propensities in this respect what a dog of these qualities would be worth to its owner who kept cattle and horses, and used the dog in herding them, without showing any actual market value of the animal. And, on the same reasoning, it might be shown that a dog had any other special quality or fitness, such as adaptability for bird, deer, fox or other kind of hunting, or other usefulness, and these things could be shown in proving his worth to his owner. Even the much petted and ridiculed pug would possibly be entitled to some value for which its master could maintain an action.

Keeping Vicious Dogs.-The law enjoins upon those who keep animals of any kind for pleasure or profit certain duties and obligations in the restraining and caring for such, in order to avert any injury which might happen to another by reason of the keeping of such animals, and it is the common law rule that any one keeping a dog for any purpose owes to the public the duty of so keeping him that no one will be injured by the dog by reason of the neglect of the master to provide the necessary precaution to prevent the happening of the injury. Parallel, however, as it were, with this proposition, is another which is, the owner of a dog or other domestic animal, kept for use or convenience, is not liable to an action by an injured party on the ground of negligence, unless it be shown that he knew, or should have known, that the animal was liable to do mischief. The law does not require the owner of a dog to presume that he will do mischief or that he is prone to do so. His nature is not such as would be termed harmful or vicious, generally speaking, and it being a matter of common knowledge that dogs are usually comparatively harmless, it would be placing an unnecessary burden to impose on all keepers of dogs the obligation to restrain them as though they were all dangerous animals. So, the fact that the owner of a dog permits him to run upon the highway and at large will not of itself make him liable for an

4 Bowers v. Horan, 93 Mich. 420, 53 N. W. Rep. 535. 5 McGuire v. Ringrose, 41 La. Ann. 1029; Montgomery v. Koester, 35 La. Ann. 1092; Reynolds v. Arnold, 64 N. H. 64.

But

injury inflicted by the dog while so at large, unless it be shown that the owner knew of a vicious propensity in the animal. It is this knowledge, not the keeping of the animal, that charges the master with responsibility for vicious acts on the part of the dog. where the owner has knowledge of an evil disposition in his dog he will be liable to one injured by the dog though the injury be committed merely in sport. The mere keeping of a dangerous animal with a knowledge of its inclination charges the keeper with liabil ity for any injuries committed by such animal, and it is not necessary to allege or show that the party injured was without fault." Nor is it necessary that the master of the dog have actual notice of an evil disposition or inclination. If he have notice of facts which if followed up would lead him to notice-in other words, if he ought to know of the viciousness, he will be charged in law with knowledge thereof and liable accordingly. But it must appear that the owner of a dog knew or should have known of his disposition before he can be made to respond in damages for any injury either to person or property by the dog. It has been held that before an action would lie for an injury by a dog that it must be shown that the owner not only knew of its vicious propensities, but that he so negligently and carelessly kept such animal that injury resulted from the failure to properly keep or guard it.12 But while this may be correct as to the duty of the owner of a dog to properly restrain him after knowledge of his habits, yet the better rule doubtless is that he would have to take these precautions if he have only constructive knowledge of the habits of the dog,-if it is the masters duty, under all the circumstances, to know the habits of his dog, the law will enjoin upon him the duty of keeping the animal under the same restraint that would be required in case

7 State ex rel. Smith v. Donohue, 49 N. J. L. 548, 10 Atl. Rep. 150; Graham v. Payne, 122 Ind. 403, 24 N. E. Rep. 216; Dockerty v. Hutson, 125 Ind. 102, 25 N. E. Rep. 144; Warner v. Chamberlain, 7 Houst. 18, 30 Atl. Rep. 638.

8 Evans v. McDermott, 49 N. J. L. 163, 6 Atl. Rep. 653.

9 Brooks v. Taylor, 65 Mich. 208, 31 N. W. Rep. 837; Cooley on Torts, p. 345.

14

of actual notice. Fréquently this would be a question of fact for the jury. And it is held that where the master keeps his dog chained or otherwise restrained, this fact in itself is a circumstance tending to show that he knew the dog's propensity. 13 Again where it is shown that the owner of a dog has knowledge of its having bitten others it will be a question for the jury whether he is charged with notice of the dog's nature, or should know it, and if such facts justify the conclusion on the part of the jury the owner will be liable, though he insist that he had no real or actual notice of the nature of the dog. So where one procures a dog to guard his premises and keeps it muzzled and chained, the question of his knowledge of the dog's evil disposition will be one of fact for the jury.15 Furthermore, it is competent to show the general reputation of a dog for viciousness in order to charge its owner with notice of such tendency, for it is hardly reasonable to presume that the owner of an animal which has a general disposition to do harm, would himself be ignorant of the fact. It is hardly probable that the owner of a dog would be ignorant of its propensity, and the jury have the right, if they see fit, to take this view of the case.16 Indeed, it has been held that single vicious act of a dog brought to the knowledge of its owner is sufficient to charge him with knowledge that he is liable to do mischief and to impose upon him the duty of keeping the dog under proper restraint at his peril." But it is not necessary to show even a single act of viciousness where all the facts are sufficient to charge the master with constructive knowledge of the propensity.18 Contra, however, where a dog does a vicious act which had at all times before been of a kind disposition; had never been known to bite or injure any one either in malice or mischief; and had always been played with by children, ridden, driven, etc., with impunity.19

13 Warner v. Chamberlain, 7 Houst. 18, 30 Atl. Rep. 638.

14 Turner v. Craighead, 31 N. Y. S. 369.

But if a person is injured by a dog in any way, it does not matter whether the injury be inflicted in sport or anger, whether wantonly or playfully, on the part of the dog. The liability of the master is the same if he be in fault on his part.20 It is not necessary in order to fix a liability on the owner of a dog for an injury that the damage flow directly from the act of the dog. So, where the owner of

a dog, knowing that it is accustomed to attack horses driven along the highway, and the horses while being so driven are frightened by a dog so they run away and injure one in a vehicle drawn by the horse or who may be riding him, the owner will be liable for the injury resulting from the running away of the horse, though the dog only started the horse and though the injury would not have taken place but for the running away of the horse." But a dog not reclaimed from the wild state is naturally ferocious and dangerous, like the wolf, to which species he is closely allied.22 And where one keeps a wolf about his premises and feeds him from time to time on beef, he will be liable to a passerby who is injured by the bite of the wolf. A wolf being a wild species of dog, and by nature ferocious and dangerous, the law requires of those who would keep such an animal to so keep him that no one will be injured by him.23 But there is no presumption of law that an ordinary dog kept upon a farm is of a vicious or dangerous nature, and the master of such dog is not chargeable, as matter of law, with notice of a vicious inclination.24 If a person keeps a vicious dog on premises belonging to him, knowing the dog's nature and disposition to bite, he will be liable to any any one injured by such dog while in his keeping though the ownership in the dog be in some one else.25 In such case, doubtless, the real owner of the dog would not be jointly or otherwise liable to the injured party while the dog was thus kept by another unless he knew of or sanctioned the

20 Oakes v. Spaulding, 40 Vt. 347; Steatter v. Mc

240

unlawful way in which the dog was kept. Whether the owner would be liable or not, the rule is that where one not owning a dog keeps him in a way that an injury is caused to another, the keeper will be liable if the owner of the dog would be, had he himself kept the dog in the manner the keeper did. 26 Anong other things, the law recognizes in the dog a valuable guard for persons or property, and therefore permits the master to keep him for this purpose under proper restrictions. These restrictions are usually governed by the exigencies of each particular case. For instance, one may keep a dangerous and even vicious dog to guard himself, his family and his property in the nighttime, but must keep him under proper restraint during the day, and if he fail, will be liable for an attack made by such dog upon a person in the daytime though he be technically a trespasser on the property of the owner of the dog. Prima facie where any one keeps a dog accustomed to attack persons or property with knowledge of such propensity a liability will accrue to the injured party, and it will not be necessary to show any negligence on the part of the owner of the animal in securing or taking proper care of it, as the gist of the liability is the keeping such animal knowing its propensities.28 And a failure to keep the animal under proper restraint after notice of his inclination will result in liability of the owner for any damages he may do, though such owner use every effort to properly restrain him.29

27

which the law is presumed never to do. Generally speaking, a dog possessing a dangerous and ferocious nature, such as to make him s common source of danger and annoyance, may be killed and destroyed as a nuisance, on the principle that any one has the right at common law to abate a nuisance.30 And the fact that one may sue the owner of a vicious dog for an injury received will not take away nor affect the right to destroy the dog as a nuisance.31 So a rabid dog is a common and dangerous nuisance, and any one may kill such a dog whenever and wherever found without being amenable under the law either civilly or criminally, and without regard to the value or qualities of the dog. The right which every one has to protect himself and others from such a danger is paramount to that of the owner for redress for the value of such dog.32 And the same rule obtains in case a dog is upon reasonable and probable grounds suspected of having hydrophobia. And one may lawfully kill a dog which he finds chasing his sheep or other animals, or in the act of doing injury to his property." Though he cannot lawfully do so simply because the dog may be found trespassing about his premises, and this is true even though the dog had made tracks on a newly painted floor, and been found in the chicken house but shown to have done no other dam

age or mischief. And if a person kill a dog for no greater aggravation than this he will be liable in damages to the owner for the value of the dog. 35 In one case it has been held that a dog may not be lawfully killed though he be found trespassing on the premises of one other than his master, and be in

have an owner. The reason is obvious that if they are of any value to the owner, and this can be shown in evidence, a right of action would necessarily accrue to the injured owner for such value, and any other rule would be denying a redress of a clear wrong 26 Mitchel v. Chase (Me.), 32 Atl. Rep. 867; Jones v. Carey (Del.), 31 Atl. Rep. 976.

27 Loomis v. Terry, 17 Wend. 496.

28 Evans v. McDermott, 49 N. J. L. 163; Shaw v. Craft, 37 Fed. Rep. 317; Partlow v. Haggarty, 35 Ind.

be killed by a regular police officer of a municipal corporation when found running at large in violation of the provisions of a valid ordinance of such corporation.38 Of course

it is lawful for any one to kill a dog that attacks him. His ordinary right of self-defense would shield him from any liability to the owner for the killing, and this is true regardless of the want of knowledge in the owner that the dog is of a vicious disposition. 39 But a dog may not be killed simply because it is about to commit an injury to property unless it is necessary to do so in order to prevent the damage being done. Other means of averting the same must first be resorted to if feasible.40 But the mere killing of a dog which has no owner or the killing of a dog, unattended with malice or premeditation, is no criminal offense at common law, though he may be killed to prevent an injury to one's person or the person of another or in the necessary protection of property rights." But one may not kill the dog of another by putting out poison on his premises unless the dog has been on his premises destroying property, and in that event may do so, if necessary to protect the property.42

Negligence and Contributory Negligence.Though an injury may occur to any one by reason of an attack or other act of a vicious dog, he will nevertheless have no cause of action if his own negligence contributed in bringing about the injury.43 But one lawfully driving along the public highway is not bound to use special care to avoid a dog kept at a house on the highway though he may know that such dog is vicious and in the habit of chasing passing teams. Every one has the right to go upon the public highways, and to expect and rely on the presumption that the master of a vicious dog will not permit him to go out on the highways and atack passersby. It seems from a late case n Tennessee that a dog may be guilty of contributory negligence in bringing about his own death and thereby bar his owner of the right

Julienne v. Mayor of Jackson, 69 Miss. 34, 10 South. Rep. 43.

Woolf v. Chalker, 31 Conn. 121. Livermore v. Batchelder, 141 Mass. 179, 5 N. E. ep. 275.

Peck v. Rooks, 22 Ark. 221.

Gillum v. Sisson, 53 Mo. App. 516.

Buckley v. Gee, 55 Ill. App. 388; Williams v. Moray, 74 Ind. 25; Cooley Torts, 346.

Jones v. Carey (Del.), 31 Atl. Rep. 976.

to sue for his value. In this case a fox hunter owned some dogs which he prized for their special value in chasing foxes. On a certain night he took his dogs out to have a chase. "It was a beautiful moonlight night, and his dogs soon struck a trail. The fox crossed the railroad about the same time the train passed. The dogs were running very close and three of the dogs in front were run over." The plaintiff who brought an action against the E. T. V. & Ga. Ry. Co., receivers, for the value of the dogs, contended that the stock alarm, which, under the laws of this State was required to be sounded by all railroads when any animal was seen on the track, was only sounded once, and that as there was more than one dog on the track, the law requiring the signal to be given had not been complied with. The court sustained the theory that a dog was an animal (it could hardly have sustained any other), and that the engineer should have given the alarm for a dog as well as any other animal. Against the contention that the single blast of the whistle could only have been meant for the whole pack of dogs, and that each should have had a separate warning, the court held that "it would be requiring too great diligence for the engineer to whistle for each particular dog, and more especially as he had no means of informing each dog that any special whistle was sounded for him;" "that the receivers were running their train upon their own track, and had no other track at that place upon which they could run. On the other hand, the plaintiff's dogs were running on the railroad track instead of the fox's track, which simply crossed the railroad and when they were seen the whistle was sounded and everything was done that could be done to avert the disaster. The dogs were guilty of the grossest contributory negligence in running on the track and heeding neither whistle nor the approach of the engine." The court may have thought that the dogs should not have left the track of the fox for that of the railroad or, perhaps, mistake the one for the other, but in any event a recovery was denied because of the negli gence of the dogs themselves. 45 The learned court could probably have grounded their decision on a more substantial basis if they had put it on the ground that the hunter was himself guilty of contributory negligence in

45 Fink v. Evans (Tenn.), 32 S. W. Rep. 307.

hunting in the vicinity of the railroad, if, indeed, this would not be really more properly a question of fact for the jury, just as it is often a question of fact in cases for recovery for injuries to infants who are too young to appreciate danger enough to be guilty of negligence, or contributory negligence, but where the law denies the right of the parent to recover for the loss of services of the child when the parent itself has been guilty of contributory negligence in leaving the child so it would be exposed to danger. It is a matter of common knowledge that dogs have no mind other than instinct ' and can't reason out the risks to which they may be subjected by coming in contact with objects such as steam locomotives. If this be true, then, it would seem to follow that the hunter would have had a right of recovery unless he was himself at fault in some way. W. C. RODgers.

Supreme Judicial Court of Massachusetts, Oct. 27, 1896. 1. The maintenance of a patrol of two men in front of plaintiff's premises, in furtherance of a conspiracy to prevent, whether by threats and intimidation, or by persuasion and social pressure, any workmen from entering into, or continuing in, his employment, will be enjoined, though such workmen are not under contract to work for plaintiff. Field, C. J., and Holmes, J., dissenting.

2. A continuing injury to property or business may be enjoined, though it be also punishable as a crime.

ALLEN, J.: The principal question in this case is whether the defendants should be enjoined against maintaining the patrol. The report shows that, following upon a strike of the plaintiff's workmen, the defendants conspired to prevent him from getting workmen, and thereby to prevent him from carrying on his business, unless and until he should adopt a certain schedule of prices. The means adopted were persuasion and social pressure, threats of personal injury or unlawful harm conveyed to persons employed or seeking employment, and a patrol of two men in front of the plaintiff's factory, maintained from half past 6 in the morning till half part 5 in the afternoon, on one of the busiest streets of Boston. The number of men was greater at times, and at times showed some little disposition to stop the plaintiff's door. The patrol proper at times went further than simple advice, not obtruded beyond the point where the

other person was willing to listen; and it was found that the patrol would probably be continued if not enjoined. There was also some evidence of persuasion to break existing contracts. The patrol was maintained as one of the means of carrying out the defendants' plan, and it was used in combination with social pressure, threats of personal injury or unlawful harm, and

persuasion to break existing contracts. It was

thus one means of intimidation, indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plaintiff, and of rendering such employment unpleasant or intolerable to such persons. Such an act is an unlawful interference with the rights both of employer and of employed. An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon, and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the constitution itself. Com. v. Perry, 155 Mass. 117, 28 N. E. Rep. 1126; People v. Gillson, 109 N. Y. 389, 17 N. E. Rep. 343; Braceville Coal Co. v. People, 147 Ill. 71, 35 N. E. Rep. 62; Richie v. People, 155 Ill. 98, 40 N. E. Rep. 454; Low v. Printing Co. (Neb.), 59 N. W. Rep. 362. No one can lawfully interfere by force or intimidation to prevent employers or persons employed, or wishing to be employed, from the exercise of these rights. It is in Massachusetts, as in some other States, even made a criminal offense for one, by intimidation or force, to prevent, or seek to prevent, a person from entering into or continuing in the employment of a person or corpoation. Pub. St. ch. 74, § 2. Intimidation is not limited to threats of violence or of physical injury to person or property. It has a broader signification, and there also may be a moral intimidation which is illegal. Patrolling or picketing, under the circumstances stated in the report, has elements of intimidation like those which were found to exist in Sherry v. Perkins, 147 Mass. 212, 17 N. E. Rep. 307. It was declared to be unlawful in Reg. v. Druitt, 10 Cox, Cr. Cas. 592; Reg. v. Hibbert, 13 Cox, Cr. Cas. 82; Reg. v. Bauld, Id. 282. It was assumed to be unlawful in Trollope v. Trader's Fed. Rep. (1875) 11 L. T. 228,though in that case the pickets were withdrawn before the bringing of the bill. The patrol was an unlawful interference both with the plaintiff and with the workmen, within the principle of many cases; and, when instituted for the purpose of interfering with his business, it became a private nuisance. See Carew v Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Barr v. Trades Council (N. J. Ch.), 30 Atl. Rep. 881; Murdock v. Walker, 152 Pa. St. 595, 25 Atl. Rep. 492; China Co. v. Brown, 164 Pa. St. 449, 30 Atl. Rep. 261; Coeur D'Alene Consol. & Min. Co. v. Miners' Union of Wardner, 51 Fed. Rep. 260; Temperton v. Russell (1893), 1 Q. B.