Dogs or Men? being marked with the name of the owner and number of the license, he could not recover the value of his dog, even if killed by the defend ant's dog, provided his dog was running at large. He could not be considered running at large if he was on his owner's premises. But if you find the plaintiff's dog was at large, outside the plain tiff's premises, plaintiff cannot recover, even if his dog was killed by the defendant's dog.' "Plaintiff, by his counsel, then asked said judge to charge the jury that if they find the dog had been properly licensed and a proper collar had been placed upon his neck, and by accident the collar had been lost off the dog's neck, and the plaintiff had had no opportunity to replace it, between the time of its loss and the killing of the dog; that the plaintiff was equally protected by the law as if the dog had the collar on. But the said judge refused to so instruct the jury, to which refusal and ruling of said court the plaintiff by his counsel did then and there except. "The statute referred to required the owner of a dog to procure a license therefor, and to cause the dog to wear a collar around its neck, and provided that any one keeping a dog contrary to the provisions of the act should be liable to a penalty. The sixth section of that act reads as follows : — "' Any person may, and it shall be the duty of every police officer and constable of any town ship or city, to kill any and all dogs going at large, and not licensed and collared according to the provisions of this act, and such officers shall be entitled to receive from the township or city treasury, for each dog, etc, killed by them — ' "Defendant claimed that his dog, in kill ing plaintiff's dog, acted under this section. "It does not clearly appear from the rec ord what the particular part of this section defendant's dog was or claimed to be acting under when he committed the deadly act. He seems to have considered it his duty to kill plaintiff's dog. Yet it is not clear from the record, and I am not satisfied we have any right to presume that he, defendant's
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dog, was either de jure or dc facto a police officer or constable, and if he held neither of these positions at the time, then clearly it was not his duty to act in so summary and severe a manner. Neither does it appear that defendant's dog ever applied to the township or city treasury and received there from the compensation to which such officers are entitled in like cases, so that it cannot be said that the proper public authorities ever, by paying him, ratified the act. We are satisfied he does not come under the other clause which permits " any person " to kill such animals, and shall therefore dis miss that branch of the case from further consideration. "Neither are we satisfied that defendant's dog had sufficient intelligence or discretion to act in an official capacity in such cases. As an officer, if he claimed to act in that capacity, he only had the right to kill plain tiff's dog in case he found him " going at large, not licensed and collared," according to the act. Now, whether defendant's dog had examined the records and ascertained from such examination that plaintiff's dog was not licensed, or whether he stopped and deliberately examined plaintiff's dog to see if he had a collar on, does not appear. Nor does it clearly appear that he killed him for the sole reason that he was not licensed and collared. Yet he had no right to kill him for any other reason. The intention, there fore, with which he committed the act be comes material. The plaintiff's dog may not have had any collar on, and yet if de fendant's dog did not kill him because in not wearing a collar he was violating the provisions of the act, but because of some spite or malice entertained towards him, then it is clear he could not afterwards come in and justify under this statute. If for the sole reason that the plaintiffs dog was not licensed or collared, defendant's dog, in the performance of his official duty, killed him, then, were it not for other considerations, his owner or possessor might be held not liable. If, however, there was not that cool
