.:376 VICIOUS and ferocious animals. 



iregit are wholly wanting, and that all actions for such acts are 

 actions on the case, i. e., where there is negligence or non-per- 

 formance of an absolute duty imposed by the law. The law 

 imposes a duty on the owner to restrain the known natural 

 propensities of his animal where the exercise of such propen- 

 sities would injure others : thus, where a dog is used to bite, 

 the owner must prevent him. Animals are generally inclined 

 to stray; therefore the owner must keep them from going on 

 the land of others. We incline to think that this, or some 

 such view, is the correct one." * 



In an old case, in trespass quare clausum fregit where the 

 declaration averred that, through the defendant's negligence 

 in keeping, his horse broke into the plaintiff's close and bit 

 his mares per quod they died, and verdict was for the plaintiff, 

 the court arrested the verdict because scienter was not al- 

 leged.* But in a note the accuracy of the report of this case 

 was questioned so far as it represented the action to have been 

 trespass quare clausum fregit: "Supposing the action to have 

 been trespass on the case, and the loss of the plaintiflf's mares to 

 have been the substantial injury complained of, it may then 

 indeed have been held necessary to allege a knowledge of the 

 horse's propensity to bite." ^** 



It may here be said, incidentally, that where the plaintif? in 

 the defendant's employment drove against his will a vicious 

 horse by which he was injured, it was held that the horse 

 was "plant" used in the defendant's business, and that his 

 vice was a "defect" in the condition of such plant, within the 

 meaning of a statute." On the other hand, where by a 

 clause in a railway contract fox^excavation "all machinery and 

 other plant," etc., provided by the contractor were to be the 



' 19 Sol. Jour. 211. 



' Scetchet v. Eltham, Freeman C. P. 534. 



" Ibid, note (a), citing Mason v. Keeling, i Ld. Raym. 606; Buxendin 

 ■V. Sharp, 2 Salk. 662. And see i Law Jour. 492. 



"Yarmouth v. France, 19 Q. B. D. 647; S. P. Fraser v. Hood, 15 Rettie 

 (Sc. Ct. Sess.) 178. 



