So an angry

an illegal act, and would not vary the case."1 reply, “Go and kill him, if you want to," made by the owner of an animal, as a tamed buffalo, to one complaining of a trespass, does not license him to kill it after a lapse of nearly half a year.2 The owner of land may drive trespassing animals from his land into the highway and leave them there, unless they come through a division fence which he has neglected to keep up, in which case he should turn them back into the adjoining land, and not into the highway. Where it is the custom of the country to permit stock, boars, and bulls to run at large, and the estray law of the state gives a remedy for their depredations, a person is not justified in injuring one taken in the act of breaking fences or destroying crops. An owner of domestic animals has the right to pasture them on the commons of incorporated towns, in the absence of regulations to the contrary; and such conduct does not diminish his right to compensation from those who injure them. Untying and removing a horse. from a hitching-post standing on the highway, to which he had been hitched by the plaintiff, being the owner, and to the use of which post the plaintiff had, if not an exclusive right, as good a right as the defendant, is a technical trespass." The legislature may require owners of stock to keep them from trespassing on the lands of others.8

It is not the person's duty to impound the animals or secure them, unless so provided by statute; but if he drives them beyond the highway, and they stray away, he is

1 Clark v. Keliher, 107 Mass. 406; Johnson v. Patterson, 14 Conn. 1; 35 Am. Dec. 96.

2 Ulery v. Jones, 81 Ill. 403.

3 Humphrey v. Douglass, 11 Vt. 22; 34 Am. Dec. 668; Cory v. Little, 6 N. H. 213; 25 Am. Dec. 458; Tobin v. Deal, 60 Wis. 87, 50 Am. Rep. 345, holding that he must not drive them into a highway leading away from the direction of the owner's land.

Knour v. Wagoner, 16 Ind. 414; Clark v. Adams, 18 Vt. 425; 46 Am. Dec. 161; Palmer v. Silverthorn, 32 Pa. St. 65; Wood v. La Rue, 9 Mich. 158.

5 Bost v. Mingues, 64 N. C. 44. 6 Chicago etc. R. R. Co. v. Jones, 59 Miss. 465.

7 Bruch v. Carter, 32 N. J. L.

554.

8 Anderson v. Locke, 64 Miss. 283.

1

3

liable. If he puts them in a pound, he must see that it is in a fit and safe condition,2 and that they are properly supplied with food and water. If there is no sufficient public pound, he may impound them on his own or another's property. He is not responsible for injuries which they may receive from other cattle in the pound. When a pound fence intended to confine horses and cattle is proved to be sufficient for the purpose, the mere fact that a horse confined in such pound, and properly cared for there, kills himself by rushing against such fence, or by kicking against it, or by trying to clear it in leaping, does not render the municipal corporation liable. The keeper of a pound is bound to keep impounded animals in the pound, and there only, unless removal is necessary to save them from injury, and if a constable, with knowledge that an impounded animal has been so removed, sells it at auction at the request of the pound-keeper, the request will not protect him, and he is guilty of a trespass.'

ILLUSTRATIONS.-A's mule got into B's grounds in consequence of the insufficiency of B's fence, and he killed it. Held, that he was liable to A for its value: Dickson v. Parker, 3 How. (Miss.) 219; 34 Am. Dec. 78. M., upon whose land was an unguarded slough-well, and C., an adjoining owner, in order to save expense of fencing, mutually agreed that the stock of each in the fall of the year might pasture upon the land of the other; there was no special stipulation to protect from injury the stock of one while on the land of the other. Held, that M. was not liable for the loss of C.'s horse in the slough-well: McGill v. Compton, 66 Ill. 327. A's hogs, which lawfully ran at large, were in the habit of sleeping under B's building. While there, the floor broke down, defendant having overloaded it, and killed the hogs. Held, that B was not liable: Christy v. Hughes, 24 Mo. App. 275. The Alabama code exempts the owner of animals from liability for trespass on uninclosed land, and further provides that one who injures or destroys an animal

1 Knott v. Digges, 6 Har. & J. 230. Wilder v. Speer, 8 Ad. & E. 547; Bignell v. Clarke, 5 Hurl. & N. 485. Adams v. Adams, 13 Pick. 384. Riker. Hooper, 35 Vt. 457; 82 Am. Dec. 646.

14.

6

Brightman v. Grinnell, 9 Pick.

Greencastle v. Martin, 74 Ind. 449; 39 Am. Rep. 93.

7 Collins v. Fox, 48 Conn. 490.

so trespassing shall be liable in five times its value. The owner of land tied up a horse trespassing on his land, and the horse was found choked to death by the rope. Held, that the question of negligence in the manner of tying was only material on the question of whether the horse's death was the proximate consequence of the tying; that if it was, the liability existed: Wilhite v. Speakman, 79 Ala. 400. A plaintiff's horses escaped from his inclosure against his will, and he immediately went in search of them to put them up, but before he found them, they were seized by the police constable of the town where they were found running, who impounded them under the ordinance of the town. Held, that under such circumstances the horses were not running at large in the legal sense of the term, and that the constable had no right to detain them from the owner: Kinder v. Gillespie, 63 Ill. 88. A negligently placed a barrel of fish-brine on a public street. Held, liable to the owner of a cow who drank thereof, though the brine was poured into the street by some third person: Heney v. Dennis, 93 Ind. 452; 47 Am. Rep. 378.

§ 1380. Rights and Liabilities of Finders of Animals. A finder of a stray animal has no right to use him.1 One who finds a stray horse and uses it, knowing the owner, is liable for its value if it die while in his hands;2 so where, not knowing the owner, he injures the beast.3 The owner of an animal taken up by a person knowing the ownership may replevy him without tendering the costs and expenses. The animal is not an "estray.'

1 Weber v. Hartman, 7 Col. 13, 49 Am. Rep. 339, the court saying: "The argument that the continuous working of estray horses in livery, as in this case, may be justified on the ground of necessity, assigning as such necessity that the animals require exercise to preserve them from injury, or a necessity to cut down the expenses of keeping them, or to place it upon the ground of a benefit to the owner, as affording better opportunities for recognition, is not only illusory

CHAPTER LXXIV.

LIABILITIES OF OWNERS OR KEEPERS OF ANIMALS.

§ 1381. Liability of owner or keeper of animal — Agister - Harborer Joint Owners.

§ 1382. Liability for act of servant-Notice to servant.

§ 1387. Contributory negligence - Children.

§ 1388. Trespassers-Watch-dogs.

§ 1389. Negligence in driving, securing, or using animals.

Owner transferring care of animals-Bound to notify of vicious propensities.

§ 1390.

§ 1381. Liability of Owner or Keeper of AnimalAgister Harborer of Animal-Joint Owners. The owners or keepers of animals, on the ground that they are under a legal obligation to so control them as to prevent them doing injury, are liable for any injuries which they may inflict. The act of the animal need not be vicious. If it cause damage, it may arise from the animal's playfulness or mischief; as if a dog playfully injure one, or a young horse, negligently allowed to go loose in the public streets, while running and gamboling and kicking his heels in the air, kicks a pedestrian and injures him. So an owner of a hog who has permitted it to run at large has been held liable for damage caused by its appearance at the side of a road, frightening a horse. He

1 Rossell v. Cottom, 31 Pa. St. 525; Marsel v. Bowman, 62 Iowa, 57.

2 Line v. Taylor, 3 Fost. & F. 731; Evans v. McDermott, 49 N. J. L. 163; 60 Am. Rep. 602; or a ram: Oakes v. Spaulding, 40 Vt. 347; 94 Am. Dec. 404.

3 Dickson v. McCoy, 39 N. Y. 400.

Jewett v. Gage, 55 Me. 538; 92 Am. Dec. 615. And see Sherman v. Favour, 1 Allen, 191.

who keeps or harbors an animal about his premises, or permits him to resort there, is liable as an owner, and the plaintiff need not prove that he is really the owner.1 Where a horse-railroad company was sued for damages caused by the bite of a dog, and it appeared that the dog was kept about the stable by an employee with the knowledge of the superintendent, it was held that the company was properly made liable. But the owner is liable, though he have not the actual custody at the time; as where a dog is temporarily in the custody of a neighbor, or has been put into the hands of his son by the owner, to avoid his creditors. But for a dog which hangs around a house, in spite of being driven away, the housekeeper is not responsible; nor is an employer liable for a dog which is owned by and follows a hired laborer of his to his work each day. Where the owner and the keeper are different persons, the latter is the one liable, as the agister of cattle,

1 Wilkinson v. Parrott, 32 Cal. 102; Barrett v. R. R. Co., 3 Allen, 101; Cummings v. Riley, 52 N. H. 368; Marsh v. Jones, 21 Vt. 378; 52 Am. Dec. 67; Frammell v. Little, 16 Ind. 251; Smith v. Montgomery, 52 Me. 187; McKone v. Wood, 5 Car. & P. 1; Keenan v. Gutta Percha Rubber Co., 46 Hun, 544.

2 Barrett v. R. R. Co., 3 Allen, 101, the court saying: "As it would in many cases be difficult to prove that any person had property in the animal, the law holds the person who harbors him responsible for the damage which he may do while in his custody or control. There was evidence at the trial that the dog which inflicted the injury on the plaintiff was kept on the premises of the defendants for several weeks by a person in their employment, who had the charge and superintendence of their stables; and there was also evidence that tended to show that this was done with the knowledge and implied assent of their general agent or superintendent. This was clearly sufficient to warrant the jury in finding that the dog was kept by the defendants. As they could do no act except through their agents, it

was competent to infer that in keeping the dog under the circumstances disclosed by the evidence, their agent was acting in their behalf. It was urged by the counsel for the defendants that they, being a corporation created for a specific purpose, cannot through their officers and agents be made liable as keepers of a dog to the penalty prescribed by the statutes. But it is impossible for us to determine, as a matter of law, that a corporation established for the purpose of building and running a railroad by horse-power would be going ultra vires in either owning or keeping a dog. On the contrary, it would seem to come quite within the scope of the power and authority granted to them to keep dogs to protect their stables and property from incendiaries and thieves.

3 Marsh v. Jones, 21 Vt. 378; 52 Am. Dec. 67.

Smith v. R. R. Co., 36 L, J. Com. P. 22; L. R. 2 Com. P. 4.

5 Auchmuty v. Ham, 1 Denio, 495. 6 Kennett v. Durgin, 59 N. H. 560; Rossell v. Cottom, 31 Pa. St. 525; Tewksbury v. Bucklin, 7 N. H. 518; Ward v. Brown, 64 Ill. 307; 16 Am.