The opinion of the Court was delivered, by

A dog seen worrying sheep may be killed by any person. If he shall have been known to worry sheep, and information thereof be given to his owner, it is the duty of the owner to kill him. If the owner do not kill him, he shall make full compensation for the damage done by the dog; and any person seeing such a dog running at large may kill him. Such are the provisions of the 5th section of the Act of 23d March, 1809: Purdon 320.

The action to be brought for compensation, under the statute, may be trespass, and justices of the peace have jurisdiction: Paff *361v. Slack, 7 Barr 254. The Court were right in sustaining the action brought, but they were in error in declining to refer to the jury the question of the defendant’s knowledge of the evil propensities of his dog. And their answewthat this was an action at common law was a wholly insufficient reason for withholding that question from the jury; for, whether the action be at common law or under the statute, the scienter is alike indispensable. The gist of the action is not the negligent keeping of the dog, but the keeping him with knowledge of his vicious disposition. Dogs belong to the class of domestic animals which are not ordinarily dangerous, and which it is lawful to keep, except in places where they are forbidden by some legislative or municipal provision. But when they become mischievous, and knowledge of this is brought home to the owner, good neighborhood, as well as the law, forbids a longer existence, and the owner should terminate it, If he do not, he is liable in damages for the misdemeanors of his dog. If the action be for the “full compensation” mentioned in the statute, it may be, as we have said, in trespass; if it be at common law, it is generally held that it must be in case; but either way the scienter must be proved. See the authorities collected in 1 Saunders’ Pleadings and Evidence 755.

In the case before us the Court should have submitted to the jury the evidence of the scienter, with instructions to find for the plaintiff if the defendant kept his dog alive knowing his disposition to worry sheep; but if he did not know it, and dispatched him as soon as he was informed of it, the verdict should have been for the defendant.

To the instructions of the Court on the measure of damages, we see no just ground of exception.

The judgment is reversed and a venire de novo awarded.