Page:The Common Law by Oliver Wendell Holmes.djvu/40

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EARLY FORMS OF LIABILITY.

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right of property can exist, I am bound to take care that it does not stray into the land of my neighbor.”^[1]

I do not mean that our modern law on this subject is only a survival, and that the only change from primitive notions was to substitute the owner for the offending animal. For although it is probable that the early law was one of the causes which led to the modern doctrine, there has been too much good sense in every stage of our law to adopt any such sweeping consequences as would follow from the wholesale transfer of liability supposed. An owner is not bound at his peril to keep his cattle from harming his neighbor’s person.^[2] And in some of the earliest instances of personal liability, even for trespass on a neighbor’s land, the ground seems to have been the owner's negligence.^[3]

It is the nature of those animals which the common law recognizes as the subject of ownership to stray, and when straying to do damage by trampling down and eating crops. At the same time it is usual and easy to restrain them. On the other hand, a dog, which is not the subject of property, does no harm by simply crossing the land of others than its owner. Hence to this extent the new law might have followed the old. The right of property in the

↑ Williams, J. in Cox v. Burbridge, 13 C. B. n. s. 430, 438. Cf. Willes, J. in Read v. Edwards, 17 C. B. n. s. 245, 261
↑ Mason v. Keeling, 1 Ld. Raym. 606, 608.
↑ In the laws of Ine, c. 42 (1 Thorpe, Anc, Laws, 129), personal liability seems to be imposed where there is a failure to fence. But if an animal breaks hedges the only remedy mentioned is to kill it, the owner to have the skin and flesh, and forfeit the rest. The defendant was held “because it was found that this was for default of guarding them, . . . for default of good guard,” in 27 Ass., pl. 56, fol. 141, a. d. 1358 or 1354. It is much later that the reason is stated in the absolute form, “because I am bound by law to keep my beasts with doing wrong to any one.” Mich. 12 Henry VII., Keilway, 3b, pl. 7. See, further, the distinctions as to a horse killing a man in Regiam Majestatem, IV. c. 24.

[1] Williams, J. in Cox v. Burbridge, 13 C. B. n. s. 430, 438. Cf. Willes, J. in Read v. Edwards, 17 C. B. n. s. 245, 261

[2] Mason v. Keeling, 1 Ld. Raym. 606, 608.

[3] In the laws of Ine, c. 42 (1 Thorpe, Anc, Laws, 129), personal liability seems to be imposed where there is a failure to fence. But if an animal breaks hedges the only remedy mentioned is to kill it, the owner to have the skin and flesh, and forfeit the rest. The defendant was held “because it was found that this was for default of guarding them, . . . for default of good guard,” in 27 Ass., pl. 56, fol. 141, a. d. 1358 or 1354. It is much later that the reason is stated in the absolute form, “because I am bound by law to keep my beasts with doing wrong to any one.” Mich. 12 Henry VII., Keilway, 3b, pl. 7. See, further, the distinctions as to a horse killing a man in Regiam Majestatem, IV. c. 24.

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