results from the keeping. The scienter, not negligence in keeping, constitutes the tort. The doctrine stated in Dyer is adopted in Com. Dig. Action upon the Case for Negligence (A 5); and Comyns observes: "It is sufficient to say, canem ad mordendum consuetum scienter retinet." [COLERIDGE, J. You cannot suppose that that is meant as giving the complete form of a declaration.] In 1 Vin. Abr. 234, tit. Actions [Mischief by dogs, &c.] (H), pl. 3, it is said: "If a man has a dog that kills sheep, the master of the dog being ignorant of such quality, the master shall not be punished for this killing; but, if he has notice of such quality, it is otherwise." Declarations averring misconduct in the keeping of a horse or dog or a bull, but omitting the scienter, have been held insufficient. Scetchet v. Ellham, Freem. C. B. 534; Mason v. Keeling, 12 Mod. 332; s. c. Ld. Raym. 606; Bayntine v. Sharp, 1 Lutw. 90. See Buxendin v. Sharp, 2 Salk. 662. The case of Michael v. Alestree, Lev. 172, cited in moving for the present rule, is no authority to the contrary. There a scienter was held unnecessary; but the complaint was not of a mere improper keeping, but that the defendant, by his servant, carelessly drove ungovernable horses for the purpose of breaking them in a public place. [LORD DENMAN, C. J. He brought the horses to a place where people were.] The case of keeping a vicious animal is analogous to those in which persons merely keeping dangerous weapons or instruments have been held liable if mischief resulted from their being kept. Dixon v. Bell, 5 M. & S. 198; Townsend v. Wathen, 9 East, 277. In Blackman v. Simmons, 3 Car. & P. 138, the mere keeping a dangerous bull, with knowledge, appears to have been considered a ground of action, mischief having ensued. The same conclusion may be drawn from Curtis v. Mills, 5 Car. & P. 489. [PATTESON, J. It does not appear, in the present case, that the monkey may not have been chained up, and have unexpectedly escaped. But you say that, if a party keeps such an animal, chained, he runs the risk of its breaking loose.] That is the law. [PATTESON, J. Suppose it had been confined in a cage, and the plaintiff's wife had put her hand in.] Actual misconduct in the plaintiff might be a defence, under the general issue or a special plea. The present form of

1 Patteson, J., alluded here to the case of a person going into a place where he had no business to be at the time, and being there bitten by a dog; probably Brock v. Copeland, 1 Esp. 203.

declaration agrees with the precedent in 2 Chitty on Pleading, 430 (7th ed.). [PATTESON, J. Mr. Chitty observes that, before the new rules prohibiting more than one count on the same transaction, it was usual to add other counts, one of which was for not keeping the dog properly secured.] A form like the present was used in Thomas v. Morgan, 2 Cro., M. & R. 496; s. c. 5 Tyr. 1085. The older precedents are similar: Reg. Brev. 110 b, cited, and relied upon by the court, in Cropper v. Matthews, 2 Sid. 127 (where Reg. Brev. 108 is also cited, but this seems a mistake). See Reg. Brev. 111 a; Rest. Ent. Plac. 40, pl. 56; Morg. Prec. 443; 1 Lil. Ent. 29; 8 Wentw. Pl. 437. (Watson also stated that the present form accorded with manuscript precedents of the late Mr. Serjeant Williams and Mr. Justice Richardson, and with precedents extracted by himself from the books of Mr. Justice Bayley.) The averment here that the defendant knew it to be dangerous" to allow the said monkey to be at large" is not material, and does not render it necessary to show that the monkey was, in fact, allowed to be at large.

Cockburn and Pickering, contra. The question in this case is important, inasmuch as the plaintiff assumed that it is illegal to keep a destructive animal, as is done at the garden of the Zoölogical Society and other menageries, and that, however carefully such animal may be kept, yet if it escapes without any fault on the owner's part and does damage, or even if an incautious person be hurt, or an excessively timid person terrified by the animal while under proper restraint, the owner is answerable. No decision has gone that length; and, in the present case, the declaration alleges nothing inconsistent with a strictly proper keeping. In Com. Dig. Action upon the Case for Negligence, the division (A 5) referred to on the other side is headed, "For a neglect in taking care of his dog, horse, cattle," &c., and the first instance given is, "If a man ride an unruly horse in Lincoln's Inn Fields (or other public place of resort), to tame him, and he break loose, and strike the plaintiff;" on which point Michael v. Alestree, 2 Lev. 172, s. c. 1 Ventr. 295, 3 Keb. 605, is cited. In Ventris's report of that case, the court is stated to have said: "Lately in this court an action was brought against a butcher, who had made an ox run from his stall and gored the plaintiff; and this was alleged in the declaration to be in default of penning him." And in Keble's report of Michael v. Alestree, 3 Keb. 605, reference is

made to a case "where a monkey escaped and did hurt, by default of the owner." Neglect, and not merely having such animals, was essential to the action in each of the cases. This remark applies also to the placita in the division of Com. Dig. before cited, as to a mad bull, and the case in which, if a dog has once bitten a man, and the owner, having notice, keeps him "and lets him go about or lie at his door," a person bitten by the dog may bring an action. Smith v. Pelah, 2 Stra. 1264. It is true that the scienter is also a necessary averment; but that is because knowledge is an ingredient of negligence; and for that reason it is laid down in Com. Dig. Pleader (2 P. 2), that "a declaration for a neglect in keeping his dog," &c., "must say that the defendant was sciens of the mischievous quality." In Brock v. Copeland, 1 Esp. 203, where the declaration stated "that the defendant knowingly kept a dog used to bite," and by which the plaintiff was bitten, Lord Kenyon ruled that the action would not lie. He said "that every man had a right to keep a dog for the protection of his yard or house; that the injury which this action was calculated to redress was where an animal known to be mischievous was permitted to go at large, and the injury therefore arose from the fault of the owner in not securing such animal, so as not to endanger or injure the public; that here the dog had been properly let loose; and the injury had arisen from the plaintiff's own fault, in incautiously going into the defendant's yard after it had been shut up." The only plea there was not guilty. [COLERIDGE, J. "Not guilty" then had not the same effect as the plea of not guilty in modern times.] There is no instance of a special plea that the injury done by the animal resulted from the plaintiff's own negligence. In the passage cited on the other side from the judgment in Rex v. Huggins, 2 Ld. Raym. 1583, the question discussed is, in what cases notice of the mischievous quality of the animal is essential to the owner's liability; and the difference stated on that point is, whether the animal be originally mansueta or feræ naturæ. But in neither case does it appear that liability attaches without any negligence in the owner. Even where death has ensued, the court says: "If the owner have notice of the mischievous quality of the ox, &c., and he uses all proper diligence to keep him up, and he happens to break loose, and kills a man, it would be very hard to make the owner guilty of felony. But if through negligence the beast goes abroad, after

warning or notice of his condition, it is the opinion of Hale that it is manslaughter in the owner. And if he did purposely let him loose and wander abroad, with a design to do mischief; nay, though it were but with a design to fright people and make sport, and he kills a man, it is murder in the owner." In Justinian's Institutes, b. 4, tit. 9, it is said (after distinguishing between damage done by animals which are naturally ferocious, and by those which act against their nature in doing damage), "Si ursus fugit a domino et sic nocuit, non potest quondam conveniri, quia desiit dominus esse, ubi fera evasit." In that case there is no longer a power of control, and, therefore, no room for negligence nor any ground for liability. A monkey is naturally a wild animal; and there is no averment in this case that it was tame when the mischief happened. If, therefore, it escaped without the owner's fault, and did damage, he would not be liable. Thus it is said, in Com. Dig. Action upon the Case for Negligence (A 5), that, "if a man has a tame fox, which escapes and becomes wild, and does mischief, the owner shall not answer for the damage done afterwards." See 1 Ld. Raym. 606 (in Mason v. Keeling). If, indeed, he wilfully or carelessly set the animal at liberty, he would be liable, according to the dictum of Lord Ellenborough in Leam v. Bray, 3 East, 593, 595. "If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in trespass." The principle by which cases like this must be governed is, that a man may do on his own land what he thinks proper, so that he does not thereby interfere with the rights of others. A man may set dog-spears in his own ground, even without giving notice to others. Jordin v. Crump, 8 M. & W. 782. So he may keep a dangerous animal there; and the act being legal, he is not answerable for a misfortune which results from it, unless caused by misconduct of his own. Here it is consistent with all the averments that the plaintiff and not the defendant may have been in fault.

The course of precedents, at least since the date of the older entries cited on the other side, has not been uniform; and (as is stated in Chitt. Pl. 430, 7th ed.) before the new rules it was usual to draw a separate count averring negligence in not keeping the animal secured. Jones v. Perry, Esp. N. P. C. 482, and Hartley v. Harriman, 1 B. & Ald. 620, afford instances. In the

case of the butcher cited in Ventris's reports of Michael v. Alestree, 1 Vent. 295, negligence was charged; and the same averment appears to have been made in the action for mischief done. by a monkey, referred to in Keble's report of the same case, 3 Keb. 650. In Mason v. Keeling, 1 Ld. Raym. 606, s. c. 12 Mod. 332, where the validity of the declaration was discussed on demurrer, the court alleged that the dog attacked the plaintiff "pro defectu debitæ curæ et custodia" by the defendant, who permitted the dog "libere et ad largum ire." "libere et ad largum ire." In Blackman v. Simmons, 3 Car. & P. 138, negligence was expressly averred. And in Curtis v. Mills, 5 Car. & P. 489, the materiality of such an allegation appears from the stress laid by Tindal, C. J., on the question whether or not the dog was placed in such a situation that by common care the plaintiff might have avoided him. A precedent, in 8 Went. Pl. 581, of a declaration for mischief done by unruly rams, belonging to the defendant, alleges not only a scienter, but negligence in permitting them to go at large. Even in the present case the framer of the declaration seems to admit that the owner, to be liable, must have contributed, by some neglect or permission, to the animal's escape, since the court avers knowledge by him "that it was dangerous and improper to allow the said monkey to be at large and unconfined;" in which respect it unquestionably departs from the precedents cited on the other side. Cur. adv. vult.

LORD DENMAN, C. J., now delivered the judgment of the

court.

This was a motion to arrest the judgment in an action on the case for keeping a monkey which the defendant knew to be accustomed to bite people, and which bit the female plaintiff. The declaration stated that the defendant wrongfully kept a monkey, well knowing that it was of a mischievous nature, and used and accustomed to attack and bite mankind, and that it was dangerous to allow it to be at large; and that the monkey, whilst the defendant kept the same as aforesaid, did attack, bite, and injure the female plaintiff, whereby, &c.

It was objected, on the part of the defendant, that the declaration was bad for not alleging negligence or some default of the defendant in not properly or securely keeping the animal; and it was said that, consistently with this declaration, the monkey might have been kept with due and proper caution, and