Every evening, Wilmington daily commercial., 1906-05-05
IpsclaI oorrs.pondsn g Of Ever = rsrsnIng.

cNrNlMl correspondence GO OF Ever NNonluk.
Dover, May 5. Following is the text
Of the charge of the Superior Court,
delivered by Judge Boyce, in the case
OF Robert I. Harrington vs.. William
T.. Hall, involving the question Of
personal property in registered dogs
The plaintiff brought an action Of
trespass against the defendant for
an alleged malicious shooting and
killing Of his fox hound, and he seeks
TO recover for his loss occasioned
thereby.
The plaintiff claims that his dog
was trained to hunt foxes and that he
was valuable; and that on the occasion
when his dog was shot and killed he
and some neighbors, with their dogs,
were In pursuit of a fox, and that
when the dogs we're in the chase, cross
ing the field Of the defendant in this
county, the defendant himself, or his
son by his direction, shot and killed
the dog Of the pl aintiff while in the
field OF the defendant. The defendant
admits that his son did shoot and
kill a dog in his field on the day as
alleged by the plaintiff, but he denies
that be commanded his son at the time
TO shoot the dog.
He claims that previously to the time
Of the alleged shooting, a large num-
ber of turkeys had been killed by
dogs, and that for the protection Of
his fowl he had posted notices on his
farm forbidding trespassing by dogs or
hunters, and that at or about the same
time he had given directions to both
his son and hired servant TO shoot dogs
trespassing upon his premises. The
son of the defendant admits that on
the day on which the plaintiff claims
his dog was killed he did shoot and
kiln a fox hound, when in the act of
killing a turkey in a flock belonging
TO and In the field of his father, the
defendant, but without knowing then
or now whose dog il was.
The defendant claims that he was
in the field nearby and he shortly
thereafter carried the turkey, which
he alleges was killed by the dog to his
house.
At common law, the owner Of a dog
might maintain civil action for the
unlawful injury, thereto or killing
thereof. There is, however, in evi-
dence before you, and uncontradicted,
that the plaintiffs dog was registered
under an act of Assembly at the time
when il is alleged he was shot and
killed, siad act being Chapter AZ,
Volume XVI, Laws of Delaware, and If
you find that the dog was at the time
of the killing so registered, he was the
personal property of the owner, and as
such was the subject of larceny. And
any person unlawfully killing a dog
registered under said act would un-
| questionably be liable to the owner
thereof for the value of the dog.
A person may not maliciously in
| jure or kill a dog for a mere trespass
| upon his premises, and the posting
of notices against trespassing by dogs
will not therefore excuse or justify an
unlawful killing OF dog found upon
the premises.
The remedy against such trespassing
is, In a proper case, against the owner
OF the dog. The defendant justifies
the killing Of a dog Whose owner
he alleges was unknown to him) on
the day in question, because, as he
claims, the dog was at the time Of the
shooting in the act of killing one of a
flock Of his turkeys then upon his
premises. We say TO you that If you
find, under the evidence, that the
defendant himself or his son, under
the fathers directions, did kiln the
plaintiffs dog under such circum-
stances, it was iustifiable and the plain
tiff would not be entitled 20 recover
For II the dog was upon the land o.
the defendant in the act OF destroying
his turkeys, the defendant was iusti
fled in killing him. If, however, YOU
found that the plaintiff owned the
dog and the latter did not so attacl
the defendants turkeys, but was run.
ming across the field OF the defendant
in pursuit Of a fox, or was merel,
trespassing upon the premises of the
defendant, then, IL the dog was killed
by the defendant, or by another bl
his direction, it was an unlawful
killing and without justification, ane
your verdict should be for the plain
tiff.
II you find that tho dog was killed
by the son of the defendant, either
under the general OF special direction
OF his father, then the act of KILN,
was, IN contemplation of law, the ac
OF the defendant Whether the dog,
which, 10 is admitted, was killed, WA
owned by the plaintiff, you will deter
mine from all the facts and circum
stances surrounding this case, as testi
fed TO by the witnesses.
You are the exclusive judges OF th,
testimony. To entitle the plaintiff {,
recover you must he satisfied that hi
dog was killed. That he was kille,
either by the defendant or under hi
direction and that he was killed mali
ciously and without justification anC
we submit these questions Of fact {,
you for your determination. Mher
there is a conflict in the evidence upor
any material point. it is your duty {,
reconcile 1t If you can, and If it is ir
reconcilable you should accept as tru,
such evidence as you believe is mos
entitled TO credit, taking into con
sideration the character of the wit
nesses, their apparent fairness ans
accuracy, their disinterestedness ane
, all the other circumstances of the cas-,
as disclosed by the evidence.
IL you find for the plaintiff. we sa,
to you that we do not think under All
the facts Of this case, it is I
proper case for punitive or exemplar,
damages, and your verdict in that event
should be limited TO the value Of tn,
dog, which you will determine from
those witnesses who gave testimony a.
60 the value of the same.
You will now take the case and
give it your careful and conscientious
consideration and determine il upor
the the evidence produced before you