Parrott v. Hartsfield, 20 N.C. 110, 3 Dev. & Bat. 110 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 110, 3 Dev. & Bat. 110

BENJAMIN F. PARROTT v. BENJAMIN HARTSFIELD.

The owner of sheep is justified in killing a dog which had destroyed some of his sheep, and returned upon his premises apparently for the purpose of destroying others, although the dog, at the time he is killed, be not in the very ael of destroying or worrying the sheep; and although it be not shown that the owner of the dog was cognisant of his bad qualities, or that there was no other means of preventing the injury.

This was an action of trespass vi et armis for killing a dog — Pleas—General issue and Justification.

On the trial at Lenoir on the last circuit before his Hon- or Judge Toomer, the ownership and possession of the dog by the plaintiff', and the killing by the defendant were not denied. The defendant in support of his plea of justification, then proved that on a certain day about sunrise in the morning, the dog was discovered in his enclosed pasture the act of killing his sheep ; that two of the sheep had been killed, and four others dangerously wounded; that the defendant was notified of the fact and went in pursuit of dog with his gun; that the dog escaped at that time, but turned about two hours afterwards to the premises of defendant, and was near the pasture fence where the sheep were, when the defendant saw him, and immediately and killed him. The plaintiff insisted that in order to support the plea of justification, the defendant must prove he could not otherwise preserve his sheep, than by killing the dog, or that the dog was shot in the very act of killing the sheep, and desired the Court so to charge the jury. Honor instructed the jury “ that the defendant was justified in killing the dog, if the evidence satisfied them that the had destroyed the sheep, and had returned two hours thereafter, and was on the premises of the defendant near pasture, under circumstances calculated to produce a in an ordinary man, that the dog was lurking about the closure to commence again the work of destruction, and killed under a reasonable apprehension that it was necessary to prevent a'repetition of the mischief.” The defendant a verdict and judgment, and the plaintiff appealed.

Dec. 1838.

J. Jrl. Bryan, for the plaintiff.

Badger and Devereux, for the defendant.

Gaston, Judge.

The exception taken by the plaintiff to the instruction of the Judge, is not in our opinion well founded. The law authorizes the act of killing a dog found on a man’s premises in the act of attempting to destroy his sheep, calves, coneys in a warren, deer in a park, or other reclaimed animals used for human food and unable to defend themselves. Wadhurst v. Damme, Cro. Jm. 45. Barrington v. Sumers, 3 Lev. 28. Leonard v. Wilkins, 9 John. 233. Nor is it essential to the defendants ’f ustification that the owner of the dog should be cognisant of his bad qualities, or that there was no other mode of defending the things assailed. Com. Dig. Pleader, 3 m. 33, 1 Sid. 336. The law is different where the dog is chasing animals feres natura, such as hares or deer in a wild state, or combating with another dog. In these cases a necessity for the act of killing must made out, or the killing will not be justified. Wright v. Ramscot, 1 Saun. 82. Vere v. Ld. Cawdor, 11 East. 567. The object of the law in conferring this authority is not to punish past wrongs, but to prevent wrongs impending or menaced. It may therefore be exercised before the injury *s begun, if in truth it be imminent — for otherwise the preventive remedy may be too late. Thus in the case of Wadhurst v. Damme, the plea was that the dog had killed conies before, and defendant finding the dog running at conies (not *n die act °f killing them) he there killed the said dog. So in Barrington v. Turner, the' justification was that the hounds had • chased a deer in the defendant’s park, and killed her, and to prevent further mischief by them the defendant took and killed them. In this case the plaintiffs dog had actually killed several of the defendant’s sheep upon his premises and had returned apparently for the purpose of repeating the injury. It hath been always taken for the law, and universal usage is high evidence of the law, that a sheep-stealing dog, found lurking about, or roaming over a man’s premises where sheep are kept, incurs the penalty of death.

dojjufcha-sing ani-nairas,'or fn'g'vvitii another . cessity for mustSbem oTthe till’ ■ing will justified,

The judgment below is affirmed.

Per Curiam. Judgment affirmed.