1846. MAY V. BURDETT. that are mansuetæ naturæ, and break through the Queen's Bench. Lameness of their nature; in the latter case the owner must have notice; in the former an action lies without notice." The Mosaic Law (a), referred to in the margin of the placitum in Dyer, agrees with ours. The wrong consists in keeping the animal, even though it be mansuetæ naturæ, if the owner knows that it has been used to do mischief, and if injury results from the keeping. The scienter, not negligence in keeping, constitutes the tort. The doctrine stated in Dyer is adopted in Com. Dig. Action upon the case for negligence (A 5.); and Comyns observes: "It is sufficient to say, canem ad mordendum consuetum scienter retinuit." [Coleridge J. You cannot suppose that that is meant as giving the complete form of a declaration.] In 1 Vin. Abr. 234. tit. Actions [Mischief by dogs, &c.] (H), pl. 3., it is said: “If a man has a dog that kills sheep, the master of the dog being ignorant of such quality, the master shall not be punished for this killing; but if he has notice of such quality, it is otherwise." Declarations averring misconduct in the keeping of a horse, a dog, or a bull, but omitting the scienter, have been held insufficient; Scetchet v. Eltham (b), Mason v. Keeling (c), Bayntine v. Sharp (d). The case of Michael v. Alestree (e), cited in moving for the present rule, is no authority to the contrary. There a scienter was held unnecessary; but the complaint was not of a mere improper keeping, but that the defendant, by his servant, carelessly drove ungovernable horses for the purpose of (a) Exodus, c. xxi. 28, 29. 36. (c) 12 Mod. 352.; S. C. 1 Ld. Ray. 606. (b) Freem. C. B. 534. (d) 1 Lutw. 90. See Buxendin v. Sharp, 2 Salk. 662. (e) 2 Lev. 172. Volume IX. 1846. ΜΑΥ V. BURDETT. breaking them, in a public place. [Lord Denman C. J. He brought the horses to a place where people were.] The case of keeping a vicious animal is analogous to those in which persons merely keeping dangerous weapons or instruments have been held liable if mischief resulted from their being kept: Dixon v. Bell (a), Townsend v. Wathen (b). In Blackman v. Simmons (c) the mere keeping a dangerous bull, with knowledge, appears to have been considered a ground of action, mischief having ensued. The same conclusion may be drawn from Curtis v. Mills (d). [Patteson J. It does not appear, in the present case, that the monkey may not have been chained up, and have unexpectedly escaped. But you say that, if a party keeps such an animal, chained, he runs the risk of its breaking loose.] That is the law. [Patteson J. Suppose it had been confined in a cage, and the plaintiff's wife had put her hand in.] Actual misconduct in the plaintiff might be a defence, under the general issue or a special plea (e). The present form of declaration agrees with the precedent in 2 Chitty on Pleading, 430 (g). [Patteson J. Mr. Chitty observes that, before the New Rules prohibiting more than one count on the same transaction, it was usual to add other counts, one of which was for not keeping the dog properly secured.] A form like the present was used in Thomas v. Morgan (h). The older precedents are similar: Regist. Brev. 110 b., cited, and relied upon (a) 5 M. & S. 198., (c) 3 Car. & P. 138. (b) 9 East, 277. (c) Patteson J. alluded here to the case of a person going into a place where he had no business to be at the time, and being there bitten by a dog: probably Brock v. Copeland, 1 Esp. N. P. C. 203. (g) 7th ed. (h) 2 Cro. M. & R. 496; S. C. 5 Tyr. 1085. 1846. MAY V. BURDETT. by the Court, in Cropper v. Matthews (a), Rast. Ent. Queen's Bench. 616 b., Plead. Assist. 105, 117., King v. Peach (b), Lib. Plac. 40, pl. 56., Morg. Prec. (c), 443, 8 Wentw. Pl. 437. (Watson also stated that the present form accorded with manuscript precedents of the late Mr. Serjt. Williams and Mr. Justice Richardson, and with precedents extracted by himself from the books of Mr. Justice Bayley). The averment here that the defendant knew it to be dangerous "to allow the said monkey to be at large" is not material, and does not render it necessary to shew that the monkey was in fact allowed to be at large. Cockburn and Pickering, contrà. The question in this case is important, inasmuch as the plaintiff assumes that it is illegal even to keep a destructive animal, as is done at the gardens of the Zoological Society and other menageries, and that, however carefully such animal may be kept, yet, if it escapes, without any fault on the owner's part and does damage, or even if an incautious person be hurt, or an excessively timid person terrified, by the animal while under proper restraint, the owner is answerable. No decision has gone that length; and, in the present case, the declaration alleges nothing inconsistent with a strictly proper keeping. In Com. Dig. Action upon the Case for Negligence, the division (A 5.) referred to on the other side is headed "For a neglect in taking care of his dog, horse, cattle," &c., and the first instance given is "if a man ride an unruly horse in Lincoln's Inn Fields, (or other public place of resort,) to tame him, and he break (a) 2 Sid. 127, where Reg. Brev. 108 is also cited, but this seems a mistake. See Reg. Brev. 111 a. (b) 1 Lil. Ent. 29. (c) Morgan's Precedents form vol. iii. of The Attorney's Vade Mecum. Volume IX. 1846. MAY v. BURDETT. loose, and strike the plaintiff;" on which point Michael v. Alestree (a) is cited. In Ventris's report of that case, the Court is stated to have said: " Lately, in this Court an action was brought against a butcher, who had made an ox run from his stall and gored the plaintiff'; and this was alleged in the declaration to be in default of penning of him." And in Keble's report of Michael v. Alestree (a) reference is made to a case "where a monkey escaped and did hurt, by default of the owner." Neglect, and not merely the having such animals, was essential to the action in each of the cases. This remark applies also to the placita in the division of Com. Dig. before cited, as to a mad bull, and the case in which, if a dog has once bit a man, and the owner, having notice, keeps him "and lets him go about or lie at his door," a person bitten by the dog may bring an action; Smith v. Pelah (b). It is true that the scienter is also a necessary averment; but that is because knowledge is an ingredient of negligence: and for that reason it is laid down in Com. Dig. Pleader (2 P 2.) that “a declaration for a neglect in keeping his dog," &c. "must say that the defendant was sciens of the mischievous quality." In Brock v. Copeland (c), where the declaration stated that the defendant knowingly kept a dog. used to bite," and by which the plaintiff was bitten, Lord Kenyon ruled, that the action would not lie. He said "that every man had a right to keep a dog for the protection of his yard or house: that the injury which this action was calculated to redress, was where an animal known to be mischievous was permitted to go (a) 2 Lev. 172.; S. C. 1 Ventr. 295., 3 Keb. 650. (c) 1 Esp. N. P. C. 203. 1846. MAY V. BURDETT. at large, and the injury therefore arose from the fault of Queen's Bench. the owner in not securing such animal, so as not to endanger or injure the public: that here the dog had been. properly let loose; and the injury had arisen from the plaintiff's own fault, in incautiously going into the defendant's yard after it had been shut up." The only plea there was Not Guilty. [Coleridge J. "Not Guilty," then, had not the same effect as the plea of Not Guilty in modern times.] There is no instance of a special plea that the injury done by the animal resulted from the plaintiff's own negligence. In the passage, cited on the other side, from the judgment in Rex v. Huggins (a) the question discussed is, in what cases notice of the mischievous quality of the animal is essential to the owner's liability; and the difference stated, on that point, is, whether the animal be originally mansuetæ or feræ naturæ. But in neither case, does it appear that liability attaches without any negligence in the owner. Even where death has ensued, the Court says: "If the owner have notice of the mischievous quality of the ox, &c. and he uses all proper diligence to keep him up, and he happens to break loose, and kills a man; it would be very hard to make the owner guilty of felony. But if through negligence the beast goes abroad, after warning or notice of his condition, it is the opinion of Hale, that it is manslaughter in the owner. And if he did purposely let him loose, and wander abroad, with a design to do mischief; nay, though it were but with a design to fright people and make sport, and he kills a man; it is murder in the owner.' In Justinian's Institutes, B. 4. tit. IX., it is said (after distinguishing between damage done by animals which are naturally (a) 2 Ld. Ray. 1583. |