1G6 SCIENTER PUT IN ISSUE BY " NOT GUILTY." 



evidence was made absolute by the Court of Exchequer. PoUoch C.B. 

 aud Jfffrfi/i B. were of opinion that there was no evidence to go to the 

 juiT to show that the dogs were mischievous to the knowledge of the 

 defendant, and that the rule should tlierefore be made absolute. Bram- 

 tvell B. thought that the evidence justified the jury in exercising their 

 discretion in arriving at a conclusion of what the four dogs had done, 

 although one might be harmless, and that the verdict was right ; and 

 Channel B. considered there ^^•as some evidence to be left to the jury, 

 but not sufficient to show tliat the dogs were mischievous to the know- 

 ledge of the defendant. 



Not Guiliy jmts in issue the scienter, and defendant's conditional offer 

 to pay is slight evidence of it {Thomas y. Morgan, 2 C. M. & R, 496). 

 The declaration here alleged that the defendant "knew that the dogs 

 Avere of a ferocious and mischievous disposition, and accustomed to attack, 

 chase, bite, worry, and kill cattle." It was proved that they had killed 

 some of the plaintiff's sheep, as well as the cattle of other people, and 

 that when the defendant was told that his dogs had killed three of the 

 plaintiff's sheep, he promised to settle if it could be proved they had 

 done it. The witness, Protheroe, whose cattle had also been worried 

 (and to whom he offered satisfaction), deposed that the defendant told 

 him (about three days after the sheep were worried) that he could not 

 help it, and had ordered his dogs to be kept up. Williams J. thought 

 there was not sufficient evidence of the scienter to make the defendant 

 lialde, and nonsuited the plaintiff, with leave to move to enter a verdict 

 for £11 105., the value of the sheep. The Court discharged the rule, 

 and held that the plea of Not Guilty put in issue the scienter, it being 

 of the substance of the issue, and also that the defendant's conditional 

 offer to iiaij for the damafie was some slight evidence for the jury of the 

 scienter. Protheroe's evidence here referred to a time subsequent to 

 the act laid in the declaration, and it was no evidence of it. The offer 

 to pay might have been made from motives of charity in the first 

 instance, and without any admissive liability at all ; and if it had been 

 submitted to the jury the Court felt that it should have been done 

 with such strong observations against its weighing much for the plain- 

 tiff, that they declined to disturb the nonsnit. Again in Hogan v. 

 Sharjje, where the declaration stated that the defendant kept a dog 

 "of a ferocious and mischievous disposition, well knowing him to be 

 so," Lord Alinger C.B. lield that the plaintiff must be nonsuited if 

 the defendant never knew the dog to bite any one before, and that he 

 might avail himself of such want of knowledge under the plea of 

 Not Guilty. And in Ckird v. Case, where a dog belonging to the 

 dfilendant had chased and killed certain sheep and lambs of the plain- 



