Mr. Justice Heard
delivered the opinion of the court.
Appellant’s hull broke into appellee’s Enclosure, gored one of appellee’s mules therein so that it was necessary to cause its death by chloroforming it, and inflicting severe injuries upon another mule. Appellee brought suit and after much pleading a trial was had, resulting in a judgment for appellee against appellant for $200 and costs, from which judgment this appeal has been taken.
It is claimed by appellant that before a recovery could be had in this case it was necessary for appellee to aver and prove that the hull in question was an animal of vicious propensities and that appellant had knowledge of such fact. "Whether or not it is necessary to aver and prove a scienter depends on the locus m quo of the injury. In 1 Ruling Case Law, sec. 36, p. 1092, it is said: “That it is necessary to prove knowledge, on the part of the owner of a domestic animal, of its vicious propensities, in an action for injuries done by the animal while in a place where it had a right to be, is well established. The view seems to he generally entertained, however, that the law dispenses with the necessity of proving knowledge on the part of the owner, of the savage propensities of a vicious beast, where an injury is inflicted by an animal while trespassing on another’s land. In such a case the breaking and entering the close is the gist of the action, and the mischief or injury resulting therefrom to the person or property of the plaintiff is alleged and recovered on by way of aggravation of the trespass. Thus if a bull breaks into an inclosure of a neighbor, and there gores a horse to death, his owner is held liable in an action of trespass quare clausum fregit, in which the value of the horse is deemed to be the just measure of damages. ’ ’
In 3 Corpus Juris, pp. 92, 94, the general rule is stated as follows:
“As to when the necessity for proving viciousness and scienter exists there is some confusion in the cases. It may be laid down as a general rule that the decision of the question depends upon whether the animal is rightfully or wrongfully in the place where it inflicts the injury complained of. It is not true in all cases, however, that scienter is necessary where the injury is inflicted by an animal in a place where it had a right to be. If the owner or keeper is guilty of negligence in handling the animal he is liable regardless of scienter.
“If domestic animals injure any person or property while wrongfully in the place where the injury is done, the owner is liable, although he had no notice that such animal was accustomed to do such wrong or mischief. In such case the ground of action is that the animal was wrongfully in the place where the injury was done, and it is not necessary to allege or prove any knowledge on the part of the owner that such animal had previously been vicious. Thus a person who allows his horses to be at large where they have no right to be, as on a sidewalk, or who permits his cattle to run in a highway in violation of a statute prohibiting them from running at large therein, is liable in damages for injuries committed by them while so running at large, without reference to the question of the animal’s viciousness, and even though he did not know that they were in the highway at the time of the injury, unless their presence there is not due to his fault, or constitutes no breach of duty due from defendant to plaintiff, in which latter cases scienter must exist. * * * Where at the time of doing the mischief a domestic animal is a trespasser on the lands of plaintiff and the action is in trespass, recovery may be had for the mischief without proof of the scienter, the trespass being the gist of the action and the injury merely an aggravation of the damages. Likewise negligence need not be shown.”
Appellee’s mules were being pastured in appellee’s stubble field which was separated from appellant’s field, in which his bull was being pastured, by a wire fence. There is evidence tending to show that this fence had been agreed upon by appellee and appellant as a division fence of which appellee was to maintain the west half and appellant the east half.
Section 2, ch. 54, Bev. St. [Cahill’s Ill. St. ch. 54, Ü 2] provides that fences four and one-half feet high, consisting of rails, timber boards, stone, hedges, barbed wire, or whatever the fence viewers of the town shall consider equivalent thereto, shall be deemed legal and sufficient fences. According to the testimony produced by appellant, the east half of the fence answered the requirements of a good and sufficient fence while the west half was somewhat defective. According to appellee’s testimony, the west half of the fence met the statutory requirements while the defects, if any, were in the east half.
Section 20, ch. 54, Bev. St. [Cahill’s Ill. St. ch. 54, [¶] 20] provides: “If any horse, mule or ass, or any neat cattle, hogs or sheep, or other domestic animals, shall break into any person’s inclosure, the fence being good and sufficient, the owner of such animal or animals shall be liable, in an action of trespass, to make good all damages to the owner or occupier of the inclosure. ’ ’
It is claimed by appellant that this section of the statute was repealed by implication when the legislature enacted section 1, ch. 8, Bev. St. 1895 [Cahill’s Ill. St. ch. 8, [f 1] and that therefore it can have no application to this case. Bepeal of laws by implication is not favored and it is only when there is a clear repugnance between two laws and the provision of both cannot be carried into effect that the later law must prevail and the former is considered as repealed by implication. Dingman v. People, 51 Ill. 277; Devine v. Board Com’rs Cooh County, 84 Ill. 590; Pavey. v. Utter, 132 Ill. 489; People v. Faherty, 306 Ill. 119.
In Town of Ottawa v. County of LaSalle, 12 Ill. 339, it is said: “It is a maxim in the construction of statutes that the law does not favor a repeal by implication. The earliest statute continues in force, unless the two are clearly inconsistent with and repugnant to each other, or unless in the latest statute some express notice is taken of the former, plainly indicating an intention to repeal it. And where two acts are seemingly repugnant, they should, if possible, be so construed, that the later may not operate as a repeal of the former by implication. ’ ’
There is no repugnancy between the two acts in question. Section 1 of chapter 8 prohibits stock from running at large and is in no way repugnant to section 20 of the Fence Act which specifically provides that “this section shall not be construed to require such fence, in order to maintain an action for injuries done by animals running at large contrary to law.”
As stated by appellant in his brief, the two main questions are whether or not the wire fence was a partition fence and through which end of the fence the bull entered, together with the question of the sufficiency of the fence. On each of these questions the evidence was conflicting and by no means conclusive. Weighing this evidence and determining these questions of fact were peculiarly the province of the jury, and their finding having been approved by the judge who saw and heard the witnesses, this court would not be justified on this record in disturbing their finding.
Complaint is made that the verdict was excessive. There was evidence amply supporting the amount of the verdict.
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Mr. Justice Heard
delivered the opinion of the court.
Appellant’s hull broke into appellee’s Enclosure, gored one of appellee’s mules therein so that it was necessary to cause its death by chloroforming it, and inflicting severe injuries upon another mule. Appellee brought suit and after much pleading a trial was had, resulting in a judgment for appellee against appellant for $200 and costs, from which judgment this appeal has been taken.
It is claimed by appellant that before a recovery could be had in this case it was necessary for appellee to aver and prove that the hull in question was an animal of vicious propensities and that appellant had knowledge of such fact. "Whether or not it is necessary to aver and prove a scienter depends on the locus m quo of the injury. In 1 Ruling Case Law, sec. 36, p. 1092, it is said: “That it is necessary to prove knowledge, on the part of the owner of a domestic animal, of its vicious propensities, in an action for injuries done by the animal while in a place where it had a right to be, is well established. The view seems to he generally entertained, however, that the law dispenses with the necessity of proving knowledge on the part of the owner, of the savage propensities of a vicious beast, where an injury is inflicted by an animal while trespassing on another’s land. In such a case the breaking and entering the close is the gist of the action, and the mischief or injury resulting therefrom to the person or property of the plaintiff is alleged and recovered on by way of aggravation of the trespass. Thus if a bull breaks into an inclosure of a neighbor, and there gores a horse to death, his owner is held liable in an action of trespass quare clausum fregit, in which the value of the horse is deemed to be the just measure of damages. ’ ’
In 3 Corpus Juris, pp. 92, 94, the general rule is stated as follows:
“As to when the necessity for proving viciousness and scienter exists there is some confusion in the cases. It may be laid down as a general rule that the decision of the question depends upon whether the animal is rightfully or wrongfully in the place where it inflicts the injury complained of. It is not true in all cases, however, that scienter is necessary where the injury is inflicted by an animal in a place where it had a right to be. If the owner or keeper is guilty of negligence in handling the animal he is liable regardless of scienter.
“If domestic animals injure any person or property while wrongfully in the place where the injury is done, the owner is liable, although he had no notice that such animal was accustomed to do such wrong or mischief. In such case the ground of action is that the animal was wrongfully in the place where the injury was done, and it is not necessary to allege or prove any knowledge on the part of the owner that such animal had previously been vicious. Thus a person who allows his horses to be at large where they have no right to be, as on a sidewalk, or who permits his cattle to run in a highway in violation of a statute prohibiting them from running at large therein, is liable in damages for injuries committed by them while so running at large, without reference to the question of the animal’s viciousness, and even though he did not know that they were in the highway at the time of the injury, unless their presence there is not due to his fault, or constitutes no breach of duty due from defendant to plaintiff, in which latter cases scienter must exist. * * * Where at the time of doing the mischief a domestic animal is a trespasser on the lands of plaintiff and the action is in trespass, recovery may be had for the mischief without proof of the scienter, the trespass being the gist of the action and the injury merely an aggravation of the damages. Likewise negligence need not be shown.”
Appellee’s mules were being pastured in appellee’s stubble field which was separated from appellant’s field, in which his bull was being pastured, by a wire fence. There is evidence tending to show that this fence had been agreed upon by appellee and appellant as a division fence of which appellee was to maintain the west half and appellant the east half.
Section 2, ch. 54, Bev. St. [Cahill’s Ill. St. ch. 54, Ü 2] provides that fences four and one-half feet high, consisting of rails, timber boards, stone, hedges, barbed wire, or whatever the fence viewers of the town shall consider equivalent thereto, shall be deemed legal and sufficient fences. According to the testimony produced by appellant, the east half of the fence answered the requirements of a good and sufficient fence while the west half was somewhat defective. According to appellee’s testimony, the west half of the fence met the statutory requirements while the defects, if any, were in the east half.
Section 20, ch. 54, Bev. St. [Cahill’s Ill. St. ch. 54, [¶] 20] provides: “If any horse, mule or ass, or any neat cattle, hogs or sheep, or other domestic animals, shall break into any person’s inclosure, the fence being good and sufficient, the owner of such animal or animals shall be liable, in an action of trespass, to make good all damages to the owner or occupier of the inclosure. ’ ’
It is claimed by appellant that this section of the statute was repealed by implication when the legislature enacted section 1, ch. 8, Bev. St. 1895 [Cahill’s Ill. St. ch. 8, [f 1] and that therefore it can have no application to this case. Bepeal of laws by implication is not favored and it is only when there is a clear repugnance between two laws and the provision of both cannot be carried into effect that the later law must prevail and the former is considered as repealed by implication. Dingman v. People, 51 Ill. 277; Devine v. Board Com’rs Cooh County, 84 Ill. 590; Pavey. v. Utter, 132 Ill. 489; People v. Faherty, 306 Ill. 119.
In Town of Ottawa v. County of LaSalle, 12 Ill. 339, it is said: “It is a maxim in the construction of statutes that the law does not favor a repeal by implication. The earliest statute continues in force, unless the two are clearly inconsistent with and repugnant to each other, or unless in the latest statute some express notice is taken of the former, plainly indicating an intention to repeal it. And where two acts are seemingly repugnant, they should, if possible, be so construed, that the later may not operate as a repeal of the former by implication. ’ ’
There is no repugnancy between the two acts in question. Section 1 of chapter 8 prohibits stock from running at large and is in no way repugnant to section 20 of the Fence Act which specifically provides that “this section shall not be construed to require such fence, in order to maintain an action for injuries done by animals running at large contrary to law.”
As stated by appellant in his brief, the two main questions are whether or not the wire fence was a partition fence and through which end of the fence the bull entered, together with the question of the sufficiency of the fence. On each of these questions the evidence was conflicting and by no means conclusive. Weighing this evidence and determining these questions of fact were peculiarly the province of the jury, and their finding having been approved by the judge who saw and heard the witnesses, this court would not be justified on this record in disturbing their finding.
Complaint is made that the verdict was excessive. There was evidence amply supporting the amount of the verdict.
Appellant urges as ground for reversal that there is a variance between the allegations of the declaration and the evidence in that the declaration in both counts alleges “that from said injuries the mule then and there did die,” while the proof was that the veterinary killed the mule with chloroform. It is unquestionably the law that a party cannot state his case one way in the declaration and recover upon a different case made by the evidence. The allegations and proof must agree. However, in this case there was no variance. The evidence shows that after being gored by the bull the mule was down on its side by the side of the hedge; that a considerable portion of the smaller intestines were out, torn in two; that the mule was unable to get up. The veterinary who chloroformed the mule testified that it was impossible to save the mule. Under these circumstances while the chloroform was the immediate cause of death, the injury received was a direct proximate cause of its death and the evidence sustained the allegations of the declaration.
Appellee contends that the court erred in instructing the jury as follows, at the request of appellee:
“You are instructed that if the plaintiff has proven by the preponderance of all the evidence in this ease that he was the owner of the mules in question and that said mules were on land belonging to the plaintiff and that the defendant was the owner of the bull in question and that the said bull was on land belonging to defendant, which adjoined the land of the plaintiff, and that there was a fence between said lands and that said fence consisted of woven wire and barbed wire and was four and one-half feet high and in good repair, and that said bull broke through said fence and injured one mule and killed one mule belonging to the plaintiff on the land of the plaintiff, then under the law you should find a verdict for the plaintiff; and in such state of proof it would be immaterial whether or not said fence was a partition fence by agreement of the parties and it would also be immaterial as to whether or not the plaintiff and defendant had each agreed to keep up a certain portion of said fence and it would also be immaterial in such state of the proof as to which end of the fence the bull broke through.” This instruction is in accord with the statute and the authorities cited in this opinion. The trespass on appellee’s close was the gist of the action. The instructions considered as a series were most favorable to the appellant.
Other errors are assigned but we find no reversible error in the record. The judgment is affirmed.
Affirmed,