But this was not a bare, technical trespass. It was committed deliberately, in willful violation of plaintiff's rights, in a manner and under circumstances of aggravation, showing a violent, reckless, and lawless spirit; and, in such cases, the law allows damages beyond the strict measure of compensation, by way of punishment, and for example's sake.

Where the defendant, whose fence was not a lawful one, shot plaintiff's hogs, there being a bad state of feeling between the parties, it was held that defendant was liable to exemplary damages, and a verdict which awarded against him such damages was sustained, although it appeared that he had been injured by the hogs trespassing upon and injuring his crop, and they were doing so when they were shot.

FARM-15.

CHAPTER XV.

DOGS.

Property in dogs differs from that of other animals.
The law will protect owners of dogs in their property.
Police power to regulate keeping of dogs.

§ 169.

§ 170.

§ 171.

§ 172.

Sheep-killing dogs.

$173. The law of a dog-fight.

§ 174. A person may kill a dog assaulting him.

§ 169. Property in dogs differs from that in other animals. As to the ownership of dogs, the law has long made a distinction between them and the other domestic animals, because of their natural tendencies and the purposes for which they are kept. Beasts which have been thoroughly tamed, and are used for burden, or husbandry, or for food, such as horses, cattle, and sheep, are as truly property and entitled to protection as any property can be. But dogs never, even in a state of domestication, wholly lose their wild natures and destructive instincts; they are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; and, therefore, although a man may have such a right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he has generally been held, in the phrase of the books, "to have no absolute and valuable property therein," which could be the subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of detinue or replevin, or a distress for rent, or which would make him responsible for the trespasses of his dog of the lands of other persons, as he would be for the trespasses of his cattle.1

12 Bl. Com. 399 et seq.; 3 Ibid, 7 et seq. In speaking of distress for rent, the learned author says: "As everything which is distrained is presumed to be the property of the wrong-doer, it will follow that such things, wherein no man can have an absolute and valuable property, (as dogs, cats, rabbits, and all animals feræ naturæ) cannot be distrained."

And dogs have always been held, by the American Courts, to be entitled to less legal regard and protection than more harmless and useful domestic animals.1

§ 170. The law will protect owners of dogs in their property. Although the distinction is apparent between dogs, as property, and other domestic animals, it by no means is true that ownership of dogs is without legal protection. The owner may recover damages for injury to them, and no person is justified in treating them cruelly; the law will give redress for such misconduct and injury, as in cases of injury to other property.

Thus, in the matter of trapping dogs, by taking undue advantage of their natural instincts, one cannot shelter himself

Mason v. Keeling, 12 Modern Reports, 336. "If any beast, in which I have valuable property, do damage in another's soil, in treading his grass, trespass will lie for it; but if my dogs go into another man's soil, no action will lie." Milten v. Fandrye, Pop. 161; Read v. Edwards, C. B. (N. S.) 245. So, also, in the criminal law, a dog has generally not been regarded as being property in the absolute sense in which other domesticated animals are held.

Reg v. Berry, 8 Cox's Crim. Cases, 115, which was larceny of dogs. The prosecutor, who resided at Harblepool, was the owner of two dogs, which he advertised for sale. The prisoner made application to have the dogs sent to him at Liverpool, on trial, falsely pretending that he was a person who kept a manservant. By this pretense the prosecutor was induced to send the dogs to Liverpool, and the prisoner there obtained possession of them and sold them. The dogs were pointers, useful for the pursuit of game, and of the value of £5 each. The prisoner was convicted, and sentenced to seven years' penal servitude. On behalf of the prisoner, a question was reserved for the consideration of the Court of Criminal Appeals, "whether the said dogs were chattels ?"

The Court of Appeals discharged him, holding that the "conviction cannot be sustained. There is a specific mitigated punishment in the 7 and 8 Geo. IV, Chap. 29, Sec. 31, for dog-stealing, but it is not larceny at common law"; and the term "Chattels, in the section relating to false pretenses, applies only to such things as were the subject of larceny at common law."

"From the Year Books downward, dogs have always been held not to be the subject of larceny at common law."

American Criminal Law, Wharton, Vol. 2, Sec. 1755. "But as to all other animals which do not serve for food, such as dogs and ferrets, though tame and salable, or other creatures kept for whim and pleasure, stealing these does not amount to larceny at common law. It is otherwise, however, when they are taxed."

Putnam v. Payne, 13 Johns. 312. Per curiam: "The defendant was fully justified in killing the dog, under common-law principles; the dog was a dangerous animal, and his master knew it, yet permitted him to run at large. Such negligence was wanton and cruel, and fully justified the defendant in killing the dog as a nuisance. We do not mean to say that this would be allowed as a justification for killing more useful and less dangerous animals, as hogs, etc."

1 Mitchell v. Williams, 27 Ind. 62; Carter v. Dow, 16 Wis. 298; Tenny v. Leng, 16 Wis. 566; Brown v. Carpenter, 26 Verm. 638; Woolf v. Chalker, 31 Conn. 121.

from the consequences of an act of malice in availing himself of the hunger of a dog to lead him into danger, and it is unlawful for a man to tempt his neighbors' dogs into danger by setting traps on his own land, baited with strong-scented meat, or other similar contrivances, by which they may be allured to destruction -and there appears to be no just distinction between drawing an animal into a trap by his natural instincts, which he cannot resist, and putting him there by manual force. And a man must not set traps of a dangerous description in a situation to invite his neighbors' dogs, and, as it were, to compel them, by their instincts, to come to harm.1

§ 171. Police powers to regulate keeping of dogs.The power of regulating by statute the keeping of dogs, under penalty of having them summarily destroyed in case of failure to comply with the laws on the subject of taxation of the owners, by special licenses being required to be taken out for dogs kept, has been freely exercised by the legislatures of most of the States; the object of these statutes being to prevent sudden assaults upon persons, worrying, wounding, and killing of neat cattle, sheep, and lambs, the distressing evils liable to result from canine madness, and other injuries likely to be occasioned by dogs.

These statutes, which have been the subject of much consideration and revision by the various legislatures, with a view of securing these objects, and of affording means for ascertaining the owners, and making them liable for the mischievous acts of their dogs, have accordingly not only provided that any person

1 Townsend v. Walker, 9 East, 277. Cited approvingly in Keefe v. Railway Co. Supreme Court of Minnesota, January, 1875.

In The People ex rel. Walker v. Court of General Sessions, Supreme Court of New York, April, 1875, which was a dog tread-mill case, in which Walker, the proprietor of the dog, was convicted, and fined twenty-five dollars for cruelly beating a dog. The general term of the Supreme Court on certiorari unanimously affirmed the decision of the lower Court. Judge Davis, who delivered the opinion, says therein: "On the merits of this case, there appears to be no reason for interfering with the judgment. Although a dog is not a beast of burden, yet it is not cruelty to train and subject him to useful purposes. His use on a treadmill, or inclined plane, or in any mode by which his strength or docility may be made serviceable to man, is commendable, and not criminal, but his abuse, when so employed, whenever it amounts to cruelty, is a crime, and punishable precisely under the same circumstances as the cruel usage of the higher animals."

might kill a dog assaulting him,1 or attacking sheep, out of its owner's inclosure,2 but that the owner should be responsible in either single, double, or treble damages for mischief committed by his dog.

These statutes have been administered by the Courts according to a fair construction of their terms, and held to be reasonable and constitutional regulations of police.3

1 Brown v. Carpenter, 26 Vt. 638. The opinion, by Chief Justice Refield, is to the effect that a ferocious dog, known by the person who keeps him to be accustomed to bite mankind, is to be regarded, when allowed to run at large, as a common nuisance, from his known and uniform instincts and propensities, such as lions and bears, and probably wolves and wild-cats, and domestic animals, from their ferocious and dangerous habits becoming known to their keepers, thus become nuisances if not restrained. "But such an animal is quite as obviously within the general definition of a common nuisance as a wolf, a wildcat, or a bear, and, if allowed to go at large, as really deserves to be destroyed."

"If any animal should be regarded as the common terror of all peaceable and quiet-loving citizens, it is such a dog; and the owner who persists in keeping such an animal, without effectually and physically restraining him so that he can do no one harm, ought not to complain of his destruction. He ought to be grateful to escape so; for he undoubtedly is liable to, and justly deserves, exemplary punishment under the criminal laws of the State; and if one injured, or liable to injury, chooses to right himself by abating the nuisance only, he deserves to be regarded as a public benefactor."

Wolf v. Chalker, 31 Conn. 121. "A ferocious dog, accustomed to bite mankind, is a common nuisance, and if found running at large may be destroyed by any one. If sued for the killing of such a dog, the defendant need not aver or prove knowledge, on the part of him who harbors the dog, of his evil propensities in this respect."

The keeping of such a dog is wrongful, and, prima facie, the owner is liable to any person injured, and the plaintiff may recover without proving negligence in securing or taking care of him; nor is the negligence of plaintiff, to such a suit, a defense.

Such a dog is a dangerous instrument for protection, and placing him for that purpose can only be justified in cases where the placing of concealed instruments may be justified to prevent a felony. Nor can such use of him by the owner, under his personal direction, be justified, where a like degree of injury may not be lawfully inflicted by a different instrument.

A ferocious dog, addicted to biting mankind, and suffered to run at large, (unmuzzled) is a common nuisance; any person may kill it, independent of any statute authority, and independent of the question whether it was doing or threatening injury at the time of the killing, or whether the owner had notice of its disposition.

Maxwell v. Palmerton, 24 Wend. 407; Dunlop v. Snyder, 17 Barb. 561; People v. Board of Police, 15 Abbot's Pr. Rep. 167; Leonard v. Wilkins, 9 Johns. 233; Hinckley v. Emerson, 4 Cow. 351; King v. Kline, 6 Penn. St. 318.

2 Killing a dog while in the act of chasing and worrying sheep is a justifiable act, and the owner of the dog cannot recover his value. (Brown v. Hoburger, 52 Barb. 15.)

3 Morey v. Brown, 42 N. H. 373. "The provisions of N. H. Rev. Stats. Chap.