FEROCIOUS AND VICIOUS ANIMALS. 349 



tliat wliicli slionld determine the degree of care which 

 ought to be exercised (c) . 



Bo also in the French code, neither knowledge in the The French 

 owner of the mischievous qualities of the animal, nor even *^°<^^- 

 the existence of these qualities, is regarded {d). 



In arguing the case of Mason v. Keeling ie), it was said, Argument in 

 " If a man have an unruly Horse, which breaks through -''{««c|» v. 

 his close or stable and does mischief, an action will lie for '^ "'^' 

 it ; and it is hard that one should thus have a remedy for 

 the least trespass done in his laud, and none for a trespass 

 done to his person, by wounding or maiming. Suppose one 

 keep several Mastiffs, shall he be exempt from an action for 

 mischief done by every one of them, till he knows that he 

 has done a prior mischief ? Is no care to be taken to pre- 

 vent a first mischief ?" 



And in accordance with this common sense view of the Decision in 

 case, it was decided in Scotland, that a scienter was not Scotland, 

 necessary ; and Lord Cockburn said, " I have always 

 thought that if a Dog worries Sheep, his Master is liable. 

 I do not attach any weight to the law of England. I am 

 told that knowledge on the part of the owner is requisite 

 to make him liable. This is absurd ; he cannot know it 

 until it is done. This would allow each Dog to have one 

 worry with impunity" (/). 



But this case was carried to the House of Lords, where Reversed in 

 Lord Cockburn's judgment was reversed on the ground the House of 

 of there being no allegation of a scienter nor of negli- 

 gence on the part of the defendant, it being held that 

 blame can only attach to the owner of a Dog, when, after 

 having ascertained that the animal has propensities not 

 generally belonging to his race, he omits to take precau- 

 tions to protect the public against the ill consequences 

 of those anomalous habits. However in this case Lord 

 Campbell said, " If in Scotland it is sufficient to allege 

 negligence on the part of the owner, without averring or 

 proving his knowledge of the animal's habits, it is not 

 that the foundation of the action is dijEferent, but that the 

 Scotch law does not so readily permit the owner of the 

 annual to rely on the general consequences from its being 

 supposed to be an animal mansuetce naturce, a supposition 

 which experience shows to be very often far from the truth, 



(c) SeeCardv.Case,5G.B.627,n. 31,32,36. 



{(l) Code Civil, No. 1385 ; Card (e) Mason v. Keeling, 12 Mod. 



V. Case, 5 C. B. 627, n. ; see also 333 ; S. C. I Ld. Eaym. 606. 



Exodus, chap. 21, vv. 21, 29, 30, (/) Orr y . Fleming , 1 W. R. 339. 



