THE MODERN CONCEPTION OF ANIMUS

yielded as little as possible, and if you read the cases from this standpoint you can reconcile them very well. I will take a few examples. In trespass, in the courts of common law, they took care that all the world should be held to a strict accounta bility for straying cattle, just as they had held their serfs accountable in their own courts, because they were more likely to be trespassed upon by others in this manner than to trespass themselves. Also being trained to arms they were not apt to hurt others unintentionally when using them. Accordingly the shopkeeper who shot badly •with his bow and arrow could look for little mercy from the law. The court was clear that bad-markmanship was conclusive evi dence of a reprehensible animus or negli gence. "If one is shooting at butts, and the bow shakes in his hands, ... if he wounds one by shooting, he shall have a good action of trespass, against him, and yet the shoot ing was lawful, and the wrong which the other receives was against his will." Y. B. 6 Ed. IV., 7 pi. 18, A. D. 1466. Conversely though the privileged class might insist on absolute responsibility in trespass where the trespass consisted in injuring unfenced crops with straying pigs, or in wounding a bystander by bad shoot ing, it was quite another matter when the trespass touched themselves. The books teem with cases in point. English country gentlemen have always been great sports men. But the best huntsman's hounds will sometimes follow the chase, though called back, and the best horseman will sometimes lose control of a horse, wherefore these contingencies were under the particular protection of the judiciary. In Millen v. Fawdry Latch, 119, decided in 1624, suit was brought for chasing sheep ■with a dog upon the plaintiff's land. The defendant answered that the plaintiff's sheep strayed upon his land, and his dog chased them off, and that the dog, in pursuit of the sheep and against the defendant's

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will, followed the sheep upon the plaintiff's land. There was a demurrer. Crew C. J. distinguished a case in the year books where a defendant had been held liable for letting thorns fall on the plaintiff's premises, by observing that the cases differed since it is impossible, if a dog or horse will not obey, to recall him. And Doderidge, in the same cause, probably stated a very old test of due care in hunting, when he said: "If the deer come into my land out of the forest, and I chase them with dogs, it is excuse enough for me to wind my horn to recall the dogs, because by this the warden of the forest has notice that a deer is being chased." Long afterward the rule laid down by Crew C. J. touching responsibility for run away horses was affirmed in Gibbons v. Pepper, 1 Ld. Raym. 38; and it always continued to be the law. A man whose horse became restive from causes beyond his control was not held responsible unless it could be proved that the animal was known to be dangerous. I commend you to compare this leniency which the courts showed toward accidents which might befall a country gentleman with the sternness of the same courts towards innkeepers and especially carriers, for the carrier, in the old days, was a carter and a very incon siderable person. Southcote's case, 4 Rep. 83 b, and Morse v. Slue, 2 Keble 72, are examples. In Morse v. Slue it appeared that though the master of a ship had kept a proper guard, thieves had stolen from the cargo while the vessel lay in the Thames. Holt argued that it would be inconvenient to merchants were the master not held liable, since they trusted him, and they could seldom prove default on his part. Lord Hale sus tained Holt, because the London merchants, next the landlords, were the most important power in the kingdom.1 It was very 1 See also Pasley v. Freeman, 3 Term 51, in which the law of deceit was stretched to favor the mer chant class.