DEPASTURING VICIOUS HORSE. 167 



tiff's, but there was no evidence that the defendant knew that the doi,' 

 was accustomed to bite sheep, V. WiUknm J. nonsuited the phiintifF, 

 with leave to move to enter a verdict for £9 14s., if the Court should 

 be of opinion that tlie scienter was not put in issue by Not Guilty 

 (.5 C. B. G22). 



The question here was, as to the effect of the plea of" Not Guilty " in 

 an action for damage done to the plaintiff's sheep by a ferocious dog, as 

 regulated and restricted by the new rules? The Court of Common 

 Pleas discharged the rule on the ground that the scienter was clearly 

 put in issue by that plea, and that the plaintiff was bound to prove it ; 

 and 2^c>' Maute J.: " If several unlawful acts are alleged in the same 

 declaration, Not Guilty will put them all in issue. The cases of May v. 

 Burdett and Jaclcsoti v. Smithson, and the general course of precedents 

 and authorities referred to in May v. Burdett prove that the wrongful 

 act is the keeping of the ferocious dog, knowing its savage disposition, 

 and that an action of this sort may be maintained without alleging any 

 negligence. The allegation of duty in the defendant to use due and 

 reasonable care and precaution in keeping the animal, is quite immaterial 

 {Brown v. Mallet). The utmost diligence will not excuse him if the 

 dog was of a ferocious disposition, and the defendant knew it. The 

 ground of action is the keeping of a ferocious dog knowing his dis- 

 position. Not Guilty cannot ])ut the litiny in issue : that is the act of the 

 doy." The decision in May v. Burdett, as well us that in Jackson v. 

 Smithson, which was argued in the Court of Exchequer a few days 

 after, and entirely governed by it, are binding authorities to show that 

 neyliyence is to he presumed without express averment. The former of 

 these two was the case of a person keeping a monkey Avhich he knew to 

 be accustomed to bite, and which bit the female plaintiff. In Jadcson 

 V. Smithson (15 M. & W. 563), where the defendant " wrongfully and 

 injuriously kept a ram, well knowing he was prone and accustomed to 

 attack, butt, and injure mankind," the plaintiff had a verdict for £10, 

 and the Court refused to arrest the judgment for lack of an express 

 averment that the defendant negligently kept the ram. In reference 

 to May V. Burdett, Alderson B. said: "In truth there is 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 ferce naturae (9 Q. B. 101). 



Depasturinij a vicious horse. — In the case o? Reg. v. Dant,{\\Q prisoner 

 had turned out upon a common a horse which he knew to be vicious ; 

 the horse kicked and killed a little child which had strayed off the path 

 on to the common, and the prisoner was tried and convicted of man- 

 slaughter : held that the conviction was right. 34 L. J. M. C. 119. 



