2 Vt. 9 (1829)
Hutchinson, J. delivered the opinion of the court. If the testimony adduced by the plaintiff on trial was of a character adapted to the issue, so that gaining credit with the jury, it would entitle the plaintiff to a verdict, then the nonsuit must be set aside and a new trial granted. If otherwise, the nonsuit must stand.
The section of the statute, upon which this action is founded, reads as follows, to wit: “If any sheep shall be worried, wounded or killed by any dog or dogs, within this state, the owner or keeper of such dog or dogs shall pay to the owner or owners of such sheep, so worried, wounded or killed, just damages, to be recovered by action of trespass, founded on this statute, together with costs, before any court proper to try the same.”
As this action would not lie at all for the mere act of the dogs, without the act was procured or occasioned by the defendants, but the action must have been an action on the case, alleging that the dogs were accustomed to bite, and that known to the defendants, it becomes important to ascertain upon what the liability depends, by the express provisions of the statute. And it appears very plain, that two things must concur to render any man liable to this action of trespass. 1st. There must have been a worrying, wounding or killing of sheep, or of a sheep, by some dog or dogs; and 2d. the man charged with the payment of the damage must be either the owner or keeper of the dog or dogs that do the mischief. This is correct and proper: for men who own, or keep and have the care of dogs, should own and keep such as will not do mischief of this kind, or so keep and take care of them as wholly to prevent such mischief. Being owner or keeper has an equal tendency to create the liability. The defendants, in this case, are charged as being owners of the two dogs that acted together in killing the plaintiff’s sheep. But it came out in testimony that they were not joint owners, but each owned separately. Hall was under no obligation to keep the other defendant’s dog from killing sheep; nor vice versa. Then, shall each become liable for the injury done by the other’s dog, merely because the dogs, without the knowledge or consent of the owners, did the mischief in company? We think not. If two men, having separate servants, separately send them to do one and the same thing, and they, in doing it, occasion an injury to any one for which their masters would be liable, they would be jointly liable, by reason of their sending them to act jointly. But they would not be liable either jointly or severally, for trespasses done by their servants when not in their masters’ business. Nor would they be jointly liable, if the servants had been sent each to do his master’s separate business. If they were to be charged otherwise than thus, by reason of any express statute, they must be brought within the express provisions of such statute.
At common law a man may keep a dog or dogs with immunity. So long as he does not know that they are accustomed to bite, or do mischief. If he keep them after he possesses such knowledge, he is liable for the consequences in an action on the case. If two were partners in the keeping of the dog or dogs, thus accustomed to bite, with their knowledge, they would be jointly liable.
But an action of trespass is here brought, not for damage which the defendants did by setting their dogs to worry the plaintiff’s sheep, but for the worrying and killing by the dogs, without any blame on the part of the defendants. The action is brought upon the statute; and would not lie at the common law nor can it be sustained unless the defendants are brought within the provisions of the statute. They are charged with being owners of these dogs. And the charge is well enough: for they might be joint owners. But the charge, is not maintained by showing each to be the separate owner of one dog. Nor is this a case in which one might be charged and the other not. There is no rule of law to fasten the liability upon either, in preference to the other. — They both stand alike in every respect. Either, sued separately, might be liable; for the charge that he was owner of the dogs would be true as to one at least, and that would render him liable for the injury. But the charge, that both were owners of the dogs, was not proved by the plaintiff’s testimony, allowing it all to be true. The case cited from 2d Conn. Rep. is exactly and fully in point to support this nonsuit.
While the nonimportation act of the United States was in force, it rendered the owner of goods imported liable to pay to the United States three times their value. It was very common for the same vessel or vehicle to bring, at the same time, many packages, of which each had a separate owner, who of course forfeited the treble value. But it was never supposed that all those separate owners could be made jointly liable for the treble value of all these goods; nor could such an action ever have lived through any Court. — This is the very case before us. In designating the person liable, in either case, we must find the owner. If we would charge more than one defendant, we must find joint owners. As the plaintiff has not done this, the judgment of nonsuit must be affirmed with costs.