648 LIABILITY IKRKSPECTIVE OF FENCING LAW'S. 



for failure to give notice has been held unconstitutional as 

 it does not consider the question of negligence nor of the 

 owner's knowledge.*^^ Most of these statutes make the lia- 

 bility of the company dependent on its failure to fence the 

 track and will, accordingly, be considered in the next chap- 

 ter.**^ A statute providing that the company shall be liable 

 for twice the value of the animal killed by it when it fails to 

 record a description of the animal and to mark its hide as 

 required therein, was held to be penal in its nature: an action 

 thereunder is subject to one year's limitation.*** The owner 

 cannot recover more than twice the amount of damages 

 .actually named by him in his statutory notice and aflfidavit.**^ 

 It has been held not to be absolutely settled in practice 

 whether double damages should be assessed by the jury or 

 ■only single ones to be doubled by the court.**'' 



Where the animal is injured the measure of damages is the 

 difference in its value before and after the injury, with com- 

 pensation for the care and attention required in its treatment, 

 and for the loss of its use during the continuance of the in- 

 jury.**^ The qualities of the animal are as much matters of 

 value as its strength or action and, if they are impaired by 

 the defendant's wrongful conduct, the owner is entitled to 



"'JoUiffe V. Brown, 14 Wash. 155. 



That a statute making a company liable for a loss not due to its negli- 

 gence may not be unconstitutional, see Louisville & N. R. Co. v. Belcher, 

 Sg Ky. 193. 



*" See § 144, infra. 



'" Atchison, T. & S. F. R. Co. v. Tanner, 19 Colo. 559. 



"" Manwell v. Burlington, C. R. & N. R. Co., 80 la. 662. 



**■ Memphis & L. R. Co. v. Carlley, 39 Ark. 246, citing Sedgwick on 

 Meas. of Dams. But see Wood v. St. Louis, K. C. & N. R. Co., 58 Mo. 

 109, cited in § 144, infra. 



"'St. Louis, I. M. & S. R. Co. V. Biggs, 50 Ark. 169; Brown v. Wil- 

 mington City R. Co. (Del.), 40 Atl. Rep. 936; Cent. R. & Bkg. Go. v. 

 Warren, 84 Ga. 329; Atlanta & W. P. R. Co. v. Hudson, 62 id. 679; 

 Gillett V. Western R. Corp., 8 Allen (Mass.) 560; Keyes v. Minneapolis 

 :& St. L. R. Co., 36 Minn. 290; Pittsb., C, C. & St. L. R. Co. v. Kelly, 

 <i2 O, Circ. Ct. 341 ; Gulf, C. & S. F. R. Co. v. Keith, 74 Tex. 287. 



