Page:The Green Bag (1889–1914), Volume 07.pdf/99

 76

of their little nests at the larger world beneath, are wont to chirrup surprise at the respect paid to their countryman in England in spite of his original unfamiliarity with English practice and his Doric accent. But

Lord Watson's record is in the Law Re ports; English lawyers know its volume and its worth, and he can afford to disregard the carpings of critics whose brains he could "grind to powder with a lady's fan." Lex.

THE LAW OF THE LAND. IX. THE SCIENTER. BY WM. ARCH. McCLEAN. X/E dare to believe we know somewhat of the nature and character of the scienter. Our presumption owes its exist ence to a memory. The Professor was lec turing on that portion of Chitty's Pleading in which the scienter is explained. It had been gone over carefully, yet a certain stu dent — do not ask us who, for we will abso lutely refuse to be more personal — had not heard, by reason of some inattention, and was surprised with a request to tell his con ception of the scienter. Desiring to be obliging, he volunteered that " it was a knowing." This was met by the Professor with: "A knowing — quite likely — very good — but of what?" "Why, it was just a knowing," and the class audibly smiled at the knowledge. Then and there the scienter was clearly and forcibly explained in a way that the certain student was not likely to forget. The owners of domestic animals, such as dogs, horses, and oxen are not liable for injuries committed by them unless it can be shown that they had notice — the scienter — of the animals' mischievous pro pensity to do injury. The scienter is a question for the jury. The scienter does not merely consist in the fact that an injury has been done by a do mestic animal, but that the owner knew of a

mischievous propensity of the animal to do injury, and knowing this, kept the animal at his risk, to be responsible for injuries com mitted by it. The law gives the animal a fair chance to behave. The animal may have a pedigree it is proud of, may have the blue blood of an illustrious ancestry, may have always conducted itself in a digni fied and peaceful way, may have never met an occasion to have aroused the mischievous propensity. At last, like mankind, the temp tation presents itself, and the animal breaks over the traces. It is not the first fall that causes the trouble, but the subsequent steps downward with the owner's knowledge. A certain respectable dog entered the lot of an old lady, probably an Irish descendant of Mother Goose, for her name was Mulherrin, and killed her goose. It could not have been the goose that laid the golden eggs, for the judgment given the old lady for her goose was four dollars. There was no evidence in the case against the dog, his respectability was not attacked, no proof submitted of his mischievous propensity to do harm, nor that the owner had any notice thereof; hence the judgment was reversed, and the old lady had no damages to console her for the loss of her goose. Of all domestic animals the dog seems to