44                        A TREATISE ON ELEPHANTS.

case recently tried in Upper Burma will prove of interest to owners of
elephants. I therefore give it in full from the Burma Law Reports,
Volume VII, Part II, page 73, 1901.

                 " Civil Second Appeal No. 25 of 1900, May 7th, 1900.

                    Before the Judicial Commissioner, Upper Burma.

MAUNG KYAW DUN, Applicant. v. (1) MA KYIN, (2) NARAYANAN
                                                                     CHETTY, Respondents.

Injury caused by animal, tame or wild—Injury due to owner's negligence—Liability
for—Proof of negligence—Proof of scienter—Necessity for.

A man should be liable for injury caused by his animal, whether tame or wild, if it is
proved that the injury was due to the owner's negligence.

                     Maung Gyi v. Po To (1) approved.

In that view it would not be necessary to draw a distinction between
wild and domestic animals. The point for decision would be whether the
owner was guilty of negligence or whether he used such care as in the
circumstances of the case was reasonable and ordinarily sufficient. The
amount of care required would vary according to the class of the animal
and according to its own disposition. It would not be laid down in this
country that a man is liable for any damage done by his elephant without
any proof of negligence or that he knew it to be of a vicious disposition.
In view of the manner in and extent to, which elephants are employed in this
country, such a proposition would be manifestly unjust—Filburn v. People's
Palace Company (2) distinguished.

"In the present case it was for the plaintiff to prove that the damage done
to his elephant was caused or rendered possible by the defendant's negli-
gence. In considering the question of negligence, the defendant's know-
ledge or want of knowledge that her elephant was of a vicious disposition
would be an important point. In a suit of this kind, where an animal like
an elephant is concerned, the burden of proving negligence is in the first
place on the plaintiff who avers it. It might be otherwise if the injury by
a tiger or a bear were concerned.

" White, J.—The plaintiff-appellant sued to recover damages on account
of the death of his elephant, ' Do,' which died from the effect of wounds
inflicted by the respondent's elephant ' Kya Gyi.'

" The issues which arise in a case of this kind have been stated in two
cases of this Court. In Maung Gyi v. Po To (1) it was observed that the
issue generally would no doubt be the usual issue as to the existence of
negligence on the part of the owner of the animal doing the damage. In
Maung Swa v. Maung Kyaw (3) points which arise in a case very similar
to the present were indicated. There has been some argument in this
Court on the application of the doctrine of scienter. It is said that ' any
' one who keeps a wild animal, as a tiger or bear, which escapes and does
' damage, is liable without any proof of notice of the animal's ferocity; but
' where the damage is done by a domestic animal, the plaintiff must show that
' the defendant knew the animal was accustomed to do mischief (4).' Again
' a person keeping a mischievous animal with knowledge of its propensities