Hill v. Cox

The opinion of the court was delivered by Redfield, J.

The only question reserved in this case is, whether the certificate that the cause of action arose from the wilful and malicious act, or neglect of the defendant, was properly allowed.

I. When the action is such, that a certificate may be allowed, the awarding a certificate by the court which tried the facts, is ordinarily a matter of discretion, upon the exercise of which no error can be predicated. When the facts specially reported are such as legally warrant a certificate, this court will not, on exceptions, disturb the order of the County Court, whether the certificate be allowed, or refused.

II. The court found that the dog- that occasioned the injury “ was a large, cross, ferocious, and dangerous animal; and that *628 defendant kept him knowing that he was a dangerous animal to be allowed to run at large.” A wrong that is purposely done, is wilfully done ; and if a man intentionally deals a blow upon his neighbor, the law intends that the act was “ wilful and malicious.” The statute includes with “wilful and malicious” acts, “ neglects.” One could hardly conceive of a more wilful and malicious neglect, than the omission to restrain a ferocious and dangerous dog, which the owner and keeper knows was dangerous, and prone to bite and mutilate women and children that came in his way. “ Such a dog (to use the language of an English judge), should have been hanged, when his propensity first became known, and not be allowed to endanger the king’s subjects.”

The judgment of the County Court, and certificate, are affirmed.