Wallace v. Douglas, 32 N.C. 79, 10 Ired. 79 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 79, 10 Ired. 79

WILLIAM A. WALLACE vs. THOMAS DOUGLAS

In an action under the act of Asembly, Rev. Stat. eh. 70, giving a penalty of fifty dollars against the owner of a dog, if he has good reason to beiievo he was bitten by a mad dog, and neglects or refuses to kill him immediately, it is not necessary to prove that the biting dog was in fact mad ; it is sufficient, if the owner of the dog had good reason to believe he was mad.

Appeal from the Superior Court of Law of Cabarrus County, at the Spring Term, 1849, his Honor Judge Ellis presiding.

This was an action of debt, originally brought by a warrant before a justice of the peace. It was brought to recover the penalty of fifty dollars, which the plaintiff alleged had been forfeited by the defendant, under the 70th chap. Rev. Stat., entitled “An Act concerning Mad Dogs.”

The plaintiff introduced much testimony, tending to shew, that a certain dog, belonging to the defendant, had been bitten by a mad dog, and that the defendant, knowing this, neglected and refused to kill his dog immediately. The defendant introduced a number of witnesses for the purpose of shewing, that his dog had never been bitten by a “mad dog,” and that, if his dog was bitten, as alleged by the plaintiff, the defendant had no knowledge of it.

The Court instructed the jury, that, if they believed that the defendant’s dog had been bitten by a “mad dog,” and the defendant knew it or had good reason to believe it, and still neglected or refused to kill his dog, then they ought to return a verdict for the plaintiff. But, until they were satisfied that the dog, which bit the defendant’s dog, was a “mad dog,” they should not give the plaintiff a verdict.

The jury returned a verdict for the defendant, and on a motion for a new trial, the plaintiff’s counsel insisted, that the Court ought to have charged the jury, that, if even the dog, which bit the defendant's dog, was nota “mad dog,” yet, if the defandant had good reason to think so, he washable for not killing his dog immediately.

The new trial was refused, and, from the judgment on the verdict, the plaintiff appealed.

Barringer and II. C. Jones, for the plaintiff.

Osborne, for the defendant.

PjjaksoN, J.

This was debt for the penalty of fifty dollars, for refusing to kill a dog, which the defendant had good reason to believe was bitten by amad dog. It was in evidence, that the defendant knew that his dog had been bitten by a dog, alleged to be a mad dog.

The judge charged the jury, that unless they were satisfied, that the dog, which bit the defendant’s dog, was a mad dog, the plaintiff was not entitled to a verdict.

To this part of the charge the plaintiff excepts, and we think there was error.

The Statute does not merely require, that a man should kill his dog, if he has good reason to believe him to be mad ; but he is required to kill him, “ if he has good reason to believe that he has been bitten by a mad dog.” The law makers intended to guard, both against positive danger, and the apprehension of danger, such as would be excited in anyneighborhood, where it was known that a dog was permitted to live, that was supposed to have been bitten by a mad dog, or that had been bitten by a dog, supposed to be mad. The Statute uses the words— “ good reason to believe he has been bitten by a mad dog.” This is a compound proposition. It embraces two facts: one, the dog was bitten ; the other, the biting dog was mad. We think the words, “good reason to believe,” apply to both facts. If a man knows that a dog is mad, and has good reason to believe that this dog has bitten his dog, then he has good reason to believe, that his dog has been bitten by a mad dog. So, if a man knows that his dog has been bitten by a dog, which dog, he has good reason to believe, was mad, then he has good reason to believe that his dog was bitten by a mad dog. How it would be, if both facts, embraced in the proposition, were left uncertain, that is, if the defendant had good reason to believe that his dog was bitten, and had good reason to believe that the dog whieh bit him was mad, we are not called on in this case to decide, for here the fact of the biting is admitted, and the only question was, whether the defendant’s having good reason to belieye that the biting dog to be mad was sufficient, or whether it must be proved that he was actually mad. We think one of the two facts being established, and a good reason to be* lieve the other tobe true, is sufficient to fall within the words and meaning of the Statute.

Pee Curiam.

Judgment and venire de novo„