Simmonds v. Holmes. facts, which do not appear in a case and which neither party has attempted to prove, and in regard to which evidence would be inadmissible because at variance with any issue raised by the pleadings. Ward v. Henry, 19 Wis., 91; Allen v. City of Chippewa Falls, 52 id., 430; Bower v. Earl, 18 Mich., 367; Harris v. Wilson, 1 Wend., 511; Hollister v. Johnson, 4 id., 639. 3. The wrong is doubly apparent in this case, for § 3757, not having been pleaded by the defendant as a defense, there was no opportunity for the plaintiff to reply, under § 3755, that this was a registered dog, (a fact, though not put in issue or tried,) and therefore not to be killed unless in the protection of life or property. Had this statute been pleaded as a defense, there still would have been error in the charge, for the reason that § 3757, passed in 1875, is materially changed by § 3755, passed in 1880. These two statutes together must be construed to mean that only unregistered dogs doing or attempting to do mischief can be killed, following the strict letter of the statute, without any reference to what "any mischief" may mean. 4. If the statute is to be taken literally, and the charge of the court is correct, that "the amount of mischief is not made a matter of consequence by the statute; any mischief is enough," then it is unconstitutional, as it is unnecessarily authorizing the destruction of private property without reason and without recompense. Arbitrary destruction of private property can never be justified except under the exercise of the police power, and that power must be exercised to prevent a danger that is reasonably imminent; and the measure must not be more harsh in its operation than is reasonably necessary, or supposed to be necessary, to prevent such danger, and also must never be used as a pretext for the wanton destruction of property. Austin v. Murray, 16 Pick., 126; In re Jacobs, 33 Hun, 375; S. C., 98 N. York, 98. Since the original passage of the act the status of the dog before the law, and his value in open market, have greatly changed. Neither facts nor reason now permit of different treatment being accorded him from that given to 1 Simmonds v. Holmes. other beasts, except so far as protection from his teeth is concerned. If the fact was proven that this was an unregistered dog, the charge would still be wrong. The statute, like all others, must be reasonably construed. The evil to be remedied and the means needed to remedy it, must be considered. The charge, without reference to § 3755, should have informed the jury that the dog could be killed to prevent him from doing mischief, if such a measure were necessary for that purpose, and the mischief which he was doing was so considerable as to warrant such an extreme course. It cannot be so that "any mischief is enough," or that "if the dog was found doing or attempting to do mischief, he was properly killed, whether this was necessary or not." 5. The statute as originally passed was nothing but an affirmance of the common law, and a provision that the remedy furnished by that should not be taken away by implication by the prior portion of that same statute giving the selectmen power to order dogs confined. The terms of the statute as originally passed were, "But nothing in this act shall be construed to prevent any person from killing any dog found mad or justly suspected to be mad, or that should be found doing mischief or attempting to do the same, when alone out of the possession of his owner and distant from the care and control of any person having the charge of such dog." Revision of 1750, p. 320; Revision of 1784, p. 237. A change made by the compilers of a statute in an attempt at more conciseness cannot be held to make a change in the meaning, unless some very plain reason is given for the departure. Moors v. Bunker, 9 Foster, 421; Hughes v. Farrar, 45 Maine, 72; Douglass v. Howland, 24 Wend., 45; Quinebaug Bank v. Tarbox, 20 Conn., 518. It follows then that the right to kill is only that furnished by the common law as raised by the pleadings, and could not have been greater even if the pleadings had been different. This right is only to be exercised in the protec tion of property, and only when necessary for that purpose, and that, too, subject to the further restriction that the relative difference in value between the dog and the prop Simmonds v. Holmes. erty injured must be taken into consideration. Perry v. Phipps, 10 Ired. Law, 259; Brill v. Flagler, 23 Wend., 354 ; Anderson v. Smith, 7 Ill. App., 354; Morse v. Nixon, 6 Jones Law, 293; Hinckley v. Emerson, 4 Cow., 351; Brent v. Kimball, 60 Ill., 214. Such also was the English law. Wright v. Ramscol, 1 Saund., 84; Vere v. Lord Cawdon, 11 East, 569. In no case in the books can it be found to have been exercised except against such injuries as are inflicted by the teeth of the dog and not by his feet. In a somewhat similar case in Illinois, the court ruled that such a right did not exist against a wild animal partially tamed, whose incursions into an enclosed field were much more startling in their effect than those of this dog in the lot in question. Ulery v. Jones, 81 Ill., 403. S. Judson, Jr., for the appellee. LOOMIS, J. This is a complaint to recover damages of the defendant for killing the plaintiff's dog. The defendant in his pleadings and upon the trial admitted the killing of the dog, but left it to the plaintiff to prove his own title and right to bring the suit. The defendant also alleged in his answer four special defenses by way of justification of his act. The second and fifth defenses were based on the alleged fact that the dog was, when killed, and long had been, a common and intolerable nuisance, both to the defendant and to all the people in the neighborhood. These defenses were practically eliminated from the case by the ruling of the court; so that only the third and fourth are important for our present discussion. They are as follows: "Third Defense. Said dog was at the time of said shooting, and had been for a long time previous thereto, engaged in doing mischief on the premises of the defendant, and was greatly injuring his crops, and the shooting of said animal was necessary to the protection and preservation of his property. "Fourth Defense. That said dog was at the time of said. shooting found at large, and was a stray dog, without any Simmonds v. Holmes. claim of ownership therein by the plaintiff, who, if ever the owner thereof, had abandoned any property rights in the same." The plaintiff demurred to the third defense on the ground that a dog may not be killed for any injury to inanimate property, which the court overruled, and the plaintiff then replied specially to that defense as follows: "The only mischief done by said dog at the time of the shooting was to lie down upon the herbage of the defendant, where he was, and for some time previous to said shooting had been, lying down fast asleep and quiet, doing no damage to said herbage except to press the same down with his body, from which position it would readily rise when the dog should move. Said dog could readily have been driven. from the place where he was so lying, and said shooting was not necessary either to protect or to preserve said property." The allegations of the fourth defense were denied. The questions for review, as presented by the assignments of error, relate solely to the instructions given by the court to the jury. The plaintiff requested the court to charge the jury as follows: "1. If the defendant might have defended his property from the attack of animals, he must do so in a reasonable way, and must take into consideration the relative value of the thing about to be destroyed and the animal which he injures. "2. In order to justify the defendant in killing the dog, such killing must have been necessary to protect and preserve his property from present injury. No injury done by the animal in the past would justify the defendant in killing him. "3. If the dog was doing no new damage at the time he was shot, the killing would not be justified, even to protect the crops of the defendant from injury from that particular dog at a future day, as the defendant would not be justified. in shooting the dog from any apprehension of future trespasses by him. "4. If the defendant had any good reason to suppose that the dog would in the future trespass upon said crops, it was Simmonds v. Holmes. his duty to use reasonable diligence to find the owner, so that the dog might be restrained by him. "5. If the trespass committed by this dog was of the same nature as that which would be committed by any domestic animal, then no greater right existed in the defendant to kill him than he would have in the case of a horse or a cow or any other domestic animal." The assignment of errors is as follows: 6 "1. The court erred and mistook the law in refusing to charge the jury as requested by the plaintiff, and by charg ing instead, as appears from the charge, from the law applicable to this case is found both outside of and in our statute book,' to 'and upon all of these considerations and facts you must arrive at a conclusion as to whether it was reasonably necessary for Mr. Holmes at that time to kill the dog in order to protect his property, because, if it was, he had a right to do as he did,' inclusive. "2. The court erred and mistook the law by charging as follows: The law as I have explained it to you hitherto is the common law upon the subject. Our statute, however, prescribes a different aud further rule. All dogs found doing or attempting to do mischief, when not under the care of any person, may be killed. To repeat, all dogs found doing or attempting to do mischief, when not under the care of any person, may be killed. You will observe that there are here two pre-requisites to the right of killing. One is that the dog must be found doing or attempting to do mischief; the other is that he must be away from under the care of any person. It is not claimed in this case that the dog at the time of the killing was under the care of any person; and therefore you are to determine whether he was found doing or attempting to do mischief. You will observe that if the killing comes within the permission of this statute, the killing need not have been necessary. If the dog was found doing or attempting to do mischief, the killing need not have been necessary; and therefore if this dog when shot was found doing or attempting to do mischief, the defendant had a perfect right to shoot him, even if the |
