Stephen May, and Sophia, his Wife, against Burdett
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1846 |
| Date | 02 June 1846 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 1213
QUEEN'S BENCH
S. C. 16 L. J. Q. B. 64; 10 Jur. 692. Principle not applied, Hill v. Balls, 1857, 2 H. & N. 303. Applied, Fletcher v. Rylands, 1860-68, L. R. 1 Ex. 281; L. R. 3 H. L. 330. Distinguished, Filburn v. People's Palace Company, 1890, 25 Q. B. D. 261. Applied, Brady v. Warren, [1900] 2 Ir. R. 651; Marlor v. Ball, 1900, 16 T. L. R. 240.
[101] stephen mav, and sovhia, his Wife, against bordett. Tuesday', June 23, f 846. A peraon who keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by such animal, without any averment ia the declaration of negligence or default in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous propensities. Quaere, whether to an action on the case for injury caused as above stated, it would be a defence that the injury was occasioned solely by the wilful-ness of the plaintiff, after warning. [S. C. 16 L. J. Q. B. fi4 ; 10 Jur. C 92. Principle not applied, Hill v. Halls, 1857, 2 H. & N. 303. Applied, Fletcher v, llylanul*, 1866-68, L. K. 1 Ex. 281 ; L. E. 3 H. L. 330. Distinguished, Filburn v. Peoples Palace Company, 1890, 25 Q. B. D. 261. Applied, Brady v. Warren, [1900] 2 Ir. R. 651; Marlor v. Ball, 1900, 16 T. L. R. 240.] Case, The declaration stated that defendant, "before and at the time of the damage and injury hereinafter mentioned to the said Sophia the wife of the said Stephen May, (a) The reporters are informed by Mr. Robinson, the Master of the Crown Office, that the understood practice is, that, if the warrant of commitment be bad, and the justices or informer prefer to rely on a good conviction, it is for them to bring up such conviction by certiorari, and that it is not the duty of the defendant to remove a conviction of which he is not supposed to know any thing, and which may not exist. If the conviction be not brought before the Court, the Court will not presume that there is a good one, or any, but will decide on the document actually before them. 1214 MAY V. BURDKTT 9 Q. a 102. wrongfully and injuriously kept a certain monkey, he the defendant 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 : which said monkey, whilst the defendant kept the same as aforesaid, heretofore and before the commencement of this suit, to wit on the 2nd of September 1844, did attack, bite, wound, lacerate and injure the said Sophia, then and still being the wife of 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 clay 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," &c. Plea, not guilty. Issue thereon. [102] On the trial, before Wightman J., at the sittings in Middlesex after Hilary term, 1845, a verdict was found for the plaintiff with 501. damages. Cockburn, in the ensuing term, obtained a rule to shew cause why judgment should not be arrested. In last Hilary term (a)1. Watson and Couch shewed cause. The only question is, whether the declaration is bad because it does not state that the defendant kept the animal negligently. The present form is consistent with the law and the precedents. The wrong on which an action of this kind proceeds is the knowingly keeping an animal accustomed to do mischief. " In evidence to an inquest it was agreed by Fitzherbert and Shelley, that if a man have a dog which has killed sheep, the master of the dog being ignorant of such quality and property of the dog, the master shall not be punished for that killing; otherwise is it, if he have notice of the quality of the dog :" Anonymous (1 Dyer, 25 b. pi. 1&2), placitum in Dyer. "An action upon the case will lie for keeping a dog used to bite sheep, and which has killed sheep belonging to the plaintiff; but in such case it must be proved that the defendant knew that he would bite sheep : " Bull. N. P. 77. The author cites Smith v. Pelah (2 Stra. 1264), and Jenkins v. Turner (1 Ld. Ray. 109), where th&gist of the action is stated in the same manner. And he adds (citing Rex v. Huggins (2 Ld. liay. 1574, 1583)): "There is a difference between things feisa natures, as lions, bears, &c. which a man must keep up at his peril, and beasts [103] that are mansuetse, naturie, and break through the lameness in their nature; in the latter case the owner must have notice; in the former an action lies without notice." The Mosaic law (a)2, referred to in the margin of the placitum in...
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