
    Leonard against Wilkins, jun.
    ALBANY,
    August, 1812.
    Where the dog of A. is on-the land of B. chasing fowls, and in the act of destroying one, B. may lawfully shoot the dog, in the same manner as if the dog were chasing and killing sheep or other reclaimed and useful animals.
    It isenough the fowl of B., without plrTy0 mP the fowl.
    The jury are to decide whether the killing of the dog is justified by the necessity of the case, and as requisite to preserve the fowl.
    IN ERROR, on certiorari, from a justice’s court. Leonard sued Wilkins, before the justice, for shooting the dog of the plaintiff. The defendant pleaded not guilty, and the cause was tried before a jury. It was proved that a dog, of the pointer breed, was possessed by the plaintiff, and that he had no other dog. The defendant said to one of the witnesses that he had shot the plaintiff’s dog. Another witness saw the defendant shoot the dog, which was in the field of the defendant. The dog was running with a fowl in his mouth, and the defendant called after the dog before he fired; but he had the fowl in his mouth at the time he was shot. The plaintiff was near the place at the time, on horseback, but it did not appear that the defendant saw him, or knew that he was near, until after he shot the dog. Several witnesses testified, that the same dog worried and injured their fowls and geese; and that there ivas an alarm in the neighbourhood respeciing mad dogs.
    The jury found a verdict that the plaintiff had no cause of ac~ tion, on which the justice gave judgment against the plaintiff for the costs.
   Per Curiam.

The verdict below was not against law. The dog was on the land of the defendant, in the act of destroying a fowl; and the defendant was justified in killing him, in like manner as if he was chasing and killing sheep, deer, calves, or other reclaimed and useful animals. This principle has been frequently and solemnly determined. (Cro. Jac. 45. 3 Lev. 25.)’ It was for the jury to determine whether the killing was justified by the necessity of the case, and as requisite to preserve the fowl; and the fowl being on the land of the defendant was enough, without showing property in the fowl.

Judgment affirmed.  