§ 172. Sheep-killing dogs.-The responsibility of the owner or harborer of a dog, for his acts, is peculiar, and characterized by the evil propensities natural to the species.

If domestic animals, such as oxen and horses, injure any one, in person or property, so long as they are rightfully in the place where they do the mischief, the owner of such animals is not liable unless he knew that they were accustomed to do mischief, and kept them so negligently and carelessly that injury resulted therefrom.1

But in case of damage done by dogs, no scienter need be alleged or shown; and the owner of a dog cannot allow him to run at large, even on his own premises, without some risk to himself in becoming liable in damages for his assaults on man or beast.2

It is true that the authorities are not uniformly to this effect,

127, authorizing the killing of any dog found without a collar, is not in conflict with the constitution of the State; and where a statute provides that no person shall be liable for killing any dog which shall be found not having a collar of brass, tin, or leather, with the name of the owner or owners carved or engraved thereon, actual notice of the ownership of the dog found without such a collar will not make a person liable for killing it." Carter v. Dow et al. 16 Wis. 298. ing of dogs is an exercise of the State, and is constitutional."

"The act to regulate and license the keeppolice, and not of the taxing, power of the

1 Decker v. Gammon, 44 Maine, 322. "If damage be done by any domestic animal kept for use or convenience, the owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief before, if such animal is rightfully in the place where it does the mischief. (Vrooman v. Sawyer, 13 Johns. R. 339; Buxendia v. Sharp, 2 Salk. R. 662; Rex v. Huggins, 2 Ld. Raym. 1853.) "There is a difference between beasts that are fera natura, as lions and tigers, which a man must always keep at his peril, and beasts that are mansuctæ natura, and break through the tameness of their nature, such as oxen and horses. In the latter case, an action lies, if the owner has had notice of the quality of his beast; in the former case, an action lies without such notice." (Jenkins v. Turner, 1 Ld Raym. 109; May v. Burditt, 58 Eng. Com. Law, 94; Mason v. Keeling, 12 Modern Rep. 333; Lyke v. Van Lewis, 1 N. Y. 515. )

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2 Wolf v. Chalker, 31 Conn. 121; McCaskill v. Elliott, 5 Strobh. (S. C.) 196. "The owner of a dog keeps it at his own risk, being, without regard to care or negligence, an insurer against all the harm which he might reasonably have expected to ensue.' (Pickering v. Orange, 2 Ill. 492; Loomis v. Terry, 17 Wend. 496. A man may keep a dog for the necessary defense of his house, his garden, or his fields, and may cautiously use him for that purpose, in the night-time; but if he permit a mischievous dog to be at large on his premises, and a person is bitten by him in the day-time, the owner is liable in damages, although the person ininjured be, at the time, trespassing on the grounds of the owner by hunting in ⚫ his woods without license. A person is not permitted, for the protection, in his absence, of property against a mere trespasser, to use means endangering the

and that it has been held that the owner of a dog was not liable for his acts of ferocity unless knowledge of his evil disposition was brought home to the owner.1

But the general tenor of the rulings of the Courts has been such as to establish the proposition that he who keeps a dog does so at his peril of the natural propensity of the species to rapacity and ferocity.2

§ 173. The law of a dog-fight cannot be regarded as settled, because, although cases have occurred wherein the legal principles affecting such controversies have been considered, the real parties in interest, the true belligerents, could not well be heard by the Courts in their own behalf.1

life or safety of a human being, whatever he may do where the entry upon his premises is to commit a felony, or breach of the peace; and where such means are used, the nature and value of the property sought to be protected must be such as to justify the proceeding; full notice of the mischief to be encountered must be given, and the principles of humanity must not be violated, or the owner will be subjected to damages for any injury which ensues." (Sherfey v. Bartlett, 4 Sneed, (Tenn.) 58; McCarthy v. Guild, 12 Met. 291; Smith v. Montgomery, 52 Me. 178; Wirth v. Allen, 3 Allen, 191.) "In an action to recover double the amount of damages sustained from the bite of a dog, (Rev. Stats. Mass. Chap. 58, Sec. 13) it is not necessary to prove that the owner knew of the vicious character of his dog, or that the dog was accustomed to bite."

1 Faircheld v. Bentley, 30 Barb. 147. The defendant's dog was under his wagon in the shed of an inn where the defendant was a guest; the dog bit plaintiff, the inn-keeper, while he was unhitching the horses to move them. Held, that whether the dog was or was not quoad, the master, who had tried to send him home, an involuntary trespasser, the defendant was not liable, unless he knew that the dog was of a vicious character; and that such knowledge could not be inferred from the subsequent conduct of the dog.

2 Kertschake v. Ludwig, 28 Wis. 430; Lavarone v. Mongiatti, 41 Cal. 138, in which it was said: "The owner of a ferocious dog, knowing the vicious propensities of the animal, keeps it at his own risk, and is responsible for any injury inflicted by it upon a person who is free from fault. A person may keep a ferocious dog, and he has, lawfully, the same right to keep a tiger. The danger to mankind, and the injury, if any is suffered, comes from the same source, the ferocity of the animal. In determining the responsibility of the keeper for an injury inflicted by either animal, the only difference between the two cases is, that in the case of an injury caused by a dog, the knowledge of the keeper that the dog was ferocious must be alleged and proven, for all dogs are not ferocious; while in the case of a tiger, such knowledge will be presumed from the nature of the animal. This knowledge, however established, whether by evidence or by presumption, is the same in substance and works the same results." (Partlow . Haggirty, 35 Ind. 178; Kelly v Tilton, 2 Abb. [N. Y.] 495.)

Scienter. The liability, under N. H. Gen. Stat. Chap. 105, Sec. 8, of the owner or keeper of a dog, in double damages, to one bitten thereby, is not affected by his ignorance of the dog's vicious habit. (Orne v. Roberts, 51 N. H. 110.)

1 Wiley v. Slater, 22 Barb. 506. The distinguished jurist, W. F. Allen, J., who

The rules established by cases in which dogs have attacked human beings, and their owners have been held liable, do not always appear to be applicable to those wherein the attack is by

delivered the opinion in this cause in the Supreme Court, says: "This is the first time I have been called upon to administer the law in the case of a pure dogfight. I have had occasion to preside upon the trial of actions for assaults and batteries, in which the masters of dogs have acquitted themselves in a manner which might well have aroused the envy of their canine dependents. I am constrained to admit total ignorance of the code duello among dogs, or what constitutes a just cause of offense, and justifies a resort to the ultima ratio regem, a resort to arms, or rather to teeth, for redress; whether jealousy is a just cause of war, or what different degrees and kinds of insult or slight entitle the injured or offended beast to insist upon satisfaction. I know, and am glad to know, that no nice question upon the conduct of the conflict on the part of the principal actors arises in this case. It is not claimed, upon either side, that the struggle was not fair and dog-like in all respects. Indeed, I was not before aware that it was claimed that any law, human or divine, moral or ceremonial, common or statute, undertook to regulate and control these matters, but supposed that this was one of the few privileges which this class of animals still retained in the domesticated state; that it was one of their reserved rights, not surrendered when they entered into and became a part of the domestic institution, to settle and avenge, in their own way, all individual wrongs and insults, without regard to what Blackstone, or any other jurist, might write, speak, or think of the rights of persons, or rights of things.'

"I have been a firm believer, with the poet, in the instructive, if not semidivine right of dogs to fight; and with him would say:

'Let dogs delight to bark and bite,

For God hath made them so;

Let bears and lions growl and fight,

For 'tis their nature to.'

"It is possible, had the owners of both dogs been present, that the belligerents would have been changed, and the familiar questions growing out of son assault demesne and mollitur manus imposuit would have been presented, but no such questions are here made.

"The defense is not rested upon the principle of self-defense, or defense of the possession of the master of the victorious dog. Had this defense been interposed, a serious and novel question would have arisen as to the liability of the offending dog for excess of force, and whether he would be held to the same rules which are applicable to human beings in like cases of offending, whether he would be held strictly to the proof of the necessity and reasonableness of all the force exerted, under the plea that, in defense of his carcass or the premises committed to his watch and care, 'he did necessarily a little bite, scratch, wound, tear, devour, and kill the plaintiff's dog, doing no unnecessary damage to the hide or body of said dog.'

"Addressing myself to the question really made in the case," the learned judge continues, "it is one thing for a dog to be dangerous, and quite another to be unwilling to have strange dogs upon his master's premises. To attack and drive off dogs thus suffered to go at large would be a virtue. Owners of valuable dogs should take care of them, proportioned to their value, and keep them within their own precincts, or under their own eye. It is very proper to invest dogs with some discretion, while upon their master's premises, in regard to other dogs, while it is palpably wrong to allow a man to keep a dog who

one dog upon another. Owners of dogs are bound to take a care of them proportioned to their value, but that does not in all cases relieve the person who keeps a "fighting dog" from liability for damages done by his animal to another dog; and the rule is applicable that vicious dogs are a nuisance, and their owners must either kill or keep them in confinement, as soon as they have notice of their dangerous habits, or, failing thus to guard against their doing damage, be held to answer therefor.1

§ 174. A person assaulted by a dog may kill it, when. -If a dog assault a person as he is passing, or cause him dangor by frightening his horse on the road, it seems that the person so assaulted or endangered may protect himself from injury, or his horse from being bitten, by killing the dog; for,

may or will, under any circumstances, of his own volition, attack a human being."

1 Wheeler v. Brant, 23 Barb. 324. This case does not fully sustain the preceding one, and may be considered, to a certain extent, as an adverse decision. Plaintiff had a small dog, a pet, or sporting animal, which followed him one evening to defendant's house, where plaintiff went to see defendant on business. The defendant had a large "fighting dog," and its owner was aware of his being quarrelsome; the big dog attacked the little one and killed him; plaintiff sued the owner of the victorious animal for the value of his pet, and recovered. The ruling of the Supreme Court was that "where a dog, which has the vicious habit of attacking other dogs without being incited to do so, is suffered to go at large, and he attacks and kills the dog of a person lawfully coming upon the premises where he is, his owner is liable in damages for the value of the dog so killed, where it is shown that such owner had knowledge of the viciousness of his dog."

Heisrodt v. Hackett, Supreme Court of Michigan. Plaintiff was the owner of a small but intelligent and well-trained dog, which had such gifts, natural and acquired, as rendered him of especial value to plaintiff in the conduct of his business. There was a large, savage, and dangerous dog living near plaintiff's residence. This dog was without an owner. He was permitted to live, and was taken care of, on defendant's premises. The big dog killed the little one, and plaintiff sued defendant for damages. Defendant justified the conduct of the brute, with dogged persistence following the case into the highest Court, on the ground that the little one had no collar, nor his owner a license for keeping him, as, under a statute, they respectively should have had, or, failing in so doing, incurred danger of the dog's being killed by any constable or police officer.

The defense was not deemed good, and the Court held that there being no showing that the big dog had all of the official characteristics of constable or police officer; that in the killing he was in the discharge of his duty as a public functionary, or that, if he was, he duly ascertained the absence of the collar or the lack of a license before proceeding to act in a summary manner, and that therefore the defense could not be entertained; that where a statute authorizes a particular officer to perform an act, another cannot justify under the authority given. (4 Bl. Com. 178; Michigan Lawyer, 14 Alb. L. J. 122.)

although a man has a right to keep a dog for the protection of his house and yard, yet he ought to keep him secured, and not allow him to remain loose and uncontrolled at such hours and in such places as will endanger peaceable and honest persons from engaging in their lawful business.1

But it must not be understood that the law regards dogs as absolutely without value, and a nuisance, of which any man may properly rid the land. By the common law, they are regarded in a different light to other domestic animals; but, for all that, they are a species of property for an injury to which an action at law may be maintained, and in such an action it is not necessary to show that the dog had pecuniary value; moreover, if the injury complained of is accompanied by circumstances of aggravation, "smart-money," or "exemplary damages," may be awarded for injury to him.2

1 Perry v. Phipps, 10 Iredell, (N. C.) 262. "A person is not bound to stand quietly and be bitten by a dog, nor to give him what might be called a fair fight among men. But if a fierce and vicious dog be allowed to go at large, and he runs at a person as he lawfully goes to a house, or is passing along the road, apparently to set on the person, or, for example, on the horse he is riding, it seems but reasonable the person should protect himself from the injury of a bite, to himself or his horse, by killing the dog."

2 Dodson v. Mock, 4 Dev. & B. (N. C.) 146; Perry v. Phipps, Ante; The State v. Latham, 13 Ire. 33. "A man has property in a dog, so that an indictment for malicious mischief in killing one will lie."

State v. Moses, 2 Dev. 452; McKee v. Evans, 1 Dev. & B. 243; State v. Scott, 2 Dev. & B. 35; Porter v. Mise, 27 Ala. (N. S.) 480. The language of the Court in the opinion is: "A dog is a species of property for an injury to which an action at law may be sustained. It is not necessary, for the maintenance of an action for shooting a dog, that the dog should be shown to have pecuniary value. Whenever there is a wrongful taking of the property of another, or a wrongful injury done to it, the law implies that the owner has sustained some damage; and although there be, in fact, no sensible damage for the loss or injury of the property, or from an actual deprivation of its use, the owner is entitled to recover some damages. And if the trespass on the property was accompanied by circumstances of aggravation, 'smart-money,' or 'exemplary damages,' may be assessed by the jury, although the property itself had no pecuniary value."

Board v. Head, 3 Dana, 488; Major v. Pulliam, 3 Ibid, 582; Woert v. Jenkins, 14 Johns. R. 352; 2 Starkie's Ev. 1450, 1451; Bracegirdle v. Orford, 2 Maule & Sel. R. 77; Merest v. Harvey, 5 Taunt. 442; Dearing v. Moore, 26 Ala. 586.