132 Va. 11 | Va. | 1922
delivered the opinion of the court.
In State v. Smith, 156 N. C. 628, 72 S. E. 321, 36 L. R. A. (N. S.) 910, it is said to be the settled law in that jurisdiction, “That an action may be maintained to recover damages for the unlawful killing or injuring of the dog of another, but if the dog is in pursuit of a domestic animal,
“The court further instructs the jury, that although they may believe from the evidence that the defendant did kill the plaintiff’s dog or dogs, yet if the jury further believe from the evidence that at the time the defendant killed the plaintiff’s dog or dogs, the said dog or dogs was or were injuring or killing any domestic fowls belonging to the said defendant, under the statute law of Virginia,, the life of said dog or dogs became forfeited, and it became the duty of the warden to kill said dog or dogs in any manner that he might see fit, and therefore the said dog or dogs became outlawed, and the plaintiff could not have any property right in the said dog or dogs which could be the subject of damages, and you must, there, find a verdict for the defendant.”
This instruction appears to be based upon the statute, section 4, Acts 1918, p. 622, entitled: “An act to prevent damage and injuries by dogs, and to provide compensation to owners of stock so injured; to provide for license on dogs, and to provide for penalties for violation thereof,” which provides among other things that it shall be the duty of the game warden in case “any dog be found killing, injuring, or chasing sheep, or injuring or killing any domestic animals or fowls,” to kill such dog in any manner he may see fit. The instruction, it will be observed, is mandatory, to the
Reversed and remanded.