swine, or cattle, which belong to another person, he must kill the dog after having received notice, in writing, of his having done said acts, and in default of his so killing him, or causing him to be killed, the owner or harborer of the dog is liable to be fined three dollars, and a further continuing fine of one dollar and a half for each forty-eight hours which the dog shall live after the lapse of the first two days after said notice is given; and upon notice given to the supervisor of any township that such an offense has been committed by any dog, the supervisor may, and it is his duty to, bring the action last above mentioned for and in behalf of the township. (Compiled laws of Michigan, 1871, pp. 671, 672.) In Massachusetts, all dogs are registered, numbered, and described annually; a license tax is imposed and collected, and a tag or marked collar, showing such number, must be kept on the dog.

Dogs not licensed are to be killed by the town or city authorities.

Any person who suffers damage by his sheep being injured by dogs, on giving notice and making due proof to the local authorities, from them receives his compensation, unless he prefer to bring his action directly against the owner of the dog, in which case he may do so. (Supplement to Rev. Stats. of Mass. 186771, pp. 545-8.)

In Maryland, by the general statutes, (Code of 1860, p. 595) it is provided that the owner of sheep shall give notice to him who has a dog which has been seen to worry sheep, and thereupon it becomes the duty of him to whom the dog belongs to kill him; if he fail to do so, the person whose sheep have been injured may kill the dog, and recover double damages from him who has failed to kill the dog which belongs to him, and has so offended.

In New Hampshire, each town has a license system by which the registry of all dogs therein is kept, and a special fund is raised to pay damages suffered by the owners of sheep by the depredations of dogs, and the owner of the dog is moreover liable in double the amount of damage which has been done by his dog in worrying sheep. (General Stats. of New Hampshire, p. 218.)

By the act for the preservation of sheep in New Jersey, passed April 14th, 1847, every person who keeps a dog six months is taxed therefor, and on being notified that his dog has been found worrying sheep, he must kill him within twenty-four hours; or failing to do so, forfeit ten dollars and costs of suit, and pay treble damages. (Nixson's Digest, 4th Edition, p. 14.) But in 1869, it was provided, "that the protection afforded by this act to owners of sheep, shall only extend to residents or tax-payers in the township" where the damage was done. (Laws of 1869, p. 97.)

In New York, any person may kill a dog found worrying sheep; in each of the counties, except that of New York, all dogs are taxed, and the money resulting from these taxes is kept as a fund to satisfy damages done by dogs to sheep; moreover, the fence-viewers of each town are made a special board of examiners to establish the amount of damage done by any dog to sheep; the owner or the harborer of the dog is made liable to an action by the owner of the sheep for damages, and the report of the board of town fence-viewers is made primary evidence of the facts and amount of damage done. (New York Statutes at Large, 2d Ed. Vol. 1, p. 655.)

By the Revised Statutes of Ohio, (Swan & Critchfield, Vol. 1, p. 71) any person may destroy a dog found worrying sheep.

In Oregon, similar statutes permit the killing of dogs found worrying sheep, and make the person who owns the dog liable for the damage done by his dog. (General Laws of Oregon, [Deady] p. 678.)

Laws similar in effect prevail in Pennsylvania; dogs may be killed by any person who finds them injuring sheep, and the owner of the dog is liable for the damage done by his dog to sheep. (Laws of Pennsylvania, [Dunlop] p. 251.)

§ 152. Measure of damage done to sheep by dogs.The amount of damage done to sheep by dogs is sometimes ascertained, and paid by the town officers acting for the public under special statutes, some of which-notably that of New Hampshire-are peculiarly severe in dealing with the owner of the dog for damages done by it to sheep.

The injured party first seeks redress at the hands of the selectmen of the town; and, upon making proof of the nature and extent of his loss, the town authorities pay it; and afterward the town, in an action of assumpsit against the keeper or owner of any dog concerned in doing the damage or occasioning the loss, may recover the full amount paid to him who owned the sheep.

This system has been found to be faulty, in that the main facts of the controversy, the amount and character of the damage done, are established without the party who is ultimately liable having been heard at all.

The ex parte determination of the selectmen is by the act made conclusive on the owner or keeper of the dog, as to the amount of the damage done, and consequently as to the extent of his liability.

Taxes are laid upon dogs, and the revenue thence derived is appropriated to pay damages done to sheep by dogs. (Laws of Pennsylvania, 1873, pp. 454, 489, 648; Laws of 1872, pp. 240, 286, 415, 671, 826, 1105.)

The several townships of the various counties are, by distinct acts, made subject to provisions in effect as above detailed; but, from the large number of statutory enactments in the premises, it is not possible here specifically to refer to each one.

In Rhode Island, the law is such that, for the first time a dog worries sheep, the owner may recover damages therefor from him who harbors or owns the dog; if, after such first offense, the dog still lives and injures sheep, his owner is liable for double damage, and the Court wherein the action for damages is tried may order the dog to be killed. (Revised Statutes of Rhode Island, p. 206.) By a subsequent statute, (1872, pp. 200, 203) a provision is made for the licensing of dogs, and appropriation of the funds resulting therefrom to payment of damages to sheep done by dogs.

The law of Tennessee permits any person to kill a dog which injures sheep, and makes the owner of the dog liable for damages done by the dog. (Statutes of Tennessee, Vol. 1, Sec. 1861.)

By the code of West Virginia, (1868, p. 240) a special tax is laid upon dogs, and the money realized therefrom is appropriated to paying for the damage done to sheep by dogs; and any person who harbors a dog known to be addicted to the habit of worrying sheep, is deemed guilty of a misdemeanor, and liable to be punished therefor by fine of not less than twenty dollars.

This characteristic affects, to a greater or less extent, all those statutes by which the town authorities are made primarily liable, and it is, to say the least, questionable how far such statutes are constitutional and capable of being enforced.1

§ 153. Ignorance by owner of propensity of his dog to worry sheep.—No scienter is necessarily to be alleged or proved in actions brought to recover damages caused by dogs injuring sheep; the farmer, or other person who keeps a dog, does so on the terms of paying for the damage he may cause by worrying sheep; there is, by the law, imposed on him who harbors a dog, a contract to answer for his misdeeds; all persons are presumed to know the law, and, by implication, he who keeps a dog agrees to respond in damages for his wrongful acts.2

Knowledge, on the part of the owner of a dog, of the fact

1 In East Kingston v. Towle, 48 N. H. 57, this proposition was discussed, and the constitutionality of the act was one of the main issues.

The defendant owned a dog, and the sheep were killed. The person to whom the sheep belonged made his showing of the amount of damage, received payment therefor, and thereupon the Board of Selectmen brought their action against the owner of the dog alleged to have been concerned in killing the sheep. The defendant demurred, on the ground that the statute was unconstitutional.

The Court sustained the demurrer, and held that the law, so far as it undertakes to charge the owner with the amount of damage done by his dog, as fixed by the selectmen of the town, without an opportunity to be heard, is unconstitutional, because it is contrary to natural justice, and not within the scope of legislative authority; and also because it is in violation of the provision in the bill of rights which secures the right of trial by jury in all controversies concerning property, except in cases where it had heretofore been otherwise used and practiced.

But it was also held that the legislatures have the power to make towns liable for damage done within their limits by dogs, and to give towns a right of action to recover the actual damage from the owners of the dogs; but the action must be tried by the mode of procedure of other damage cases. The defendant is entitled to have heard upon the trial all of his defenses; to show, if he can, that it was not his dog which did the harm, and to rebut the showing of the one who owned the sheep of the amount of damage done.

2 The common-law rule is not as given in the text; by the English law, the owner of a dog is liable for mischief done by him, if he had notice of the animal's vicious propensities; but in America, this liability is so generally enlarged by statute, that, practically, the common-law rule is set aside, and a man keeps a dog at his peril, against the natural propensity which dogs have to destroy sheep. (Woolf v. Chalker, 31 Conn. 121; Fish . Scutt, 21 Barb. 333; Job v. Harlan, 13 Ohio St. 485; Kerr v. O'Connor, 63 Penn. St. 341; Sedgwick on Measure of Damages, Sec. 570; Campbell v. Brown, 1 Grant [Pa.] Cases, 82; Brewer v. Crosby, 11 Gray, 29; Pressy v. Wirth, 3 Allen, 191: Smith v. Montgomery, 52 Me. 178; Orne v. Roberts, 51 N. H. 510.)

that the dog has a vicious disposition, or that he would worry sheep, need not, as a general rule, be proved in America, in order to charge the owner with the damage done by his dog; although the rule in England still appears to be that there such knowledge must be charged and proved before he to whom the dog belongs can be made liable.1

§ 154. Several dogs attacking sheep, liability of owners.—When two or more dogs make the assault together and do the damage jointly, the liability of the several owners of the dogs becomes a question likely to arise.

From the majority of the decisions the rule is to be deduced, that where several dogs, belonging to different owners, unite in doing mischief, an action against all the owners jointly does not lie; but each person is liable for the damage done by his own animal.2

In ascertaining just what damage was done by each, the jury will regard all the facts and circumstances shown; but in the

1 So held by Lord Coleridge, C. J., and Keating, J., in Applebee v. Percy, Law Rep. 9 C. P. 647. Brett, J., dissenting, not to the main proposition, but to the application of the rule to the case at bar.

2 Russel r. Tomlinson & Hawkins, 2 Conn. 206. The action was damages for twenty-eight sheep, killed by the two dogs which belonged to the defendants. The defendants did not own the dogs jointly: one defendant owned one dog, the other defendant owned the other dog. The Court, at nisi prius, instructed the jury that if they should find that the plaintiff's sheep were worried and killed by the dogs, they must find both the defendants guilty, and award damages against them and in plaintiff's favor; a verdict for plaintiff was the result, and defendants appealed, assigning this instruction as misdirection. The Supreme Court reversed the judgment, and held that "two or more persons owning dogs, severally, are not jointly liable for acts of mischief done by such dogs jointly." In the opinion, Swift, C. J., says: "Owners are responsible for the mischief done by their dogs; but no man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it. When the dogs of several persons do mischief together, each owner is only liable for the mischief done by his own dog; and it would be repugnant to the plainest principles of justice to say that the dogs of different persons, by joining in mischief, could make their owners jointly liable. This would be giving them a power of agency which no animal was ever supposed to possess.

"It is true that there may be some difficulty in ascertaining, in separate actions, the quantum of damage done by the dog of each; but this can be no reason why one man should be accountable for mischief done by the dog of another."

Van Steenburgh r. Tobias, 17 Wend. 562; Auchmuty v. Horn, 1 Denio, 495. In this case it was also held that the farmer, whose hired man had a dog which followed him about, could not be held liable for the damage done by his man's dog. (Denny v. Cowell, 9 Ind. 72; Partenheimer v. Van Orden, 20 Barb. [N. Y.]

absence of any proof as to how much damage was done by each of several dogs implicated in the attack, the presumption is that one did as much damage as another; but, to rebut this presumption, the jury may regard the respective size, ferocity, and known habits in the matter of killing sheep, of each.2

The converse of the general rule above given is in a late case (1869) held to be the law, by the Supreme Court of Pennsylvania.

In this decision, the learned judge (Thompson, C. J.) who delivers the opinion says that "all the owners of several dogs, which, together, at one and the same time, kill and wound a flock of sheep, are all answerable for the damage"; that "each one is answerable for the whole damage done in which his dog is jointly engaged." 3

But this case is at variance with what appears to have become the settled rule, is moreover a construction of the law of but one State, and the weight of authority, as above mentioned, is opposed to the reasoning therein.

§ 155. Soundness of sheep-Infectious diseases.-The diseases to which sheep are liable have caused judicial investigations and decisions as to warranty, sale, and covenants as to soundness, the controlling principles of which have been given in the chapters on sale, warranty, and soundness.

Such of the diseases to which sheep are liable as are infectious, demand, however, special notice, because of the possibility that, by the sale of animals which are affected by diseases of that character, the vendor may become liable in heavy damages.

The general rule of the measure of damages is, that he who is injured, in his action against him who has caused the injury, is entitled to such damages as necessarily and naturally flow from the act complained of.4

1 Partenheimer v. Van Orden, 20 Barb. 479.

2 Wilbur v. Hubbard, 35 Barb. 303.

Kerr v. O'Connor, 63 Penn. Stats. 341.

4"If sheep are sold, with a warranty that they have entirely recovered from a disease they previously had, or that they would recover from the same, and such warranty is broken, the purchaser, when sued upon the note given for the price, if he has kept the sheep, will have the right to have his damages deducted FARM-14.