that the injury might have been entirely occasioned by the carelessness and want of caution of the plaintiff herself. A great many cases and precedents were cited upon the argument; and the conclusion to be drawn from them appears to us to be, that the declaration is good upon the face of it; and that whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities. The precedents, both ancient and modern, with scarcely an exception, merely state the ferocity of the animal and the knowledge of the defendant, without any allegation of negligence or want of care. A great many were referred to upon the argument, commencing with the Register and ending with Thomas v. Morgan, 2 Cro., M. & R. 496, s. c. 5 Tyr. 1085, and all in the same form, or nearly so. In the Register, 110, 111, two precedents of writs are given, one for keeping a dog accustomed to bite sheep, and the other for keeping a boar accustomed to attack and wound other animals. The cause of action, as stated in both these precedents, is the propensity of the animals, the knowledge of the defendant, and the injury to the plaintiff; but there is no allegation of negligence or want of care. In the case of Mason v. Keeling, 12 Mod. 332, s. c. 1 Ld. Raym. 606, much relied upon on the part of the defendant, want of due care was alleged, but the scienter was omitted; and the question was, not whether the declaration would be good without the allegation of want of care, but whether it was good without the allegation of knowledge, which it was held that it was not. No case was cited. in which it had been decided that a declaration stating the ferocity of the animal and the knowledge of the defendant was bad for not averring negligence also; but various dicta in the books were cited to show that this is an action founded on negligence, and therefore not maintainable unless some negligence or want of care is alleged. In Comyns's Digest, tit. Action upon the Case for Negligence (A 5), it is said that "an action upon the case lies for a neglect . in not taking care of his cattle, dog," &c.; and passages were cited from the older authorities, and also from some cases at nisi prius, in which expressions were used showing that, if persons suffered animals to go at large, knowing them to be disposed to do mischief, they were liable in case any mischief actually was done; and it was attempted to be inferred from this that the liability only attached in case they were suffered to go at large or to be otherwise ill secured. But the conclusion to be drawn from an examination of all the authorities appears to us to be this that a person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril, and that, if it does mischief, negligence is presumed without express averment. The precedents, as well as the authorities, fully warrant this conclusion. The negligence is in keeping such an animal after notice. The case of Smith v. Pelah, 2 Stra. 1264, and a passage in 1 Hale's Pleas of the Crown, 430,1 put the liability on the true ground. It may be that, if the injury was solely occasioned by the wilfulness of the plaintiff after warning, that may be a ground of defence by plea in confession and avoidance; but it is unnecessary to give any opinion as to this; for we think that the declaration is good upon the face of it, and shows a prima facie liability in the defendant. It was said indeed, further, on the part of the defendant, that, the monkey being an animal feræ naturæ, he would not be answerable for injuries committed by it, if it escaped and went at large without any default on the part of the defendant, during 1 After stating that "if a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner knew not his quality, he is not punishable,” &c., Hale adds (citing authorities) that "these things seem to be agreeable to law." "1. If the owner have notice of the quality of his beast and it doth anybody hurt, he is chargeable with an action for it. "2. Though he have no particular notice that he did any such thing before, yet if it be a beast that is feræ naturæ, as a lion, a bear, a wolf, yes, an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage, and so I know it adjudged in Andrew Baker's case, whose child was bit by a monkey that broke his chain and got loose. "3. And therefore in case of such a wild beast, or in case of a bull or cow that doth damage, where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if be escape and do harm, the owner is liable to answer damage." 1 Hale's P. C. 430, part 1, c. 33. the time it had so escaped and was at large, because at that time it would not be in his keeping nor under his control; but we cannot allow any weight to this objection; for, in the first place, there is no statement in the declaration that the monkey had escaped, and it is expressly averred that the injury occurred while the defendant kept it. We are besides of opinion, as already stated, that the defendant, if he would keep it, was bound to keep it secure at all events. The rule therefore will be discharged. Injuries by Animals. (a.) Foreign Law. It will be seen by the historical references in the principal case that this division of the law, like that treated of in the preceding note, is of very ancient origin. In the Roman law the subject dates from the Twelve Tables, which contained this precept: "Si quadrupes pauperiem faxit, dominus noxiæ æstimationem oferto; si nolet, quod nocuit dato;" thus giving the defendant the choice of paying damages for the harm done, or of surrendering the animal which had done it. Inst. Just. lib. 4, tit. 9. Paullus, after stating the same fact, adds "quod etiam, lege Pesulania, de cane cavetur; " from which it appears that a special law was passed to extend the rule to dogs. Paullus, lib. 1, tit. 15, as cited in note to Card v. Case, 5 Com. B. 622, 627, 628, where several other cases are given from the Institutes and Digest. See Dig. lib. 9, tit. 1. This rule of law, that the animal might be surrendered to the injured person in recompense of the hurt, found its way into the Dutch law of the seventeenth century. See Grotius, b. 3, c. 38, § 10 (p. 453, Herbert's transl.), where it is said, "The owner of the animal who has done this mischief is bound to make good the damage or to give up the animal at his option." This was said of animals in general which Rule discharged. had been infuriated or let loose contrary to custom. In the Roman law the principle was extended to injuries committed by slaves; the master could make pecuniary compensation or tender the slave himself. Inst. Just. lib. 4, tit. 8. Even children could among the ancients be given in recompense of their own delicts. Ib., § 7. The same rule as to animals seems at one time to have found a place in the law of England. Thus, in Fitzherbert's Natura Brevium, 89 L, note, it is stated by (the supposed editor) Lord Hale, "If my dog kills your sheep, and I freshly after the fact tender you the dog, you are without remedy. 7 Edw. 3, Barr. 290." (This, it will be observed, was not the deodand of the English law; a deodand, as the etymology of the word implies, being a forfeiture to pious uses of the object which occasioned the injury. But quære if the deodand may not have been an ecclesiastical evolution of the above rule?) The Athenian law directed the animal to be killed or given up to the person injured; Plutarch's Solon, p. 91, E; nor was it necessary under either the Athenian or the Roman law, even for the purposes of an action against the owner, that the owner should be shown to have had notice of the mischievous propensities of the animal. Card v. material, though the animal belonged Case, 5 Com. B. 622, 627, note. Nor does the French Code say any thing of notice. Code Civil, No. 1385. In the note above cited, a peculiar distinction is referred to as to the scienter in the Mosaic code, where it is introduced for the purpose of fixing criminal responsibility in the case of injury to a freeman or freewoman (Exodus, c. 21, v. 29–31), and civil liability in the case of injury to a slave (v. 32), or to cattle (v. 36). In the German law the owner of a domestic animal which has injured a person is liable only when he knew of the evil propensities of the animal, or was negligently ignorant of them; and, if the animal was under the care of a keeper or herdsman at the time, the owner is liable only upon proof of negligence. Wharton, Negligence, § 904. (b.) Injuries committed contra or secundum Naturam. — Dr. Wharton, in his very valuable work on Negligence (§ 904), points out the distinction taken in the Roman law between animals which do injury contra naturam, and those which do it secundum naturam. Inst. Just. lib. 4, tit. 9. If the injury be done by an animal of the former class, we are told that it is assumed that the animal was provoked by the party who received the injury, so that the plaintiff must disprove this presumption in order to recover. There seems to be no such distinction in the English law; but we are to infer from Buller's N. P. 77, cited by counsel in the principal case, that there is a distinction between wild and tame animals in respect of notice of ferocity. However, it is to be observed that it was conceded throughout the principal case that the allegation of notice was to the class of wild animals. It would seem advisable in all cases to allege notice; and the allegation would probably be immaterial only in those cases where the injury had been done by a wild animal which had not been fully tamed. Following the distinction of the Roman law, Dr. Wharton states the rule thus: "The owner of animals kept for use is liable for mischief done by them when unrestrained, such mischief being in accordance with their nature; nor in such case is it necessary to prove knowledge on his part that their nature prompts to mischief of this kind." Negligence, § 907. That is, if it is natural to the animal, whether he be tame or wild, to do the particular injury complained of, it will not be necessary to prove that the defendant had knowledge of the propensity. "It is the nature of cattle," says the same writer, in illustration of the rule, "when straying at large to ravage the land on which they stray; and hence it is a principle of ethics, as well as of jurisprudence, that he who permits his cattle so to stray is liable for the damage they do." § 908. See infra. "When we come, however, to the exhibition of unusual viciousness, such as is not natural to cows as a class, then, in conformity with the principles just stated, the [actual] knowledge of this individual peculiarity of particular cows must be properly imputable to the owner, in order to make him liable for the mischief caused by such viciousness. But such knowledge is to be presumed if the cow in question has been in the habit of displaying such viciousness." § 909. Under this rule the inquiry in each case therefore is, whether the animal belongs to a class which has a natural also Oakes v. Spaulding, 40 Vt. 347, to propensity to do the particular mischief, the same effect. or, if not, whether the particular animal has such a propensity; and, if the answer be in the affirmative, it is not necessary for the plaintiff to go farther and prove actual knowledge of the propensity. This seems to be a reasonable doctrine, if the presumption of knowledge be only prima facie; and it would doubtless be permitted the plaintiff to prove such facts under an allegation of notice. See Worth v. Gilling, Law R. 2 C. P. 1. But the presumption in the second case, at least, should not be conclusive; for it may be that the defendant had but just purchased the animal, and had in fact no knowledge of its vicious habits. That knowledge of the evil propensities of wild animals is presumed, see Wharton, Negligence, §§ 923, 924, and cases cited. (c.) Injuries by Domestic Animals. · That the rule in May v. Burdett is applicable to injuries committed by domestic animals has been decided in several cases. In Jackson v. Smithson, 15 Mees. & W. 563, the declaration stated that the defendant wrongfully and injuriously kept a certain ram, well knowing that it was accustomed to attack, butt, and injure mankind, and that the ram, while so kept by the defendant, did attack, butt, and throw down and hurt the plaintiff. On a motion for arrest of judgment, on the ground that it was not alleged that the defendant negligently kept the ram, it was held that the declaration was good. Alderson, B., said that there was no distinction between the case of an animal which breaks through the tameness of its nature, and is fierce, and known by the owner to be so, and one which is feræ naturæ. See In Card v. Case, 5 Com. B. 622, a case in the argument of which much learning was displayed, the doctrine of May v. Burdett was held applicable to dogs. In this case, besides the allegation of the scienter, it was alleged that the defendant was in duty bound to use due and reasonable care and precaution in keeping the dog; but this was held to be an immaterial allegation. The gist of the action, it was said, was the keeping a ferocious dog, knowing its disposition, and damage to the plaintiff. To the same effect is Kelly v. Wade, 10 Irish L. R. 424. These were cases of injuries to sheep, upon which subject Mr. Campbell (Negligence, § 27) says: "The domestic dog has occasioned many legal disputes; and the presumption by the common law of England is that he is tame, and, therefore, the owner is not held responsible unless the dog in question is by disposition ferocious, and reasonable ground be shown for presuming that this ferocious character is known to the owner. This is technically called proof of the 'scienter' from the term anciently used in pleading. But this presumption was carried to an absurd extent when the wolfish nature of the creature was deemed so completely extinguished that it was against his nature to worry sheep and cattle. And it did astonish the Scotch sheep-farmers when this doctrine was brought to their notice by the decision of a Scotch appeal by Lords Brougham and Cranworth [Fleming v. Orr, 2 Macq. 14], who applied the rule to Scotland, so that, as Lord Cockburn observed, every dog became entitled to at least one worry.' The consequence was that an act (26 and 27 Vict. |