330 



FEROCIOUS AND VICIOUS ANIMALS. 



What ought 

 to be the 

 liahility of 

 the person 

 keeping them. 



The Athenian 

 and Eoman 

 laws. 



The French 

 Code. 



Argument in 

 Mason v. 

 Keeling. 



An elephant kept for the purpose of exhibition cannot be 

 said to belong to a class of animals which, according to the 

 experience of mankind, is not dangerous to man, and there- 

 fore the owner of such an animal keeps it at his own risk, 

 and his liability for damage is not affected by his ignorance 

 of its dangerous character (c). The broad principle which 

 governs cases of this nature is, according to Bowen, L.J. [d), 

 that laid down in Fletcher v. Rylaiids [e), that a person who 

 brings upon his land anything that would not naturally come 

 upon it, and which is in itself dangerous, must take care 

 that it is kept under proper control. 



It would appear, however, only fair and right that who- 

 ever keeps an animal of any description, should keep it at 

 his risk, and that for any injury occasioned by it he ought 

 to be civilly responsible, whether he know of its mischievous 

 propensities or not. And it ought only to be necessary to 

 prove a scienter, where it is sought to make him criminalhj 

 responsible. 



Neither the Athenian nor Roman law required it to be 

 proved, that the owner had notice of the mischievous pro- 

 pensities of the animal. They probably thought that for 

 civil purposes, when A. sustains damage by the horns, hoofs 

 or teeth of an animal in which B. has a beneficial property, 

 and over which he has the exclusive control, it is for B., 

 and not for A., an innocent stranger, to ascertain that 

 which should determine the degree of care which ought to 

 be exercised (/). 



So also in the French code, neither knowledge in the 

 owner of the mischievous qualities of the animal, nor even 

 the existence of these qualities, is regarded {g). 



In arguing the case of Mason v. Keeling {/>), it was said, 

 " If a man have an unruly horse, which breaks through 

 his close or stable and does mischief, an action will lie for 

 it ; and it is hard that one should thus have a remedy for 

 the least trespass done in his land, and none for a trespass 

 done to his person, by wounding or maiming. Suppose one 

 keeps several mastiffs, shall he be exempt from an action 

 for mischief done by every one of them, till he knows 



[c) Filhurny. People's Palace, ^-c., 

 Co., 25 Q. B. D. 258 ; 59 L. J., 

 Q. B. 471; 38 W. R. 706— C. A. See 

 the remarks of Wright, J., in Sarpcr 

 V. Marclcs, [1894] 2 Q. B. at p. 323. 



(d) 25 Q. B. D. at p. 261. 



(c) L. E., 1 Ex. 265; L. R., 3 

 H. L. 330. 



(/) See Card v. Case, 5 C. B. 

 627, n. 



((7) Code Civil, No. 1385; Card 

 V. Case, 5 C. B. 627, n. ; see also 

 Exodus, chap. 21, vv. 21, 29, 30, 31, 

 32, 36. 



(A) Mason t. Keeling, 12 Mod. 

 333 ; S. C, 1 Ld. Eaym. 606. 



