belongs to a class which has a natural propensity to do the particular mischief, 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.

cases.

(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 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

also Oakes v. Spaulding, 40 Vt. 347, to the same effect.

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.

c. 100) was soon afterwards passed (for Scotland), declaring it unnecessary in an action against the owner of the dog to prove a previous propensity to injure sheep or cattle. An act to a similar purport was afterwards passed for England (28 and 29 Vict. c. 60)." Similar statutes have been enacted in many of our American States. See Shearman and Redfield, Negligence, §§ 205-208; Wharton, Negligence, § 923, note.

In the absence of statute, however, the rule requiring an allegation of notice of the vicious propensity of the dog, as well as of other animals, prevails. See Wharton on Negligence, § 913, and many cases there cited; and see § 914 of the same work as to dogs which are kept for the defence of property.

The doctrine of May v. Burdett was applied to the case of an injury caused by a vicious horse in Popplewell v. Pierce, 10 Cush. 509. It was held that the plaintiff need not allege that the injury was received through the negligence of the defendant in keeping the horse. "The gist of the action," said the court, "is the keeping the animal after knowledge of its mischievous propensities."

As to what constitutes notice of the vicious propensity of a domestic animal, see Appleby v. Percy, Law R. 9 C. P. 647; Worth v. Gilling, Law R. 2 C. P. 1; Gladman v. Johnson, 36 Law J. C. P. 153; Applebee v. Percy, 30 Law T. N. s. 785; Arnold v. Norton, 25 Conn. 92; Kittredge v. Elliott, 16 N. H. 77; Buckley v. Leonard, 4 Denio, 500; Cockerham v. Nixon, 11 Ired. 269.

3 Kent's Com. 438, note 1, 12th ed.), the owner of land is bound to keep it fenced; and, if his cattle get into his neighbor's premises, he is liable for the damage done by them, whether the escape was owing to his negligence or not. Ellis v. Loftus Iron Co., Law R. 10 C. P. 10; Cox v. Burbridge, 13 Com. B. N. s. 430, 438, Williams, J.; Fletcher v. Rylands, Law R. 1 Ex. 265, 281; Lyons v. Merrick, 105 Mass. 71; Richardson v. Milburn, 11 Md. 340; Webber v. Closson, 35 Maine, 26; Myers v. Dodd, 9 Ind. 290. In Ellis v. Loftus Iron Company the defendant's horse had injured the plaintiff's mare by biting and kicking her through the fence; and it was held that this was a trespass upon the plaintiff's premises.

The law was thus laid down as far back as the time of the Year-Books. See 20 Edw. 4, 11, pl. 10, referred to in Fletcher v. Rylands, supra, where in trespass with cattle the defendant pleaded that his land adjoined a place where he had common, and that his cattle strayed from the common, and defendant drove them back as soon as he could. The plea was held bad; and Brian, C. J., said: "It behooves him to use his common so that he shall do no hurt to another man; and if the land in which he has common be not inclosed, it behooves him to keep the beasts in the common and out of the land of any other."

It follows that where this rule prevails the owner of cattle which are killed by a passing train of cars while straying upon a railroad track cannot recover for the loss; unless, we should add, the damage was actually caused by the misconduct or negligence of the defendants' servants. Price v. New Jersey R. Co., 3 Vroom, 229; Munger v. Tonawanda,

(e.) Killing Another's Animals. Detaining Strays. —It may be proper at this place, by a slight digression from the main purpose of this note, to refer to the rules of law concerning the right of a person to kill vicious animals, or to injure or detain straying beasts and fowls.

It is clear that a man may have property in a dog, though the animal may not be shown to have any pecuniary value. Dodson v. Moek, 4 Dev. & B. 146; Wheatley v. Harris, 4 Sneed, 468. And the same is doubtless true of other animals kept as pets, and of wild animals which have been tamed, such as wild geese. Amory v. Flyn, 10 Johns. 102. And the consequence is, that no one has an absolute right to take and keep them while straying: ib.; or therefore to kill them: Dodson v. Moek, and Wheatley v. Harris, supra. See also Dunlap v. Snyder, 17 Barb. 561; Leutz v. Stroh, 6 Serg. & R. 34.

But while there is no absolute right to kill such animals, there are circumstances when the law will justify such an act. Of course, a man may protect himself from an attack of a beast, though if he has provoked the attack, and kills the animal in defending himself, the case would probably be otherwise. This would clearly be the case if the animal were not usually ferocious and "accustomed to bite mankind." The owner would then be entitled to recover damages for the loss of the beast.

A mad dog ought to be killed; so of a dog suspected (with reason) to be mad; and so of one found at large doing or attempting to do mischief, as in biting or worrying sheep, or other

A ferocious, biting dog, suffered to run at large without a muzzle, is a common nuisance; and any one may kill it, whether at the time it was doing mischief or not, or whether the owner knew the nature of the dog or not. Putnam v. Payne, supra; Maxwell v. Palmerston, 21 Wend. 407; Dunlap v. Snyder, 17 Barb. 561; Brown v. Carpenter, 26 Vt. 638.

A man may, however, keep a ferocious dog as a watch-dog, if properly guarded: Perry v. Phipps, 10 Ired. 259; but in Woolf v. Chalker, supra, it is said that this is allowable only under circumstances in which the keeping of concealed weapons, to prevent a felony, would be justified. (Upon this latter point there is a somewhat confused line of cases in England as to spring-guns, of which Bird v. Holbrook, 4 Bing. 628, s. c. 1 Moore & P. 607, is the leading one, that we do not propose to consider.)

Nor will the mere fact that domestic animals are found trespassing upon a man's premises justify him in killing them: Matthews v. Fiestel, 2 E. D. Smith, 90; Dodson v. Moek, supra; or in detaining them upon a claim for any thing beyond a reimbursement of necessary expenses and payment of the actual injury done. Comp. Amory v. Flyn, 10 Johns. 102. And if the party detain them, he must treat them properly, and not injure them. Murgoo v. Cogswell, 1 E. D. Smith, 359. If the owner of the premises drive the animals out with undue violence, whereby they

are injured, he will be liable. Amick v. O'Hara, 6 Blackf. 258, where it was held unlawful to chase a horse out of the defendant's field with a ferocious dog.

Upon this subject there are some interesting provisions in the French and Roman law. It was provided by one of the laws of the rural police that a landowner who had suffered damage by straying animals had the right of seizing them, under the duty of taking them within twenty-four hours to the public pound. 1 Fournel, Du Voisinage, 447 (4th ed.). And the author cited says that this power is given not only to the owner of the land in which the damage has been done, but to every neighbor who has witnessed the trespass, because of the interest every neighbor ought to have in the welfare of another.

But, M. Fournel says, the animals must not be treated cruelly; on the contrary, he who seized them should treat them as if they were his own animals. This humane and just requirement was taken from the Aquilian law. "Sic illud expellere debet, quomodo si suum deprehendisset." Dig. lib. 9, tit. 2, 39.

So, too, the land-owner was required to take care, in driving out the animals, to chase them gently and with moderation, and without wounding or hurting them; and if he pursued them too violently, so that the animals, while going in a narrow place, should fall and get injured, the party was liable to the owner of the animals. And this was also founded upon the rule of the Roman law. Dig. lib. 9, tit. 2, 53. Our law, as we have seen, is similar upon both of these points.

If the animals taken trespassing are of the flying kind (fuyardes), as geese, fowls, and ducks, the land-owner, after

notifying the owner of the animals, may kill them upon the second offence, because such animals are not easily caught, and their capture would not be worth the trouble or expense of litigation. But, adds Fournel, he ought to leave them upon the ground in order to show that he has not killed them out of covetousness; and likewise, if there were many of them, he ought only to kill a few. (In our law the first qualification would not, of course, be required, for any (proper) evidence would be admissible to show the circumstances under which the fowls had been killed). The fowls, further, can only be killed on the spot, at the moment of the depredation.

The damages in all these cases are very exactly regulated; and M. Fournel gives a table of them. See 1 Fournel, Du Voisinage, § 105, pp. 444-459 (4th ed.).

Bringing Dangerous Things upon a Man's Land. - The principle of May v. Burdett has in England been extended still farther, and held to cover all cases where one for his own purposes brings upon his land, and collects and keeps there, any thing likely to do mischief if it escapes; such a person is prima facie answerable for all the damage which is the natural consequence of an escape. Rylands v. Fletcher, Law R. 3 H. L. 330; s. c. Law R. 1 Ex. 265, reversing s. c. 3 Hurl. & C. 774; 34 Law J. Ex. 177.

In this case the defendants had constructed a reservoir on land separated from the plaintiff's colliery by intervening land. Mines under the site of the reservoir, and under part of the intervening land, had been formerly worked; and the plaintiff had, by workings lawfully made in his own colliery and in the intervening land,