Hinckley against Emerson

Hinckley against Emerson. ^ one’s dog ríes cat°íe7an g°h¡S him tf he have notice ¡ntL%b¡tSof doiSg th!s- But no ono has a right, for kill the dog, except he worry sheep, and thus be brought within the statute, (1 R ^169 '* To justify killing him, except in the case of sheep, it is necessary to show that'he'could not otherwise bo separated. When a dog attacks persons, he may be killed as a common nuisance. And so if he attack, and actually kill domestic animals on the owner’s land. On certiorari to a Justice’s Court. In the Court below / Emerson declared against Hinckley, in trespass, for killing his (Emerson’s) dog; to which Hinckley pleaded the ■Veneral issue; and justified the killing as necessary to preserve his property. . : The plaintiff proved that the defendant shotdhe dog near the defendant’s gate. The witness swore that he set the dog. on .the defendant’s hogs .; hut he.did not hurt theni, Afterwards the dog attacked the hogs, of his own accord* The witness called him off, and took him by the. ear to, lead.him to the plaintiff’s shed ; when the.defendant catne. with his rifle, the witness let go .his hold* and the.defendant. shot .the dog. The witness had., several times, set him. on -cattle, when they came under the plaintiff ’s sh,e,d; but was directed by. the plaintiff to be careful that he did not injure them.. He swore that the dog was worth 10,or..l5 dollars. The defendant offered to show, in. bar .of .the action, that the dog had habitually chased and..worried the .cattle, hogs and geese of the^defendant^'on his premises,, within.the plaintiff’s knowledge; but the Justice decided .that the.ac-, tion could not be defeated by such evidence, though- the damages .might ^"mitigated. ■ Judgment for the plaintiff W. L. F. Warren, for the plaintiff in error. W. Metcalf, contra. [MAJORITY — Woodworth, J.] Curia, per Woodworth, J. If the plaintiff’s dog had worried or injured the defendant’s cattle on his land, an action would lie, if the plaintiff had previous notice that his dog was in the'habit of being thus vicious. But except in the case of worrying or killing sheep, a case provided for by statute, (1 R. L. 169,) I do not know that any one beside the master has a right, to, kill, the dqg. „ It seems to be law, that where a dog chases and kills one’s domestic animals on his he may kill the dqg,. (Wadhurst v. Damnie, Cro. Jac. M. Barrington v. Turner, 3 Lev. 28.) But if the dqg merely chases or bites an animal, in order to justify (killing the dog, it is necessary to show. that, he could not otherwise be separated. (Wright v. Ramscott, 1 Saund. 84.) But where k dog is ferocious and attacks personsj he, may be killed,"being considered a nuisance. (Putnam v. Payne, 13 John. Rep; 312.) The statute, allowing dogs that' attack sheep to be killed,..recognizes, the. .cqmmqn.law. doctrine.,as abovelaid down. (And vide Brock v. Copeland, 1 Esp. Rep. 203. Boulton v. Banks, Cov. Car. 254. Kinnion v. Davies, id. 487.) The judgment must be affirmed. Judgment affirmed. General Rule. Februrary Term, 1825. Ordered, That after the present term of this Court, no cause be entered on the calendar of enumerated motions, unless the note of the time when the question arose be filed in the clerk’s office of this Court, at the place where the Court is to be held, before the Tuesday next preceding the term. This cause was decided in October term, 1824. Vid. the 1,2, and 3 Rules Jan. Term, 1799.