allegation which involves a conclusion of law, and denies in advance the existence of an [114] excuse.  Whether the former allegation ought not to be enough, and whether the establishment of the fact ought not to shift the burden of proof, are questions which belong to the theory of pleading and evidence, and could be answered either way consistently with analogy.  I should have no difficulty in saying that the allegation of facts which are ordinarily a ground of liability, and which would be so unless excused, ought to be sufficient.  But the forms of the law, especially the forms of pleading, do not change with every change of its substance, and a prudent lawyer would use the broader and safer phrase.

The same course of specification which has been illustrated from the statute-book ought also to be taking place in the growth of judicial decisions.  That this should happen is in accordance with the past history of the law.  It has been suggested already that in the days of the assize and jurata the court decided whether the facts constituted a ground of liability in all ordinary cases.  A question of negligence might, no doubt, have gone to the jury.  Common sense and common knowledge are as often sufficient to determine whether proper care has been taken of an animal, as they are to say whether A or B owns it.  The cases which first arose were not of a kind to suggest analysis, and negligence was used as a proximately simple element for a long time before the need or possibility of analysis was felt.  Still, when an issue of this sort is found, the dispute is rather what the acts or omissions of the defendant were than on the standard of conduct. 1 The [115] distinction between the functions of court and jury does not come in question until the parties differ as to the standard of conduct.  Negligence, like ownership, is a complex conception.  Just as the latter imports the existence of certain facts, and also the consequence (protection against all the world) which the law attaches to those facts; the former imports the existence of certain facts (conduct) and also the consequence (liability) which the law attaches to those facts.  In most cases the question is upon the facts, and it is only occasionally that one arises on the consequence.

It will have been noticed how the judges pass on the defendant’s acts (on grounds of fault and public policy) in the case of the thorns, and that in Weaver v.  Ward 1it is said that the facts constituting an excuse, and showing that the defendant was free from negligence, should have been spread upon the record, in order that the court might judge.  A similar requirement was laid down with regard to the defence of probable cause in an action for malicious prosecution. 2 And to this day the question of probable cause is always passed on by the court.  Later evidence will be found in what follows.