Brown v. CarpenterBrown v. Carpenter
- Reporters:
- Before:
- Field
The opinion of the court was delivered by
Red field , Ch. J.Wе think that a ferocious and over-grown dog, known to the owner or keepеr to be accustomed to bite man-’ kind, is to be regarded as at large, within the common import of *642those terms, in a plea in bar, when he is so far free from restraint, as to be liable to do mischief to man or beast; and this, such a dog is always liable to do, when not physically restrained, in the language of the judge in the сourt below. His being in the presence of. his keeper affords no safe assurance that his known propensities will not prevail over the restraints of аuthority. That is the case with men often, and always liable to be with ferocious аnimals, as is said by one judge. “ I think sufficient caution has not been used ; one who keeps a savage dog is bound to so secure it as to effectually prevent it doing mischief.”
As to the sufficiency of the plea, it undoubtedly puts the defense uрon the ground that such a dog is hostis communis, the common enemy, and may be killed by any one. It alleges, indeed, that this dog had bitten the plaintiff, but does not claim that he was killed in nеcessary self-defense, at the time; nor do we think this necessary, in regard to dogs accustomed to bite mankind. That seems to be the law, ordinarily, as to dogs accustomed to chase game or to bite cattle. (Wells v. Head, 4 Car. & P. 568; Vere v. Lord Cawder, 11 East. 568.) But it is said, in the elеmentary books, that in a free warren, which is where one has the exclusive right tо keep game, one may kill a dog accustomed to chase the game there, although at the time, not in the act of chasing game. (Wadhurst v. Domme, Cro. Jac. 45.) But the English cases do not seem to me to justify the opinion that it is necessary to shоw, that the killing a huge, ferocious dog, known to the owner or keeper to be accustomed to bite mankind, can only be justified on the ground that it was done in immеdiate self-defense. In Smith v. Pelah, 2 Strange 1264, the chief justice ruled that the master is liable fоr all damage done by such a dog, who has once bitten a man, even though it happened by such person treading on the dog’s toes; “for it toas owing to his nоt hanging the dog in the first instance and, it is added, “ the safety of the king’s subjects ought not afterwards to be endangered.” This certainly looks very much like making the dog a common nuisance, and so such a dog is classed by Mr. Starkie, (Ev. 2d. Vol. 735, et seq.) The language of Tindall, Ch. J. in Sarch v. Blackburn, 4 Car. & P. 297, is similar; and Best, Ch. J. in Blackman v. Simmons, 3 Car. & P. 138, lays it dоwn as clear law, that one who keeps such a dangerous animal, knowing its habits, is clearly guilty of “ an aggravated species of man*643slaughter, if nothing more” if the animal should afterwards kill any one. And what is said by Denman, Ch. J., in Morris v. Nugent, (19 Com. Lаw R. 535,) is upon the ground of the form of the issue, rather than the rule of law. The New- York cases clearly treat such an animal as an outlaw and a common nuisаnce, liable to destruction. (Hinckley v. Emerson, 4 Cowen 351; Putnam v. Payne, 13 Johns. 312.) And this is a doctrine which this court is willing to abide by.
For to say that such a dog is not the • common annoyance and terror of a neighborhood; is to deny what every man knows to be emphatically true. Some animals are common nuisances, if suffered to go at large, from their known and uniform instinсts and propensities, such as lions and bears, and probably wolves and wild-cаts; (B. N. P. 76: King v. Huggins, 2 Ld. Rax 1583;) and domestic animals, from their ferocious and dangerous habits becоming known to their keepers, thus become common nuisances if not restrainеd. But such an animal is quite as obviously within the general definition of a common nuisance as a wolf or a wildcat or a bear, and, if allowed to go at largе, as really deserves to be destroyed. If any animal should be regarded as the common terror of all peaceable and qúiet-loving citizens, it is such а dog; and the owner who persists in keeping such an animal, without effectually аnd 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 undоubtedly 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.
Judgment affirmed.