ACTION ; PLEADING ; DAMAGES. 415 



is case, not trespass;^®'' though it has been held that trespass 

 may be brought. "The person who will not house or chain 

 his dogs becomes consenting to the mischief which they 

 commit, and takes upon himself the risk of saying — Go at 

 large; if you destroy sheep, I will pay for them. It is not hke 

 the doing some act, innocent in itself, from which the person 

 could not reasonably infer that injury or damages would fol- 

 low and which, when they did happen, were rather the result 

 of accident or misadventure than design." ^^^ And where a 

 dog was set upon some horses, one of which, while being pur- 

 sued and jumping a fence, was killed, it was held that trespass 

 was the proper remedy.^*^ 



Such an action may survive the plaintiff's death by statute 

 though it does not at common law.^^" 



If a dog owned or kept in one State strays into another and 

 there bites a person, no action lies against the owner or keeper 

 under a statute of the former State dispensing with proof of 

 scienter on the part of the owner.^®^ 



By the Roman Law where a domestic animal has com- 

 mitted an injury by no one's fault an actio de pauperie lies, pau- 

 peries being damage inflicted without a wrongful act on the 

 part of the agent. An action on the case lies where the injury 

 by the animal is the result of another's act or neglect.^^^ 



In pleading, it has already been said that it is not necessary 

 to aver negligence in keeping."^ Nor need the place of 



'*' Dilts V. Kinney, 15 N. J. L. 130; Stumps v. Kelley, 22 111. 140; Mul- 

 herrin v. Henry, II Pa. Co. Ct. 49; Fallon v. O'Brien, 12 R. I. 518. 



'" Paff V. Slack, 7 Pa. St. 254. And see Dolph v. Ferris, 7 W. & S. 

 (Pa.) 367- 



"° Painter v. Baker, 16 111. 103, quoting Lord Ellenborough : "If I put 

 in motion a dangerous thing, as if I let loose a dangerous animal, and 

 leave to hazard what may happen, and mischief comes to any person, 

 I am answerable in trespass." 



"" Prescott V. Knowles, 62 Me. 277. 



'" Le Forest v. Tolman, 117 Mass. 109. 



'"^ See Salkowski's Rom. Priv. Law § 137. 



"' See § 94, supra. 



