I should have no difficulty in
saying that the allegation of facts which are ordinarily a ground
of liability, and which would be so unless excused, ought to be
sufficient. But the forms of the law, especially the forms of
pleading, do not change with every change of its substance, and a
prudent lawyer would use the broader and safer phrase.
The same course of specification which has been illustrated from
the statute-book ought also to be taking place in the growth of
judicial decisions. That this should happen is in accordance with
the past history of the law. It has been suggested already that
in the days of the assize and jurata the court decided whether
the facts constituted a ground of liability in all ordinary
cases. A question of negligence might, no doubt, have gone to the
jury. Common sense and common knowledge are as often sufficient
to determine whether proper care has been taken of an animal, as
they are to say whether A or B owns it. The cases which first
arose were not of a kind to suggest analysis, and negligence was
used as a proximately simple element for a long time before the
need or possibility of analysis was felt. Still, when an issue of
this sort is found, the dispute is rather what the acts or
omissions of the defendant were than on the standard of conduct.
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