From the Kentucky Law Reporter, Volume 1 (1880-1881):
Dogs
"And in that town a dog was found,
As many dogs there be,
Both mongrel, puppy, whelp and hound,
And ours of low degree."
The first question that arises is, as to how far a dog is to be considered as property, and the second and last, as to his master's liability for his torts, when sued by the party whom he has attempted to illegally detain, and reduce to possession; or, if the dog has been successful, by the victim's legal representative.
In most States a dog is recognized as property, and a suit for damages may be maintained for injury done to him by wrongfully causing his death, even though he has manifested a strange taste for live beef by biting off the tails of two cows, and a desire for transportation by hanging onto horses' tails as they passed on the highway, and although he is not shown to possess any other qualities. And a man may be punished for stealing a dog. Although the average jury would probably release such prisoner on the grounds of insanity, in most cases.
The legislature may prohibit dogs from killing sheep, and for that purpose may allow only licensed dogs to do so, by charging the owner of each dog a license fee for the privilege of keeping him. This is on the principle that as sheep killing is injurious it should be restrained, the same principle upon which licensing the sale of liquor is based. And as a license is a privilege to do an illegal act, the legal effect of such license, I suppose, is to give such licensed dogs the privilege of killing sheep to their heart's content, although I am not clear on this point.
The District of Columbia Court denies the right to grant these privileges, in an opinion clearly setting forth the legal and poetical status of the animal.
Wisconsin and Minnesota are the only States, I think, which deny that a dog is property, but dogs are not regarded with a great deal of favor by any except the District of Columbia and the English Courts in cases cited, on account of their tendency to wander from the path of rectitude into the byways of sin and the meadows where sheep are wont to congregate, for the purpose of satisfying their inherent love for mutton.
The courts will hold him (or rather his owner) liable for all assaults upon the peaceful lambs, or other animals, not excepting man. For the purpose of protection of these other animals, dogs may be placed under the reasonable control of the municipal authorities, even though the only reasonable method is deemed to be to charge a license fee for the privilege of owning such property; and destroying it, if this fee is not paid.
If a dog is shown to be on friendly terms with a devourer of mutton, it will be presumed that he is in pari delicto [equal fault].
If a dog is too exclusive in his affections, and loves his master only, and despises the balance of the human race, and is too demonstrative in his hatred, manifesting it by inflicting injury upon the objects thereof, his master will be held to be answerable in damages to those whose feelings have been hurt by him; still he is not compelled to return good for evil, but may bite a man who stirs him up with his foot. And this liability exists even though the victim of misplaced confidence is a trespasser, if done in the daytime, and the dog is loose. The owner must be cognizant of his vicious propensities, however, which knowledge must be shown; it cannot be inferred from the dog's subsequent character.
If the person is bitten in another State, the master is not liable, but the injured party must take his satisfaction out of the dog. This is certainly a discrimination between residents and non-residents, and unauthorized by the United States Constitution. The rule of liability of the master for acts of his property applies also to the destruction of other property, such as sheep, etc. And even when two dogs declare war, the aggressor (or his master) is liable for the damages done to the other dog in the contest.
Although a dog is dangerous, and has bitten several persons since he was chained, yet if a person has not been attacked by such chained dog, he is not justified in depriving him of life, liberty and the pursuit of happiness, by shooting him. But had he been attacked and killed, his legal representative could have shot the dog, I suppose.
If a dog is mad, or supposed to be so, or has been recently bitten by a rabid dog, or if he is ferocious and attacks persons, or if he is chasing or eating sheep, he may be shot. But a disposition to drive away trespassing stock will not authorize capital punishment to be inflicted. A dog which haunts the premises, howling dismally, or baying the moon, may be shot or otherwise abated.
Some of the courts hold that the old maxim "an ounce of prevention" (or cold lead) "is worth a pound of cure" (or like Shylock's, of flesh), is strictly valid; and that if a dog is known to be vicious he may be killed, even though he may pass from earth in an innocent moment. But the North Carolina court holds that if he has only evinced a disposition to bite a person, and was called off, the person thus rescued can not shoot his late antagonist.
Just what a dog is, has been somewhat doubted, as the Minnesota court says he is not a "beast" as it is used in an act making the malicious killing of "horses, cattle or other beasts" an indictable offense. But he is an animal, and a person causing one dog to injure another can be indicted for cruelty to animals. He may, however, be initiated into the mysteries of a dog churn, or tread-mill, or other useful employment, if not cruelly treated.
FRANK L. WELLS, in Western Jurist.
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Reprinted in the Kentucky Law Reporter, Volume 1 (July 1880 to January 1881). [I omitted case citations from this transcription, please see image.]
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