loose and grows wild, he that hath kept him before shall not
answer for the damage the fox doth after he hath lost him, and he
hath resumed his wild nature." /2/ It is at least doubtful
whether that sentence ever would have been written but for the
lingering influence of the notion that the ground of the owner's
liability was his ownership of the offending: thing and his
failure to surrender it. When the fox escaped, by another
principle of law the ownership was at an end. In fact, that very
consideration was seriously pressed in England as late as 1846,
with regard to a monkey which escaped and bit the plaintiff, /3/
So it seems to be a reasonable conjecture, that it was this way
of thinking which led Lord Holt, near the beginning of the last
century, to intimate that one ground on which a man is bound at
his peril to restrain cattle from trespassing is that he has
valuable property in such animals, whereas he has not dogs, for
which his responsibility is less. /4/ To this day, in fact,
cautious judges state the law as to cattle to be, that, "if I am
the owner of an animal in which by law the [23] right of property
can exist, I am bound to take care that it does not stray into
the land of my neighbor." /1/

I do not mean that our modern law on this subject is only a
survival, and that the only change from primitive notions was to
substitute the owner for the offending animal. For although it is
probable that the early law was one of the causes which led to
the modern doctrine, there has been too much good sense in every
stage of our law to adopt any such sweeping consequences as would
follow from the wholesale transfer of liability supposed. An
owner is not bound at his peril to keep his cattle from harming
his neighbor's person. /2/ And in some of the earliest instances