Dissenting. — In this case there is no dispute but that the dog in question chased sheep which were in custody of the defendants, bit some of them, and was caught in the very act. The witnesses for the defendants are corroborated in a degree on this point by the testimony of the principal witness for the plaintiff, who saw the sheep stampeded in the direction of the place where the dog was killed.
Section 9359, Or. L., is quite plain, reading thus:
“If any person shall discover any dog in the act of killing, wounding, or chasing any sheep or other domestic animals in any portion of this state, or shall *636discover any dog under such circumstances as to satisfactorily show that such dog has been recently engaged in killing or chasing sheep or other domestic animals for the purpose of killing them, such person is authorized to immediately pursue and kill such dog.”
It is argued that because one of the defendants stated that he was sorry he killed the dog and. offered to pay for him, his attitude thus expressed is to be taken as evidence that the dog was not killing sheep. This argument is fallacious. While the defendants, who discovered the dog chasing and biting the sheep, had a right to kill him as they did, they were not obliged to do so, and their regret at not having pursued milder measures is not in any sense a surrender of their actual statutory right to take the extreme remedy. The question of excessive defense of one’s property is not involved. When any dog of whatever value is caught “in the act of killing, wounding or chasing any sheep,” the statute marks him for slaughter at the hands of whoever catches him.
The Circuit Court ought to have allowed the motion of the defendants for a directed verdict in their favor, at the close of all the evidence in the case, and the judgment should be reversed, with directions to enter a judgment for the defendants, there being no testimony whatever in the record to sustain the verdict.
For these reasons I dissent from the opinion of Mr. Justice Johns.-