686 



GLEANINGS IN BEE CULTURE. 



Aug. 15 



erence mainly, if not exclusively, to the rights of 

 property which may be acquired in them, those of the 

 latter class being the subjects of absolute and perma- 

 nent ownership; while in regard to the foimer. only 

 a qualified property can exist, and the distinction is 

 based upon the extent to which they can be domesti- 

 cated or brought under the control and dominion of 

 man, and not at all upon the ferocity of their dispo- 

 sition, or their pronencss to mischief. For instance, 

 the dog, some species of which are extremely savage 

 and ferocious, is uniformly classed among animals 

 domitCB natura:, while the hare, the rabbit, and the 

 dove are termed t^^oe nalmce, although comparatively 

 harmless. It would not be rational to suppose that a 

 classification adopted with exclusive reference to one 

 quality of animals could be safely used to define and 

 regulate responsibilities growing out of other and 

 different qualities ; nor would it accord with that just 

 analysis and logical accuracy which distinguish the 

 common law, that it should be resorted to for that 

 purpose. And although some dicta may be found in 

 the book which might seem to countenance the idea, 

 the decided cases do not lead to any !-uch conclusicn. 



It is unnecessary to enter into any examination of 

 the cases which establish one branch of the proposi- 

 tion contended for. to wit : that, in order to make the 

 owner of a domestic animal liable for any violent in- 

 jury done by them unless connected with a trespass 

 upon land, it must be averred and proved that the de- 

 fendant had notice or knowledge ot the mischievous 

 nature ot the animal. This, as a general rule, is set- 

 tled by a series of decisions which have lieen entirely 

 uniform from the earliest days to the p e.ent time. 

 But although, iu many of the.-e cases, most of which 

 are cases of injuries done by dogs, the worJs domitm 

 nalm ii\ or equivalent words, are used to describe the 

 animals for the mischief done, by which their owners 

 would not be liable without notice ; ytt it is not alone 

 btcauje they b; long to that class that the exemption 

 arises, but because animals oi that class are usually 

 of a harmless disposition. I apprehend that, if a per- 

 son cho )ses to keep a domestic animal, as a dog, which 

 is nalui ally savage ard dangerous, he does so at his 

 peril, and that he would be liable for any injury doue 

 by such dog without evidence that he had ever done 

 misch'ef before. This position is not without author- 

 ity to support it, although it does not rest upon any 

 adjudged case. In Judge v. Cox (1 Stark, 285), Abbot, 

 J , suggests the question, but expressly reserves his 

 opinion upon it as unnecessary to the decision of that 

 case. But in Hartley v. Harriman {\ Barn & Aid., 

 6-0). which was an action for an injury done to sheep 

 by dogs, the declaration contained a special averment 

 that the dogs were accustomed to worry and bite 

 sheep ; and the cojirt held that this averment was not 

 supported by proof that the dogs were of a ferocious 

 and mischievous disposition. But Lord Ellenborough 

 ani Mr. Justice Bavley both said thit it would have 

 been sufficient to allege generally that the dog-; were 

 of a ferocious nature, and unsafe to be left at large, 

 and that evidence of that fact would support the ac- 

 tion. These dicta are so obviously in accord with com- 

 mon sense and reason that they will undoubtedly be 

 sustained whenever the question shall aiise. It is 

 true that, in a case of injuries done to sheep, our stat- 

 ute makes the owner liable without notice, provided 

 the sheep are killed, but principle would apply to any 

 other injury. 



But while, as I have said, the cases which define the 

 responsibilities of the owners of domestic animals are 

 very numerous, tho-e which apply to the liabilitj' of 

 the proprietor of wild animals aie rare. It has been 

 assumed, rather than decided, that the latter class are 

 kept at the peril of their owners In Rex v Huggins 

 ('1 Ld. Raym 15S3) it is said, "There is a diffeience 

 between things fens natmvB, as lions, bears, etc., 

 which a man must keep up at his peril, and beasts 

 that are »iansiietie naturce. and break through the 

 tameness of their nature, such as oxen and horses. 

 In the latter case the owner must have notice ; in the 

 former, an action lies against the owner without no- 

 tice." The case in which this was said was an indict- 

 ment for murder ; but the language here given is 

 copied and adopted by Buller, in his Nisi Prius. 

 (Bull. N. P., 77.) It will be observed that, while these 

 authorities speak of a whole class, "things ferce na- 

 litrm," yet the example given is that of lions, bears, 

 etc. 



So in a late case in our own courts, ]^an Leuven z>. 

 Lyke (1 Comst , .516). Judge Jewett, after stating the 

 rule in respect to domestic animals, says: " But as to 

 anima's feraz natujcE, such as lions, tigers, and the 

 like, the person who keeps them is liable for any 

 damage they may do, without notice, on the ground 



that by nature such animals are fierce and dangerous." 

 Here the learned judge, although adopting the same 

 classification, yet states the true ground of the own- 

 er's responsibi'lity. The substance of the rules as giv- 

 en by him is, that one who keep lions, tigers, or other 

 fierce and dangerous animals, is liable at all events 

 for any injury ihey may do. The words fierce naturce 

 add nothing of any value to the rule, but rather tend 

 to mislead, as they are descriptive of many animals 

 that are not ferocious or dangerous. 



Peake, in his work on evidence, under the head of 

 " Actions Founded in Negligence," has the following: 

 " If one man keeps a lion, bear, or any other wild and 

 ferocious animal, and such animal escape from his 

 confinement and do mischief to another, the owner 

 is liable to make satisfaction for the mischief so done, 

 without further evidence of negligence in him ; for 

 every person who keeps such noxious and useless ani- 

 mals must keep them at his peril. On the contrary, 

 if a man has a dog, a bull, or any other domestic ani- 

 mal such as are usually kept, and are, indeed, neces- 

 sary to the existence ofinian, no action is maintainable 

 without proof of knowledge, etc.; for without such 

 knowledge no negligence or fault is imputable to the 

 defendant." (Norris' Peake, -(.SB) Three things are 

 worthy of notice in this extract. In the first place, 

 the author mentions animals that are not only wild 

 but ferocious, and speaks of them as not only noxious 

 buc useless. In speaking of domestic animals he 

 dwells upon their utility and value ; and, lastly, he 

 makes negligence the foundation of the liability of 

 the owner. 



Again, Chitty, under the head of actions on the case 

 for negligence, gives the rule as follows : "The owner 

 of d )meslic or other animals, not naturally iticlined to 

 do mischiefi. as dogs, horses, and oxen, is not liable 

 for any injury committed by them to the person or 

 personal property unless it can be shown that he pre- 

 viously had notice of the animal's mischievous pro- 

 pensity." (Chit. Plead. 82 ) This accurate elementa- 

 ry writer did not fall into the error of applying the 

 rule to the whole class of animals domitce natutcv, but 

 adds the qualification, " not naturally inclined to do 

 mischief." By his arrangement of the subject, too, 

 he confirms the view of Peake, that the liability is 

 based upon negligence. 



These authorities seem to me to point to the follow- 

 ing conclusions. 1. That one who owns or keeps an 

 animal of anj' kind becomes liable for any injury the 

 animal may do, only on the ground of .some actual or 

 presumed negligence on his part. 2. That it is essen- 

 tial to the proof of negligence, and sufficient evidence 

 thereof, that the owner be sho vn to have had notice 

 of the propen.'ity of the animal to do mischief. 3. 

 That proof that the animal is of a savage and fero- 

 cious nature is equivalent to p- oof of express notice. 

 In such cases notice is presumed. 



These views derive some support from the case of 

 May and "wifie v Burdett (9 Adol. & El N. S. 101). 

 That was an action on the case for an injury done to 

 the wife by the bite of a monkey. The declaration 

 alleged that the defendant kept the monkey wrong- 

 fully, well knowing that it was of a mischievous and 

 ferocioi s nature, and accustomed to bite, etc., but did 

 not aver that the defendant had been guilty of any 

 negligence. A verdict was found for the plaintiff, and 

 the defendant movtd in arrest of judgment, on the 

 ground that, as the action was founded in negligence, 

 the declaration was defective in not containing any 

 averment that the defendant had been guilty of neg- 

 ligence. The motion was overruled, it being after 

 verdict. Ch. J. Denman saj's, " But the conclusion to 

 be drawn from an examination of all the authorities 

 appears to us to be this, that a person keeping a ;«;5- 

 chievous ^vi\VL\?L\ with knoieledge oi its propensities, is 

 bound to keep it secure at his peril ; and that, if it 

 does mischief, negligence is presumed. The negligence 

 is in keeping such an animal after notice." The in- 

 jury for which this action was brought was done by 

 an animal clearly y^rfc natuicc. and yet it was deemed 

 neces.sary to aver the mischievous nature of the ani- 

 mal, together with knowledge on the part of the own- 

 er ; and the question which arose and was very elabo- 

 rately discussed was, whether the plaintiff should not 

 have gone still further and inserted an averment of 

 negligence. 



Having shown, then, as I think, clearly, that the 

 lia-.ility does not depend upon the classification of 

 the animal doing the injury, but upon its propensity 

 to do mischief, it remains to be considered whether 

 bees are animals of so ferocious a dispo.sition that 

 every one who keeps them, under any circumstances, 

 does so at his peril. If it is necessary for the plaintiff 

 to aver and prove the mischievous nature of the ani- 



