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law arising in the above case anterior to that trial; and that the general law on the subject is not in accordance with that decision.

'In Cro. Car. 248, 487, we read: The owner of a dog is bound to muzzle it if mischievous; and, if a man doth keep a dog that useth to bite cattle, &c., and after notice given to him of it, or his knowing the dog to be mischievous, the creature shall do any hurt, the owner shall answer for it. And, it is sufficient to prove the scienter of the owner, that the dog had once bitten sheep before.

'In Jenkins v. Turner, 2 Lord Raym. 118, it was held, that if one has a dog used to bite sheep, and he bites a horse, it is actionable; for the owner of the dog, after notice of the first mischief done, should have destroyed the dog to prevent further mischief.


'In Smith v. Pelah, Stra. 1264, Lee C. J. ruled - that if a dog have once bit a man, and the owner having notice thereof, keep the dog and let it go about, and it bite another person, case will lie against the owner, at the suit of the person bit, (though it happened by his treading on the dog's toes,) for the owner ought to have hanged the dog on the first notice.

In Jones v. Perry, 2 Esp. N. P. C. 482, it was held that the owner of a fierce and unruly dog is bound to secure it without actual notice of its ferocity.'

'Mr. Justice Alderson appears, mainly, to have founded his decision upon the circumstance, that the dog "had ceased to worry the sheep," and had gone away a field's distance from them before the defendant came up and shot it.

'Now, let it be observed, that the dog had trespassed ab initio, and was trespassing on the defendant's field at the moment it was shot, a fact which makes this case very different from what it would have been had the dog casually met the flock in a high road, and been shot when retreating. And, if the defendant had not followed the dog and killed it, with what security could he have left his flock? Might he not very reasonably apprehend the return of the dog to the sheep the moment the defendant disappeared, whose approach was perhaps the signal for the dog's retreating? - Who can conjecture what "other method" to protect the flock his Lordship could have contemplated? Ought the defendant to have hazarded a bite from the dog, which was rabid for aught he knew, by taking it molliter manu? or should he have endeavored to have driven it away by blows or otherwise?

'If the dog, failing all other methods, could only be legally shot "at the time it was worrying the sheep," is it not probable, that the defendant, instead of protecting his flock, by firing at the dog, night unfortunately have killed some of the sheep? It is more

over an irresistible inference, that if the dog could not legally be shot "after it had ceased to worry the sheep," it could not legally be shot before it commenced to worry them so that, had the defendant caught the dog (whose vicious habits the flock had before experienced) ranging his field, and approaching the sheep with open mouth, he must wait until it actually seized a victim, because it would be illegal to shoot the dog when it was yet a few yards from the flock!

'But it is not to be understood from the authorities before quoted, that the defendant was, "in point of law," justified in killing the dog? According to those authorities was not the dog, proscribed by law, outlawed as it were; and civiliter mortuus from the first moment it indisputably manifested a propensity to worry sheep, of which the dog's owner had notice? Did not the judge in one of the quoted cases hold, that "after notice of the first mischief done by the dog, the owner should have destroyed it to prevent further injury?" And did not Lord Chief Justice Lee, in another of those cases, confirm this doctrine, and even point out the mode whereby the dog ought to have been destroyed, when he held, "that the owner should have hanged the dog on the first notice of its having done mischief?" Surely, when those learned judges said the owner "should have destroyed the dog after notice," they must have meant that, by law, the owner was bound to do so: otherwise, we must suppose their lordships were inculcating from the judicial bench a mere moral duty of "imperfect obligation; " that, as a good neighbor, and for convenience, the owner ought to have killed the mischievous dog. Then, as the plaintiff in the case under consideration, notwithstanding he had several times been apprised of his dog's having worried the defendant's sheep, did not comply with the law, by destroying the dog; as he did not take even the reasonable precaution, to prevent further mischief, by 'muzzling the dog" (which, according to the case in Cro. Car. first cited, every owner of a mischievous dog is bound to do); could he "with clean hands" go into court and claim compensation from the defendant for his having done that which the law required the plaintiff to have done, but which he neglected to do? If the law require a man now to kill his dog to prevent further mischief, is not another man, whose flock that dog again worries, justified if he kills it to prevent still further mischief?


"The law distinguishes such animals as are feræ naturæ, as lions, wolves, &c., which a man must keep at his peril, from those which are mansuetæ naturæ, and break through the tameness of their In the latter case the owner must have notice in the


former an action lies against him without notice. Rex. v. Higgins, 2 Raym. 1583. With those animals which are mansuetæ naturæ the law classes dogs — which, upon a presumption that they are harmless, and for the convenience of mankind, are suffered to go at large. But, after notice that his dog is vicious, manifested by worrying sheep, &c., a contrary presumption clearly ceases, and it then goes at large at the owner's risk and the dog's peril; for, the man whose sheep it worries, may, it is submitted, destroy that dog (as he would any ferocious animal) at any time before it returns to its kennel, or is otherwise placed under restraint by its owner. In point of legality could there be any difference whether a man shot a dog or a wolf which from time to time worried his sheep?

'As the plaintiff would not secure his dog, it became a dangerous nuisance to the defendant; to remove which he had no other method than killing it. To afford the defendant effectual relief, and his flock security, the law under such circumstances must justify his so doing. Is it reasonable that the defendant should be constantly night and day watching his sheep to protect them from the predatory attacks of the plaintiff's dog? or must the defendant be perpetually involved in law by bringing successive actions for every successive injury the dog may occasion; because, either from unavoidable absence, or other cause, he unfortunately could not kill the dog "at the moment it worried the sheep?"

'It is submitted, therefore, that the true principles of our law will not support the learned judge's nisi prius decision, but justify the defendant in shooting the dog, and make the plaintiff liable for the injury it had done.' Legal Observer.

A subsequent article in the London Legal Observer, May 7th, 1831, defends the judge's decision. The writer says,

'I cannot agree with your correspondent T. P. in his objections to the decision of Mr. Justice Alderson in Wells v. Head, and which, he says, the true principle of our law will not support.

"The law with respect to persons keeping mischievous dogs, (according to Blackstone and the cases cited by your correspondent, and I do not know of any alteration having taken place since,) is, if a man keeps a dog or other brute animal used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil propensity, and which the plaintiff did in this instance. Now what I understand by this, is, the owner must answer at law, that is, he is liable to an action for whatever damage his dog may have committed; and I cannot find in any one case your correspondent has brought forward, that

the law has gone so far as empowering the person damnified to shoot the dog after having committed the injury; it only says, the owner is liable to the consequences, that is, for the amount of the damage done.

"In support of the argument of Mr. Justice Alderson, it is reported, in 1 Saund. 84, S. C., 3 Salk. 139, that where a mastiff falls on another dog, the owner of that dog cannot justify the killing the mastiff, unless there was no other way to save his dog, as that he could not take off the mastiff. The principle on which this case was decided, I think, will equally apply to the present. I certainly think, with the learned judge, that if the defendant had, at the time the dog was worrying the sheep, shot him, having no other way of keeping him off, he might then have been justified in so doing; but shooting him after, I humbly contend is against the law as laid down, and, therefore, that the decision of the learned judge was in complete accordance with the law, the defendant having a clear right of action for the damage done.'

The subject is continued in the Legal Observer for May 28th. One correspondent in favor of the decision says,

'There is no law to prevent a man from keeping a tiger, or any animal, how ferocious soever it may be; but if the beast escape and do damage, the owner must answer for it at law. If he may permit such an animal to live, à multo fortiori he may permit to remain alive a dog which had a tendency only to an illegal mode of gratifying his appetite.

'It is argued that animals mansuetæ naturæ, if they lose that tameness which made them property, become again completely fera natura, and therefore may be killed. Supposing this argument to be well founded, it may be demanded, what acts amount to a cessation, or to "a breaking through of this tameness." Instance the case of an old hunter, which always, when sent to grass, leaped the fences, and got into the neighbor's corn; according to the argument in question, the owner of the corn would be justified in shooting him.

'To the case of the horse all the observations apply with equal force as to that of the dog. Is it "reasonable that the defendant should be constantly, by night and day, watching his field to protect it from the predatory attacks of the plaintiff's horse; or must the defendant be perpetually involved in law for every successive injury the horse might occasion."


Another on the same side says,

'Much reliance is placed upon Lee C. J., having said in Smith v. Pelah, that the owner of a dog who knows it has once bit a

man, ought to have hanged the dog on the first notice; now your correspondent thence infers, that if the owner does not so hang the dog, any one else may kill him. But the only penalty attaching to the owner's failure to kill the dog, will be that which attached to him, viz. that the owner will be liable to make good in damages whatever mischief his dog does. The case goes no further; nor does any other case that I can find. The law is the same in almost all cases of neglect of duty. Thus, if a drain runs from the premises of A through the lands of B to the sea, and it is B's duty to keep the watercourse free through his lands, yet if he omits such duty he is only answerable in damages. A cannot justify coming on B's land and cleaning the drain for him. The argument is not mended by the dog having been a trespasser ab initio; for no one can justify shooting any trespasser, whether man, dog, or any other animal, merely because he or it is trespassing at the time. It is argued throughout, as if the law required the owner of a known vicious dog to hang it. Now all that has been decided is, that he ought to kill the dog; for if he do not, he will have to pay for what damage it does. Killing the dog does not recompense the sheep-owner for the damage already done. The decision in Wells v. Head is fully borne out by that of Janson v. Brown, 1 Camp. 41, in 1807, which was an action of trespass for shooting the plaintiff's dog; and the defence was, that the dog was accustomed to chase the defendant's poultry; and that just before the dog was shot, he was worrying one of the defendant's fowls, and had not dropped it from his mouth above an instant when the piece was fired. But Lord Ellenborough held this to be no justification, "to which (as he said) it was necessary that when the dog was shot, he should have been in the very act of killing the fowl, and could not be prevented from effecting his purpose by any other means.'


T. P., who is against the decision, answers some of the arguments on the other side.

'T. E. accurately quotes Blackstone to the effect, that "if a man keeps a dog or other brute animal, and it do mischief, as by worrying sheep or the like, the owner must answer for the consequences, if he knew of such evil habit;" but T. E. is not accurate in his exposition of the Commentator's language, when by it he understands, "that the owner must answer at law, that is, he is liable to an action for whatever damage his dog may have committed." Suppose the dog or other brute animal killed a human being? Then, of course, the owner must answer for the consequence, if at all, not in an action, but on an indictment. How

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