Page:The Common Law by Oliver Wendell Holmes.djvu/39

22 are not, — between living and dead things; but he will also see that no difficulty was felt in treating animals as guilty.

Take next an early passage of the English law, a re- port of what was laid down by one of the English judges. In 1333 it was stated for law, that, "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me." 1 More than three cen- turies later, in 1676, it was said by Twisden, J. that, " if one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature." 2 It is at least doubtful wheth- er that sentence ever would have been written but for the lingering influence of the notion that the ground of the owner's liability was his ownership of the offending thing and his failure to surrender it. When the fox es- caped, by another principle of law the ownership was at an end. In fact, that very consideration was seriously pressed in England as late as 1846, with regard to a monkey which escaped and bit the plaintiff. 8 So it seems to be a reason- able conjecture, that it was this way of thinking which led Lord Holt, near the beginning of the last century, to inti- mate that one ground on which a man is bound at his peril to restrain cattle from trespassing is that he has a valuable property in such animals, whereas he has not in dogs, for which his responsibility is less. 4 To this day, in fact, cautious judges state the law as to cattle to be, that, <c if I am the owner of an animal in which by law the

1 Fitzh. Ahr. Barre, pi. 290.

2 Mitchil v. Alcstree, 1 Vent. 295 ; s. c. 2 Lev. 172 ; 8. c. 8 Keb. 650. Cf. May v. Burdett, 9 Q. B. 101, 113.


 * May v. Iiurdstt t 9 Q. B. 101.


 * Musvn v. Keeling 12 Mod. 332, 335 ; s. c. 1 Ld. Kaym. 606, 608.