FEROCIOUS AND VICIOUS ANIMALS. 331 



that he has done a prior mischief? Is no care to he taken 

 to prevent a first mischief? " 



And in accordance with this common sense view of the Decision in 

 case, it was decided in Scotland, that a scienter was not Scotland. 

 necessary ; and Lord Cockburn said, " I have always 

 thought that if a dog worries sheep, his master is liable. 

 I do not attach any weight to the law of England. I am 

 told that knowledge on the part of the owner is requisite 

 to make him liable. This is absurd ; he cannot know it 

 until it is done. This would allow each dog to have one 

 worry with impunity " (e). 



But this case was carried to the House of Lords, where Reversed in 

 Lord Cockburn's judgment was reversed on the ground of the House of 

 there being no allegation of a scienter nor of negligence on 

 the part of the defendant, it being held that blame can 

 only attach to the owner of a dog, when, after having 

 ascertained that the animal has propensities not generally 

 belonging to his race, he omits to take precautions to pro- 

 tect the public against the ill consequences of those anoma- 

 lous habits. However, in this case Lord Campbell said, 

 " If in Scotland it is sufficient to allege negligence on the 

 part of the owner, without averring or proving his know- 

 ledge of the animal's habits, it is not that the foundation 

 of the action is different, but that the Scotch law does 

 not so readily permit the owner of the animal to rely on 

 the general consequences from its being supposed to be an 

 animal mansuetm naturm, a supposition which experience 

 shows to be very often far from the truth, and which I am 

 inclined to think that we in England have sometimes too 

 readily acted on " (,/). 



By the law of England, as laid down in a large number In England 

 of cases, a scienter is held necessary {k) ; and therefore, as 

 there is practically no efficient means of keeping snapping 

 dogs, &c., off the highways, ever}'- dog has the opportunity 

 of indulging once in the luxury, not, since the 28 & 

 29 Vict. c. 60 (as to which see post, p. 334), of worrying 

 sheep, as suggested by Lord Cockburn, but of biting men, 

 women and children. But it was the opinion of the Court 

 in Smith v. Cook (l) that the rule requiring proof of scienter 



[i) Orr V. Meeminff, 2 Macq. C.J., and "WiUes, J., Cox v. £ur- 



H. L. Cas. 14 ; 1 "W. R. 339. bidge, 13 C. B., N. S. 430, 436. 

 U) Ibid., 25 L. T. 73. [I) 1 Q. B. D. 79; 45 L. J., 



(/c) Bnt see dictum of Mr. Q. B. 122; 33 L. T., N. S. 722; 



Justice Maule, in Card v. Case, 6 24 W. R. 206. 

 C. B. 634. See, however, per Erie, 



a scienter is 

 held neces- 

 sary. 



