394 VICIOUS AND FEROCIOUS ANIMALS. 



Others from any possible danger. This is an advance even on 

 the old doctrine laid down in Smith v. Pelah ^^ where "the 

 Chief Justice ruled that if a dog has once bit a man and the 

 owner having notice thereof keeps the dog and lets him go 

 about or lie at his door [facts which might naturally go to 

 show negligence] , an action will lie against him at the suit of 

 a person who is bit, though it happened by such person's 

 treading on the dog's toes, for it was owing to his not hang- 

 ing the dog on the first notice. And the safety of the King's 

 subjects ought not afterwards to be endangered. The scienter 

 is the gist of the action." And see the remarks of Justice 

 Cooley on the keeping of animals fer<B natures, quoted in § 92, 

 supra. 



It seems to be admitted, however, that negligence need not 

 be averred or proved in the first place, the burden being on 

 the defendant to disprove that implied imputation.®^ Justice 

 Cooley says of the case of May v. Burdett,®* often cited as 

 holding that negligence is no element in such an action : "The 

 decision in this case seems to be that the keeper of such an 

 animal is prima -facie responsible for the injuries done by it, 

 but it is not decided that he may not meet the case by showing 

 that he observed in respect to it proper care." ®* 



Scienter need not be shown where the injury is committed 

 by an animal while trespassing, as was said above,®^ the gist 

 of the action there being the trespass and the injury being an 

 aggravation thereof. 



" 2 Strange 1264. 



■" Spring Co. v. Edgar, supra. And see Partlow v. Haggarty, 35 Ind. 

 178; Popplewell V. Pierce, 10 Cush. (Mass.) 509; Snow v. McCracken, 107 

 Mich. 49; Jackson v. Smithson, is M. & W. 563. 



"9 0. B. loi. 



" Cooley Torts 348. And see Briscoe v. Alfrey, 61 Ark. 196, where the 

 owner of an unaltered mule, kept in a well-fenced stable, was held not 

 liable for the consequences of its breaking out at night without his knowl- 

 edge. 



^ See § 76, supra. See, also, the article in 19 Sol. Jour. 211, quoted in 

 § 92, supra. 



