Tbe defendant bad no right to kill tbe bog for what be bad already done: that were to take vengeance. Nor bad be tbe right to kill him to prevent an anticipated mischief; for that might never happen. Nor bad be tbe right to kill him for breaking over tbe fence, to get away from tbe dogs; for that was tbe instinct of self-preservation, incited by tbe violence of tbe pursuit.

It is tbe custom of tbe country that stock shall run at large; and because of tbe unnecessary expense, every owner of stock does not keep a bull or a boar. A few in each neighborhood are sufficient. They are regarded as public conveniences, and are indulged to considerable latitude, in “ tbe freedom of tbe neighborhood.”

*47 The hog in question seems to have been improved stock, a Chester boar, worth $50. From the fact that he was not marked, and was allowed the range, he seems to have been devoted to the service of the public by his liberal owner, and was in no sense a nuisance. To kill such a hog, was an injury to the plaintiff and a loss to the public, and would have been bad neighborship in the defendant, if it were not apparent that the killing was done under considerable provocation, and under the impulse of the moment.

It was plausibly urged for the defendant that, inasmuch as the hog was not marked, and the owner was unknown, he -could have no redress for the depredations upon his crop; but that is not so, for the Stray-law gave an ample remedy. To this suggestion it was objected by the defendant, that he could not catch him. It seems that with dogs he could not, but milder means would doubtless have been effective, and they were not tried. His Honor’s instructions that the defendant had no right to kill the hog unless his fence were five feet high “ all around,” did the defendant no injustice, and was more favorable for him than the law allows; for he had no right to kill under the circumstances, if his fence had been five feet all around: Morse v. Nixon, 6 Jon. 293.

There is no error.

Per Curiam. Judgment affirmed.