400 VICIOUS AND FEROCIOUS ANIMALS. 



where sheep are killed by dogs."* Where the owner of a 

 dog was made liable by statute without proof of scienter for 

 injuries to any "cattle and sheep," it was held that the word 

 "cattle" included horses."® But proof must be given in all 

 cases not specially covered by the statute.^ ^" 



With regard to this rule requiring the plaintiff to prove 

 scienter, it was said in Murphy v. Preston ■P'^ "It is true that 

 this principle has recently been sharply criticised (i Taylor's 

 Ev. 279), but it has the countenance of the earliest decisions; 

 and these accord with the rule announced by the Hebrew law- 

 giver in Exodus, that, if an ox gore a man or a woman, the 

 owner shall go free unless 'the ox were wont to push with 

 his horn in time past, and it hath been testified to his owner, 

 and he hath not kept him in,' in which case only the owner 

 should be held liable." 



On the other hand, in an article in the Law Times the 

 following remarks are made: "Among the minor absurdities 

 and iniquities which still infest and disfigure our jurispru- 

 dence, there is none more absurd and iniquitous than the rule 

 under which the owner of a domestic animal is exempted from 

 liability for damage inflicted by the animal, unless the animal 

 was, to his knowledge, of a vicious or mischievous disposi- 

 tion. ... It has always struck us as intolerable that a person 



329; Koestel v. Cunningham, 97 Ky. 421; Orne v. Roberts, 51 N. H. no; 

 Newton v. Gordon, 72 Mich. 642; Schaller v. Connors, S7 Wis. 321. 



Cf. Slinger v. Henneman, 38 Wis. 504. 



"" See Kerr v. O'Connor, 63 Pa. St. 341 ; Kertschacke v. Ludwig, 28 Wis. 

 430; Trompen v. Verhage, 54 Mich. 304; Jacobsmeyer v. Poggemoeller, 

 47 Mo. App. 560; Job V. Harlan, 13 O. St. 485; Cockfield v. Singletary, 

 15 Rich. L. (S. C.) 240; Reg. v. Perrin, 16 Ont. 446; Smith v. Buck, 

 29 N. B. 268. 



As to culpa on the part of the owner of a sheep-killing dog, under the 

 Scotch law, see Smith v. Hurll, 1 Sc. L. Rev. (Sher. Ct. Rep.) 246; Turner 

 V. McLaren, 3 id. 57; Duncan v. Rodger, 7 id. 313; Howison v. White, 

 8 id. 318; Taylor v. McKerrow, 13 Jour. Jurisp. (Sc.) 104; Mclntyre v. 

 Carmichael, 8 Macph. (Sc. Ct. Sess.) 570. 



"• Wright V. Pearson, 38 L. J. Q. B. 312. 



™ Osincup V. Nichols, 49 Barb. (N. Y.) 145. ™ 5 Mackey (D. C.) 514. 



