In the Queen's Bench.-Brown v. Dakin.

mean that the defendant agreed with all the creditors, and that therefore the evidence did not support the plea.

kind, and that it was dangerous to allow it to be at large, and that the monkey, whilst the defendant kept the same, did attack, bite, and injure the plaintiff, whereby &c. :-Held sufficient.

CASE.

Humfrey moved for a rule to show cause why the verdict should not be set aside, or why a verdict should not be entered for the defendant, or why there should not be a new trial on the ground of misdirection. He contended that it was not necessary for all the creditors to agree to the composition; and that the plea, as between these parties, was substantially proved, although it appeared there were two to whom the agreement was not communicated. The plaintiff had agreed to accept 2s. 6d. in the pound, and give up the bill when that sum was paid him. Divers only means more than one. But at all events, it is a question for the jury, whether the agreement was substan-mencement of this suit, to wit, on the 2nd tially proved.

Declaration stated, that whereas the defendant, before and at the time of the damage and injury herein after mentioned to the said Sophia, the wife of the said Stephen May, wrongfully and injuriously kept a certain monkey, he the defendant then well knowing that the said monkey was of a mischievous and ferocious nature, and was used and accustomed to attack and bite mankind and that it was dangerous and improper to allow the said monkey to be at large and unconfined, and which said monkey, whilst the defendant kept the same aforesaid, heretofore and before the com

Wood v. Roberts; 2 Starkie, 217, Good v. Cheeseman; 2 B. & Ad. 328. Cur. adv. vult.

LORD DENMAN, C. J.,-delivered the judgment of the court. In this case the question submitted to the court was, whether the plea had been proved. To an action on a bill of exchange the defendant pleaded, that the defendant had agreed with the plaintiff and divers other persons to accept a composition of 2s. 6d. in the pound; but it appeared that no notice was given to two of the creditors, and they did not agree and in fact knew nothing of the arrangement. I do not think the plea is supported by the evidence. The plea would show prima facie, that all the creditors agreed. We say nothing as to the validity of a plea specifying the particular creditors with whom an agreement for a composition had been made.

Rule refused.

as

September, 1844, did attack, bite, wound, lacerate, and injure the said Sophia, then and still being the wife of the said Stephen May, whereby the said Sophia became and was greatly terrified and alarmed, and became and was sick, sore, lame, and disordered, and so remained and continued for a long time, to wit, from the day and year last aforesaid to the time of the commencement of this suit, whereby, and in consequence of the alarm and fright occasioned by the said monkey so attacking, biting, wounding, lacerating and injuring her as aforesaid, the said Sophia has been greatly injured in her health, and has been brought and reduced into a highly excitable and nervous state, and has by reason of the premises been otherwise seriously injured.

A rule nisi having been obtained for arresting the judgment.

Watson and Crouch showed cause.The declaration is good, without charging negligence in keeping the animal. "If a dog has once bit a man, and the owner,

MAY AND WIFE V. BURDETT.-2nd June, having notice thereof, keeps the dog, and

1846.

DECLARATION.-ALLEGATION.

A person keeping a mischevions animal, with knowledge of its propensities, is bound to keep it secure at his peril, and if it does mischief negligence is presumed, without express averment. Declaration in case stated that the defendant wrongfully kept a monkey, well knowing that it was of a mischievious and ferocious nature, and used and accustomed to attack and bite man

lets him go about or lie at his door, an action will lie against him at the suit of the person who is bit, though it happen for it was owing to his not hanging the by such person treading on the dog's toes; dog on the first notice..... The scienter is the gist of the action." Lee, C. J. in Smith v. Pelah, 2 Str. 1264. "An action upon the case will lie for keeping a dog used to bite sheep, and which has killed

In the Queen's Bench.-May and Wife v. Burdett.

sheep belonging to the plaintiff; but in this declaration, the defendant may have such case it must be proved that the de- kept the monkey tied up.] The defenfendant knew that he would bite sheep. "dant must run the risk of its getting loose; Bull. N. P. 77; Com. Dig. Action on the if the plaintiff had been guilty of gross case, Negligence," A. 5; Cropper v. negligence in going to the place where Matthews, 2 Sid. 127. In Michael v. Ales- the monkey was kept, the jury would tree, 2 Lev. 172, there was no scienter have so found. [WIGHTMAN, J.-How that the horses were unruly; but the de- do you reconcile that with the right of a fendant's servant brought them into a pub- person to keep a dog to guard his house?] lic place where people were wont to re- If the plaintiff had brought the injury sort. In Vin. Abr." Actions " H., (Mis- upon himself, the defendant might set chief by Dogs), vol. 1, p. 234, pl. 4, it is that up under the general issue, or he said, "If a man has a dog that kills sheep, might plead it. Thomas v. Morgan, 2 C.. the master of the dog being ignorant of M., & R. 496. The precedents accord such quality, the master shall not be pun- with this declaration. Reg. Brev. 110; ished for this killing; but if he has notice Pleader's Assistant, 105, 117; Lill. Entr. of such quality, it is otherwise." Citing 29; Morg. 442; Lib. Plac. 40, pl. 50; Dy. 25, b, pl. 162; and in pl. 5, "Action Rast. Ent. 5588 Wentw. 437; 2 Chitt. upon the case, for that he kept a mastiff, Plead., (by Greening), 430. The learned scien's that he was assuetus ad mordendum counsel also cited a MS. precedent of porcos, which mastiff bit the plaintiff's Serj. Williams and precedents copied at sow, great with pig, so as she died of the the chambers of Richardson J. and Baybiting. It was said the declaration was ley J. when at the bar. not good, for that ad mordendum porcos assuetus is not good; for it is proper for Cockburn and Pickering, contra.-The a dog only to hunt, and not to kill swine. statements in the declaration are only by Resolved, the action did well lie; for it way of recital; there is no direct allegais not lawful to keep dogs to bite and kill tion of an escape or of negligent keeping. swine;" and in pl. 6, "If one keeps a All the statements are under "whereas:" dog accustomed to bite sheep, &c., and it is said, "and which said monkey," not notwithstanding he keeps the dog still," which said monkey." The common and afterwards the dog bites a horse, this shall be actionable, notwithstanding the precedents are all of the same species, because the owner, after notice of the first mischief, ought to have destroyed or hindered him from doing any more hurt; citing Jenkins v. Turner, 1 Ld. Raym. 109, 110. If the scienter is omitted, an averment of negligence is not sufficient. Scetchet v. Eltham, Freem. 534, cited in Vin. Abr." Actions, " H. 2, (Actions for mischief by Beasts or other creatures), vol. 1, p. 235; Mason v. Keeling, 12 Mod. 332; Bayntine v. Sharpe, cited in Jenkins v. Turner, 1 Ld. Raym. 109. [PATTESON, J.-Those cases show that the declaration cannot be supported without a scienter; they do not show that an averment of negligence also is not necessary.] There is an analogy to the cases where an injury has arisen from the keeping of dangerous weapons. Dixon v. Bell, 5 M. & S.198: Blackman v. Simmons, 3 Car. & P. 138; Curtis v. Mills, 5 Cr. & P. 489; Goldthorpe v. Hardman, 13 Mee. & W. 377. [PATTESON, J.-Consistently with

form of allegation asserts that the animal is ferocious; here it is only alleged by way of inference:" the defendant then well knowing," &c. Mason v. Keeling 1 Lord Raym. 606; 12 Mod. 332, is the only case in which a declaration in this form has come before a court. There negligence was distinctly averred, and the declaration was held bad, because there was no averment of a scienter. All the precedents cited for the plaintiff relate to domestic animals, which consistently with the declaration, are at large; two of the writs in Reg. Brev. 110, relate to a dog; the third relates to a boar, and it appears from the nature of the writ that it was tame, because, if wild, the declaration must have averred a scienter. Jenkins v. Turner, 1 Ld. Raym. 107, was the case of a dog. In Thomas v. Morgan, 2 C., M., and R. 496, which was the case of a boar, no objection was taken to the form of the declaration. [PATTESON, J.- In R. v. Higgins 2 Lord Raym. 1574, 1583, the court draws the distinction clearly between beasts feræ natura and domestica

.

In the Queen's Bench.-May and Wife v. Burdett.

ficient because the presumption would be that the plaintiff was negligent in going near it. Here, the declaration alleges that the monkey was in the keeping of the defendant, and the only mode of keeping it would be in custody of some kind. The dicta cited for the plaintiff are with reference to the animal being at large. In Smith v. Pelah, 2 Str. 1264, the form of the declaration does not appear. In Dixon v. Bell, 5 M. & S. 198, Leame v. Bray, 3 East, 593, and Blackburn v. Simons, 3 C. & P. 138, negligence was averred. (See Lloyd v. Walkey, 9 C. & P. 771). In Brock v. Copeland, 1 Esp. 203, Lord Kenyon said, that the injury

ted animals, where there is a charge of 295. Suppose the declaration alleged felony; where there is notice of the mis- that the defendant knowingly kept a sachievous quality of the animal, the defen-vage dog tied up, that would not be sufdant is guilty; but still he is not guilty, if he takes proper care. If the same distinction applies to an action on the case, it is in your favor.] In 1 Hale, P. C. 430, it is said, "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 a monkey, if he get loose and do any 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 his chain and got loose. See case mentioned in Michell v. Allestry, 3 Keb. 651. The form of an indictment for keeping a dog is given in Burn's Just., tit. " Dog. "which this action was calculated to rep. 334, ed. 1845. The same distinction dress was when an animal known to be is recognised in Just. Inst., by Harris, lib. mischievous was permitted to go at large, 4, tit. ix, treating of the actio noxalis for and the injury, therefore, arose from the condemning the animal to be delivered fault of the owner in not securing such up to death, and for imposing a penalty animal..... That here the dog had been upon the owner: "Hæc autem actio in properly let loose, and the injury had ariiis quæ contra naturam moventur locum sen from the plaintiff's own fault in inhabet. Cæterum si genitalis sit feritas cautiously going into the defendant's yard cessat actio. Denique si ursus fugerit a after it had been shut up. "In Com. Dig. domino et sic nocuerit, non potest quonPleader," 282, it is said, “ A declaradam dominus conveniri, quia desiit domi- tion for neglect in keeping his dog," &c., nus esse, ubi fera evasit." Commenta-" must say that the defendant was sciens ries of Mons. Outlan, Professor of Civil of the mischievous quality; "which shows Law at Paris. This doctrine is founded that he considered that the action was for on Ex. xxi, 28, 29, 35, 36. It may be negligence, not simply for keeping the assumed that it is the fault of the owner, animal. This question could not have if a tame animal does mischief; but, in arisen before the New Rules, because it the case of wild animals, the party who was for not keeping the animal properly. keeps them is only liable if he has kept 2 Chitt. Pl., by Greening, 430, n. b.; them negligently; otherwise, it would be Hartley v. Harrison, 1 B. & A. 620; unlawful to keep wild animals. In the Jones v. Perry, 2 Esp 482; Jordan v. case cited in Michel v. Allestree, 1 Vent. Crump, 8 Mee. & W. 782. In the case 295, also in S. C., nom Michell v. Alles- of a dog chasing sheep, the dog must be try, 3 Keb. 650, the injury to the plaintiff at large, and, therefore, negligence is imwas laid in the declaration to be for want pliedly averred. In Leame v. Bray, 3 of the due penning of the ox. As appears East, 593, 596, Lord Ellenborough said, from Mason v. Keeling, 12 Mod. 332, 333," If I put in motion a dangerous thing, the ownership of a wild animal only conti- as, if I let loose a dangerous animal, and nues while it is in custody; 2 Black. Comm. leave to hazard what may happen, and 891; and, therefore, upon the face of the mischief ensue to any person, I am andeclaration, the defendant has the monkey swerable in trepass." The precedent in in his possession. In Com. Dig., "Action 8 Wentw. Plead. 581, alleges negligence, on the case for Negligence," A. 5, it is and a knowledge that it was dangerous said, "If a man has a tame fox, which to allow the animal to be at large and unescapes, and becomes wild and does mis- confined. [Lord DENMAN, C. J.-That chief, the owner shall not answer for the is no great step in knowledge.] The latdamage done afterwards, " citing 1 Vent. ter part limits the former, the ani

In the Queen's Bench.-May and Wife v. Burdett.

mal being only dangerous if at large. [WIGHTMAN, J—If the former raises the duty, that is enough. PATTESON, J.The non-necessity of an averment of a scienter arises from the knowledge that the animal is dangerous; when there is an averment of a scienter as to a tame animal, it puts the liability upon the same footing as in respect of a wild animal. It is not alleged in this declaration that the monkey was at large, but only that the defendant kept it.] In this case that is equivalent to saying that he kept it tied up.

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 and ferocious 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.

The precedents, both ancient and modern, with scarcely an exception, merely state the ferocity of the animal, and the knowledge of the defendant, without any allegation of negligence or want of care. A great many were referred to upon the argument, commencing with the register, and ending with Thomas v. Morgan, 2 C., M., & R. 496, and all in the same form, or nearly so. In the register, 110, 111, two precedents of writs are given; one for keeping a dog accustomed to bite sheep, and the other for keeping a boar accustomed to attack and wound other animals. The cause of action, as stated in both these precedents, is the propensity of the animals, the knowledge of the defendant, and the injury to the plaintiff; but there is no allegation of negligence or want of care.

In the case of Mason v. Keeling, reported in 1 Ld. Raym. 606, and 12 Mod. 332, and much relied upon on the part of the defendant, want of due care was alleged, but the scienter was omitted; and the question was not whether the declaration would be good without the allegation or want of care, but whether it was good without the allegation of knowledge, which it was held that it was not.

No case was cited in which it had been decided that a declaration stating the ferocity of the animal, and the knowledge of the defendant, was had for not averring negligence also; but various dicta in the books were cited to show that this is an action founded in negligence, and, therefore, not maintainable, unless some negligence or want of care is alleged.

an

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, consistently with this declaration, the monkey might have been kept with In Com. Dig., tit. " action upon the due and proper caution, and that the inju- case for negligence," it is said, that " ry might have been entirely occasioned action upon the case lies for a neglect in by the carelessness and want of caution taking care of his cattle, dog," &c.; and of the plaintiff herself. A great many passages were cited from the older aucases and precedents, were cited upon thorities, and also from some cases at the argument; and the conclusion to be nisi prius, in which expressions were used drawn from them appears to us to be, that showing, that, if persons suffered animals the declaration is good upon the face of to go at large, knowing them to be disposit, and that whoever keeps an animal ac-ed to do mischief, they were liable in case customed to attack and bite mankind, any mischief actually was done; and it with knowledge that it is so accustomed, was attempted to be inferred from this, is prima facie liable in an action on the case, at the suit of any person attacked and injured by the animal, without any averment of it. The gist of the action is the keeping of the animal after knowledge of its mischievons propensities.

that the liability only attached in case they were suffered to go at large, or to be otherwise ill secured. But the conclusion to be drawn from an examination of all the authorities appears to us to be this: that a person keeping a mischievous ani

In the Queen's Bench-Bail Court.-Tittert v. Shepperd.

mal, with knowledge of its propensities, is bound to keep it secure at his peril, and that if it does mischief, negligence is presumed without express averment; the precedents as well as the authorities fully warrant this conclusion. The negligence is in keeping such an animal after notice. The case of Smith v. Pelah, 2 Stra. 1264, and a passage in 1 Hale's Pleas of the Crown, 430, put the liability on the true ground. It may be, that, if the injury was solely occasioned by the wilfulness of the plaintiff after warning, that may be a ground of defence by plea in confession and avoidance; but it is unnecessary to give any opinion as to this, for we think that the declaration is good upon the face of it, and shows a prima facie liability in

the defendant.

It was said, indeed, further, on the part of the defendant, that the monkey, being

an animal feræ naturæ he would not be

ney pursuant to his undertaking.
The court,
notwithstanding the delay which had taken
place, made the rule absolute with costs

THIS was a rule calling upon Mr. Robert Swain, an attorney, to show cause why he should not pay to Mr. Alfred Frederick Chamberlayne the sum of 71. pursuant to his undertaking, and why he should not pay the costs of this application. The circumstances under which this application was made to the court were as follows:-It appeared, that, in the year 1843, the applicant, Mr. Chamberlayne, was in practice as an attorney, in partnership with a gentleman named George Meaden, since deceased. In the early part of that year a feigned issue was brought by order of the court, in which Titterton was the plaintiff and Shepperd the defendant. On this occasion Messrs. Chamberlayne and Meaden acted as the answerable for injuries committed if it the gentleman against whom this appliattorneys for the plaintiff, and Mr. Swain, escaped and went at large, without any cation was now made, acted as attorney default on the part of the defendant, dur- for the defendant. In the course of these ing the time it had so escaped and was at proceedings a judge's order was obtained large, because, at that time, it would in the cause, directing that a summons, not be in his keeping nor under his con- which had previously been obtained by trol; but we cannot allow any weight to the defendant, should be dismissed, with this objection; for, in the first place, there costs, to be taxed and paid to the defendis no statement in the declaration that the ant. The costs were taxed at 71., and as monkey had escaped, and it is expressly they were not paid when demanded, averred that the injury occurred whilst Messrs.Chamberlayne and Meaden threatthe defendant kept it. We are besides of ened forthwith to make the judge's oropinion, as already stated, that the defen- der a rule of court, and to take the necesdant, if he would keep it, was bound to keep it secure, at all events. The rule, the money. sary steps for enforcing the payment of Mr. Swain thereupon, with therefore, will be discharged. a view of protecting his client from the threatened proceedings, on the 3d May, 1843, gave to Messrs. Chamberlayne and Meaden the undertaking for the non-compliance with which this application was made, and which was annexed to the order in question. It was in the following

Rule discharged.

[BAIL COURT.]

Before Sir WILLIAM WIGHTMAN.

TITTERTON V. SHEPPERD.-Easter Term, terms :

1846.

ATTORNEY-UNDERTAKING-ENFORCEMENT
OF LAPSE OF TIME.

"Titterton v. Shepperd.

"In consideration of your not making the annexed order a rule of court, I undertake to pay the amount of the taxed costs on the 20th July next as allowed on

the said order.

"ROBERT SWAIN.—May 3d, 1843. "To Messrs. Chamberlayne and Meaden.”

An attorney for the defendant in a feigned issue undertook to pay a given sum of money on a given day. The money was not demanded on the day specified but repeated applications were subsequently made for the money in vain. tween three and four years after the money became due, a summary application was made to this court to compel the attorney to pay the mo- lying upon the undertaking of the defen

Be

Messrs Chamberlayne and Meaden, re