
    Hannah Popplewell vs. Edwin Pierce.
    A declaration charging that the defendant wrongfully kept a horse accustomed to bite mankind, and that the defendant knew it, need not aver that the injury complained of was received through the defendant’s negligence in keeping the horse.
    This was an action of trespass on the case. The declaration alleged “ that the defendant, heretofore, to wit, on the twenty-sixth day of January last past, and from thence, for a long space of time, to wit, until and at the time of the damage and injury to the said plaintiff, as hereinafter mentioned, to wit, at Lawrence aforesaid, wrongfully and injuriously did keep a certain horse which was, during all that time, used and accustomed to attack and bite mankind; he, the said defendant, during all that time, well knowing that the said horse was used and accustomed to attack and bite mankind, to wit, at Lawrence aforesaid; and which said horse, afterwards and whilst the said defendant so kept the same as aforesaid, to wit, on the twenty-eighth day of January last past, at Lawrence aforesaid, did attack and bite the said plaintiff, and did then and there greatly lacerate, hurt, wound, and bruise the back of the said plaintiff, and thereby she the said plaintiff then and there became sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, the space of seven weeks then next following, and still continues sick, sore, lame, and disordered thereby; during all which time the said plaintiff thereby suffered and underwent, and still suffers and undergoes, great pain, and was thereby then and there, and still is, hindered and prevented from performing and transacting her lawful affairs and business by her to be performed and transacted; and also, by means of the premises, she, the said plaintiff, was thereby and still is, put to great .expense, cost, and charges, in the whole amounting to a large sum of money, to wit, seventy dollars, in and about endeavoring to be cured of the said wounds, sickness, lameness, and disorder, so occasioned as aforesaid, and hath been and is, by means of the premises, otherwise greatly injured and damnified, to wit, at Lawrence aforesaid, to the damage,” &c.
    The case was tried in the court of common pleas before Perkins, J. and after verdict returned for the plaintiff, the defendant moved that judgment should be arrested for insufficiency of the plaintiff’s declaration. This motion was overruled, and the case thereupon brought into this court on exceptions.
    
      D. Saunders, Jr. for the defendant.
    
      G. P. Briggs, for the plaintiff.
   Metcalf, J.

The reason assigned by the defendant for his motion in arrest of judgment is, that the declaration does not allege “ that the horse attacked and bit the plaintiff, by reason of the defendant’s having wrongfully and injuriously kept the same; ” and, therefore, for aught that the declaration avers, the injury received by the plaintiff may have been by her own fault or carelessness, and not by the fault or carelessness of the defendant. But we are of opinion that there is no defect in the declaration, and that the objection to it mistakes the ground of the action. This question has recently been decided by the courts in England. In.a case in the Queen’s Bench (May v. Burdett, 9 Adolph. & Ellis N. R. 101), the action was for an injury received from an animal accustomed to bite mankind. It was objected, after verdict for the plaintiff, that the declaration did not allege negligence or default in the defendant in not properly keeping or securing the animal. Lord Denman said : “A great many cases and precedents were cited upon the argument, and the conclusion to bé drawn from them appears to us to be, that the declaration is good upon the face of it, and that whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is primá facie liable in an action on the case, at the suit of any person attacked and injured by the animal, without any averment of negligente or default in the securing and taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities. The precedents, both ancient and modern, with scarcely an exception, merely state the ferocity of the animal and the knowledge of the individual, without any allegation of negligence or want of care.” “ The negligence is in keeping such animal after notice.” “ 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.” This decision was made in Trinity term 1846. During the same term, the court of exchequer made the same decision. Jackson v. Smithson, 15 Mees. & Welsb. 563. These two decisions were fully recognized by the court of common pleas, in 1848. Card v. Case, 5 Man. Grang. & Scott, 622. In this last case, which was for an injury received from a dog, the declaration, besides alleging what is contained in the declaration now before us, also alleged that “ it was the duty of the defendant to use due and reasonable care and precaution in and about the keeping and management of the said dog; yet that the defendant, not regarding the duty of him, the defendant, in that behalf, did not use such due and reasonable care,” &c. This allegation was held to be immaterial. Coltman, J. said: “ Looking at the frame of this declaration, it may be said that the negligently keeping the dog was the wrongful act charged; but that is overlooking that which is the gist and substance of the action. It is clear from the case of May v. Burdett, where the matter underwent very great consideration, that the circumstance of the defendant’s keeping the animal negligently is not essential; but that the gravamen is the keeping a ferocious animal, knowing its propensities, and the consequent injury to the plaintiff.” And Maulé, J. said: “ The cases of May v. Burdett, and Jackson v. Smithson, and the general course of precedents and authorities referred to in the former case, prove that the wrongful act is the keeping a ferocious dog, knowing its savage disposition; and that an action of this sort may be maintained without alleging any negligence. The declaration here idly and superfluously states a duty to arise on the defendant’s part, to use due and reasonable care and precaution in and about the keeping and management of the dog.” “ The injury to the plaintiff would be the same whether the defendant was guilty of negligence or not.” See also Kelly v. Wade, 12 Irish Law Reports, 424.

The defendant’s motion is overruled, and the plaintiff will have Judgment on the verdict.  