#### Kertschacke vs. Ludwig.

*Injuries by domestic animal*— Scienter—Laws *of*1866, *ch.*110, *sec. 18.*— Effect *of repeal of*statute, *on pending action.*

1. By the common law no recovery can he had for injuries done to plaintiff hy the dog of defendant, without alleging and proving that the latter had notice or knowledge that the animal was vicious.

2. *Qucere,*whether sec. 18, ch. 110, Laws of 1866, changed this rule, except as to injuries done hy dogs in killing or worrying sheep.

3. If that act, while in force, dispensed with allegation and proof of the scienter, still an action commenced under it while it was in force could not he maintained after the act was repealed (without any saving clause) hy ch. 32, Laws of 1870.

APPEAL from the County Court of *Milwaukee*County.

The plaintiff appealed from a judgment dismissing the complaint, &c. The ease is stated in the opinion.

*E. Fox Cook,*for appellant,

relied on ch. 110, Laws of 1866; and, as to the effect of the repealing statute, he cited *Stephens ■v.Marshall,*3 Chand, 222; *Selsby v. Redlon,*19 Wis., 17; 1 Kent’s Comm (5th ed.), 455; *Watson v. Mercer,*8 Peters, 110; 7 Johns., 477; 2 Gallia, 139; 1 Yerg., 360; 5 id., 320; 4 Yt., 37; 1 Blackf., 374, 220; 3 N. H., 473; 3 Dali., 391, 397, 386; 5 Mon., 122; 18 Johns., 138; 2 Cranch, 272; 11 Mass., 396; 7 Conn., 550.

*A. G.*Fraser, for respondent,

as to the necessity, at common law, of an averment of the *scienter,*cited 1 Chitty’s PL (13th Am. ed.), 82 ; *Vrooman v.*Lawyer, 13 Johns., 339 ; *Hinckley v.*Emerson, 4 Cow., 351 (352); *Auchmuty v. Ham,*1 Denio, 495 (498); *Lyke v. Van Leuven,*4 id., 127 (128); *Tifft v. Tift,*id., 175 (177); *Van Leuven v. Lylce,*1 Corns., 515 (516) ; *Dearth v. Baker,*22 Wis., 73. To the point that if see. 13, ch. 110, Laws of 1866, created a new *cause of action,*unknown to the common law, its repeal divested all inchoate rights arising under it, he cited Dwarris on Stat., 676; Smith’s Comm., §§ 759, 761, 765-769; Cooley’s Cons. Lim., 862; *Key v. Goodwin,*4 *M. &P.,**431341 (351); *Maggs v.*Sunt, 12 Moore, 357 (359) ; *People v. Liv*ingston,, 6 Wend., 526 (530); *Butler v.*Palmer, 1 Hill, 324 (334); *Beebee v.*O'Brien, 10 Wis., 481 (483). To tbe point tbat if tbe statute provided a new remedy, its repeal determined tbe action, unless it could be maintained according to tbe rules of tbe common law, be cited Dwarris, 677; Smith’s Comm., 757-770; Cooley’s Con. Lim., 362 ; Sedgwick on Stat. and Con. Law, 692 ; *Beebe v.*O'Brien, supra;*Comm. v.*Duane, 1 Bin-ney, 601 (608), &c., &c.

Tbe following opinion was filed at tbe January term, 1871:

LyoN, J.

This action was brought to recover damages for injuries inflicted upon tbe plaintiff by tbe dog of tbe defendant. Tbe complaint does not allege tbat tbe dog was vicious, and tbat tbe defendant bad knowledge of tbe fact. Tbat is, it does not allege tbe *scienter.*. Tbe action was commenced in March, 1869, and came on for trial in tbe county court, December 22d, 1870. A jury was empannelled and sworn to try tbe issue of fact which bad been made by tbe answer of tbe defendant, and tbe plaintiff proceeded to introduce testimony, when defendant, by bis counsel, objected to tbe admission of any evidence on tbe part of tbe plaintiff on tbe ground tbat tbe complaint did not state facts sufficient to constitute a cause of action. Tbe court sustained tbe objection, and excluded all evidence under tbe complaint, and gave judgment against tbe plaintiff dismissing tbe complaint, and for costs. No application was made to tbe court for leave to amend tbe complaint. Tbe plaintiff appeals from such judgment to this court.

It is alleged in tbe complaint tbat tbe plaintiff was lawfully upon tbe premises of tbe defendant, when tbe injuries were inflicted upon him. In such case, by tbe common law, it was indispensably necessary to a recovery, tbat tbe plaintiff allege in bis complaint or declaration, and prove upon tbe trial, tbe *scienter.*This rule is so well settled tbat no reference to authorities is necessary to sustain it. It was recognized by *432tbis court in *Dearth v. Baker,*22 Wis., 73; and tbe cases wbicb assert and apply it are very numerous. Tbe complaint, then, does not state facts sufficient to constitute a cause of action, and tbe court properly excluded all evidence under it, unless tbe defect therein was cured by some statute.

It is not claimed that there was any such statute in existence when tbe action came on for trial; but it is claimed that there was a statute in force when tbe action was commenced, and when tbe issue was joined, which dispensed with tbe necessity of alleging or proving tbe *scienter.*

Tbe statute referred to, is chapter 110 of tbe general laws of 1866, wbicb was repealed March 9th, 1870, by chapter 32 of tbe general laws of that year.

Section 13 of tbe act of 1866, provided as follows: “ Tbe owner or keeper of any dog or dogs wbicb shall have wounded, maimed or killed any cattle, horses, sheep or lambs, or injured any persons, shall be bable to tbe owner or legal possessor of such cattle, horses, sheep or lambs, or to tbe person injured, in all damages so done by said dog or dogs, without proving notice to tbe owner or keeper of such dogs, or knowledge by him that bis dog was mischievous, or disposed to kill or worry sheep ; and all laws conflicting with tbis section are hereby repealed.”

Tbe repealing act is absolute and unconditional, containing no provision saving to any person any rights whatever under tbe repealed law.

Conceding, for tbe purposes of tbe argument, that tbe act of 1866 was sufficiently broad to dispense with tbe necessity of averring tbe *scienter*in tbis complaint, tbe question arises as to tbe effect of tbe repeal of that act upon tbis action.

It is very clear that tbe statute of 1866 created a cause of action, or gave a remedy, where one did not exist before tbe enactment of tbe law. if it was applicable to tbis case, it gave tbe plaintiff an action for tbe injuries received by him, and a remedy therefor, although tbe defendant bad no knowledge whatever of tbe vicious propensity of bis dog, and tbe plaintiff *433could not bare maintained an action for sucb injuries at the common law, but only by virtue of the statute. It is said by tbe chief justice, in delivering the opinion of the court in the case of *Beebe v.*O'Brien, 10 Wis., 481, that it is so abundantly established by tbe authorities, that the absolute repeal of a statute of this character carries with it actions pending at the time of such repeal, as not to admit of a doubt or of discussion. The authorities which so hold are numerous, and many of them are cited in the able'brief of the counsel for the defendant. They leave no doubt upon our minds that the law is correctly stated in *Beebe v. O'Brien,*and that when, the law of 1866 was repealed, it carried with it the plaintiff’s right of action as the same is stated in his complaint, and deprived him of any remedy for the injuries complained of therein. The county court was right, therefore, in excluding all testimony under the complaint in its present form. We concede, for the purpose of this argument, that the law of 1866 was sufficiently broad to include this case within its provisions. But we have grave doubts whether it admits of so liberal a construction. We are strongly inclined to the opinion that sec. 18, notwithstanding it contains some general words, should be construed as dispensing with the necessity of proving the *scienterr*only in actions for killing or worrying sheep. It is not necessary, however, in the view we have taken of the effect of the repeal of that law, to decide this question of construction.

The judgment of the county court must be affirmed.

*By the Court.*— Judgment affirmed.

Amotion for a rehearing was denied.at the June term, 1871'..