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S 827 et seq.^ and cases cited; 8 Kent, Comm. (18th eid.)
81; Story, Bills, $ 188; Story, Prom. Notes, S 186; 1
Pars. Notes & B. 221, and cases cited. In the circum-
stances presented by the case at bar the plaintiff would
be regarded as a holder for a valuable consideration,
and therefore not subject to precedent equities of
which he was unaware, even in New York (Insurance
Co. v. Church, 81 N. Y. 226), whose adjudications upon
commercial paper differ, in some respects, from those
of the Supreme Court of the United States, as well as
from those of many Slate courts. 1 Daniel, Neg. Inst.
S 881c. Following this line of authorities, It must be
held that the plaintiff's title is as free from flaw as if
he had purchased in open market, and in the usual
course of trade.

The power of a court of equity to inter-
fere in matters of church government as be-
tween conflicting portions of a congregation,
is illustrated in the case of Fadness v.
Braunborg, 41 N. W. Rep. 84, decided by
the Supreme Court of Wisconsiar> The cap^
Digitized by VnOOQlC

Vol. 28.



involyed primarily a dispute as to the viola-
'tion and perversion of a trust by the trustees
of a Norwegian Evangelical Lutheran Church,
though the court incidentally hold that relig-
ious corporations, in Wisconsin, are civil
corporations, and a court of equity has no
authority to oust persons claiming to be reg-
ularly in possession of the corporate offices,
for which the proper remedy is by quo war-
ranto. On the main question of perversion
of the trust by reason of a departure from
doctrine and faith of the synod, the court,
after reviewing the testimony of a technical
denominational nature, says :

We cannot say, however, from tbe testimony, that
such negative portions of such specific articles are in
conflict with the articles of faith contained in such
constitutions. They may be inconsistent with certain
portions of such articles of faith, but it is equally ap-
parent that such portions are equally inconsistent with
other portions of the same articles. It Is not the
province of courts of equity to determine mere ques-
tions of faith, doctrine, or •schism, not necessarily in-
volved in the enforcement of ascertained trusts. In
fact, tbe doctrine here controverted seems to be too
reflned and subtle to be clearly comprehended even by
learned theologians, much less by laymen. Courts
deal with tangible rights, not with spiritual concep-
tions, unless they are incidentally and necessarily
involved in the determination of legal rights. Such
trusts, when valid and so ascertained, must, of course,
be enforced; but, to call for equitable interference,
there must be such a real and substantial departure
from the designated faith or doctrine as will be In
contravention of such trust. Miller v. Gable, 2 Denio,
492; Happy v. Morton, 83 111. 808; The Dub-
lin Case, 38 N. H. 458; Watson v. Jones, 18
Wall. 728, 724; Eggleston v. Doollttle, 88 Conn.
386; Keyser v. Stansifer, 6 Ohio, 363. The spe-
cific articles here so adopted by the majority do not
seem to constitute such radical departure as to be a
diversion of the trust.

An interesting case, involving questions of
elections and ballots, has lately been decided
by the Supreme Court of Oregon — Hartman
V. Toung, 20 Pac. Rep. 17. It was a pro-
ceeding to contest the right to an elective
oflQce, in which the petitioner sought to have
the ballots counted. The court lays down the
following propositions of law :

It is admitted that, in determining a contested elec-
tion, the evidence of the ballots actually cast, will
control that furnished by the official canvass, provided
the ballots have been duly preserved, and protected
from the reach of any unauthorized intermeddling or
tampering. But it is insisted, unless It is made to
affirmatively appear that the ballots have been so care-
fully kept and protected as to place their identity be-
yond all reasonable doubt, they ought not to be allowed
to overturn tbe official count. Hence, it is earnestly
urged that where the evidence in the record discloses
that the ballots have not been kept and protected with
that vigilant care which the law contemplates, or

where they have been so exposed as to afford such
opportunity for handling or tampering with thein as
to cast suspicion on their purity, they lose their ebar-
acter as the best evidence, and are not to be relied on
in determining the result of an election, and therefore
ought not to be admitted to overturn the official count.
At the outset It may be said that the official return or
canvass, when duly certified, is prima facie evidence
that the result is as declared. As against ballots not
properly kept, and the identity of which Is not shown,
such official canvass, although secondary, ts the better
evidence. But the official canvass, unless made so by
statute, is never conclusive. As a quasi record it is
entitled to the presumption of regularity, and prima
facie evidence of the integrity of the result of the
election as declared. But as between ballots shown or
admitted to be the identical ballots cast by the voters
and such official count, the ballots are the best evi-
dence. **Il is a primary rule of elections that the
ballots constitute the beet— the primary— evidence of
the intention and choice of the voters." Hudson v.
Solomon, 19 Kan. 177; Reynolds v. State, 61 Ind. 423;
McCrary, Elect. 291, 439; Cooley, Const. Lim. 626.
When, therefore, it is shown to the satisfaction of the
court that it has before it the identical ballots cast bjr
the voters, as between the ballots themselves and can-
vass of ballots by the election officers, the ballots are
controlling. To show that they are the genuine ballots
cast by the voters, any evidence tending to show that
they have been so kept and protected from tampering
as to place their identity beyond reasonable doubt, is
admissible. The burden rebttf on the plaintiff. He
must establish to the satisfaction of the court or Jury,
as the case mav be, that the ballots are the genuine
ballots cast at the election ; otherwise they will receive
no credence.

The Court of Appeals of Texas, in the case
of Comer v. State, 10 S. W. Rep. 106, say
that a room in a tavern, occupied temporarily
for the purpose of gaming and for no other
use, is not a private room within the meaning
of art. 356 of the Penal Code, providing that
*^a private room in an inn or tavern is not
within the meaning of public places" in
which playing cards and gaming is prohibited
by statute.

Following upon the decision of the Kansas
Supreme Court as to the right of the * 'Salvation
Army" to parade streets, to which we called
attention in a late issue, comes a case from
the Supreme Court of Massachusetts — Com-
monwealth V. Plaisted, 19 N. E. Rep. 224 —
where a similar question was involved, but
in which a contrary decision was rendered.
In the Massachusetts as in the Kansas case
the question arose on the legality of an ordi-
nance aimed at ^ itinerant musicians" and
the validity of rules regulating street parades.
It was contended that the parading was done
as a matter of religious worship only and
that the rules, under the guise of regulatii

/lyiLi^cJVj kjy



No. 6

virtually prohibit. The coart, in sustainiDg
the ordinance, held that the provisions of the
constitution which . are relied on, securing
freedom of religious worship, were not de-
signed to prevent the adoption of reasonable
rules and regulations for the use of streets
and public places ; and a religious body, how-
ever earnest and sincere, cannot avail itself
of these provisions, as an authority to take
possession of a street in a city, in violation
of such rules, for the purpose of public wor-
ship therein. And further, that the rules do
not restrict any one in the ordinary use of
his own properly, but merely affect the use
which may be made of the streets and public
places of the city. Nor is the reasonableness
of the rules to be tested by their possible
application to extreme cases, as, for instance,
singing or playing in a low tone, not in-
tended to be heard by others, for a short
time in a street or place not occupied by
dwellings. No police rules or regulations are
to be tested in this manner, and, if such a
case were to present itself, perhaps the rule
might by construction not be deemed to in-
clude it.

In the case of McWhorter v. Pensacola &
A. R. Co., 5 South. Rep. 129, the Supreme
Court of Florida discusses the question as to
whether an injunction against State railroad
commissioners, to enjoin them from promul-
gating rates for transportation and procuring
institution of suits for violation of rates
theretofore fixed, is in effect a suit against a
State and therefore untenable. The objec-
tion springs from the rule that a suit against
officers of a State founded on any claim or
complaint, the adjudication of which against
the officers would be, in effect, an adjudica-
tion against the State, is a suit against the
State. In Osborn v. Bank, 9 Wheat. 738,
and Davis v. Gray, 16 Wall. 203, the court
announced that it would look only to the
record to determine whether the State was a
party. But in subsequent cases this test is
treated as too narrow and cases against offi-
cers were held to be cases against the State,
although not named in the record. In the
Virginia coupon case (14 U. S. 270) it was
so held. And conversely in the cases of
New Hampshire and New York v. Louisiana,
108 U. S. 76, the court refused to sustain the
suit of one State against another, although

the United States constitution authorizes such
a suit, because it appeared that while on the
record the States suing were the nominal par-
ties, yet they were acting for some of their
citizens who were the real parties in interest.
Therefore it cannot be said that the case under
consideration is not a case against the State,
simply because the record does not bear her
name, and the question, therefore, is whether
the case comes within any class in which a
suit against officers is of such a character
that a judgment or decree cannot be given in
it without affecting some right or interest of
the State, so that the effective operation of
the judgment or decree is really agaii^st the
State, rather than the officers sued. The
court, after discussing this question and
citing Louisiana V. Jumel, 107 U. S., 711,
Cunningham V. R. R. Co., 109 U. S. 446,
Hagood V. Southern, 117 U. S. 52, In Be
Ayers, 123 U. S. 443', State v. Burke, 33
La. Ann. 498, Weston v. Dana, 51 Me. 461,
R. R. Co. V. Randolph, 24 Tex. 317, and
Printrop v. R. R. Co., 45 Ga. 365, concludes:

*'It appears, so far as we can find In the reported
cases, that the rule which forbids a suit against offi-
cers, because in effect a suit against a State, applies
only where the Interest of the State is through some
contract or some property right of hers, or where her
interest is in a suit brought or threatened by her offi-
cers in her own name to enforce some alleged claim of
hers. And it is important to observe the character of
the interest. It is not enough that the State should
have a mere interest in the vindication of her laws, or
in their enforcement as affecting the public at large,
or as they affect the rights of individuals or corpora-
tions, but it must be an interest of value to herself as
a distinct entity—of value in a material sense. * * •
The bill herein founds a complaint against the com-
missioners in connection with section 17 of the act
which provides a penalty against any railroad company
for violating the rules and regulations prescribed by
them, and direct that they shall institute action
through the attorney-general to recover the penalty
admitting violation of the rate regulations prescribed
for it, the company preys that they be enjoined from
instituting the action authorized. A further direction
of the act is that the suit **8hall be in the name of the
State of Florida." It needs no argument to show that
in such a suit the State is a party, and that the inlune-
tlon asked against the commissioners to stay the suit
would be an injunction in fact against her. It is pre-
cisely the case which led to In re Ayers, where officers
were enjoined from bringing suits in the name of the
State, which was held to be void because in fact an
injunction against the State, the court saying, if **offi-
cers, attorneys and agents are personally subjected to
the process of the court so as to borbid their acting in
its behalf, how can it be said that the State itself is not
subjected to the jurisdiction of the court as an actual
and real defendant?"

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Vol, 28.




I. (Jeneral Principles.
II. Who is Liable.

III. Scieoter— Knowledge of Viclousness.

IV. Scienter— Servant's Knowledge,
y. Actions under Statutes.

I. General Principles. — ^At common law,
in order to maintain an action against the
owner or keeper of domestic animals, or
those which are not in their nature
ferocious, for injuries inflicted or damage
done by them, it must be shown that such
owner or keeper had knowledge of the mis-
chievous propensity of the animals to do
harm. In the language of the cases no ac-
tion can be sustained without proof of the
scienter.^ But a different rule applies to
animals feroe naturce, or those of a savage
and ferocious disposition, such as lions,
tigers, etc. Here the liability arises without
proof of the scienter. In the latter case, the
animal being of a wild, fierce and untamable
nature, a knowledge of its disposition to do
mischief is conclusively presumed.^ Certain
animals /erce naturcBj as the bear, deer, etc.,
may doubtless be domesticated to such an
extent as to be classed, in this respect, with
tame or domestic animals ; but inasmuch as
they are liable to relapse into their wild habits
and to become mischievous the rule is, that if
they do and the owner has knowledge of the
fact, they are regarded as never having been
domesticated.* The liability does not rest
upon the classification of animals into those
feroe naturoe and those domitoB naturoe, but
rather upon the well known habits of the
particular animal to do mischief. This dis-
tinction if always borne in mind, will materi-

1 Murphy v. Preston (8. C. D. C), 9 Cent. Rep. 146:
Kinnon v. Davies, Cro. Car. 487; 2 Chitty, 217; Smith
V. Donohue, 49 N. J. L. 548; s. C, 60 Am. Law Rep.
6&2; 8 Cent. Rep. 621; 10 Atl. Rep. 150; 26 Am. Law
Reg. 769, n. 778; State v. McDermott, 49 N. J. L. 168;
8. c, 60 Am. Rep. 602; 6 Atl. Rep. 658; Cox v. Bur-
bridge, 18 C. B. (N. S.) 489; Hewes v. McNamara, 106
Mass. 281; Mason v. Keeling, 1 Ld. Raym. 606; Moak's
Underbill on TorU, 294-806.

> Applebree v. Percy, L. R. 9 C. P. 650; Moss v.
Parbridge, 9 111. App. (Bradw.) 490; Spring Co. v.
Edgar, 99 U.. 8. 654; Verdenburg v. Beham, 88 La.
Ann. 684; Besozzi v. Harris, 1 Fost. & Fin. 92; Whit-
taker's Smith on Keg. 99; 1 Hale's P. C, Part I, ch. 88.

> Spring Co. V. Edgar, 99 U. S. 658; Decker v. Gam-
mon, 44 Me. 822; State v. McDermott, 49 N. J. L. 168;
B. c, 60 Am. Rep. 602; 6 Atl. Rep. 658; Whart. on
Neg.f 922.

ally assist in the proper understanding of the
apparent discord in some of the adjudica-
tions. When it appears that a domestic
animal is vicious and inclined to do hurt, of
which fact the owner or keeper haye notice,
either express or implied, the law imposes
the duty of keeping such animal secure, and
creates a liability on the part of the owner or
keeper to any person who, without fault on
his part, is injured by it. This rule is en-
tirely reasonable and fully accords with legal
and moral obligation. It is sanctioned by
the soundest reasoning and supported by an
almost unbroken line of English and American
authorities. It has been enforced by the
earliest cases as well as the most recent ones.
Various expressions, declarations, distinctions
and dicta (often abounding in ambiguity),
are to be found in the decisions and literature
upon this subject, and yet there is always
apparent the clearest tendency to establish
and enforce the sound principles of the com-
mon law, that society imposes the duty upon
every one to so keep and use his property as
not to wrong and injure others. This is the
foundation of the rules.^ It will be observed
that the only difference between the two
classes of cases is, that in case of an injury
caused by a domestic animal of a mild and
gentle nature, knowledge that the animal was
dangerous must be alleged and proved, for
such animals are not generally so ; while in the
other class, such knowledge is presumed from
the well known nature of the animal. This
knowledge, however established, whether by
evidence or by presumption, is the same in
substance and produces the same results.^

II. Whq is Liable. — ^The liability for injury
by the vicious animal attaches either to the
owner or keeper.* Ownership is not neces-
sary to establish responsibility. A person
having in charge a dangerous animal, known
to be such, is responsible for its safe keeping,
so far as the public is concerned, as much as
if he were the owner. ^ Hence, it is not nec-
essary, in order to make a case for the
plaintiffs to show that the defendant was the
owner. It is sufficient if it is shown that he

« Reynolds v. Hussey (N. H.), 5 Atl. Rep. 458; s. c,
22 Reporter, 568; Ghnieau v. Blood, 52 Vt. 251; s. c,
86 Am. Rep. 751; Stumps v. Kelley, 22 III. 140, 142.

< Laverone v. Mangianti, 41 Cal. 188; s. c, 10 Am.
Rep. 269; Earl v. Van Alstine, 8 Barb. (N. Y.) 635.

« 1 Thomp. on Neg., p. 196, SI 1 and 2.

7 Frammell v. UtUe, 16 IiuL 26L /<^ T




No. 6

was the keeper.^ Nor is actaal custody neo-
esary.^ Harboring an animal is a sufficient
keeping ;>^ but if the animal — as a dog — is
only casually upon the defendant's premises,
without being harbored as owners usually
harbor dogs, no liability arises, ^ In the case
of joint-owners, either may have custody of
the animal, and the custody of one is the
custody of all, all being alike liable.^^ A
joint interest is necessary, or consent to its
use and management, to hold allJ^ But a
joint injury, done by dogs owned by separate
individuals, does not create a joint action
against such owners J^

III. Scienter — Knowledge of Viciousness, —
The indispensable condition in actions of this
nature is the proof of the scienter, or,
in other words, to establish knowledge
on the part of the defendant of the
^vicious habits or propensities of the
trespassing animal. In accordance with the
doctrine of many authorities it is not neces-
sary to aver in the declaration that the injury
complained of was received through the de-
fendant's negligence in keeping the auimal;
for it is said, that 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.^ In this respect there is no dis-

8 WilkiDSOD V. Parrott, 82 Cal. 102; Marael v. Bow-
man, 62 Iowa, 57; Schaller v. Connor, 57 Wis. 821;
Corliss V. Smith, 58 Yt. 582; Bumham y. Strotber
(Mich.), 38 N. W. Rep. 410.

» Marsh v. Jones, 21 Vt. 878; Grant v. Richer, 74
Me. 487.

10 McKone V. Wood, 5 Car. &. P. 1; Cummings v.
Riley, 52 N. H. 868; 1 Thomp. Neg. 197, § 6.

11 O'Harra v. Miller, 64 Iowa, 462.

u Oakes v. Spaulding, 40 Vt. 847; s. c, 94 Am. Dec
404. There can be no contribution among Wrong-
doers: Spaulding v. Oakes, 42 Yt. 848.

18 Adams v. Hall, 2 Yt. 9; s. c, 19 Am. Dec. 690;
Denny v. Correll, 9 Ind. 78; Little Schuylkill N. Co. v.
Richards, 67 Pa. St. 147; Teazel v. Alexander, 58 111,
263; Auchmuty V. Ham, 1 Denio (N. Y.) 501; Parten-
hemer v. Yan Orden, 20 Barb. (N. Y.) 479; YanSteen-
burg V. Tobias, 17 Wend. (N. Y.) 562.

14 Adams v. Hall, 2 Yt. 9; s. c, 19 Am. Dec. 690.

"Popplewell V. Pierce, 10 Cush. 609. The uni-
form ruling has been that the omission constitutes no
valid objection to the right of recovery: Spring Co. v.
Edgar, 99 U. S. 651; Partlow v. Hadgarty, 85 Ind. 178;
Durden v. Harnett, 7 Ala. 169; Card v. Case, 5 Man. G.
AS. 622; Kelley v. Ward, 12 Irish L. Reg. 424; Jack-
son v. Smithson, 15 M. & W. 658; s. c, 15 L. J. Ex.
311; Twigg v. Ryland, 62 Md. 880; s. c, 24 Am. L.
Reg. 101; 50 Am. Rep. 226.

tinction between the case of an animal which
breaks through the lameness of its nature
and is fierce, and known by the owner to be
so, and Dne that is ferce naturce.^^ Accord-
ing to these authorities, when knowledge
of the ferocious and savage disposition of the
animal comes to the defendant, he is bound
at his peril to see that it does no harm. The
question of negligence, as to keeping, is ex-
cluded, and it is no defense in such case that
the animal was safely kept, "the gravamen
is the keeping the ferocious animal, knowing
its propensity." ^^ Other authorities base
the liability on negligence. The doctrine
may be thus summarized: (1) That one
who owns or keeps an animal of any kind
becomes liable for any injury the animal may
do, only on the ground of some actual or
presumed negligence on his part. (2) That
it is essential to the proof of negligence, and
sufficient evidence thereof, that the owner be
shown to have had notice of the propensity
of the animal to do mischief. (3) That proof
that the animal is of a savage and ferocious
nature is equivalent to express notice. In
such cases notice is presumed. ^^ But whether
it is negligence, or otherwise, to keep a fero-
cious animal, the rule of these apparently
confiicting authorities is substantially the
same if the presumption of negligence is re-
garded as ti premmptio juris et de Jure against

WMay V. Burdett,9 A. A E. Q. B. (N. 8.) 101;
Spring Co. V. Edgar, 99 U. S. 651.

17 Card V. Case, 57 Eng, Com. L. R. 622: Partlow v.
Haggarty, 85 Ind. ISO; May Y. Burdett, 9 Ad. &, Bl.
(N. S.) 112. In the case of a dog of that character, it
is the duty of the owner, having notice of bis danger-
ous habits, to kill him: Smith v. Pelah, 2 Strange,
1264; Bolton v. Banks, Cro. Ch. 254; Jenkins v. Tur-
ner, 1 Ld. Raym. 110; Twigg v. Ryland, 62 Md. 880;
Laverone v. Mangianti, 41 Cal. 188; Mann v. Weiand,
81 1-2 Pa. St. 243; Muller v. McKesson, 78 N. Y. 19; s.
c, 29 Am. Rep. 125; Wheeler v. Brant, 28 Barb. (N.
Y.) 824; Putnam v. Payne, 18 Johns. (K. Y.) 812;
Brown V. Carpenter, 26 Vt, 688; Wolf v. Chalker, 81
Conn. 180; Barrington v. Turner, 2 Lewiing,28; Dun-
lap V. Snyder, 17 Barb. (N. Y.) 561; Sherfey v. Bart-
ley, 4 Sneed (Tenn.)» 58; Lynch v. McNally, 73 N. Y.
847; Yredenburg v. Beharo, 83 La. Ann. 627; WhlUa-
ker's Smith on Neg. 99; 1 Billiard on Torts (2d ed.),

IS Earl V. Van Alstine,8 Barb. (N. Y,) 681; Eoney
V. Ward, 86 How. Pr. (N. 8.) 256; Olidden v. Moore,
14 Neb. 84; 8. C. 45 Am. Rep. 98; Williams v. Moray,
74 Ind. 25; s. c, 39 Am. Rep. 76; Eberhart v. Reister,
96 Ind. 478; Munn v. Reed,4 Allen (Mass.), 481; Logue
V. Link, 4 E.D.Smith (N.Y.), 63; Brock v. Cope-
land, 1 Esp. 208; Hewes v. McNamara, 106 Mass. 281;
Barlow v. McDonald, 89 Hun (N. Y.), 407; Meracle v.
Downs, 64 Wis. 323; 1 Thomp. on Neg. 222; Cooley on
Torts, 346; Shearm. & Red. Neg. § 199.

/.gitized by





^hich no averment or proof is receivable;
that is, if it is not considered a presumption
in the ordinary sense, raising a prima facie
•case which may be rebutted — the liability
springs from keeping the dangerotia animal
after knowledge of its proneness to do mischief.
The propensity to cc^mmit injury and notice
thereof constitute, in both classes of cases
alike, the ground of the action. A mischiev-
ous propensity*in an animal is a propensity
from which injury is a natural result.'^ The
onus of proving the scienter is on the plaint-
iff.^ How is the scienter of knowledge of
such propensity to be shown? It is impor-
tant to bear in mind that it is the ferocity or
the proneness of the animal to do harm that
<x>nstitute8 the danger, and it is the notice of
this fact by the defendant that fixes his lia-
bility.^ Thus, where the owner of a horse
suffers it to go at large in the streets of a
.populous city, he is liable to a person kicked

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 37 of 151)