and it shall be the duty of all breeders and owners of hogs in this State which die with any disease to burn each carcass to ashes within ten

hours after death.

26511. Access to running water- Unlawful. 3. It shall be unlawful for any one owning or controlling swine, knowing the same to be infected with disease, to allow such swine to have access to any stream of running water in this State, so that the water in such running. stream to which such diseased swine have had access may flow down through the lands of others from where such infected herd is kept.

2651m. Penalties. 4. That any manager of any railroad company or the manager of any stock yards, operating in this State, who shall fail or refuse to cleanse and disinfect the cars at such yards, or fail to keep their pens cleansed and disinfected as required by this act, and any managers of fair grounds who shall fail or refuse to cleanse and disinfect their pens and crates and require from the exhibitor the affidavit required in this act, and any person who drives upon any public highway or suffers to run at large or ships in any vehicle or railroad car any swine, knowing the same to be infected with disease, and any breeder or owner of any herd of swine which becomes infected with any disease who, shall after five days from the time he discovers said herd is so infected, shall ship and market hogs from such diseased herd or shall fail and refuse to burn the carcasses of hogs in such herd, dying from such disease as provided in this act; if any owner or owners of any such hog or shoat so dying with disease or any person or persons having the care or custody thereof having knowledge of the fact ten hours, or upon receiving notice thereof ten hours shall fail, neglect or refuse to comply with the provisions of the preceding section it shall be lawful for any person or persons to enter upon the premises, after notifying the owner of the same where the carcass or carcasses of any hog or shoat may be, and burn such carcass or carcasses, committing no unnecessary damage and for each carcass so burned, he, she, or they may recover the sum of one dollar for each carcass so burned, in a civil action before any justice of the peace of the township where the defendant or one of the defendants resides, from the owner or owners of any such hog or shoat, or from any person or persons having the care and custody thereof; and any person who shall allow swine infected. with any disease to have access to any stream of running water on his premises, then he and they or any person or persons who shall violate any of the provisions of this act, shall be deemed guilty of a misdemeanor and upon conviction before any court having criminal jurisdiction shall be fined in any sum not less than twenty-five dollars and not more than five hundred dollars.

[1867, p. 136. In force March 11, 1867]

2652. Hog cholera. 1. In all cases where any hog, shoat, or other domestic animal shall die of the disease commonly called "Hog Cholera," or any other disease, it shall be the duty of the owner or owners of such hog, shoat, or other domestic animal, or the person or persons having the care and custody of the same, having knowledge of the fact, or upon receiving notice thereof, to cause the carcass of such hog, shoat, or other domestic animal, without unnecessary delay, to be burned or safely and securely buried.

2653. Penalty. 2. If any owner or owners of any such hog, shoat, or other domestic animal, so dying with disease, or any person or persons having the care and custody thereof, having knowledge of the fact, or upon receiving notice thereof shall fail, neglect, or refuse to comply with the provisions of the preceding section, he, she, or they, so offending, shall be guilty of a misdemeanor, and, upon conviction thereof before any tribunal having cognizance of the offense, shall be fined in any sum not less than ten dollars nor more than fifty dollars.

[1869, p. 28. In force February 9, 1869.]

2654. Cattle-Texas fever. 1. It shall be unlawful for any person to bring into the State of Indiana any cattle infected with the disease commonly known as the "Texas or Spanish Fever," or any cattle liable to impart said fever to other cattle.

2655. Damages. 2. Any person who shall violate the provisions of the foregoing section of this Act shall be liable for all damages growing out of and arising from the importation and introduction into the State of Indiana, of any cattle infected with the disease commonly known as "Texas or Spanish Fever," or any cattle liable to impart said disease to other cattle; said damages to be recovered by the person or persons sustaining said damages of and from the owner or owners of the cattle imparting such disease.

2656. Evidence - Liability. 3. Whenever any Texas or Cherokee cattle liable to impart said disease shall be brought into the State of Indiana, and any such disease as "Texas or Spanish Fever" shall make its appearance within sixty days, and infect other cattle with said disease that have been on the same highway, common, or pasture-ground traveled over by such Texas or Cherokee cattle, such fact shall be deemed and taken as prima facie evidence that said Texas or Cherokee cattle were infected with the disease known as the "Texas or Spanish Fever," and that they did impart said disease; and the owner or owners of said Texas or Cherokee cattle at the time of the bringing of said cattle into the State, and the owner or owners of said cattle at the time said disease shall make its appearance, shall be jointly or severally liable for any damages resulting from said disease.

2657. Evidence for defendant. 4. Whenever Texas or Spanish Fever is imparted within sixty days to cattle on any highway, common, or pasture-ground over which more than one drove or herd of said Texas or Cherokee cattle have passed, the owner or owners of each herd or drove of said cattle shall be jointly or severally liable for all damages resulting from said disease: Provided, That in the trial of any cause in which dam ages may be claimed on account of said disease having been imparted to cattle, any defendant in any such cause may have the right to introduce

competent testimony that may tend to prove that his or her herd of Texas or Cherokee cattle did not impart said disease to such cattle; and if any defendant in any such cause shall prove to the satisfaction of the court or jury trying any such case, that his or her herd of Texas or Cherokee cattle did not impart said disease, the defendant making such proof shall not be liable to pay any damages resulting from such disease.

1. This act is probably unconstitutional.-R. R. Co. v. Husen, 95 U. S. 465.

NOTES TO CHAPTER 11.

Power of county board. The act of May 31, 1852, as to the discretion to allow animals to run at large and pasture on public common and uninclosed land is not in violation of section 66.- Welch v. Bowen, 103-255.

2. Where there is no order, of the board of county commissioners, allowing stock to run at large the owner can not recover, from a railroad company, for cattle killed upon a public crossing.-Lyons v. T. H., etc., Co., 101-420; Cinc., etc., Co. v. Hiltzhauer, 99-486; Wab., etc., Co. v. Nice, 99-152; Ind'polis, etc., Co. 7. Cauble, 60-112; Cinc., etc., Co. v. Street, 50-225.

2637. Powers of county board. The common law is in force in this state as to animals running at large, except so far as domestic animals are permitted to run at large by the board of commissioners, as provided for in this section. Therefore, it becomes the duty of the owner to keep such animals confined to their own premises. It is the duty of the owner of domestic animals to fence them in, where they are such as can be fenced against; it is not the duty of his neighbor to fence them out. It does not, however, follow as a necessity that the owners of such animals suffered to run at large, or to trespass upon the lands of others, are thereby rendered responsible for all injurious acts committed by such animals while away from the premises of the owner. Such owner is not liable because of a negligent failure to keep a domestic animal confined on his own premises, except for the consequences which may be anticipated because of its well known disposition and habits, unless it is possessed of a vicious disposition of which he had notice; so that in an action for damages for personal injuries sustained by the plaintiff by being attacked by a cow belonging to the defendant, which he permitted to run at large, a complaint is defective that fails to allege that the animal possessed a vicious disposition or propensity which inclined it to attack mankind. Without such allegation there is no charge- necessarily — that defendant had notice of any such evil disposition. Wherefore, as the wilful conduct of the animal in attacking the plaintiff was not such as the defendant had a right to expect, or might anticipate, he is not responsible for the injury by such unexpected and wilful conduct. Klenberg v. Russel, 125–533.

2637-8. Animals — Power of county board. An order made by a board of county commissioners, under these sections, directing that certain animals be allowed to pasture or run at large on the uninclosed lands or public commons within the county is an administrative-not judicial-act. An appeal will not lie from such an order. Farley v. Board etc., 126–470.

2638. Order to specify. The power to pass orders or regulations in respect to the running at large of animals, under this statute, is administrative in character and continuing. It is not exhausted by being once exercised. The county board may change, modify or repeal an order it has made so often as the public interest may demand.- Welch v. Bowen, 103–256.

2639. Taking up. Under this section, one who takes up and seeks to retain animals until certain alleged charges are paid must show, affirmatively, that, at the time he took up and impounded such animals, they were running at large or pasturing upon uninclosed lands or public commons of the township.-Nape v. Leiter, 103-141.

2. One who takes up and impounds animals found at large in his pasture, only, which is partially inclosed is not entitled to compensation.- Nape v. Leiter, 103-142.

3. Where a pound fence, intended to confine horses and cattle, is proved to be sufficient for its purpose, by competent and credible witnesses, and no testimony is introduced to the contrary, such evidence settles the question of the sufficiency of the fence. The mere fact that an animal confined in such pound and properly cared for there kills itself by rushing against such fence, or by kicking against it, or by trying to leap over it does not impair the testimony of those witnesses and has no tendency to prove the insufficiency of the fence.-City Greencastle v. Martin, 74-459.

Taking up. This section and the statute generally on the subject matter thereof do not apply to cases where animals escape from the inclosure of the owner and he, at once, makes diligent search for them.-Jones v. Clouser, 114388. Such animals can not be considered as running at large within the contemplation of the statute. It follows that a supervisor who takes up and impounds sheep which have thus escaped can not recover for feeding and caring for them, in a personal action against the owner.- M'Bride v. Hicklin, 124-499.

The purpose of this section is to coerce the owners of domestic animals to keep them within their own inclosures, unless there is a proper order of the county board allowing them to run at large.- Nafe v. Leiter, 103-138; Jones z. Clouser, 114-388. The section has no reference to animals that have strayed from their owners. It applies to animals suffered to run at large where there is no proper order authorizing owners to allow their animals to run at large. A person who seizes domestic animals under this and like statutes is held to a strict conformity to the law and can detain them only for the causes stated in the statute.-Jones v. Clouser, 114-388, citing Anderson v. Worley, 104-165; Nafe v. Leiter, 103-138; James v. Fowler, 90-563.

2643a. Road supervisor to take up. (a) In an action to recover damages for injuries sustained from being butted by a ram, a complaint alleging that the animal had the habit of attacking and butting mankind and, in consequence of said propensity, attacked the son of the plaintiff, inflicting serious injuries, is sufficient, without a specific allegation that it was dangerous or vicious. (6) In such an action the plaintiff is not required to allege that the animal was not confined. If he was confined it is an affirmative defense which the defendant must allege and prove. (c) To give a mischievous or vicious animal the freedom of a pasture field and, thereby, afford an opportunity to injure and molest any person who may have occasion to go in to or pass through the field is not confinement in the eye of the law. (d) In such a case when the complainant alleges the malicious or vicious propensity of the animal, the injury resulting therefrom and the scienter, he makes out a prima facie case, which the defendant must meet, either by a denial or by an answer which confesses and avoids the alleged cause of action.-Graham v. Payne, 122-405.

2645. Dogs killed. A dog listed for taxation cannot be lawfully killed except while engaged in committing damage to the property of others than its owner or when it is known to be a dog that will kill or main sheep.- Dinwiddie v. State, 103-103.

2647. Dogs taxed. Dogs are not, by this statute, recognized as subjects of general taxation for revenue purposes and to be taxed accordingly. The object of the tax has been the non production of dogs rather than the production of revenue. The specific taxes, upon dogs, can be upheld, only, on the ground that they are not revenue measures but police regulations.-State v. Doe, 79-12. See Mitchell v. Williams, 27-62.

2650. Sheep killing dogs may be killed. The provisions of the statute of 1881 conferred no authority on any person other than an officer to kill an uncollared dog not carrying a tag; unless such dog was running at large. Lowell v. Gathright, 67-317.

2. So far as the statute allowed the killing of all dogs found off the premises of their owners it was repealed by act of 1881 (sect. 2649) and was not revived by the repeal of that statute, by the act of 1883.-Dinwiddie v. State, 103-103.

2651b, c. Dog fund-Use and custody. (a) This statute providing for the payment, by a township, for sheep killed and maimed by dogs, does not con

fine the right to recover, for sheep killed, to persons engaged in sheep husbandry. It includes all citizens who are the owners of sheep kept in the township. Therefore, a complaint that alleges that the sheep killed and injured were owned and pastured on the farm of the plaintiff in the township is not bad for failing to allege that the plaintiffs were engaged in sheep husbandry and that the sheep were owned and kept by them in the course of business as sheep raisers. (b) The statute requires the owners of sheep killed or maimed by dogs, within ten days from the time thereof to report to the trustee of his township, under oath, the loss and injury. The statute is mandatory and in an action founded on this statute the complaint must allege the filing of a sworn statement with the trustee in compliance with the law.-Columbia Tp. v. Pipes, 122-239.

2647. Cruelty to animals - Misdemeanor. This statute (of 1889) "concerning cruelty to animals, providing penalties," etc., superseded and repealed section 2101, relating to cruelty to animals and the imposition of penalties therefor. Under this statute a prosecution may be maintained for the mutilation of a dog, and in its terms the statute is broad enough to include both dogs listed for taxation and unlisted dogs. In a prosecution, by affidavit and information, for the mutilation of a dog, it is not necessary that the affidavit shall describe the injury. The statute does not do so and, unless some sufficient reason exist for greater particularity, it is sufficient to follow the language of the statute.-State v. Giles, 125-124.