It is
said to be the universal nature of cattle to stray, and, when
straying in cultivated land, to do damage by trampling down and
eating the crops, whereas a dog does no harm. It is also said to
be usual and easy to restrain them. /3/ If, as has been
suggested, the historical origin of the rule was different, it
does not matter.
Following the same line of thought, the owner of cattle is not
held absolutely answerable for all damage which they may do the
person. According to Lord Holt in the alcove opinion, these
animals, "which are not so familiar to mankind" as dogs, "the
owner ought to confine, and take all reasonable caution that they
do no mischief.... But ... if the owner puts a horse or an ox to
grass in his field, which is adjoining to the highway, and the
horse or the ox breaks the hedge and runs into the highway, and
kicks or gores some passenger, an action will not lie against the
owner; otherwise, if he had notice that they had done such a
thing before."
[120] Perhaps the most striking authority for the position that
the judge's duties are not at an end when the question of
negligence is reached, is shown by the discussions concerning the
law of bailment. Consider the judgment in Coggs v. Bernard, /1/
the treatises of Sir William Jones and Story, and the chapter of
Kent upon the subject.
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