Page:United States Reports, Volume 1.djvu/348

Rh 

1788.

The Attorney General obferved, in reply, that though he had not been able to difcover any inftance of an indictment at common law, for killing an animal, or, indeed, for any other fpecies of malicious mifchief ; yet, that the reafon of this was probably the early interference of the ftatute law to punifh offences of fuch enormity ; for, that in all precedents, as well antient as modern, he had found the charge laid contra ƒormam ʃtatuit except in the cafe of an information for killing a dog;–upon which, however, he did not mean to rely. 12Mod. 337.

He faid, that the law proceeded upon principle, and not merely upon precedent. In the cafe of Wade for embezzling the public money, no precedent was produced ; and one Henry Shalleroʃs was lately condemned in Montgomery county, for maliciouʃly burning a barn, (and having hay or corn in it) though there was certainly no ftatute for punifhing an offence of that defcription in Pennʃylvania. The principle, therefore, is, that every act of a public evil example, and againft good morals, is an offence indictable by the common law;  and this principle affects the killing a horfe, as much, at leaft, as the burning an empty barn.

But, he contended, that there were many private wrongs which were punifhable by public profecution ; and that with refpect to thefe a diftinction had been accurately eftablifhed in 2 Burr. 1129. where it is faid, that “ in fuch impofitions or deceits where common ” prudence  may guard perfons againft the fuffering from them, the  “ offence is not indictable, but the party is left to his civil remedy

“ for 

