The morning news. [volume] (Savannah, Ga.) 1887-1900, 1895-12-26
LEGAL LORE As TO DOGS.
Justice RusseITs Ruling as TO the
Presumption Against the Legality
of Bite.


prise future barristers who come across
it in the rarely thumbed pages of some
volume of reports. This judicial utter
ance, which cites more poetry than prece-
dents. was rendered at the st. Lawrence
county special term in Overruling a de-
murrer interposed to the complaint in an
action brought by William r. Woodbridge
and William d. Marks.
The defendant is a Philadelphia OF
means who owns country residence IN
Westport. n. Y, near the shores Of Lake
Champlain. Among his possessions were
a number of fierce thoroughbred dogs,
which, although they were kept chained,
particularly aroused the hostility of Mr..
Marks neighbors. The plaintiff, retir-
ed clergyman, who was traversing the
Adirondack foothills In the service OF a
local newspaper, collecting bills, soliciting
subscriptions, and gathering items, APP
preached the Marks residence at dusk
one night last spring. As no one answer
ed his ring at the front door, he pro-
ceeded, after the fashion of the country,
TO explore the rear of the premises, to
which he was a stranger. In consequence
he blundered within range of the dogs
and was nearly torn in pieces by the fe-
rocious animals. firm OF local att so.,,
confidence that a sturdy jury OF Essex
county farmers would delight in mulcung
heavily the urban owner of these savage
menaces to rural safety.
The complaint alleged merely that de
PENDANT wrongfuliy kept several fierce ana
ferOcious, vicious ana of q mischievous
dispositi ton, and accustomed to attack ana
bite mankind; that the said dogs or some
of them. while in the keeping of the de-
PENDANT, attacked and bit the plaintiff and
severely wounded him" but contained no
allegation of any participation by defend
ant in the injury or OF any act OF negH-
gence on his part 1t was, therefore, de-
INJURED TO on the merits as not stating
a cause of action.
Justice Russell said: There has been
mn oh eli in he a
standing Of the dog, both as to the rights
of ownership in him and the limitations
under which he may. be kept and used. He
has become now, If not before, recog-
nized article of property and adopted from
the wild state into that of ferae domes-
ucae. As pet, companion, watchdog, or
herder, he has his uses, sentimental or
otherwise. For his courageous and faith
full qualities he has been admired by all
walks of mankind and immortalized by
eminent writer's. Socrates said of him:
When see somemen l love my dog the
more and Lord Byron wrote of him:
But the poor dog in life the foremost
The first to welcome, foremost to defend
And again:
""Tis sweet to hear the watoh-dog's
Bay deep-mouthed welcome as we draw
near home
AT the present day this animal is one
of those which are protected by the phil
anthropy of the society which believes
and maintains that the lower animals
should be shielded from cruelty as well as
the human animal. He is thus recognized
as entitled to his proper place in the econ
omy of civilization.
But what is that place? The answer to
this inquiry may solve not only the rights
of the animal himself as a dog but also
the rights of his owner to use and keep
him.
jurisprudence of this state upon this sub
iect was written by the late Justice w.
~. Allen as far back as 1906, in the case of
Wiley VS. Slater, p Barb, 506. In that case
the defendant had dog evidently of SUI
perior ability i'm the fighting line to that
of the dog owned by the plaintiff, so that
in fierce contention upon the merits of
the respective animals the defendants dog
succeeded in depriving the plaintiffs dog
of his existence. Being supposedly Valua-
| BILE dog, the plaintiff sued the defendant
and recovered for the value of his dog. 1t
| became, therefore necessary for the gen.
eral term upon an appeal being taken from
the affirmance by the county court of the
| Justices judgment, to determine whether,
prima facfe, the fact of the killing just-
fed the recovery, there being no evidence
as to which dog was originally the aggres-
"Justice Allen frankly confessed his in
| competency to speak by authority of the
code duello of dogs, He recognized, how
4 ever, and judicially adopted the poets
/ commentary on the nature of dogs;
That dogs delight to bark and bite,
For God hath made them So
| when dogs fight in pursuance of their
| disposition to do so, the mere killing of
one dog by another does not justify re-
! cAvery, and that the owner of the slain
| dog is entitled only to salvage, consisting
of the skin of the deceased.
He, however, limits the application of
i the rule laid down by him by the state
ment that there was no proof in the case
/ that the dog triumphant was of a vic
| ious or dangerous disposition, and the i'm
| plication fairly is that, if this kind of a
/ hpRn proved
/ surviving dog, the trial court might have
been justified in its judgment.
/ This was a case to determine the re-
/ sponsibility of the owner in a contro-
versy between dog and dog. The rule
/ should be stronger as against the owner
/ of the offending animal where the victim
1 of the propenSities of the dog is a hui
man being. Conceding the highest place
/ here or hereafter to this companion, which
is claimed by any one, even to the faith
/ of the Indian,
-" That in the happy hunting grounds
His faithful dog shall bear him company,
still in the walks of life he must give
way to the interests of man. Whether
/ this be so or not, as q question of pure
/ ethics. it is so recognized by man-made
/ law in courts administered by man. AS
against the dog, man has the right of
1 way. 1t is not a presumption of law or
| fact that a human being is of a fierce,
1 vicious, or dangerous disposition. 1t is
| as yet the belief of mankind, recognized
/ and acted upon, that the ordinary nature
| of human beings has the proper elements
of kindness and justice 1t, therefore,
! seems to be a necessary deduction that
/ when a fierce, vicious, dangerous animal,
/ accustomed to bite mankind attacks and
| wounds a human being, the presumption
| is that the dog is the aggressor and the
| offender, which presumption may, of
| course, be rebutted, but, without rebuff
| ting proof, must be acted upon as well
founded.
Starting with this presumption. as be-
/ tween the dog and the man, that the facts
/ stated show the dog to be in the wrong,
what is the presumed liability of the
| owner? 1t is an undoubted fact that
/ owners have a right to keep fierce and
| dangerous dogs for the protection of their
/ premises, If so guarded that they will in
4 fiict no injury, except in unusual emer-
| gency which justifes their resort to ma
1 lures weapons in defence of their mas
/ ter's belongings. Such a state of facts
may we'll be a justification TO the owner
/ as we'll as the dog. But IL is not to be
/ presumed without proof, and therefore,
i upon the ground that, where a fierce,
vicious, and dangerous dog, accustomed
! to bite mankind, known to be such by the
/ owner, attacks and wounds a human he
| ing, the burden lies upon the master to
/ show the provoeation or excuse, this con-
| troVersy is decided"