“The gist of the action is the keeping of the animal after knowledge of its vicious propensities.” May v. Burdett, 58 Eng. C. L. 101.
“If the owner have knowledge of the quality of his beast, and it doth anybody hurt, he is chargeable in an action for it.” 1 Hale P. C. 430.
“An action lies not unless the owner knows of this quality.” Buxendin v. Sharp, 2 Salk. 662.
“If the owner puts a horse or an ox to grass in his field, and the horse or ox breaks the hedge and runs into the highway, and gores or kicks some passenger, an action will not lie against the owner unless he had notice that they had done such a thing before.” Mason v. Keeling, 12 Modern R. 332.
“If damage be done by any domestic animal, kept for use or convenience, the owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief.” Vrooman v. Sawyer, 13 Johns. R. 339.
3. The owner of domestic animals, if they are wrongfully in the place where they do any mischief, is liable for it, though he had no notice that they had been accustomed to do so before. In cases of this kind the ground of the action is that the animals were wrongfully in the place where the injury was done. And it is not necessary to allege or prove any knowledge on the part of the owner that they had previously been vicious.
“If a bull break into an enclosure of a neighbor, and there gore a horse so that he die, his owner is liable in an action of trespass quare clausum fregit, in which the value of the horse would be the just measure of damages.” Dolph v. Ferris, 7 Watts & Serg. R. 367.
“If the owner of a horse suffers it to go at large in the streets of a populous city he is answerable in an action on the case for a personal injury done by it to an individual without proof that he knew that the horse was vicious. The owner had no right to turn the horse loose in the streets.” Goodman v. Gay, 3 Harris R. 188. In this case the writ contained the allegation of knowledge on the part of the defendant; but the court held that it was not material and need not be proved.
The case before us is clearly within this class of cases last described. It is alleged in the writ that “the plaintiff had a valuable horse which was peaceably and of right depasturing in his own close, and the defendant was possessed of another horse, vicious and unruly, which was running at large where of right he ought not to be; and being so unlawfully at large, broke into the plaintiff’s close, and injured the plaintiff’s horse, &c.” It is also alleged that “the vicious habits of the horse were well known to the defendant;” but this allegation was not necessary, and may well be treated as surplusage. If the defendant had had a right to turn his horse upon the plaintiff’s close it would have been otherwise. But if the horse was wrongfully there the defendant was liable for any injury done by him, though he had no knowledge that the horse was vicious. The gravamen of the charge was that the horse was wrongfully upon the plaintiff’s close; and this was what was put in issue by the plea of not guilty.
Nor are these principles in conflict with the decision in the case of Van Leuven v. Lyke, 1 Comstock, 515. In that case the action was not sustained because the declaration was not for trespass quare clausum with the other injuries alleged by way of aggravation. But in that case there was no allegation that the animal was wrongfully upon the plaintiff’s close; or that the injury was committed upon the plaintiff’s close. 4 Denio R. 127. And in the Court of Appeals it was expressly held that “if the plaintiff had stated in his declaration that the swine broke and entered his close, and there committed the injury complained of, and sustained his declaration by evidence, he would been entitled to recover all the damages thus sustained.” 1 Coms. 515, 518.