[after stating above facts.]—Upon this state of facts, substantially, and under a charge of the court to which no exception was taken, save in a single particular, in respect to the rule of damages (which exception seems to be abandoned in this court as untenable), the plaintiff had a verdict. .There was, however, a motion for a nonsuit, which (though made on specific grounds) may raise the general question whether the defendant, under the circumstances, was liable to answer in damages to the plaintiff.
I am of the opinion that, on this point, there is no error in the judgment. The vicious character of the dog, and the defendants’ knowledge of his dangerous habits, were matters admitting of no dispute. A person keeping a dog, knowing him to be accustomed to bite mankind, keeps him at his peril. Whoever, say the court, in May v. Burdett, 9 Q. B. (Ad. & E. N. S.) 101, keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is, prima facie, liable in an action on the case, at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping of the animal, with knowledge of its mischievous propensities. Smith v. Pelah, 2 Strange, 1264; Card v. Case, 5 Co. 622; 57 Mng. C. L. 622. It is no defense, in such a case, that the animal is safely kept; nor do I think it a defense that the party injured is a trespasser. In *499the case of a dog of that character, it is the duty of the owner, having notice of his dangerous habits, to kill him. Smith v. Pelah, supra; Bolton v. Banks, Cro. Ch. 354; Jenkins v. Turner, Ld. Raym. 110. In Smith v. Pelah, the chief justice ruled, “ That if a dog has once bit a man, and the owner having notice thereof, keeps the dog and lets him go about or lie at his door, an action will lie against him at the suit of a person treading on the dog’s toes; for it was owing to his not hanging the dog at the first notice; and the safety of the king’s subjects ought not afterward to be endangered. The scienter is the gist of the action.” It is held, in the case of Loomis v. Terry, 17 Wend. 496, that a man may keep such a dog for the protection of his property in the night against felons; but this seems opposed to all the other cases, which hold that such an animal is a nuisance. But, be this as it may, if a person will keep a mischievous animal, with knowledge of its propensities, he is bound to keep it secure at his peril. May v. Burdett, 9 Q. B. 101; 58 Eng. C. L. 99: Jackson v. Smithson, 15 Mees. & W. 563; Card v. Case, supra.
It is not necessary, however, to deny, in this case, that it would be a good defense if the dog were safely and securely fastened. The judge charged the jury that, if the dog were securely fastened, that was a good defense. There was evidence that the dog was not securely fastened ; and the jury, by finding for the plaintiff, say that he was not.
It may be admitted, also, that trespass is a good defense; and still, I think, there was no error. The plaintiff was not a trespasser. Conceding that Barnes and the boy Silas Pearsall had no authority to invite the plaintiff in, with the view of finding a purchaser for the iron that the defendant had directed them to sell, it is undisputed that they were lawfully on defendant’s premises, by license from the defendant. When a person is lawfully on land, by license from the owner, and he invites a stranger in for a lawful purpose, such stranger is not a trespasser.
The two exceptions taken on the trial, I deem to be untenable. The judgment should be affirmed.
All the judges present concurred.
Judgment affirmed, with costs.