The owner of a mischievous animal, known to him to be so, is responsible, when he per mits him to go at large, for the damage he may do ; Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487; Lyons v. Merrick, 105 Mass. 71; Partlow v. Haggarty, 35 Ind. 178 ; Kight linger v. Egan, 75 Ill. 141; Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6 ; Snyder v. Pat terson, 161 Pa. 98, 28 Atl. 1006 ; Shaw v. Craft, 37 Fed. 317; Harvey v. Buchanan, 121 Ga. 384, 49 S. E. 281; Burleigh & Jackson v. Hines, 124 Ia. 199, 99 N. W. 723 ; he is liable, though not negligent, in the matter of his escape from a close ; Hammond v. Melton, 42 Ill. App. 186; Vredeuburg v. Behan, 33 La. Ann. 627; Manger v. Shipman, 30 Neb. 352, 46 N. W. 527 ; 19 Ont. Rep. 39. In Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123, it is said that though it may be, in a certain sense, that the action for injury by vicious animals is based upon negligence, such negligence consists not in the manner of keeping the animal, or the care exercised in respect to confining him, but in the fact that he is ferocious and the owner knows it. The negligence consists in keeping such an ani mal. See Speckmann v. Kreig, 79 Mo. App. 376. This rule is old: "If an ox gore a man or woman, that they die ; then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it bath been testified to his owner, and he bath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death." Exodus xxi, 28, 29.
One knowingly harboring a vicious and dangerous dog is liable for damages sustain ed by others from its bite; McGurn v. Grub nau, 37 Pa. Super. Ct. 454, 459. In [1908] 2 K. B. Div. 352, Channel, J., said that keeping a dog known to be savage stands on the same footing as keeping a wild beast. It is enough if he occasionally attacks human beings without provocation ; Merritt v. Mat chett, 135 Mo. App. 176, 115 S. W. 1066; the owner must have had actual knowledge ; Muller v. Shufeldt, 114 N. Y. Supp. 1012; Alexander v. Crosby, 143 Ia. 50, .119 N. W. 717; but constructive knowledge has been held sufficient; Merritt v. Matchett, 135 Mo. App. 176, 115 S. W. 1066; the mere fact of the attack does not raise a presumption that the dog was vicious, but it can be established by proof that on previous occasions it had attacked people without provocation; id.; and one who has long harbored a vicious dog is presumed to know its propensities ; id. Running out and barking at horses and per sons passing is not, as a matter of law, evi dence of viciousness; Muller v. Shufeldt, 114 N. Y. Supp. 1012. Where one kept dogs of the same family and appearance, a person bitten by one .of them is not required to prove which one, nor to prove that previous at tacks on others were made by the same dog; McGurn v. Grubnau, 37 Super. Ct. Pa. 454, 459.
On the other hand it has been held that when wild animals are kept for a purpose recognized as not censurable, all that can be demanded of their keeper is that be shall take that superior precaution to prevent their doing mischief which their propensities in that direction justly demand of him ; Cool ey, Torts (3d ed.) 707, n.; 11 L. R. A. (N. S.) 748, n. One who knowingly, voluntarily and unnecessarily places himself within reach of a ferocious animal which is chained up cannot recover for injuries received; Ervin v. Woodruff, 119 App. Div. 603, 103 N. Y. Supp. 1051; Molloy v. Starin, 113 App. Div. 852, 99 N. Y. Supp. 603. An injunction will lie against keeping a vicious dog with out appropriate restraint; it is a nuisance ; Rider v. Clarkson, 77 N. J. Eq. 469, 78 AU. 676, 140 Am. St. Rep. 614.
Any person may justify the killing of fero cious animals; Leonard v. Wilkins, 9 Johns. (N. Y.) 233; Putnam v. Payne, 13 Johns. (N. Y.) 312; Nehr v. State, 35 Neb. 638, 53 N.
W. 589, 17 L. R. A. 771.
Running at large is defined as strolling about without restraint or confinement. Morgan v. People, 103 Ill. App. 257.
An animal untethered and unattended in the street in front of its owner's premises was held to be running at large ; Decker v. McSorley, 111 Wis. 91, 86 N. W. 554; or tres passing upon the premises of another and not under the immediate control of the own er ; Gilbert v. Stephens, 6 Okl. 673, 55 Pac. 1070; but a domestic animal which has es caped from its inclosure without the fault of the owner; Briscoe v. Alfrey, 61 Ark. 196, 32 S. W. 505, 30 L. R. A. 607, 54 Am. St. Rep. 203; Myers v. Lape, 101 Ill. App. 182; and to recover which such owner is making rea sonable efforts, is not running at large; My ers v. Lape, 101 Ill. App. 182.
It is unlawful to kill a dog because be is in the street outside of a poultry yard, in closed by an impassable fence, though the dog had harassed the poultry before, or be cause of his predatory habits ; State v. Smith, 156 N. C. 628, 72 S. E. 321, 36 L. R. A. (N. S.) 910.
It is the duty of the owner of domestic animals to keep them upon his own premises; Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596; Robinson v. R. Co., 79 Mich. 323, 44 N. W. 779, 19 Am. St. Rep. 174. It is the nature of cattle and other animals to stray and to do damage, and the owner is bound to keep them from straying at his peril; Haigh v. Bell, 41 W. Va. 19, 23 S. E. 666, 31 L. R A. 131. The common law doctrine is that the owner of cattle must fence them in; Taber v. Cruthers, 59 Hun 619, 13 N. Y. Supp. 446; Bulpit v. Matthews, 145 Ill. 345, 34 N. E. 525, 22 L. R. A. 55. He is not compelled to fence the cattle of others out. Owing to change of circumstances, due in part to the settlement of a new country, in many states a different rule prevails. The owner of land must fence out the cattle of others. He need not fence in his own. He takes the risk of loss of or injury to them from their running at large and wandering into danger; Haigh v. Bell, 41 W. Va. 19, 23 S. E. 666, 31 L. R. A. 131; Sprague v. R. Co., 6 Dak. 86, 50 N. W. 617; Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618; Kerwhaker v. R. Co., 3 Ohio St. 179, 62 Am. Dec. 246; Muir v. Thix ton, 119 Ky. 753, 78 S. W. 466. To leave un cultivated lands uninclosed is an implied li cense to cattle to graze on them; Kerwhaker v. R. Co., 3 Ohio St. 179, 62 Am. Dec. 246; Seeley v. Peters, 5 Gilman (Ill.) 142; Comer ford v. Dupuy, 17 Cal. 308; Chase v. Chase, 15 Nev. 259 ; Delaney v. Errickson, 10 Neb. 492, 6 N. W. 600, 35 Am. Rep. 487; BurgwYa v. Whitfield, 81 N. C. 261; Moore v. White, 45 Mo. 206; Little Rock & F. S. Ry. Co. V. Finley, 37 Ark. 562; Lee County v. Yar brough, 85 Ala. 590, 5 South. 341; Frazier v. Nortinus, 34 Ia. 82; Pant v. -Lyman, 9 Mont 61, 22 Pac. 120; Meyers v. Menter, 63 Neb. 427, 88 N. W. 662. The keeping of live stock is usually under police regulation; Reser V. Umatilla County, 48 Or. 326, 86 Pac. 595, Am. St. Rep. 815; and iw'many states stet utes forbidding animals to run at large, or restricting them or limiting such rights, are in force. By statute in Illinois the common law liability is now restored; Fredrick v. White, 73 Ill. 590; as it is in Pennsylvania; Barber v. Mensch, 157 Pa. 390, 27 Atl. 708. A statute in Idaho prohibits sheep from grazing on the public domain within two miles of a dwelling house. This was held not an unreasonable discrimination against the sheep industry, but rather as a matter of protection to the owners of other grazing cattle, as cattle will not graze and will not thrive upon lands where sheep are grazed to any extent; Bacon v. Walker, 204 U. S. 311, 27 Sup. Ct. 289, 51 L. Ed. 499; and the act was held to be a valid exercise of the police power; Sifers v. Johnson, 7 Ida. 798, 65 Pac. 709, 54 L. R. A. 785, 97 Am. St. Rep. 271; Sweet v. Ballentyne, 8 Ida. 431, 69 Pac. 995. See PENCE.