SCIENTER. 401 



who has been injured by an animal, say, for instance, bitten by 

 a dog — and who has, perhaps with difficulty, succeeded in dis- 

 covering the dog's owner should also have the burden cast 

 upon him of instituting an investigation into the dog's 

 antecedent character ; of making out, if the fact were so, that 

 the dog had previously bitten others or was presumably of a 

 savage disposition, and that the owner was aware of the dog's 

 savage acts or proclivities. To compel such an inquiry is to 

 aggravate the original injury. The proof is seldom easy, 

 often impossible, as the facts may and generally do lie 

 pecuHarly within the knowledge of the owner who is di- 

 rectly interested in concealing any savagery on the part 

 of the animal. Moreover the rule itself is utterly des- 

 titute of any reasonable foundation. Qui sentit commodum 

 debet et sentire onus. Knowledge or the absence of knowledge 

 on the part of the owner of the animal's disposition ought to 

 have no efifect whatever on his civil liability for the animal's 

 acts. In a criminal prosecution the fact of knowledge would 

 be all important, animus being an essential element, and there 

 could be none without knowledge. The distinction between 

 civil and criminal procedure in such cases is clear and well 

 marked. If indeed knowledge is requisite to fix the owner 

 with civil liability, then we say that it should be made an 

 irrefragable presumption of law that the owner of a domestic 

 animal must be aware of the indubitable fact that all animals 

 from sickness or other causes are liable to accessions of ill- 

 temper in which they may be expected to commit savage acts 

 foreign to their natural or ordinary disposition, and that some 

 classes of these animals are also liable to a peculiar madness, 

 and have then the power of communicating disease and death 

 in their most awful and repulsive forms, and we say that on 

 such presumption of knowledge the owner should be made 

 liable accordingly. . . . They manage these things better in 

 France. Art. 1385 of the Code Napoleon is as follows: 'Le 

 proprietaire d'un animal ou celui qui s'en sert pendant qu'il 

 est a son usage est responsable du dommage que I'animal a 

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