Hinckley v. Emerson

4 Cow. 351

• Court: New York Supreme Court
• Decided: February 15, 1825
• Status: Published

Opinion

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.

(a)

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 (a) 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.