128 INJURING AND KILLING ANIMALS. 



ing will not be justified." *^ And in a leading Connecticut 

 case it is said : "Whether before mischievous or not, or 

 whether, if so, the owner has knowledge of his disposition or 

 not, if actually found doing mischief or attempting to do it 

 alone, out of the possession of his owner or the charge of a 

 keeper, he may be killed and the act justified at common law. 

 . . . And so he may be destroyed under any circumstances 

 where it is absolutely necessary for the preservation of prop- 

 erty. . . . Other animals may become vicious and injure per- 

 sons or property, and the injured person may have his action 

 but may not kill them; and the discrimination against dogs 

 results legitimately from their proneness to mischief, their 

 uselessness and liability to hydrophobia, and the consequent 

 base character of property in them, and the necessity for that 

 protection, inasmuch as the right to an action quare clausum 

 is limited to one or two cases only, and no action at all can be 

 had at common law for the first mischief, or without proving 

 a scienter." *^ 



Where a dog was pursuing deer in a park or conies in a 

 warren or fowl in a poultry-yard, it was held a sufficient jus- 

 tification of the shooting to state that fact, without adding 

 that it was necessary to shoot to prevent his doing the in- 

 jury i*'^ but that the latter statement must be made where the 

 dog was running after hares in a close of which the defendant 

 was the gamekeeper,** or where he was pursuing a fowl not 



" Parrott r. Hartsfield, 4 Dev. & B. L. (N. C.) no. And see 40 L. R. 

 A. 510 n, 



*' Woolf V. Chalker, 31 Conn. 121. 



That it is not necessary to show the plaintiff's scienter where the de- 

 fence is that the dog was ferocious and in the habit of attaclcing persons, 

 see Maxwell v. Palmerton, 21 Wend. (N. Y.) 407. 



^'Wadhurst v. Damme. Cro. Jac. 45; Barrington v. Turner, 3 Lev. 28; 

 Protheroe v. Mathews, 5 C. & P. 581; note to Janson v. Brown, i 

 Camp. 41, 



See also Bennett v. Blezard (Co. Ct. case), 103 L. T. 370. 



"Vere v. Lord Cawdor, 11 East 568, where the above cases were dis- 

 tinguished. Lord Ellenborough said: "The question is whether the plain- 



