42 Vt. 80 | Vt. | 1869
The opinion of the court was delivered by
The question presented is, whether the County court erred in applying to this case the rule of evidence applicable to the common law-action of trespass, instead'of that governing criminal cases, which requires the jury to be convinced beyond a reasonable doubt of the guilt of the accused, in order to convict. The form of proceeding in this case is that of a civil"suit: an action of trespass to recover damages for the worrying and killing of the plaintiff’s sheep by the defendant’s dog. The cause of action is one for which the plaintiff might recover at common law ; the injury being a destruction of the property of the plaintiff. ‘It is true at common law the plaintiff might be obliged to prove that the dog was previously known to do mischief of the kind, dr to prove some previous vicious habits of the dog ; but the statute, making the owner or keeper of a dog liable for such injury without such proof, does not change the nature of the act in question. In this respect it only puts the liability of the owner or keeper of a dog, for such trespass, on the same ground as the liability of the owner of cattle, at common law, for trespasses by them upon the land of another. To warrant the application of the criminal rule of evidence, the remedy given by the statute must be in substance, if not in form, a criminal proceeding. The statute creates no crime, misdemeanor or offense. It does not prohibit the owning or keeping of a dog, nor does it impose any fine or penalty for so doing. It holds the owner responsible for the trespasses of the kind mentioned in the statute, which the dog may commit. The fact that the statute makes the owner or keeper a guarantor for the conduct of his dog, does not make such owner or keeper a criminal, or characterize any act or neglect of his as a crime, or as constituting an offense. The statute does hot authorize a prosecution in behalf of the state, or give any right to a common informer to prosecute by action or otherwise ; but on the contrary the remedy is confined to the party injured, and not as a penalty but as compensation. It is true the statute gives greater damages
In Edwards v. Osgood, 33 Vt., 224, it was decided that the action upon the statute by a pound keeper against one whose cattle ho had impounded, to recover the seventeen cents a day of him for suffering his cattle to remain in the pound, was strictly penal, and not intended as a compensation for the support of the animals. Hence in Riker v. Hooper, 35 Vt., 457, it was held that in an action upon that provision of the statute for the recovery of the seventeen cents a day, the defendant was entitled to the rule of evidence applied in criminal cases. Hubbell v. Gale, 3 Vt., 266, was an action by a common informer to recover usury received by the defendant of a third person, while the act of 1822 on that subject
In White v. Comstock, 6 Vt., 405, which was an action under the same statute as in Hubbell v. Cale, brought by a party not a party to the usury, the question was involved whether the criminal rule of evidence applied, the county court having so ruled. The supreme court, recognizing the distinction laid down in Hubbell v. Gale, held that the statute, so far as it gave a right of action to a common informer, was penal; but Williams, C. J., in delivering the opinion of the court says : “ Whether the rule of evidence as applicable to this action was correctly laid down, is susceptible.of more doubt ”; but finally comes to the conclusion to sanction the ruling of the county court as to the rule of evidence. But he puts the case on the ground that the action is not by the party aggrieved, but by a common informer who has no money in the defendant’s hands, and says : “ he must recover by proving the defendant to have acted illegally, and to have violated a public law, and guilty of an offense.” This can not be affirmed of the case at bar.
The cases cited in reference to the construction given to our statutes, requiring in certain cases a minute to be made of the day when the writ is signed, turning on the particular phraseology of the statutes, have but very little if any bearing on the question in this case. Generally, whenever it has been material to the decision of a case to determine whether statutes like this are remedial or penal, they have been held to be remedial statutes and not penal.
In England the rule is that in actions upon penal statutes the