Morewood v. Wakefield

• Decision Date: 29 September 1882
• Citation: 133 Mass. 240
• Parties: Alfred P. Morewood v. Charles T. Wakefield
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 240

Alfred P. Morewood v. Charles T. Wakefield

Supreme Court of Massachusetts

September 29, 1882

Berkshire.Tort for the shooting by the defendant of the plaintiff's dog.Trial in the Superior Court, without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff's dog was duly licensed, was not dangerous or mischievous, and was not guilty of any of the acts mentioned in the Gen. Sts. c. 88, § 60, but his head was so small and tapered from the neck so greatly that no collar would stay upon his neck.On June 14, 1881, the dog, without any collar on, while passing the residence of the defendant, was attacked by a dog belonging to the father of the defendant and severely injured, and was shot and killed by the defendant, without the knowledge and against the will of the plaintiff.

The defendant justified the killing under the provisions of the St. of 1867, c. 130, § 7, by which he contended that any person may kill all dogs, whenever and wherever found, not wearing a collar and being off from the premises of such dog's owner, and not under the care of his owner or keeper.

The plaintiff contended that the statute did not authorize or justify the killing, against the owner's will, of a dog not dangerous or mischievous, nor guilty of any of the acts mentioned in the Gen. Sts. c. 88, § 60, and which was licensed and without a collar, until the warrant mentioned in the St. of 1867, c. 130, §§ 7, 8, 9, had been issued; and that the right then to kill existed only from the issue of the warrant in July until its return in October of the same year; and asked the judge so to rule.But the judge declined so to do, and ruled that any person was justified in killing a dog without a collar upon the highway, whenever and wherever found; and ordered judgment for the defendant.The plaintiff alleged exceptions.

Exceptions overruled.

T. P Pingree & J. M. Barker, for the plaintiff.

E. M Wood, for the defendant.

C. Allen, J. Endicott, Lord & Field, JJ., absent.

OPINION

C. Allen, J.

The question in the present case comes down to this: whether the provision in the St. of 1867, c. 130, § 7, that "any person may, and every police officer and constable shall, kill or cause to be killed all such dogs, whenever or wherever found," means all dogs not licensed and collared according to law, or all dogs which have been ordered to be killed by the warrant which is to be issued within ten days from the first day of July, for the killing of unlicensed and uncollared dogs.By earlier sections of the same statute, licenses for dogs may be obtained before the 30th day of April, as well as at any time thereafter; and every dog must at...