reasonably be brought within the statute cited." So in Rutter 7. Henry (O. Sup. Ct.) 21 Wy. L. Bull. 129, it was held that where, without the fault of the owner, a horse passes from such owner's enclosure over or through a line fence into the enclosure of an adjoining proprietor, and thence through a gap in the fence into the enclosure of another and adjacent proprietor, he is not “running at large" contrary to the provisions of a statute. It was also held in this case that an allegation that such animal was "unlawfully running at large, "with no further statement of the facts, was not a sufficient averment that he was running at large in violation of the provisions of the statute. An act passed to prevent swine "running at large" was held to apply only where they were voluntarily suffered to go at large, not where they escaped from the owner without his default. Com. v. 14 Hogs, 10 S. & R. (Pa.) 393. Under an ordinance directing an officer to take up cattle "running at large in the public streets," he may pursue them to private property used as al. open common (not belonging to the owner of the cattle) and there take them up, or finding them "loose and at large" upon such open common, immediately after having been on the public streets, he may seize and impound them. "The moment they were, in fact, running at large in the city in any of the public places named there was a breach of the ordinance, and the right of seizure and impounding became perfect. To hold that such right, having once attached, entirely ceased or became suspended whenever such cattle temporarily passed from such public places and became trespassers upon private property, would tend to defeat the very object of the ordinance." O'Mally v. McGinn, 53 Wis. 353, 359. A city ordinance requiring the marshal to "take up any cow or cattle running at large" includes also the idea of confining them, and anyone releasing them without authority is guilty of a violation of the ordinance. Jaquith v. Royee, 42 Iowa 406. 1. Erecting a toll-board with the rates of toll in the small Roman characters but of a large size, held a compliance with a statute requiring them to be in "larger or capital letters." Nichols v. Bertram, 3 Pick. (Mass.) 342. A false and fraudulent affirmation by a vendor of lands that they had "large deposits of oil in them, and were of great value for the purpose of digging, boring for and manufacturing oil," accompanied with the statement that they had not been tested, were held matters of opinion and not actionable. Holbrook v. Connor, 60 Me. 578. Where the plaintiff sold land representing that it contained a “large and valuable" mineral deposit, held, that in the absence of a showing that there was no mineral in the land, as represented, a mere exaggeration as to the amount of the deposit would not constitute such a fraud upon the purchaser as to avoid a note given for the purchase money. Dawson v. Graham, 48 Iowa 378. "By the 'corporation at large' [as the depository of certain powers] is meant the different ranks and orders which LARGER-LARGEST.-See note I. LASCIVIOUS (See LEWD; OPEN).-"Lascivious carriage and behavior" means all those wanton acts between persons of different sexes flowing from the exercise of lustful passions which are grossly indecent and unchaste, and which are not otherwise punished as crimes against chastity and public decency.2 LAST. Coming after all others in order of succession. Closing; final; ultimate. For examples of its use see the notes.3 compose it, including the definite and indefinite bodies. But our corporations in this State have no ranks, orders or integral parts corresponding strictly to the constitution of the old English corporations." Richards 7. Town of Clarksburg, 4 S. E. Rep. 781 (W. Va.). "Going off large," in nautical language, is when the wind blows from some point abaft the beam, or over the quarter of the ship. The Indiana & Buffalo, Newb. (U. S.) 121. "Going off large' is having the wind free on either tack, properly termed a vessel off large,' because it is in her power to take a course to either side - starboard or larboard proceed straight forward on her course, or return back to her anchorage, or to the point from which she started. In other language, she is free to the wind." The Pacific and the Brig Fashion, 1 Newb. (U. S.) 26-7. Repairable by “inhabitants at large" is used in contradistinction to "repairable by individuals ratione tenurae" in a statute regulating the affairs of highways. Gibson v. Mayor of Preston, L. R., 5 Q. B 218. 1. "The larger portion of twelve months," as the statutory period of residence of a taxpayer, held to mean more than half of them in duration of time. Ailman v. Griswold, 12 R. I. 339. A covenant to sell a vessel "forthwith as soon as may be" for "the largest sum that we can reasonably obtain" was held to allow a reasonable latitude as to the time and manner of making the sale; and if the vessel was lost, that put an end to the power and to the obligation to sell. Adams v. Foster, 5 Cush. (Mass.) 156. 2. Fowler v. State, 5 Day (Conn.) 84. "It is, however, contended that this crime cannot be committed unless by the assent and concurrence of two, at least. This offence may undoubtedly be committed by or in the presence of an assemblage of persons of different sexes; but there is nothing in the nature of the crime requiring the assent or concurrence of those who are present, nor to prevent the commission of it by one person only exhibiting his lascivious carriage to another unconsenting person of a different sex. Indeed, the criminality of the offence is enhanced by the opposition; for it must be considered as one principal object of the law to protect and strengthen such resistance by preventing the exhibition of impure mo tives calculated to excite passions and thereby overpower the will." 3. Last Place of Abode.—Upon a writ of error assigned that, at the time of the suing out and the service of the original writ, the defendant had and still has a "last and usual place of abode "in this State, and that no sufficient service of the writ was ever made upon him, nor had he ever appeared in the action, it appeared that the sheriff made return to the writ as follows: "And the within named defendant not having any residence, last and usual place of abode, or agent or attorney within my precinct. I have been unable to summon him." An order was then passed in the usual form to notify defendants out of the commonwealth, which was duly published in order to notify the said defendant thus described as resident in Philadelphia. Judgment was entered by default, and the writ of error was taken to reverse the judgment. The court held that where the service of a writ on an absent defendant, who has a "last and usual place of abode within the commonwealth, is not made by leaving a summons or copy, as required by the Rev. Stat., ch. 90, § 45, at such place of abode, the defendant may take advantage of the defect of service, either by plea in abatement, or by writ of error. DEWEY, J., saying: "This presents the case in reference to Howard Tilden (the defendant) as though no appearance had been entered in his be half, and opens the enquiry whether a legal service was made upon him. The service is said to be defective in not con forming to the provisions of the Rev. Stat., ch. 90, §§ 45 and 46. By the former of these sections it is provided that if the defendant is out of the State at the time of the service of the summons, the service thereof shall be made by leaving it, if it is a separate summons, at his last and usual place of abode, if there be any within the State." By section 46, If the absent defendant, whose goods or estate are attached, is sued with one or more others on a joint contract, and if he has no such tenant, agent or attorney, within the State, the copy of the summons for him shall be left with one of the codefendants, if there be any within the State.' But the return of the officer, who served the writ, is supposed by the defendant in error to be conclusive on the point, it being stated in such return by the officer as follows: The within named Howard Tilden not having any residence, iast and usual place of abode, or agent, or attorney within my precinct, I have been unable to summon him.' What is the legal effect of this return? As between parties and juries, the return of an officer is to be taken to be true, and is only to be controverted in an action against the officer for a false return. This is so as to all matters which are properly the subject of a return by the officer. We are then brought to the enquiry, how far this fact of the party's having his last and usual place of abode in the State is one to be passed upon by the officer and made the subject of his return? In our view, this return can only properly be understood as a return that no such last and usual place of abode of the party, within the State, was known to the officer. To this extent he may properly certify the fact in his return. Beyond this, we think his return is not conclusive; and it is open to the party to show, under proper pleading and proofs, that he was such resident, having a last and usual place of abode here, and thus abate the writ for want of proper service. This defect may be taken advantage of, either by plea in abatement, or by a writ of error, assigning for the error the fact that the party had a last and usual place of abode within the State, at the time of the service, and that no summons or copy was kept as required, by Rev. Stat., ch. 90, § 45. The case is, therefore, properly before us, and the next enquiry is as to the fact, in reference to the last and usual place of abode of Howard Tilden. He was born in this commonwealth, owned real estate here, and continued to live here until 1841, when he removed to Philadelphia. This brings the case within the provisions of the statute, giving to the words the last and usual place of abode,' if any within the State, the meaning that has been commonly attached to them, as used in this and former statutes directing the mode of serving writs. This objection to the service may be assigned as a cause of error, and for this judgment may be reversed. If this is not a sufficient ground for a reversal, there is also the other objection arising upon section 46, requiring a copy of the summons to be left with the codefendant or Howard Tilden, the absent defendant; the omission of which would seem to be a good cause for sustaining this writ of error." Tilden et al. v. Johnson, 6 Cush. (Mass.) 354. In bastardy proceedings the question as to the meaning of this phrase has arisen in the construction of the statute 7 and 8 Vict., ch. 101, § 3, which is as follows: 'On proof that the summons was duly served on such person at his last place of abode." Thus, where the defendant showed by affidavit that the summons was not served at his last place of abode, the court granted a certiorari to bring the order up to quash it as being made without jurisdiction. COLERIDGE, J., saying: "The rule was moved for on an affidavit, negativing personal service of the summons, and stating that it was served at a house where the defendant formerly lodged, but did not lodge at the time of the service, and that it never reached him until after the day on which the order was made. The answer is, only that it was served at a house at which the deponent believed the defendant to reside, inasmuch as he was told so by the mistress of the house, who said his clothes were still there, but that he had not been there the day previous. Considering that the defendant's affidavit might have been answered if untrue, I must take the fact to be as he states it. Now, by Stat. 7 and 8 Vict., ch. 101, §3, jurisdiction attaches only under such circumstances as the present, on proof that the summons was left at the last place of abode;' by the word 'last' is meant the then present place of abode, if the party have any, the last which he had, if he has ceased to have any. The service, therefore, I think, was not at the right place." The Queen v. Evans, 19 L. J., M. C. 151. |