Vol. II.] ALDRICH v. WRIGHT. [No. 2. danger than the attack of B. An assault and battery committed by the dog might justify his destruction - Credit v. Brown, 10 Johns. 365although a similar assault and battery committed by a man might not justify homicide, "the law distinguishing, to many and most essential purposes, between property and the life of man." Dallas, J., in Deane v. Clayton, 7 Taunt. 518. The right to kill a man in self-defence is not the test of the right to kill a dog in self-defence. Reasonable necessity is the test in both cases: but what is reasonably necessary against a canine assailant may not be reasonably necessary against a human one, although the same danger be caused by each. The dominion of man over brutes is a part of the natural order recognized by the common law; and, judging by the human standards of the common law, and taking them as the perfection of human reason, it is reasonable that a man should discriminate between the consequences of killing a man and the consequences of killing a dog, because the common law estimates human life and human limbs as vastly more valuable than all things commonly regarded as property, and estimates canine life as comparatively worthless, dogs and cats being classed with domesticated vermin. 1 Bl. Com. 130; 4 Ib. 182, **235; 2 Ib. 393; 1 Hale P. C. 512; 1 Hawk. P. C. ch. 33, sec. 23; Findlay v. Bear, 8 S. & R. 571; Woolf v. Chalker, 31 Conn. 121. There is also a great difference between an attack made upon A by B, and an attack made upon A's dog by B. A, being attacked by B with a deadly weapon, may instantly kill him, if it is necessary to do so to save his own life; but A's dog being attacked by B in the same manner, the authorities would not justify A in instantly killing B, even if the dog's life could not otherwise be saved. These illustrations present the defensive destruction of life, founded as it is, by law and by natural reason, upon the consequences of destruction compared with the consequences of non-destruction. It is evident that, in many cases of equally imminent danger, the right of destruction depends upon the question whether the assailant is a man or a brute, and upon the question whether the party assailed is a man or a brute. An undiscriminating rule of imminent danger abolishes these distinctions, and tries the defendant by the tests of murder. Why, then, was he not indicted and tried for murder, instead of being harassed by this petty suit? Brill v. Flagler, 23 Wend. 354,, was trespass for killing a dog. The defendant pleaded that the dog was accustomed to come upon the close of the defendant in the night-time as well as in the daytime, and by his barking and howling annoy and disturb the defendant and his family; and the plaintiff did not restrain the dog from coming upon the defendant's premises, though requested so to do; and because the dog was upon the defendant's premises and about his dwelling-house at the time, &c., annoying, incommoding, and disturbing him and his family, and because the dog could not otherwise be restrained, the defendant killed him. This was held a good plea, on the ground that the noise of the dog was an intolerable nuisance, justifying the violent defence; that it would be a mockery to refer the defendant to the remedy of an action against the plaintiff, which would be far too dilatory and impotent for the exigency of the case; that the peace and repose of a man's family are to be regarded in Vol. II.] ALDRICH V. WRIGHT. [No. 2. the law as at least equal in value to the life of a dog; and that the death of the plaintiff's dog was essential to the free and perfect enjoyment by the defendant of his property, as well as to the protection and comfort of his family. But if the barking and howling had been continued by the plaintiff himself after the death of his dog, the difference between the legal values of human and canine life would have been a material circumstance to be considered, on the question of the reasonableness of the defendant killing the plaintiff as a method of abating the continued nuisance. Loomis v. Terry, 17 Wend. 499. There was just cause for killing the dog; but killing his owner for a like cause, according to the authorities, would be murder. The immense value at which the law appraises human life makes it legally reasonable that the destruction of it, as a means of averting danger, should be resorted to only when the danger is immense in respect of consequences, and exceedingly imminent in point of time. But the extent of danger and the degree of imminence requisite to justify a deadly defence against a human aggressor were not requisite to justify the act of the defendant in this case. On the question of the reasonable necessity of his act, the insufficiency and impracticability of other more tardy and less vigorous kinds of defence are to be considered. A violent ejection of a human trespasser from one's premises may be unnecessary, if the trespasser will depart when ordered off. It may be reasonable to notify him to leave before using violence to expel him, when a notice will evidently be as effectual as force. If an order is enough to accomplish the object, violence may be excessive; when a word is a sufficient defence, a blow may be an attack and not a defence. But this defendant was not bound to give these intruders notice to depart, because it would probably have been worse than useless. If, by noisy and harmless demonstrations, he had endeavored to make known his desire that they should retire from his premises and trouble him no more, they might well have taken the notice as a sign of present danger, and a warning to instantly secrete themselves. How large the pond and island were, and what was the character of that part of the country, the case does not inform us; but there probably was an abundance of secure retreats for such animals within gunshot. At all events, frightening them away might not be a reasonable task to impose upon the defendant. Their ability to quickly conceal themselves in that vicinity might be materially increased by their amphibious character. And it was not reasonably necessary for him to throw away his only opportunity of a feasible defence, by causing them to betake themselves to some near hiding-place, where they could safely await his departure. Taylor v. Newman, 4 B. & S. 89, was an action brought to recover a penalty imposed by statute for unlawfully killing a domestic pigeon. A farmer, annoyed by a flock of pigeons which were in the habit of feeding upon his land, notified their owner that he should be compelled in selfdefence to shoot them if they were not prevented from doing further injury to his crops. Finding them afterwards feeding in his field, he fired at them, and thereby caused them to rise, and then fired again and killed one of them. It was argued for the plaintiff, that the killing of the pig Vol. II.] ALDRICH v. Wright. [No. 2. eon after it had risen from the ground was an act unnecessary for the protection of the crops; but Mellor, J., said it would have been on the ground again after the firing of the gun was over. That was the objection to frightening the minks: they would have been on the ground after the frightening was over. In Evans v. Lisle, 7 C. & P. 562, where persons had climbed into a church tower and were ringing the church bells, an unsuccessful attempt was made to dislodge them with the fumes of burning brimstone. If such a method would have expelled the minks, the law of nature and reason does not enjoin the removal of one nuisance by the introduction of another. Howell v. Jackson, 6 C. & P. 723, was trespass for false imprisonment, brought against the keeper of a public house. The defence was, that the plaintiff conducted himself in a riotous, quarrelsome, disorderly, and uncivil manner, and committed a breach of the peace in the defendant's house, and, though requested to depart, refused so to do; and the defendant caused him to be taken into custody by a policeman, and removed to a watch-house, and detained until he could be taken before a magistrate. The policeman testified that he went into the defendant's house, and found the plaintiff and five or six other young men "skylarking, bonneting, and kicking up a rumption; and there was a piece-of-work." The verdict was for the defendant. The course taken by the tavern-keeper was not open to Mr. Wright. When a human trespasser, who disregards a notice to quit, can be expelled by gently laying hands upon him, it may not be reasonably necessary to use a higher degree of violence. In actions for assault and battery, a common justification is, that the plaintiff, though requested, refused to leave the defendant's close, whereupon the defendant molliter manus imposuit. But molliter manus imponere was one of the prime difficulties of this defendant. Besides, if he could have gently laid his hands on these creatures, what could he lawfully do with them? He would not be bound to support them in close confinement; and if he could not shoot them, he could not put them to death by starvation. He could not deposit them on the land of another person without making himself liable to an action of trespass. He might set them down on his own land or in the highway; but he would not expect them to stay there. If he carried them away a short distance, they would have a short distance to come back. Wood v. Gale, 10 N. H. 247. The further he carried them, the better opportunity they would have to return before him. If he could put them out of his premises, how could he keep them out? Cattle may be excluded by fences; and, when found damage feasant, may be impounded at their owner's expense: but these remedies were not adapted to the nature of this case. Neither was there a remedy in guarding the fowls day and night. The profit accruing from six old geese and eight young ones would not pay the expense of constant convoy. His property might as well be consumed by the minks as by the cost of a guard. But however small the value of the property, he had a right to protect it by means reasonably necessary reasonable necessity included a consideration of economy': and eternal vigilance, as the price of success in his limited anserine business, was not reasonable. According to the precedent of charging the watch Vol. II.] ALDRICH V. Wright. [No. 2. to bid any one stand, and, if he will not stand, to let him go, the defendant should have been thankful if the minks, when challenged, had gone off: but their halt at the island showed no inclination to go any considerable distance. What practicable method was there of protecting the geese in the peaceful possession and enjoyment of the pond? Without a resort to fire-arms, his situation would seem to have been full of embarrassment. The invasion of his premises was annoying: the legal perplexities, with which it is now claimed he was environed, had they been understood by him at the time, would have been distressing. If (as a jury would probably find the fact to be) it apparently was reasonably necessary for him to kill the minks in order to prevent their doing mischief to his property, the authorities do not show that he transcended the right of defence. Wadhurst v. Damme, Cro. Jac. 45, was trespass for killing a dog. The defendant pleaded that one Willoughby had a warren, whereof the defendant was warrener, and that the plaintiff's dog was divers times killing conies there, and therefore the defendant, finding him there running at conies, killed him. This was held a good plea; "because, it being alleged that the dog used to be there killing conies, it is good cause for the killing him, in salvation of his conies; for, having used to haunt the warren, he cannot otherwise be restrained." And Popham, C. J., said: "The common use of England is to kill dogs and cats in all warrens, as well as any vermin; which shows that the law hath been always taken to be, that they may well kill them." Athill v. Corbett, Cro. Jac. 463, goes to show that a dog is a kind of property, for the taking of which trespass lies; but the case is too imperfectly reported to be useful on any other point. In 2 Rol. Abr. 567, 1. 33, it is said that in Lewin's case it was held, if a man hunt with a dog in another's warren, the owner of the warren cannot justify killing the trespasser's dog with his own dog by his own incitation, which probably means that the owner of the warren could not justify killing the trespasser's dog without reasonable necessity; that, as a matter of fact, the intruder, upon notice, would be likely to withdraw with his dog from the warren, and so prevent his doing further mischief therein; or that, for some other reason, the evidence did not show the fact of reasonable necessity. Barrington v. Turner, 3 Lev. 28, was trespass for killing two dogs. The defendant pleaded that the dogs killed a deer in his park, upon which, to prevent more mischief by them, he took them and killed them. It was argued that the plea was bad; because, after the deer was killed, and the defendant had captured the dogs, it was not necessary to kill them: but the plea was held good. Wright v. Ramscot (1 Saund. 82, 84; 1 Sid. 336; 1 Lev. 216; 2 Keb. 237 ; 3 Salk. 139) was trespass for killing a mastiff dog with a knife. The defendant pleaded that the mastiff, in the street, ran violently upon and bit a dog of one Ellen Bagshaw; and the defendant, as her servant, killed the mastiff to save the other dog from being destroyed by the mastiff. This plea was held bad, because it did not allege that it was necessary to kill the mastiff to save the other dog. The purpose of saving the other dog was alleged; but the defendant's purpose in killing the mastiff Vol. II.] ALDRICH v. WRIGHT. [No. 2. was not equivalent to a reasonable necessity for killing him. Reasonable necessity was not alleged in general terms; nor was it alleged that the defendant could not otherwise part the dogs or take off the mastiff; nor were any facts alleged which, in the ancient strict construction of special pleading, could make a case of reasonable necessity. The decision, therefore, is not an authority against the doctrine of reasonable necessity; nor does it show what weight should be given to that contrast of values and consequences which would have helped to determine whether it was reasonably necessary to kill the mastiff if he had attacked something more valuable than another dog. Keck v. Halstead, Lutw. 1494, was trespass for killing a dog. The defendant pleaded that the dog was very fierce, and accustomed to bite mankind, whereof the plaintiff had notice; that the dog entered the defendant's yard many times, and went back and forth through the yard barking and growling, and remained there a long time, namely, an hour at least each time, so that the defendant and his family, from fear of being bitten by him, did not dare to go into the yard at those times to do their lawful business there freely and without fear or danger; that the defendant gave the plaintiff notice, and requested him to restrain the dog from entering the yard any more, to do which the plaintiff wholly neglected and refused; that the dog, unmuzzled, afterwards again fiercely entered the yard, and there remained, so that the defendant and his family, from fear of the dog and the danger of being bitten by him, did not dare to go into the yard to do their lawful business there; that the defendant, for that cause, could not have any use of his yard without killing the dog; wherefore he shot the dog, then being in his yard, for the security and preservation of himself and his family. After verdict for the defendant, on motion of the plaintiff in arrest of judgment, this plea was held good. Janson v. Brown, 1 Camp. 41, was trespass for shooting a dog. The defendant, having pleaded the justification that the dog was worrying and attempting to kill a fowl of the defendant, and could not otherwise be prevented, offered to prove that just before the dog was shot, being accustomed to chase the defendant's poultry, he was worrying the fowl in question, and that he had not dropped it from his mouth above an instant when the piece was fired. Lord Ellenborough ruled that this would not make out the justification; to which it was necessary that, when the dog was shot, he should have been in the very act of killing the fowl, and could not be prevented from effecting his purpose by any other means. This ruling required the evidence to conform very strictly to the plea, which alleged that the dog was attempting to kill the fowl, that is, was making the attempt at the very moment he was shot. But whether a plea that it was reasonably necessary to kill the dog to prevent his killing the fowl would have been a good plea, and whether the evidence offered would have been competent to be submitted to the jury in support of such a plea, were points not raised or considered. Upon the evidence offered, the jury might have found that the fowl, although dropped for an instant, was in danger of being immediately caught up again and killed, and so was in imminent peril; and it would be strange if a plea could not be so drawn as to state a good defence in such a case. The dog might have been lawfully killed when he had the fowl in his mouth; Leonard v. Wilkins, 9 1 a |