Scribner v. Kelley. plaint, on the grounds, 1st. That there was no proof that the defendants knew the elephant would cause and produce such injury; and 2d. There was no proof of carelessness or negligence on the part of the defendants or their agents or servants. Which motion was granted by the court and the complaint dismissed, on the ground that no negligence was shown on the part of the defendants, and the plaintiff excepted to such decision. The plaintiff moved for a new trial, on a case and exceptions ordered to be heard in the first instance at a general term. Robert S. Hart, for the plaintiff. Close & Robertson, for the defendants. By the Court, SCRUGHAM, J. The liability of the owner or keeper of an animal of any description, for an injury committed by such animal, is founded upon negligence, actual or presumed. It is not in itself unlawful for a person to keep wild beasts, though they may be such as are of a nature fierce, dangerous and irreclaimable; but as the propensity of such animals to do dangerous mischief is well known, and is inherent and not to be eradicated by any effort at domestication, nor restrained except by perfect confinement or extraordinary skill and watchfulness, the owner or keeper of such dangerous creatures is required to exercise such a degree of care in regard to them as will absolutely prevent the occurrence of an injury to others through such vicious acts of the animal as he is naturally inclined to commit. Under such circumstances the occurrence of the act producing the injury affords sufficient evidence that the owner or keeper has not exercised the degree of care required of him, and his failure to do so is negligence. Therefore, to maintain an action for an injury caused by the vicious act of such an animal, it is not necessary to prove that it occurred through the actual Scribner v. Kelley. negligence of the owner or keeper, but the negligence upon which his responsibility rests will be presumed. This is so because the injury results from a vicious propensity which is the natural effect and sure accompaniment of the savage and ferocious nature of the animal, and the existence of such qualities in him is equivalent to proof of express notice of the propensity. But it is apparent that the rule will not apply where the injury does not proceed from any such propensity; for it is only of its existence that the savage and ferocious nature of the animal can be regarded as notice. In this case the injury resulted not from the act of the elephant, but from the fact that his appearance, as he was passing along the highway, caused the horse of the plaintiff to become frightened and unruly. To render the defendants liable for the damage that accrued, it would be necessary to show, not only that such is the effect of the appearance of an elephant upon horses in general, but also that the defendants knew or had notice of it; for if it is conceded that the elephant is of a savage and ferocious nature, it does not necessarily follow that his appearance inspires horses with terror. It does not appear that the elephant was at large, but on the contrary that he was in the care, and apparently under the control, of a man who was riding beside him on a horse; and the occurrence happened before the passage of the act of April 2d, 1862, regulating the use of public highways. There is nothing in the evidence to show that the plaintiff's horse was terrified because the object he saw was an elephant, but only that he was frightened because he suddenly saw, moving upon a highway crossing that upon which he was traveling, and fully 100 feet from him, a large animate object to which he was unaccustomed-non constat that any other moving object of equal size and differing in appearance from such as he was accustomed to see might not have inspired him with similar terror. The injury which resulted from his fright is more fairly attributable to a lack of ordinary courage and VOL. XXXVIII. 2 Dininny v. Fay. discipline in himself, than to the fact that the object which he saw was an elephant. The complaint was properly dismissed, at the circuit. [ORANGE GENERAL TERM, September 8, 1862. Emott, Brown, Scrugham and Lott, Justices.] DININNY VS. FAY, late Sheriff, &c. Taking the body of a debtor in execution is the highest form of satisfaction of a judgment. Hence the neglect of a sheriff to arrest the debtor, upon an execution issued against his person, is a wrong to the property, rights or interests of the judgment creditor, which would survive to his executors or administrators, and is therefore assignable. Although the courts have always made a distinction, and held that the cause of action does not survive against the executor or administrator of the wrongdoer, unless his estate was benefited by the wrong, yet it seems from the reading of the statute that the cause of action for the same class of actions, precisely, survives alike in favor of the.executors and administra tors of the injured party, and against the executors and administrators of the wrongdoer. But whether the distinction is well founded, or not, it is well settled that the wrongdoer is liable himself, to the executor or administrator of the person injured, in an action for a neglect of duty, whether the wrongdoer was benefited by the wrong, or otherwise. In an action on the case, against a sheriff, for neglecting to take the body of a defendant in execution, the sheriff should be allowed, by way of mitigating damages, to prove the pecuniary circumstances and condition of the defendant in the execution. HIS was an action against the defendant, as late sheriff of Steuben county, for neglecting to arrest one Henry B. Tuffts on an execution issued by a justice of the peace against his person, in an action brought against him by Alonzo Curtis, for wrongfully injuring personal property. The judgment had been assigned to the plaintiff in this suit by Curtis, with his light of action against the sheriff. The present action was tried at the Steuben circuit, in April, 1861, before Jus Dininny v. Fay. tice KNOX and a jury. The defendant moved for a nonsuit, on the following grounds: 1. That the plaintiff had failed to show any opportunity to arrest Tuffts, or that he was in the county of Steuben, or had been in it. 2. That the right of action was not assignable. 3. That the execution contained no direction as to when or where it should be returned. The motion was denied by the court. The defendant then offered to prove that Tuffts was a worthless person; and that nothing could have been gained by the arrest. The plaintiff objected to the evidence, on the ground that it would be no defense, and that the answer to that count in the complaint did not set up such defense. The court sustained the objection, and excluded the evidence. The judge, among other things, charged the jury that it mattered not whether Tuffts was worth any thing; that is, whether he had any property which the sheriff could get hold of. The jury found a verdict in favor of the plaintiff for $79.16. The exceptions taken at the trial were ordered to be heard in the first instance at the general term. F. C. Dininny, for the plaintiff. H. Sherwood, for the defendant. By the Court, JOHNSON, J. This action was brought against the defendant as sheriff, for the neglect of his deputy in not serving a body execution in his hands against one Henry B. Tuffts. There was a judgment against Tuffts, in favor of one Alonzo Curtis, on which an execution against the defendant's property had been issued and returned, no property found. Execution was then issued against his body, and placed in the hands of the deputy on the 20th of August, 1857. Tuffts continued to reside in the county until the 20th of September, 1857, when he left the state, and has not since returned. The evidence tended to show that the deputy, while he had this execution in his hands, knew where Dininny v. Fay. Tuffts resided, and that he called upon him two or three times with the execution, without arresting him, and that he was requested to arrest Tuffts by the plaintiff in the execution, in September, before he, Tuffts, left the state, and was informed by the plaintiff where he was. The plaintiff is the assignee of the judgment, and of this cause of action against the defendant. It is claimed by the defendant's counsel that the cause of action is not assignable, as it was at the trial, when a nonsuit was asked upon that ground, which was refused. Whether the cause of action is assignable depends, as it would seem, mainly upon the question whether it would survive to the executors or administrators of the assignor in case of his death. (Zabriskie v. Smith, 3 Kern. 322. McKee v. Judd, 2 id. 622. The People v. Tioga Com. Pleas, 19 Wend. 73.) If it was a wrong done to the property, rights, or interests of the assignor, the right of action would survive to the executor or administrator. (3 R. S. 5th ed. 746, § 1.) This clearly does not fall within any of the exceptions mentioned in the several sections of the act, It seems to me that upon the authority of numerous adjudged cases, this must be held to be an injury done to the estate of the assignor. It has been held that an executor could maintain case for a false return to final process. (Williams' Ex. v. Cary, 4 Mod. 403. S. C., 12 id. 71.) This was upon the ground that it was an injury to the estate. In that case the under sheriff had actually levied more than he had returned. And so for an escape on final process. It seems to have been sometimes doubted whether the executor could have an action, against the sheriff for an escape upon mesne process. But upon principle, as Mr. Chitty says, he may. (See 1 Chit. Pl. 79, 80, and cases there cited.) The principle upon which the action is maintained for the escape is, that the body is a pledge for the debt, and by the loss of the pledge the estate is injured. In Paine v. Ulmer, (7 Mass. Rep. 317,) it was held that an action against a |