Jonathan Milman, Jr., v. Wilson Shockley

Jonathan Milman, Jr., v. Wilson Shockley. A dog that kills, wounds, or worries sheep, may he killed by any person with impunity. Action of trespass for killing two dogs of the plaintiff, valued at thirty dollars. It was proved that the plaintiff was hunting at night with the dogs, which, were hounds, and was near, but not on the premises of the defendant, when a gun was fired, and on coming up with his dogs, he found one of them shot in a public pass-way, and the other further on in the field of a neighbor of the defendant. The defendant soon afterwards came up with a gun in his hands, and admitted that he had shot them, but alleged that he heard his sheep running, and a bell jingling, as if they were pursued by them, though he "could not say that the dogs were actually in pursuit of them, as it was dark, and he could not see them until they passed near him soon afterwards, when he fired at them, but he did not know whether he had hit them; one, thing, however, he knew, that his sheep had been frequently attacked by them. It was also proved that one of the dogs had before been seen to chase and worry sheep belonging to another person. On this evidence a question arose, and was argued by the counsel as to the meaning and extent of the act of Assembly on the subject. Rev. Code, 142. C. S. Layton, for the plaintiff: It could not be the meaning of the act that it should be lawful for any one, at any time, without limitation of days, months, or years, to Mil a dog upon the mere statement of another, that at some time or other he had seen him, in the language of the law, “ Mil, wound, or worry a sheep,” without the sanction of an oath, or any regard to the credibility of the witness maMng the statement. And although the statute made it lawful for any person to Mil such dog, did not the rights of property require that any one' who assumed to exercise this summary power of Mlling the .dog, should be at least prepared to prove, and to take the burden of proving, that either he saw the dog in the guilty act, or by some good and reliable and sworn witness, that he had1 been guilty of it beyond a doubt; and furthermore, that he had exercised: this high prerogative, vested in sheep-ownérs and every malignant dog-hater, within a reasonable time after the offence had been committed ? Did not the statute reasonably imply that any one who took upon himself the responsibility of exercising this summary power of destroying another man’s property, even of this nature, should himself have seen the dog actually attacking sheep, and that he thereupon speedily despatched him, not six months, or a year, or, perhaps, six years afterwards ? There was no proof in this case that the dogs were even pursuing the defendant’s sheep, much less, that they had killed, wounded, or worried them. It was well known to be the natural propensity of every puppy or young dog to pursue any animal that would flee from it; and yet under such a construction of the act as had been stated, it would be lawful for any one to slay such puppy for such an act, years after-wards, notwithstanding he may have turned out in the mean time to be a sedate and sagacious dog of the most useful and unexceptionable qualities. For the defendant, it was insisted that the Legislature, in its wisdom, had seen proper to place all sheep-killing dogs and sheep-worrying puppies in the category of public nuisances, which anybody might abate, and put out of the pale which the law had provided for the protection of the rights of property. That the Legislature had, so to speak, outlawed all such worthless animals; and if the jury were satisfied from the proof that the dogs of the plaintiff had at' any time killed, wounded, or worried sheep, the defendant might kill them with impunity. C. S. Layton, for plaintiff. McFee and W. Saulsbury, for defendant. [MAJORITY] And of this opinion was the Court, and so charged the j™y- ' , Verdict for the defendant.