The common law holds the owner of a dog accountable upon the ground of negligence for any injury committed by him, by biting the person or cattle of another and the like, if he knew or had notice that the animal was accustomed to such or similar mischief. But without proof of knowledge or notice of such propensities the owner is not liable. (Vrooman v. Lawyer, 13 John. R. 339; Hinckley v. Emerson, 4 Cowen, 351; Smith v. Pelah, 2 Strange, 1264.)
An exception to the rule requiring such knowledge or notice of the mischievous habits of a dog in case of injuries by killing or wounding sheep, has been made by statute, (1 R. S. 704, § 9,) which provides that “ The owner or possessor of any dog that shall kill or wound any sheep or lamb, shall be liable for the value of such sheep or Iamb to the owner thereof, without proving notice to the owner or possessor of such dog or knowledge by him, that his dog was mischievous or disposed to kill sheep.” The fifteenth section of the same statute declares, that any person may kill any dog which he shall see chasing, worrying or wounding any sheep, unless the same shall be done by the direction or permission of the owner of the sheep or his servant. By other provisions, the owner is required to kill such dog in a certain time, under a certain penalty. (§§ 16,17,18, 19.) The twentieth section, (p. 706,) declares that “ Every person in possession of any dog, or who shall suffer any dog to remain about his house for the space of twenty days previous to the assessment of a tax, or previous to any injury, chasing cr worrying of sheep, or any such attack made by a dog, shall be deemed the owner of such dog for all the purposes of this title.”
The evidence shows that the plaintiff was the owner of a flock of sheep in the summer and fall of 1843; that several of them were during that time wounded and killed by dogs in the fields where they ran; that the defendant owned a dog, and one Hinkler, a hired man of the defendant, but who kept house and resided some two miles distant from the defendant, owned another, which was in the daily habit of following him to and from his house to the defendant’s premises where he labored: ■that these two dogs were seen in company in the act of wound *499ing or killing two of the plaintiff s sheep in September of that year, and on examining the flock and fields where they ran then or soon after, other sheep were found either dead or wounded, apparently the work of dogs. In July or August, the defendant directed his hired man to take his dog and chase the plaintiff’s sheep out of his field into which they or some of them had come. It was done, and one sheep was frightened so that it ran through bushes and across fences into the river. It was got' out by the defendant’s man, and found to have suffered a small scratch on its jaw, but whether from the bite of the dog or from some other cause, does not appear. Several sheep soon after this were found dead in the fields. There is no evidence or pretence that the defendant had any agency in causing the dogs or either of them to do the mischief or any part of it, with the exception above mentioned. There is no evidence showing the defendant liable for any injury occasioned by either of the dogs under the rule of the common law. The plaintiff did not prove that the defendant knew or had notice that his dog was accustomed to bite, kill or wound sheep, or to do any similar mischief prior to the time the last injury was committed. It is argued that his directing his man to chase the sheep from his field with his dog, was evidence of knowledge that his dog was vicious in that respect. I cannot agree to this proposition. The rule requires evidence of the animal’s possessing propensities which lead it, instinctively, to kill, wound, &c. for mischief. There was no such evidence in this case. But as to the killing or wounding of the plaintiff’s sheep, the question of notice was not important, the defendant being accountable for the damage done by his own dog, although wholly ignorant of his mischievous propensities. So far as damage resulted to the plaintiff from his sheep having been worried, by the defendant’s dog, the rule of the common law applies; and prior knowledge or notice of such or similar, mischief was requisite to be proved. I think that the court below decided correctly ir. overruling the objection to the admission of evidence showing the number and value of the sheep which the plaintiff lost by injuries committed by dogs in the summer and fall of 1843.
*500The more important question, however, is whether the court was right in determining that the defendant was responsible for the acts of Hinkler’s dog in biting and killing the plaintiff’s sheep. My opinion is that the charge in that respect cannot be sustained. The statute declares that any person in possession of any dog, or who shall suffer any dog to remain about his house for the space of twenty days previous to any injury, &c. •shall be deemed the owner, &c. The evidence did not show that the defendant was in possession or that he suffered the dog which Hinkler owned to remain about his house, in the sense contemplated by the statute, by which he could be deemed the owner of it. ^The legislature evidently intended by this provision to cast upon any person, having possession, &c. for twenty days, of any dog, the ownership of it, and as owner to make him responsible for the commission of such injuries by such dog whether in fact such possessor was or not the owner, and there by to prevent persons from having the keeping or control oi these mischievous animals for that length of time, without being responsible for such mischief. . This dog, so far as evidence was given, was at all times in the possession of Minlder, remaining with him during the day while he was laboring for defendant on his premises, and at night following him to his residence.
The court should have charged that the plaintiff was entitled to recover of the defendant the value of all the sheep of the plaintiff, which from the evidence in the case, they were satisfied the cjefendant’s dog had killed or wounded, and that he was not ■ accountable for such as Hinkler’s dog had killed or wounded, nor for any damage done the plaintiff’s flock of sheep by. other dogs than his own, nor by his own dog in worrying or chasing them, unless he had some agency in causing it to be done, or liad knowledge or notice that his dog was addicted to such mischief; and that the fact that he had set his dog upon sheep in person or by his servant to drive them out of his field, was no evidence of such propensity of the dog, or of knowledge or notice within the rule of law.
The court below also erred in charging that the plaintiff was *501entitled to “smart money:” that-is, that the verdict should be increased beyond the value of the sheep, as a punishment to the defendant, for being so unfortunate as to own a dog which had done his neighbor such injury. The rule of damages is provided by the statute giving the remedy. To that the jury should have been instructed to limit the verdict. Van Steenburgh v. Tobias, (17 Wend. 562;) Russell v. Tomlinson, (2 Conn. R. 206;) Adams v. Hall, (2 Verm. R. 9,) are cases, where dogs which the defendants severally owned, joined in killing and wounding sheep of the plaintiffs, in which attempts were made to hold the owners jointly responsible for the injury. The court in each case held, that when the dogs of several persons, not jointly owned by them, do mischief together, each owner, is only liable for the mischief done by his own dog; and that the difficulty in ascertaining the proportion of damage done by each dog furnished no reason why one man should be accountable for the mischief done by the dog of another. The difficulty suggested in arriving at the true amount of damages under this rule will, I think, be found less formidable than seems to have been apprehended. The evidence in most cases would be such that an intelligent jury would be able to apportion such damages without doing injustice to either party.
The judgment below must be reversed: a venire de novo to issue to the Dutchess common pleas.
Judgment reversed.