Dog-Law in Doggerel.
641
In the United States it is no defence for the defendant in an action for keeping a vicious dog to show that the plaintiff was at the time trespassing upon the defendant's property, for the purpose of hunting (Loomis v. Terry, 17 Wend. [N. Y.] 496); or of picking berries (Sherfey v. Hartley, 4 Sneed [Tenn.] 58); or for no particular purpose (Pierret v. Moller, 3 E. D. Smith [N. Y.] 574). Concerning a householder's right, in general, to protect his grounds, Cowen, J. said in Loomis v. Terry (supra) : " As against a trespasser, a man may make any defen sive erection, or keep any defensive animal which may be necessary to the protection of his grounds, provided he take due care to confine himself to necessity. But it has been held that, in these and the like cases, the defendant shall not be justified, even as against a trespasser, unless he give notice that the instrument of mischief is in the way." See the Quebec case of Dandurand v. Pinsonnault (7 L. C. J. 131), decided under the Civil law, but enun ciating practically the same doctrine as that of the above cases in the American Courts.
II.
THE SCIENTER IN DOG-LAW. Sing, tuneful Muse, from your Pierian dell, (You'll have to help me for I don't sing well!) Please sing the Cánida:, you will not weary us— We're sober lawyers, though our star's not Sirius! ('Tis pale Astraea beckons us to Heaven— Adumbrative in Coke, but clear in Beaven.)
Hathaway v. Tinkham, 148 Mass. 85.
Mason f. Keeling, 12 Mod. 332.
Fleeming v. Orr, 2 MacQ. H. L. C. at p. 25. Ibid., at p. 23. Beck v. Dyson, 4 Camp. 198; Vrooman г1. Lawyer, 13 Johns (N. Y.) 339. Spring Co. v. Edgar, 99 U. S. at p. 654. Per Lee, C. J. in Smith v. Pelah, 2 Strange 1264. Persons v. King, 8 T. L. R. 114.
What dearer theme than dogs our pen bestirs? Man loves them all—both thoroughbreds and curs. Perchance they've souls—now, prithee, don't say "Pshaw"!— Mens rea's theirs in Massachusetts' law. 'Tis true that legislation frets them now; But that's because their ranks unduly grow In cities, where our nerves get such ill-usance They oft regard sweet singing birds a nuisance. But dogs at Common Law were treated well If honest truth the old Reporters tell. Ferae naturae non, the cases say, Down from the time of Sir John Holt, C. J. "Bad law," you cry, with Towser at your calf; "Yet /aw," replies his owner with a laugh. You go to Court, the dog is cleared amain: "He's bit but once—and may not bite again"; "A dog, forsooth," (thus runs the Court's advice) "Is mansuete till he's lunched upon you twice!" But after that he's no experimenter, He's ferns, and you set up the scienter. So far from mercy then the dog recedes He may be hung for his carniv'rous deeds; And in his dining he can't wait for curries, A half-hour's fatal twixt to single worries.
