the use of all animals which may be lawfully upon the others' lands, and does not permit any animals lawfully upon his premises to go upon lands so lying open." (The Town Law, Laws of 1890, chap. 569, § 100, as amended by Laws of 1892, chap. 92.) It further provides: "When the owner of any lands shall choose to let them lie open, he shall serve upon the owner of the adjoining lands a written notice to that effect, and thereafter the owners of such adjoining lands shall not be liable in any action or proceedings, for any damages done by animals lawfully upon their premises going upon the lands so lying open or upon other lands of the owner thereof through such lands so lying open. (The Town Law, § 101.) . . . 4. The exception to the common-law rule, that prevents the owner of lands adjoining a highway from recovering damages for an inadvertent trespass of cattle from such highway, is only applicable in favor of owners of cattle lawfully upon the highway; and the reason for the exception to the rule does not apply where the cattle trespassing upon adjoining lands were unlawfully in the highway; neither does it extend to trespasses upon lands other than those adjoining the highway. . . . A recovery for an inadvertent trespass by cattle lawfully on the highway is not denied because the cattle are lawfully upon the lands adjoining the highway; but the exception to the rule is, as we have also seen, an arbitrary and artificial one arising from necessity or an effort to relieve persons engaged in a lawful traffic on a public highway from too heavy a burden, and goes only to the extent of depriving such owner of lands adjoining the highway of a remedy by action for such trespasses. The cattle are not lawfully upon such adjoining lands, and if they trespass upon lands of another after crossing the lands so adjoining the highway, they do so from a place where they had no right to roam; and as an owner of the lands, even where division fences are required by statute or prescription, it is not required to fence against cattle not rightfully upon the adjoining lands, the plaintiff is not deprived of his remedy for the trespass of the defendant's cattle. . This limitation on the exception to the rule of the common law relating to trespass upon real property has been stated by the Courts so far as appears from the reports whenever the question has been squarely presented. In 1604, in the case of Harvey v. Gulson (Hil. 1 Jac. C. B.), reported by William Noy (Eng.), in 1669, and found at page 107 of his volume of reports, the Hilary Term James I, Common Pleas Court, said: "That if A hath a Close next to the Highway and beasts come out of the Highway into the close of A, and thence they enter into another Close of B adjoining and that B ought to fence, there in default of enclosure, etc., it is a good plea against A, but not against B or another stranger, etc. Vide 36, H. VI Barr. 168." . . . It thus appears both upon principle and from precedent that the owners of the cattle were liable to the plaintiff for any damage which he has sustained. 5. From the record it could be found that the cattle were all upon the plaintiff's land and that they did equal damage to him; if so the defendant was liable for such part of the damage done by all the cattle as the number of cattle owned by him bears to the whole number of cattle trespassing upon the plaintiff's land (Partenheimer v. Van Order, 20 Barb. 479). The judgment in each court should be reversed, with cost in all courts. CULLEN, Ch. J., EDWARD T. BARTLETT, WERNER and WILLARD BARTLETT, JJ., concur. GRAY, J., absent. HISCOCK, J., not sitting. Judgment reversed. SUB-TOPIC B. DAMAGE BY BITING, KICKING, ETC., PERSONS OR CHATTELS 497. REGISTRUM BREVIUM (ed. 1595; fol. 111). Ostensurus quare quosdam canes ad mordendas oues consuetos apud B. scienter retinuit, qui quidem canes centum oues ipsius Iohannis ibidem inuentas tam grauiter momorderunt, quod sexaginta oues precij centum solidorum de ouibus praedictis interierunt, & oues residuae multipliciter deterioratae fuerunt, & alia enormia ei intulit, ad graue damnum ipsius Iohannis vt dicit. Et habeas ibi nomina plegiorum & hoc breue. T. &c. 498. Sir MATTHEW HALE. Pleas of the Crown (ante 1680. Pt. I, c. 33, Vol. I, p. 430). If a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner know not his quality, he is not punishable. These things seem to be agreeable to law: 1. If the owner have notice of the quality of his beast, and it doth anybody hurt, he is chargeable with an action for it. 2. Though he have no particular notice that he did any such thing before, yet if it be a beast that is feræ naturæ, as a lion, a bear, a wolf, yea an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage, and so I knew it adjudged in Andrew Baker's Case, whose child was bit by a monkey that broke its chain and got loose. 3. And therefore in case of such a wild beast, or in case of a bull or cow, that doth damage, where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm the owner is liable to answer damages. 499. REX v. HUGGINS. (1730. 2 Ld. Raym. 1574, 1583.) Raymond, L. C. J.: There is a difference between beasts that are feræ naturæ, as lions and tygers, which a man must always keep up at his peril; and beasts that are mansuetæ naturæ, and break through the tameness of their nature, such as oxen and horses. In the latter case an action lies, if the owner has had notice of the quality of the beast; in the former case an action lies without such notice. 500. M'CASKILL v. ELLIOT COURT OF APPEALS OF SOUTH CAROLINA. 1850 5 Strobh. 196 CASE for wrongfully keeping a dog that bit the plaintiff. The first count alleged that the dog was accustomed to bite mankind; the second, that he was of a ferocious and mischievous disposition; both counts alleged the scienter of defendant. It appeared that the dog was large, and in appearance fierce; that he would run out of the yard of defendant (who lived near to a road) and bark furiously at persons passing by, and that once he bit the heels or tail of a horse that a witness was riding; that once at a mill, he attacked a negro who passed near to a horse he was lying by, but was kept off with a stick; that defendant had said, "the dog will follow me wherever I ride and lie by my horse, and then nobody must come near." On the occasion of a big meeting, defendant's son went fifteen minutes or so earlier than his father, the dog following; the son pulled off his saddle and scolded the dog, who slunk back and lay down by the saddle. The plaintiff coming afterwards, during service in the church, hitched his horse, and walking towards the church passed near the dog. The dog flew at and bit him. Testimony was offered as to the subsequent conduct of the parties, which it is useless to report. There was no testimony to show that the dog had previously bit any person. The defendant's counsel contended that this was indispensable, citing 7 Car. & Payne, 756. The Circuit Judge thought that a previous biting, known to defendant, might have an effect upon the degree of care which would afterwards be required of him, but was not indispensable under the second count. He directed the jury to inquire whether the evidence had satisfied them, first, that the dog was of a ferocious and mischievous nature; second, that this was known to the defendant; and third, that the defendant had been blamably negligent in his keeping of such a dog. If these propositions were established, he thought the verdict should be for the plaintiff. The jury found for the plaintiff a sum sufficient to carry costs. The defendant appealed, and moved for a new trial on the following grounds: 1. Because the first count sets out that the defendant knew that the dog was "used and accustomed to attack and bite mankind;" and the other count sets out that the defendant knew the dog "was of a ferocious and mischievous nature;" and it is most respectfully submitted, that in such case, to entitle the plaintiff to a verdict, he must prove, that before biting him the dog had bit some person, and that the defendant had had notice of that fact. . . . 3. Because the verdict is against the law and evidence of the case. Smart, for the motion. Kershaw, contra. CURIA, per WARDLAW, J. In every case for mischief done by an animal, where no evil design is imputed to the defendant, the cause of action is the defendant's breach of social duty, in not effectually preventing a thing within his control from doing the harm complained of, when his previous information ought to have shown that the thing was likely to do such harm if not prevented. . . . 1. Under the second count, alleging a ferocious and mischievous disposition, whatever was calculated to establish the dangerous propensity of the animal, in sufficient degree tended to support the allegation, and was properly left to the jury. That a dog has once bitten a man, is a circumstance from which the probability of its biting another, may be inferred: but the same inference may be drawn with equal confidence from other indications of the dog's disposition. . . . 2. But if the evidence sustained the second count, the defendant says that count is insufficient. . . . The defect alleged is the want of any special averment of negligence. . . . The argument is this: "He who keeps a dog that he knows is accustomed to bite mankind, does so at his peril; . . . but a ferocious and mischievous disposition is uncertain, admitting of various degrees; it cannot be said to be necessarily wrong to keep a dog of such a disposition, and therefore negligence in the keeping under the circumstances is a necessary ingredient in an action for damage done by such a dog." The answer is, that what is said of a dog accustomed to bite mankind is (except the duty of killing, assigned as a reason) true as to any animal, wild or tame, from which the defendant ought, according to his previous knowledge, to have expected the mischief complained of. Every such animal the owner keeps at his risk, being, without regard to care or negligence, an insurer against all the harm that he might reasonably have expected to ensue. . . . 3. If a dog is likely, as his owner knows, to bite either man or sheep only at particular seasons, or under particular circumstances, then, against those seasons or circumstances, and that kind of mischief to be apprehended in them, the owner insures at his peril. A plaintiff who has suffered such mischief, is, in cases that have been decided, advised to allege a general mischievous disposition, rather than a particular habit. Under such general allegation, his count is, in effect, that the defendant wrongfully kept a dog which he knew to be likely to do a certain harm, and that the dog had done that harm to the plaintiff. . . . A count of this kind puts in issue the existence of a disposition in the dog ferocious and mischievous to such a degree as was likely to produce the injury complained of, such knowledge of that disposition on the part of the defendant as ought to have induced his reasonable apprehension and effectual prevention of such an injury, the subsequent keeping of the dog, and the injury consequent thereon. Care taken by the defendant, which has failed to prevent what thus he ought to have apprehended and prevented, whilst he kept the animal, could not be a defence in any action of this kind. . . . In this case before us, the attention of the jury was directed to the question of negligence, perhaps unnecessarily; but negligence has been in fact expressly found. The dog may have been harmless in the defendant's yard, but he knew that it had a habit of following and guarding a horse, and that when thus employed, it was dangerous. He was bound then to insure against this habit, and when he suffered the dog to mount guard at a meeting-house, where many persons unsuspicious of danger may have been expected to pass, he surely was blamably negligent. The motion is dismissed. EVANS, FROST, and WITHERS, JJ., concurred. 501. KELLY v. ALDERSON SUPREME COURT OF RHODE ISLAND. 1896 19 R. I. 544, 37 Atl. 12 new trial. DEFENDANT's petition for a July 11, 1896. STINESS, J. This is an action for damages from a bite by the defendant's dog. The injury took place while the plaintiff was walking on a public highway in Jamestown, in the evening of August 30, 1895. By Pub. Laws R. I. cap. 749, of April 26, 1889, it was provided that the owner or keeper of a dog should be liable to the person injured for the damages sustained, and that it should not be necessary, in order to sustain an action, "to prove that the owner or keeper knew that such dog was accustomed to do such damage." At the trial before the jury, the defendant offered testimony to show that the plaintiff had previously stoned the dog; that the dog was peaceable, and had not been known to attack any person, except the plaintiff, and it is alleged that such testimony was excluded and that exception was taken. The evident purpose of the statute is to give a remedy to a person who is bitten by a dog upon a highway, without reference to the defendant's knowledge of the viciousness of the dog. In other words, if the dog gets upon the highway the owner is liable for whatever damage he may do. It is the risk which he takes from the fact that the dog is on the highway. The statute plainly extends the liability of an owner beyond his liability at common law, which was only for habits of which he had reason to know. Testimony, therefore, that the dog had not been known to bite before was no defence to the action, and was not admissible upon this ground. It is argued that no new liability is imposed by the statute, but only a rule of evidence which excuses the plaintiff from proving the scienter. |