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Vol. II.]

ALDRICH v. Wright.

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Johns. 233; and the fowl being wholly or partly in his mouth, or an inch, a foot, a rod, or twenty rods distant, is all a matter of degree and of fact for the consideration of the jury, on the question of the danger and the reasonable means of protecting the fowl.

Vere v. Cawdor & King, 11 East, 568, was trespass for shooting a dog. King pleaded that he was Lord Cawdor's game-keeper; and because the dog was in Cawdor's manor, running after, chasing, and hunting divers hares, he shot him for the preservation of the said hares. This plea was held bad. It might have been properly held bad (as suggested by Lord Ellenborough who delivered the opinion), because it did not state that the hares were put in peril so as to induce any necessity for killing the dog. But the decision appears to have been put on some other ground, not distinctly reported. It was held that the dog did not incur the penalty of death, and that the game-keeper had no right to kill him for running after the hares. The question whether the dog was putting them in imminent peril seems to have been regarded as immaterial. It may have been so held on the ground suggested by Le Blanc, J., during the argument, that the hares, not being reduced to possession like rabbits in a warren or deer in a park, were not the property of the owner of the land. In wild animals alive, fully grown and free, not domesticated, inclosed, or confined, which have in themselves a principle and power of motion, and can convey themselves from one part of the world to another, a man can have no absolute property. 2 Bl. Com. 389, 390, 411; 4 Bl. Com. 235'; Com. Dig. title Biens (F); Bac. Ab. title Game; 3 Gr. Ev. sec. 163; Roscoe Cr. Ev. 454; Hannam v. Mackett, 2 B. & C. 934; Blades v. Higgs, 12 C. B. (N. S.) 501; 13 Ib. 844, 866; Norton v. Ladd, 5 N. H. 203. And the decision in Vere v. Cawdor & King may have been that, at common law, King had no right to kill the plaintiff's dog in defence of hares to which Cawdor had no title that he could set up against the dog; and that King, as Cawdor's game-keeper, was authorized, by the English statutes in relation to game, to "take and seize" the dog, but not to kill him. 22 & 23 Car. 2, c. 25; Bac. Abr. title Game; Deane v. Clayton, 7 Taunt. 506, 511, 512, 517. Whatever the ground of the decision was, the case does not define the imminence of the danger which, at common law, justifies violence in the defence of property which the owner has a right to defend. Wells v. Head, 4 C. & P. 568, was an action for shooting a dog. The dog had worried some sheep belonging to the defendant, but had left the field in which the sheep were, had crossed an adjoining close, and was in a third when the defendant shot him. Alderson, B., ruled that the plaintiff was entitled to a verdict, and said it was clear that the dog was not shot in protection of the defendant's property, as it was after he had left the field in which the sheep were. It might have been proper for the jury to find that, as a matter of fact, upon peculiar circumstances in that case, the dog was not likely to return and renew his attack, and that the danger had ceased; although a jury, acquainted with the inveterate and irresistible impulses of sheep-killing dogs, would probably be slow in arriving at that conclusion. If the ruling had been intended to require the defendant to leave his sheep in jeopardy while he went to give notice to the plaintiff, or to stand guard over them and to wait for a renewal of the attack when he would be likely to kill the sheep by firing at the dog, the

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ALDRICH V. WRIGHT.

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law, which allows everything reasonably necessary to be done in defence, would not have been properly applied in that case; but Baron Alderson seems merely to have declared that, as a matter of fact, the sheep were in no danger. Reports of such cases may mislead us if we follow the English habit of disregarding the distinction between law and fact, or take it for granted that every reported case contains something more than an opinion of a court on a question of fact.

Protheroe v. Mathews, 5 C. & P. 581, was trespass for shooting a dog. A tram-road for coal wagons running through the park of one Morgan was also used as a foot-way, and was not fenced off from the park. The dog followed three women who were walking along this road, ran off the road, chased deer in the park, and then returned to the women in the road, and lay down within twenty yards of the gate by which the women were going to leave the park; and in that situation the dog was shot by the defendant, who was a servant of Morgan. Taunton, J., instructed the jury that it was not essential to the defence that the dog should have been chasing the deer at the very moment he was shot; that it was sufficient if the chasing of the deer and the killing of the dog were all one and the same transaction; but that, if the chasing was at an end, and would not have been recommenced, the plaintiff was entitled to a verdict. In the present case, it was a question of fact for the jury whether the chasing of the geese was at an end, or whether it was likely to be recommenced.

Morris v. Nugent, 7 C. & P. 572, was trespass for shooting a dog. The defendant pleaded that the dog attacked him, and would have bitten him had he not defended himself. As the defendant was passing the plaintiff's house, the dog ran out and bit the defendant's gaiter; on the defendant's turning round and raising a gun which he had in his hand, the dog ran away; and as he was running away, and before he had got more than five yards off, the defendant shot and killed him. Lord Denman ruled that the plaintiff was entitled to a verdict because the dog was not attacking the defendant when he was shot. The defendant, in pleading, put his case on the ground that the dog would have bitten him if he had not defended himself; and Redfield, C. J., in Brown v. Carpenter, 26 Vt. 643, suggests that Lord Denman's ruling was made upon the form of the issue rather than the law of defence. As As a matter of fact, it might not have been absolutely necessary to kill that dog at that time; but the defendant's right of defence was to do what apparently was reasonably necessary, and, time enough having elapsed for the dog to run not more than five yards, it was a question for the jury whether the defendant, in the excitement and confusion of so sudden an attack and retreat, had such reasonable apprehensions as to justify his shot. In some respects, there was less urgency in his case than there was in Wells v. Head. He could have gone to the plaintiff's house and given notice to restrain the dog; or, he could have gone about his business, without leaving unprotected sheep behind him; if the attack were renewed, he could fire at the dog without pointing his gun at himself; and the carniverous and blood-thirsty disposition of the dog might be less excited by biting a gaiter than by biting a sheep. But whether the defendant was bound to be in a state of mind favorable for giving due weight to such considerations may be questionable.

King v. Kline, 6 Pa. St. 318, was an action for killing dog. The de

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fendant proved that the dog was vicious, ferocious, and unruly, and had come upon his premises and abstracted some fish from the wall of his house where they had been hung to dry. The defendant set a trap at that place, and the dog coming again was caught, and shot by the defendant. The court instructed the jury if they believed the evidence given by the defendant, it was not of that nature which authorized him to kill the dog. This instruction was held erroneous.

Parrott v. Hartsfield, 4 Dev. & Bat. 110, was trespass for killing a dog. The defendant proved that the dog had killed some of his sheep in his pasture; the defendant, being notified of the fact, went in pursuit with a gun; the dog escaped at that time, but returned about two hours afterwards to the premises of the defendant, and was near the pasture fence where the sheep were, when the defendant saw him and immediately shot him. The plaintiff insisted that in order to support the plea of justification, the defendant must prove that he could not otherwise preserve his sheep than by killing the dog, or that the dog was shot in the very act of killing the sheep. The court instructed the jury that the defendant was justified in killing the dog, if the evidence satisfied them that the dog had destroyed the sheep, and had returned two hours thereafter, and was on the premises of the defendant near his pasture, under circumstances calculated to produce a belief, in an ordinary man, that the dog was lurking about the inclosure to commence again the work of destruction, and was killed under a reasonable apprehension that it was necessary, to prevent a repetition of the mischief. The defendant had a verdict and judgment, and, on appeal, the instructions were held correct, Gaston, J., delivering the opinion of the court. It had happened that the dog killed some of the defendant's sheep: but that was merely a piece of evidence bearing upon the question of reasonable apprehension, which was a question of fact for the jury if he had been interrupted before overtaking the objects of his pursuit, as the minks were in the present case, the pursuit would have been evidence on which the jury might have found danger, or a reasonable apprehension of it.

Perry v. Phipps, 10 Ired. 259, was trespass for killing a dog. The defendant, going into the plaintiff's yard, would probably have been bitten by the plaintiff's dog if the dog had not been driven off by the plaintiff's family; while the dog was retreating, and at the distance of ten steps from the defendant, the defendant shot him. The court instructed the jury that they might infer that the defendant did not shoot the dog to protect himself; and it was held that the circumstances were properly left to the jury as evidence on which they might find that the defendant did not act on the defensive.

Morse v. Nixon, 6 Jones (N. C.), 293, was trespass for killing a hog. For the purpose of showing that it had the reputation of a chicken-eating hog, the defendant proved that it had killed one chicken, and attempted to kill another. It does not appear whose chickens they were, or when they were attacked; it is to be inferred from the decision that they were not the defendant's. There was evidence that the hog, when killed, was about seventy-five yards from the public road, near the fence of the defendant, where his chickens were in the habit of running. There was no evidence that the hog, at the time it was killed, was in the act of doing

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any injury to the defendant or his property. The court charged the jury, that if they believed the hog was of a predatory character, and had the character of a chicken-eating hog, then they would find for the defendant, as any man had a right to abate a public nuisance. These instructions were held erroneous. And they clearly were erroneous in holding, as matter of law, that a hog of a predatory and chicken-eating character was a public nuisance which any man had a right to abate, without regard to the reasonable necessity of the particular case. The decision recognizes a distinction between the reasonable necessity of killing a hog, and the reasonable necessity of killing a dog.

It has been held that a dangerous dog running at large is a common enemy and a nuisance, and that his destruction is justifiable, though not necessary to prevent any mischief impending at the moment. Putnam v. Payne, 13 Johns. 312; Hinckley v. Emerson, 4 Cow. 351; Loomis v. Terry, 17 Wend. 500; Maxwell v. Palmerton, 21 Wend. 407; Dunlap v. Snyder, 17 Barb. 566; Brown v. Carpenter, 26 Vt. 638; Bowers v. Fitzrandolph, Addison, 215; King v. Kline, 7 Pa. St. 318; Dodson v. Mock, 4 Dev. & Bat. 146; Perry v. Phipps, 10 Ired. 261; Woolf v. Chalker, 31 Conn. 121, 128, 130; Parker v. Mise, 27 Ala. 483. This class of cases, understood as maintaining the right of destruction when its exercise is a reasonably necessary protection of the persons or property of those claiming the right, or of the persons or property of others for whom they are, in law or in fact, authorized to act-3 Bl. Com. 5; 1 Bishop Cr. L. secs. 716-721, 851, 877; Fuller v. Bean, 30 N. H. 181; Graves v. Shattuck, 35 N. H. 269; A. M. Co. v. Goodale, 46 N. H. 56; Brown v. Perkins, 12 Gray 89; Morse v. Nixon, 6 Jones (N. C.), 295- seems to be unobjectionable. In dealing with the right of defence, courts have fallen into some conflict and confusion, as courts always will when they inadvertently turn a broad question of fact into a narrow question of law. It is easy to abandon the comprehensive rule of the reasonable necessity of the case, which is the whole law of defence; but it is not so easy to invade the province of the jury, and establish a legal test of reasonable necessity exactly adapted to the peculiar circumstances of every case that can arise.

The tests of reasonable necessity, which have been applied to cases of defensive homicide, cannot be applied to the defensive killing of minks. The authorities are, that a man may oppose a deadly resistance to a felonious attack, but not to a mere trespass (a trespass against a man's castle 2 being sometimes excepted; 3 Gr. Ev. sec. 117; 1 East P. C. ch. 5, sec. 56; Com. v. Drew, 4 Mass. 391, 396; Ros. Cr. Ev. 770; 1 Bishop Cr. L. sec. 858, 5th ed.). A man, in defence of his possession of land or goods, "may justify an assault and battery; but he cannot justify either mayheming or wounding, or menace of life and member; and so note a diversity between the defence of his person and the defence of his possession or goods." 2 Inst. 316. Where the trespass is barely against property, "the law does not admit the force of the provocation sufficient to warrant the owner in making use of any deadly or dangerous weapon." 1 East P. C. ch. 5, sec. 56. But a man, upon whom or whose property another manifestly 2 Horrigan & Thompson Cases on Self-Defence, 795-862. — REPORTER.

1 Horrigan & Thompson Cases on Self-Defence, 738-757.- REPORTER.

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intends to commit a known felony by violence or surprise, is not obliged to retreat; on the contrary, he may pursue his adversary, and kill him if necessary to prevent the felony. 1 East P. C. ch. 5, secs. 44, 45; 3 Gr. Ev. sec. 115; 4 Bl. Com. 180; Fost. Cr. L. 274.

"Where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting; " but "the law of England" will not "suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death." 4 Bl. Com. 181, 182; 1 Bishop Cr. L. sec. 849, 5th ed. The rule generally laid down is, that a deadly resistance is lawful only against an apparent forcible felony, the idea of felony being "so generally connected with that of capital punishment that we find it hard to separate them." 4 Bl. Com. 98. "It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death." 4 Bl. Com. 18. So long a list might perhaps be made to enumerate all, and even more than all, the attacks which it would ordinarily be reasonably necessary to resist unto the death of the attacking party; but such a list, attached as a limitation to the doctrine of defence, would be an attempt to turn the fact of reasonable necessity into an absolute and arbitrary schedule of legal rules that would be likely to operate very unjustly in some cases, because of the difficulty of foreseeing and providing for the infinite variety of circumstances and the illimitable diversity of considerations that might be involved in so broad a question as the kind, degree, and time of defence reasonably necessary for person or property. If the rule stated by Blackstone were adopted, and defensive homicide were allowed only to prevent a capital crime, it would not be allowed in any case in this state at the present time, except when necessary to prevent murder in the first degree. Such is not understood to be the law. Gray v. Coombs, 7 J. J. Marsh. 478. If the old English list of one hundred and sixty capital crimes were the legal catalogue of attacks to which, when violent, a deadly resistance might be made, the law would be very different from what it is now generally supposed to be..

If, according to the general rule of the common law authorities, it may be reasonably necessary, for the reason stated by Blackstone, to kill a man only to prevent his committing a capital crime, how can the rule survive the reason on which it was founded? If, by some inscrutable process, it does survive, if the distinction between a felony and a mere trespass is still a test, this defendant, although he might kill a man if necessary to prevent his forcibly committing the felony of stealing a goose; 4 BĬ. Com. 237; Lyford v. Farrar, 31 N. H. 314; yet could not kill him to prevent his stealing things of far greater value, being real or savoring of the realty, or bonds, bills, notes, or other evidences of or securities for debts or other choses in action; 4 Bl. Com. 232, 234; 1 Hawk. P. C. ch. 33, secs. 21, 22; or committing a vast amount of malicious mischief. 4 Bl. Com. 243; Com. v. Keith, 8 Met. 531. If such recondite, arbitrary, and irrational tests are to be employed, the right of defence, guaranteed by the Constitution as a natural, essential, and inherent right, is a very unnatural and dangerous one; for, in a great number of cases, however

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