INJURIES BY DOMESTIC ANIMALS.

[Contributed by E. O. S.]

ALL animals are by nature wild, and primitive man had probably a hard struggle to escape extinction among them. He saved himself, partly at all events, by making allies instead of outlaws of the most serviceable of the brute creation-the dog, the horse, the cow, the goat. Tamed by degrees and domesticated, these have, under the protecting care of man, lost for the most part their primitive wildness or fierceness; but the original nature is not extinct it is only in abeyance, and from time to time it breaks out and inflicts damage. These misdoings of domestic animals fall, broadly speaking, into two classes: (i) Injuries done by mischievousness-by biting, butting, kicking, tossing, or any other of the modes of offence or defence by which nature has armed animals for the struggle of existence; and (ii) Injuries -far more venial--done by trespassing or straying. In these cases the law has to adjudicate on the owner's or master's responsibility; and the various views of nations on this responsibility-for domestic animals are common to all alike-furnishes an instructive chapter of comparative law.

Roman law seems to have been at some difficulty how to bring animals— res se moventes-logically into its system. It had, however, the slave to serve as a guide, and this analogy it followed pretty closely. A slave could not commit a delict, but he could do an act which if done by a freeman would be a delict. In such a case the quasi-delict was called noxia. So with an animal: it could not do an injuria proper, for it lacked sense; but it could commit what was called pauperies-that is, damage done without injuria. For this the XII. Tables gave an action-actio noxalis—if it was a quadruped (si quadrupes pauperiem fecisse dicetur, D. 9, 1, 1, pr.). If any animal other than a quadruped did the injury, an action was also provided by the Prætor (utilis actio, D. 9, 1, 4). But what is observable is that this provision in the XII. Tables applied only to domestic animals as they may be called, not to wild animals. "It applies," say the Institutes, "to those animals only that are stirred up contrary to the nature of their kind; for if they are wild beasts by blood, the action is void. If therefore a bear escapes from its owner, and then does harm, his former owner cannot be sued, for he ceased to be owner when the wild beast escaped." Here, by the way, English law parts

company with the civil law; for how did the keeper of the wild beast come to let it escape? The distinction, however, taken above between genitalis feritas and occasional misbehaviour is cardinal to the Roman law on the subject. The tiger, when he did damage, was only acting secundum naturamit is his nature to; the ox, on the contrary, was acting contra naturam—that is, contrary to his second or better nature, superinduced by domestication. Against the one-the wild beast-a man would be on his guard; with a peaceful domestic animal he would be off his guard if it suddenly kicked or gored him. This seems the rationale of the distinction.

The redress prescribed by the XII. Tables for damage caused by a quadruped was reparation or forfeiture ("deditio ")-that is to say, the owner might hand over the horse or the ox just as he might a slave or a son who had committed a wrong. This is a common resource of archaic law "Here is the offender," says the owner; "take him and do what you like with him." It is a kind of rude justice, prompt and simple. A similar rule obtained under the Solonian Constitution, according to Plutarch: Έγραψε δὲ βλαβῆς τετραπόδων νόμον ἐν ᾧ κύνα δάκοντα παραδοῦναι κελεύει κλοιῷ TETρаTηXEι dédéμevov (Sol., p. 91 E). And the law of England is stated in τετραπήχει δεδέμενον Fitzherbert's Natura Brevium, 89 L. note (b) (supposed to be edited by Lord Hale), to be the same: "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 would be all very well if the dog were a valuable collie for instance, but not if it was only a cur of low degree, still less if it was of a vicious nature or suffering from rabies. The principle of "deditio" has now no place in the law of France, that law expressly excluding the power of abandoning the animal for redress of the damage it has caused (Droit Civil [Toullier] XI. 401).

In France the liability for animals' damages is defined by Art. 1385 of the Code Napoleon: "Le proprietaire d'un animal et celui qui s'en sert pendant qu'il est a son usage est responsable du dommage que l'animal a causé, soit qui l'animal fut sous sa garde soit qu'il fut egaré ou echappé." No distinction, it may be noted, is here drawn corresponding to that of secundum naturam and contra naturam in Roman law, or of feræ naturæ and mansuetæ naturæ in our own; both are included. The terms of liability, too, seem very wide, but they have been much restricted by the judicial construction put on the article. Thus damage to be the subject of redress must be the result of some "faute ou d'une imprudence." If it is not due to that cause, it is only the sort of thing that every one must take the risk of. The article raises a presumption of blame against the owner of the animal, but it does not prevent such owner rebutting the presumption by evidence that he was not to blame; and to do this he need not show that it was a pure accident. It is sufficient if he proves that he did everything "pour empêcher le dommage." If, for instance, a servant is leading a quiet horse, and it is frightened by a noise such as the sawing of wood, and kicks a passer-by, the owner is not liable (Droit Civil [Laurent]

XX. 675). He displaces the primâ facie presumption of liability by disproving negligence. Provocation of the animal is another element. By Roman law no action lay if the animal was irritated or roused (Paul Sent. 1, 15, 1), nor does it by French law. The Article does not apply to game.

The law of Portugal is substantially the same as that of France: "Tout proprietaire dont les animaux ou les choses causent un prejudice à autrui est tenu de reparer le dommage ainsi causé a moins qu'il prouve qu'il n'y eu de sa part ni faute ni negligence"; and the law of Russia corresponds. By that law the owner of a dog which has bitten a person must, whether he knew the dog to be dangerous or not, compensate the injured party for the damage. If the owner knew the dog to be dangerous, he may be fined in addition an amount not exceeding about £20 in English money. Neither here nor in the law of France, it will be observed, is there any trace of the "scienter" doctrine as affecting civil liability any more than in Roman law. The "scienter" doctrine seems rather to belong to the ruder and more independent Germanic race. That race, with all its theoretical respect for the sacredness of the person, has never been very squeamish about a little roughness or over careful to protect people. It prefers that people should learn to protect themselves. Dogs, cows, and horses were part of the primitive household, harmless enough, generally speaking; and if they occasionally did damage, the neighbours must put up with it as they would with the mischievousness of children. At a time when, as Blackburn, J., says, cattle were left to wander about open commons, the fact that bulls sometimes toss people was not thought enough to make their owner liable, unless there was something more-something to show a mens rea-knowledge of a mischievous propensity and neglect of precautions.

The germ of the scienter doctrine may be found in the Mosaic law (Exod. xxi. 28-31): "If an ox gore a man or woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit." This seems a combination of the "deodand” and the "deditio" doctrines. "But" (the text goes on) "if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death. If there be laid on him a sum of money, then he shall give for the ransom of his life whatsoever is laid upon him." Here the compensation principlebot-damages-enters on scene.

This Mosaic ordinance is incorporated into the laws of Alfred, with the necessary readjustments-that is, the lord is to be slain, or the man paid for, as the witan decree to be right. "If the ox," says the law, "gore a son or daughter, let him (the lord) be subject to the like judgment. But if it gore a 'theow' or a 'theawmennen,' let XXX shillings of silver be given. to the lord, and let the ox be stoned. If an ox wound another man's ox, and it then die, let them sell the live ox, and have the worth in common and

also the flesh of the dead one." This last provision argues considerable shrewdness.

The ox here is typical, it must be remembered, of a certain class of animals. English law has from the first drawn a distinction between animals feræ naturæ and animals mansuetæ naturæ. In the former category came not only what is usually understood by wild beasts proper-lions, tigers, bears, and wolves—but such animals of uncertain temper as the elephant, camel, and monkey. Under the latter category animals mansuetæ naturæ or domesticated -the ox, the dog, the pig, the goat. The distinction is of course an artificial one-natural history was not the strong point of the sages who matured our common law-but it embodies a convenient classification, and it corresponds roughly with the classification in Roman law of animals that act secundum naturam and contra naturam. In the case of a dog, for instance, as Lord Holt says in Mason v. Keeling (12 Mod. 332), the law takes notice that it is not of a fierce nature, but rather the contrary so of a horse

or a cow.

Having adopted this classification into animals feræ naturæ and animals mansuetæ naturæ, our law takes up a high line respecting those fera naturæ. It does not indeed make it unlawful for a man to keep them, but if he does keep them he keeps them at his peril, and no amount of care in the keeping will exempt him from liability should the wild beast escape and do mischief. "I am not sure," said Lord Bramwell, "whether if a man kept a tiger, and lightning broke his chain and he got loose and did mischief, that the owner would not be liable." At all events the act of God, and the act of God alone, will excuse. This doctrine of insuring safety has been criticised by text writers and disclaimed in America, but in England it is too well established by the highest authority (Rylands v. Fletcher, L. R. 3, H. L. 330) to be altered by anything short of an Act of Parliament.

The attitude of our law towards the other class of animals-animals mansuetæ or mansuefactæ naturæ-is quite different. In their case the law only holds the owner liable if he knew or ought to have known of the animal's mischievous propensity. The earliest formal statement of the law is in Dyer R. 162: "If a man have a dog which has killed sheep, the master of the dog, being ignorant of such quality and property of the dog, shall not be punished for that killing; otherwise, if he have notice of the quality of the dog." This is what is commonly called the scienter doctrine, and the principle of it is very lucidly explained by Lord Cranworth in Fleeming v. Orr (2 Macq. H. L. Sc. 14, at p. 23): "The reason why by the English law," says that learned judge, "it is necessary to allege and prove the scienter is that in the case of an animal mansueta nature the presumption is that no harm will arise from leaving it at large. Starting from that presumption, it follows that there cannot be blame or negligence in the owner merely from his allowing liberty to an animal which has not by nature the propensity to cause mischief. Blame can only attach

to the owner when, after having ascertained that the animal has propensities not belonging to his race, he omits to take proper precautions to protect the public against the ill consequences of these anomalous habits; and therefore, according to the English law, it is necessary to aver and prove this knowledge on the part of the owner. But after all, the culpa or negligence of the owner is the foundation on which the right of action against him rests, though the knowledge of the owner is the medium, and the only medium, through which we in England arrive at the conclusion that he has been guilty of neglect; and in that sense it is said that the scienter is the gist of the action." This has been popularly paraphrased by saying that every dog is entitled to his first bite; but, like other popular statements of the law, this is not quite accurate. It is not necessary, that is, to show that the dog delinquent has actually bitten another person before it bit the plaintiff. It is enough to show that the dog has to the knowledge of its owner evinced a savage disposition by attempting to bite, straining at its chain, and so on (Worth v. Gilling, L. R. & C. P. 1 ; Charlwood v. Greig, 3 C. & K. 48). If the owner has warned a person to beware of the dog lest he should be bitten, or ties him up by way of precaution (Jones v. Perry, 2 Esh. 482; and see Renwick v. von Rotberg [2 of Session Cases, 4th Series, 855]), this is evidence to go to a jury in support of the allegation that the dog was accustomed to bite. The dog-owner offering compensation is no proof that he knew the dog to be mischievous (Beck v. Dyson, 4 Camp. 198), though it may be some slight evidence of knowledge (Thomas v. Morgan, 2 C. M. & R. 496). So in the case of a bull, the owner knowing the beast's antipathy to red, may fix him with the scienter in an action by a man with a red tie who has been tossed (Hudson v. Roberts, 6 Exch. 697).

This obligation on the plaintiff's part to bring home knowledge to the owner of the offending animal constitutes a very real practical objection to the scienter doctrine. True, it is not imaginable, as Holt, C.J, says, that a man should keep a fierce dog in his family unwittingly; but the unlikelihood of the owner not knowing will not suffice; nor is it any proof of knowledge that the dog belonged to a fierce breed (mastiff or bloodhound), otherwise it would convert dogs of these breeds into animals of a feræ naturæ, which the owner would keep at his peril. So much unredressed wrong, indeed, did the scienter doctrine do in the case of sheep-worrying that it was abolished as regards sheep and cattle, in Scotland by 26 & 27 Vict., c. 100, and in England by 28 & 29 Vict., c. 60. By the English Act the owner of every dog is made liable in damages for injury done to any cattle or sheep by his dog; " and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog, or the owner's knowledge of such previous propensity, or that the injury was attributable to neglect on the part of such owner." In the Scotch Act the italicised words are absent. "Cattle" here includes horses, hitherto only known as such in the pages of the sporting novel. Germany has also of