sustain. King v. McDermott, 2 id. 175; Tenney v. Tuttle, 1 Allen, 185; Hays v. Millar, 77 Penn. St. 238; S. C., 18 Am. Rep. 445.

Negligence is not actionable, unless it is the proximate cause of the injury complained of. Lane v. Atlantic Works, 111 Mass. 136. But if a person is injured by the negligence of another, he may recover for the natural and probable consequences of such negligence, although the injury, in the precise form in which it resulted, was not foreseen (Hill v. Winsor, 118 id. 251); and it is no defense for the wrong-doer that others acted in the same way as he did. Id.

The principle upon which owners of property are held liable for acts of negligence in the use thereof is that they are in duty bound to keep their property in such a condition that persons who are lawfully on the premises shall not be injured (see Schwartz v. Gilmore, 45 Ill. 455; Sweeny v. Old Colony, etc., R. R. Co., 10 Allen, 368; Indermaur v. Dawes, L. R., 1 C. P. 274; L. R., 2 C. P. 311); but this principle does not extend to those who are on the premises of others without right, or without permission. Baker v. Byrne, 58 Barb. 438. Thus, a laborer, employed in loading ice on board a vessel from the wharf, after finishing his work, went on board the vessel for the gratification of his curiosity, and there fell down an open hatchway and broke his leg, and it was held that he was a mere intruder, and that the owners of the vessel were not liable for the injury. Severy v. Nickerson, 120 Mass. 306; S. C., 21 Am. Rep. 514. See, also, Pierce v. Whitcomb, 48 Vt. 127; S. C., 21 Am. Rep. 120. It has, however, been held, that the owner of dangerous machinery who leaves it in an open place, though on his own land, where he has reason to believe that young children will be attracted to play with it and be injured, is bound to use reasonable care to protect such. children, although technically trespassers, from the danger to which they are thus exposed. Keffe v. Milwaukee, etc., Railway Co., 21 Minn. 207; S. C., 18 Am. Rep. 393; Mullaney v. Spence, 15 Abb. (N. S.) 319. See, also, Birge v. Gardner, 19 Conn. 507; Railroad Company v. Stout, 17 Wall. 657. So, while it is true, in general, that where no duty is owed, no liability arises, this rule is held to vary with circumstances; and where, therefore, an owner has reason to apprehend danger from the peculiar situation of his property and its openness to accident, the question of duty then becomes one for a jury, to be determined upon all its facts of the probability of danger, and the grossness of the act of imputed negligence. Hydraulic Works Co. v. Orr, 83 Penn. St. 332.

§ 2. Animals. See ante, Vol. 1, 308-318, as to the liability of the owner of animals for negligence with respect to them. By the comVOL. IV.-83

mon law of England and America, dogs, horses, and all animals which are domestic in their nature, are placed on the same ground, and any person may keep any of them for his use, his pleasure or his protection, or for any lawful purpose that his tastes or inclinations may dictate. Such keeping is perfectly lawful until some vicious propensity is developed and brought to the knowledge of the owner; but after such development and such knowledge the owner is liable for all the injuries which the animal may perpetrate in obedience to such propensity. See Id. ; Van Leuven v. Lyke, 1 N. Y. (1 Comst.) 515. Such animal is then placed by the law on the same footing with a ferocious wild beast, so far as proving the scienter is concerned in an action for an injury which it perpetrates, and he must, at his own peril, keep it safe; for if it escape and do an injury, the owner is liable, no matter what diligence he may have used to confine it. The negligence consists in keeping the animal after notice (Muller v. McKesson, 10 Hun [N. Y.], 44); and the fact that the injury is the first inflicted by the animal does not excuse the owner from liability. Rider v. White, 65 N. Y. (20 Sick.) 54; 22 Am. Rep. 600. See Keightlinger v. Egan, 65 Ill. 235; S. C. affirmed, 75 id. 141.

The defendant, knowing the ferocious disposition of his dog, and that it had been accustomed to bite persons, and in particular that, when left guarding his team in a village street, it had on one occasion attacked a passer-by, afterward left it, unsecured and unmuzzled, in or near his sleigh near a village sidewalk. A child of seven years, passing on the sidewalk, came to the sleigh and meddled with a whip lying therein and was thereupon thrown down and bitten by the dog. Under this state of facts it was held that the defendant was liable for the injury, and that the child's act in meddling with the whip was no defense. Meibus v. Dodge, 38 Wis. 300; S. C., 20 Am. Rep. 6.

A person injured, while in the exercise of due care, by a cow, driven at the time by one who was not in the exercise of due care and knew that the cow was vicious, is entitled to recover for the injury against the driver of the cow. Hewes v. McNamara, 106 Mass. 281. And see Cockerham v. Nixon, 11 Ired. (N. C.) 269; Hudson v. Roberts, 6 Exch. 699. So, the owner of a ram, knowing of its propensity to butt persons, is bound so to secure it as to keep it under safe restraint. Oakes v. Spaulding, 40 Vt. 347.

It is held that the doctrine of scienter ought not to be extended to a contract to take reasonable care. Thus, the defendant, an agistor of cattle, placed the plaintiff's horse in a field with a number of heifers, knowing that a bull, kept on adjoining land, had several times been found in the field and that there was no sufficient fence to keep it out.

He did not, however, know that the bull was of a mischievous disposition. The horse was gored by the bull and killed, and in an action against the defendant for breach of contract to take reasonable care, the jury found for the plaintiff; and it was held that the fact that the defendant had no knowledge of the mischievous disposition of the particular bull was no ground for disturbing the verdict, as such knowledge was not essential to his liability under his contract as an agister to take reasonable care of the plaintiff's horse. Smith v. Cook, L. R., 1 Q. B. Div. 79; S. C., 15 Eng. R. 194. And see Sargent v. Slack, 47 Vt. 674; S. C., 19 Am. Rep. 136.

In an action to recover for the bite of a dog, the common-law rule requiring averment and proof of scienter is abrogated by statute in Ohio (see Gries v. Zeck, 24 Ohio St. 329), and in such case, reasonable expenses for medical care, although not actually paid, may be included in the jury's estimate of compensatory damages. Id. A special statute in Vermont dispenses with proof of scienter, as to rams, between the first of August and first of December. See Town v. Lamphire, 37 Vt. 52. And in Delaware, a dog that kills, wounds or worries sheep may be killed by any person with impunity. Milman v. Shockley, 1 Houst. (Del.) 444.

It is the legal duty of every person having charge of a horse in city or country, to apportion the care with which he handles him to the danger to be apprehended from a failure to keep him constantly under control. Whart. on Neg., § 47; Dolfinger v. Fishback, 12 Bush (Ky.), 475.

§ 3. Attorneys. The general rules of law as to the liability of attorneys for negligence have been stated under a preceding title. See ante, tit. Attorneys, Vol. 1, pp. 445, 459. In England, counsel are not responsible to their clients for negligence. Swinfen v. Lord Chelmsford, 1 Fost. & F. 619; S. C. affirmed, 5 H. & N. 890. But an action may be maintained against an attorney if he has been guilty of gross negligence. Purves v. Landell, 12 Cl. & F. 91. In the conduct of causes an attorney or solicitor is liable, generally, for the consequences of ignorance or non-observance of the rules of practice of the courts, for the want of care in the preparation of the causes for trial, or of attendance thereon with his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst, on the other hand, he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law. TINDAL, C. J., in Godefroy v. Dalton, 6 Bing. 468. And

see Hawkins v. Harwood, 4 Exch. 503; Hunter v. Caldwell, 10 Ad. & El. (N. S.) 69; Stokes v. Trumper, 2 Kay & J. 232; Cox v. Leech, 1 C. B. (N. S.) 617; Hart v. Frame, 6 Cl. & F. 193; Crosbie v. Murphy, 8 Ir. C. L. R. 301. Nor is an attorney liable to an action for negligence at the suit of one between whom and himself the relation of attorney and client does not exist, for giving in answer to a casual inquiry erroneous information as to the contents of a deed. Fish v. Kelly, 17 C. B. (N. S.) 194. Nor will a bill in equity lie against a solicitor for negligence in investigating a title. British Mutual Investment Co. v. Cobbold, L. R., 19 Eq. 627; 13 Eng. Rep.

556.

In this country the liability of an attorney is not limited to his gross negligence (See ante, Vol. 1, 459); but he is liable for the want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise. Shearm. & Redf. on Neg., § 212 · Gambert v. Hart, 44 Cal. 542. And where an attorney at law employs another person to prosecute a claim placed in his hands for collection, he is liable to his client for the negligence of the person so employed by him, and the fact that such person is himself a competent lawyer does not relieve the attorney employing him from liability to his client on account of such negligence. Walker v. Stevens, 79 Ill. 193. See Wickersham v. Lee, No. 1, 83 Penn. St. 416.

Where a judgment is obtained against a party upon pleadings which are radically defective, and he desires to appeal, and procures bondsmen, but his attorney neglects to do so until the time for appeal expires, the attorney is guilty of gross negligence, and is liable for the loss sustained by the client. Drais v. Hogan, 50 Cal. 121.

But an attorney cannot be charged with negligence, where he accepts as a correct exposition of the law a decision of the supreme court of his State upon the question of the liability of stockholders of corporations of the State, in advance of any decision thereon of the supreme court of the United States. Marsh v. Whitmore, 21 Wall. 178.

And an attorney incurs no liability to his client in damages for neglect of his professional duty, where the negligence complained of, in its legal effect, works no injury to his client. Harter v. Morris, 18 Ohio St. 492.

In an action for negligence against an attorney, the burden is generally upon the plaintiff, to prove the negligent act, or at least to state and prove circumstances from which negligence is implied by necessary legal inference (Purves v. Landell, 12 Cl. & F. 91); but circumstances may shift this burden to the opposite party. Thus, if an attorney is retained to defend a cause, and does nothing, he is bound to show, if

he can, in justification of his conduct, that there was no defense to the action. Godefroy v. Jay, 7 Bing. 413. So, if in the conduct of a cause, diligence would have been ineffectual, the defendant must prove it. Bourne v. Diggles, 2 Chit. 311. And see Vol. 1, 466.

§ 4. Bankers and collectors. See, generally, as to the liability of banks and bankers, ante, Vol. 1, pp. 498-520. Where a national bank takes bonds, etc., on deposit for safe-keeping, without compensation, the bank is a merely voluntary bailee, and will be held liable only for gross negligence. First Nat. Bank of Carlisle v. Graham, 79 Penn. St. 106; S. C.,-21 Am. Rep. 49; DeHaven v. Kensington Nat. Bank, 81 Penn. St. 95. In the case first cited it is held that the mere voluntary act of the cashier of a bank, in receiving securities for safe-keeping, will not render the bank liable for their loss, but if the deposit is known to the directors and acquiesced in, the bank will be liable. The power of a national bank to become a bailee of property either gratuitously or for hire has, however, been questioned (see First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. [15 Sick.] 278; S. C., 19 Am. Rep. 181; Third Nat. Bank v. Boyd, 44 Md. 47; S. C., 19 Am. Rep. 192, n; 22 Am. Rep. 35); and it is held by the supreme court of Vermont that the taking of special deposits, to keep merely for the accommodation of the depositor, is not within the authorized business of national banks, and that the cashiers of such banks have no power to bind them on any express contract accompanying, or any implied contract arising out of such taking. Wiley v. First Nat. Bank of Brattleboro, 47 Vt. 546; S. C., 19 Am. Rep. 122.

It is the duty of bank directors to use ordinary diligence in acquiring a knowledge of the business of the bank, and they cannot be heard to say that they were not apprised of facts the existence of which is shown by the books, accounts, and correspondence of the bank. They should control the subordinate officers of the bank in all important transactions, and have accordingly been held liable for an abstraction and sale by the latter of a special deposit. United Society of Shakers v. Underwood, 9 Bush (Ky.), 609; S. C., 15 Am. Rep. 731.

Where a bank, as a collection agency, receives a note for the purposes of collection, its position is that of an independent contractor, and the instruments employed by such bank in the business contemplated are its agents, and not the sub-agents of the owner of the note. And it makes no difference that such collection agency is composed of individuals, instead of being an incorporation. Hoover v. Wise, 1 Otto (U. S.), 308. See, also, Ayrault v. Pacific Bank, 47 N. Y. (2 Sick.) 570; S. C., 7 Am. Rep. 489.

By receiving a draft for collection, a bank becomes the agent of the