We

damages as were occasioned by such excessive use of force." discover no prejudicial error. The judgment will be affirmed. The other justices concurred.

SUB-TOPIC B. BY TRESPASS TO PERSONALTY

573. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, p. 517.) "Trespass" (I, a). In trespass of entering his close, and killing two mastiffs, the defendant pleads that they were set upon his hogs and were like to kill them, to prevent which he entered into the said close, and killed the mastiffs. And, per HALE, Ch. J., the justification of killing the mastiffs is well enough; for one cannot set mastiffs upon pigs to kill them, but he may hunt them with a little dog. Freeman, Rep. 347, pl. 432. Mich. 1673. King v. Rose.

574. JOSEPH STORY. A Selection of Pleadings in Civil Actions. (2d ed., 1829, p. 612.) [Trespass for killing a mastiff of the plaintiff.] Plea. As to the coming with force and arms etc., not guilty. And as to the residue of the said trespass, in the said declaration above supposed to be done, he the said D. says, actio non etc., because he says that the plaintiff, on etc., at etc., did suffer the said mastiff to remain and walk in the streets in the town of etc., aforesaid not muffled, and by reason thereof, the said mastiff did run violently in and upon a certain dog of one A. A., widow, and did then and there bite the said dog, which said dog the said A. A. then and there kept in her dwelling-house for the preservation of her said house; and the said D., being servant of the said A. A., because he could not otherwise part or take off the said mastiff from worrying and injuring the said dog of the said A. A., did then and there kill the said mastiff, lest he should do any further mischief; and this he is ready to verify: Wherefore, etc. 1 Saund. 83. Note. The part in italics was omitted in the pleading in Saunders, and for that reason on demurrer it was adjudged bad. It was conceded, that the principle of the plea was right, and was a good defence. Wright v. Ramscot, 1 Saund. 84.

575. BRENT v. KIMBALL

SUPREME COURT OF ILLINOIS. 1873

60 Ill. 211

APPEAL from the Circuit Court of Warren County; the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. Batcheldor, and Messrs. Phelps & Stewart, for the appellant. Mr. John Porter, and Messrs. Glenn & Willits, for the appellee. Mr. Justice McAllister delivered the opinion of the Court: This was an action of trespass, brought by appellant against appellee. for the alleged wrongful killing, by the latter, of appellant's dog. The evidence shows, without conflict, that as the dog in question was passing along the highway, some boys scared him into appellee's yard, whereupon the latter came out with his gun and shot him.

1. Appellee does not pretend, in his evidence, that the dog, at the time of the killing, was doing any mischief to person or property, but claims (more, as it seems, upon suspicion than knowledge) that the dog had previously destroyed his hens' nests or eggs. If the dog had a vicious habit, and appellant had previous notice of it, an action would lie against him for the homage done by his dog. But it does not follow that the party injured may justify the killing of a breachy animal for breaking into his corn.

2. The section second of St. 1853 authorizes any person, who shall discover any dog in the act of killing, wounding, or chasing sheep, or discover such dog under such circumstances as to satisfactorily show that the dog had been recently engaged in killing or chasing sheep for the purpose of killing them, to immediately pursue and kill such dog. ... Except in the cases where a dog is discovered in the act of killing, wounding, or chasing sheep, or under such circumstances as to satisfactorily show that he has been recently so engaged (the cases provided for by the statute), and except where he has been recently bitten by another dog which is mad, or may be reasonably supposed to be so, or where a dog is ferocious and attacks persons, we do not know that any one, besides the master, has a right to kill it. Hinckley v. Emerson, 4 Cow. 351, and cases there cited. Judgment reversed.

576. THRONE v. MEAD

SUPREME COURT OF MICHIGAN. 1899

122 Mich. 273, 80 N. W. 1080

ERROR to Circuit Court, Hillsdale County; Guy M. CHESTER, Judge. Action by Lewis Throne against Dennis Mead. Judgment for plaintiff, and defendant appeals. Reversed.

Sampson & Barre, for appellant. W. D. Fast and A. L. Guernsey, for appellee.

MOORE, J. August 11, 1897, John Barger, at the request of the defendant, shot two dogs, one of which belonged to the plaintiff. Suit was brought by plaintiff against the defendant. From a judgment obtained by him, the defendant has appealed.

The record discloses that plaintiff was the owner of a sprayed bitch dog, about four years old, which he testified he kept chiefly for hunting minks and coons. He says he kept her tied up nights, and a good deal of the time in the daytime. He testified he never knew she worried or killed any sheep. It was shown by some of the witnesses for the plaintiff that the dog was frequently away from home, and among flocks of sheep. One of them testified that, previous to the shooting of the dogs, he had seen them chasing sheep belonging to the defendant. He saw the dog which was shot grab a buck belonging to Mr. Jackson, and soon thereafter the sheep was found dead. It was shown on the

part of the defence that, shortly before the two dogs were killed, they killed a buck and several lambs belonging to Mr. Jackson, whose farm adjoined the farm of Mr. Mead, and in July they chased the sheep of Mr. Parker, another neighbor, who drove them away. The defendant had a flock of lambs he had weaned, which he kept west of his house. He saw the dog belonging to the plaintiff chasing these lambs the first week in August, and got his gun to shoot her, but she got away before he could do so. Before the dogs were killed, the plaintiff had been told about their killing the buck and lambs belonging to Mr. Jackson. On the morning the dogs were killed, their owners were not with them. The defendant did not see the dogs until after they were killed, but his attention was called to the fact that they were on his premises, by Mr. Barger; and when he got the gun he knew it was for the purpose of shooting the dog that had chased his sheep and killed the sheep belonging to Jackson.

It is claimed by counsel for plaintiff that as the dogs had not done or threatened to do, any damages to defendant's sheep on the day when they were shot, he had no right to kill them; citing Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 17 L. R. A. 773. An inspection of the case will show it is not in point. If the defendant had shot the dog when he saw him chasing his lambs the week before, he would have acted strictly within the provisions of the statute (Miller's Compiled Laws, § 5592). Had Mr. Mead notified the plaintiff in writing of what his dog had done to the lambs in August, it would have been his duty to have had the dog killed within 48 hours, and he would have subjected himself to a penalty for a failure to do so. This would have been equally true if Mr. Jackson or Mr. Parker had given him a like notice of what the dog had done to their sheep. The statute does not regard with much favor a sheep-killing dog. When the owner of sheep sees a pair of sheep-killing dogs in his inclosure, unaccompanied by any person, and has caught one of them, a few days before, chasing his lambs, he is not obliged to wait until they have again begun their cruel work, before he can take effective measures to protect his property. Under the undisputed facts in the case, a verdict should have been directed for defendant. See Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209, 15 L. R. A. 249. Judgment is reversed, and no new trial given. The other justices concurred.1

Topic 3a. Recaption of Personalty

577. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1763-1765, Book III, p. 3.) Recaption, or reprisal, is another species of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he

1 [For annotations to Topic 3, see the citations to No. 583, post.]

happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed, or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again, without force or terror, the law favors and will justify his proceeding. But, as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is proved, that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or public inn, I may lawfully seize him to my own use: but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.

SUB-TOPIC A. BY BATTERY

578. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, p. 427.) "Trespass" (E). A. takes B.'s horse. B. the same day requested A. to re-deliver it, but A. refused. B. said, if A. would not deliver him, he would take it in spite of his teeth; and takes up a stick lying on the ground, and made towards A. with the stick. This is an assault justifiable. Kelw. 92, pl. 4, 22 H. VII, Anon.

579. STATE v. ELLIOT

SUPREME COURT OF JUDICATURE OF NEW HAMPSHIRE. 1841

11 N. H. 540

COMPLAINT for an assault and battery, which was tried before a justice of the peace, and was brought to this court by appeal of the respondent.

On the trial it appeared that the complainant, one Mrs. Moore, had formerly lived, with the permission of the owner, in a small tenement some four or five years, paying no rent, and that there were no windows in it. Mrs. Moore testified that she was informed by the owner, that if she would procure windows for the house, she might remove them when she left. She procured the windows and had them fitted to their places in the house. Before March, 1838, the owner died, and she, as directed by the agent of the administrator, left the premises in the spring of 1838, claiming the windows, the agent telling her, before she left, that if there was such an agreement in relation to them as she alleged, it would be abided by, but that he could give no authority to her at that time to take them. . . . The farm and

building was sold to a Mr. Jackman, without any reserve of the windows; and Elliot, the respondent, went into possession as tenant of Jackman, neither of them having any notice of the complainant's claim. Some six months after the respondent had so held possession, Mrs. Moore came there when he was absent in the field, and took out the windows, no opposition being made or leave given her, and she left with them. The respondent coming in and learning the facts, pursued her; and when she had proceeded about one hundred rods, overtook her, stopped her horse, and turned him partly around, seized the windows, claiming them as his; and after some struggle and violent language on his part, forced the windows from her, causing some injury to the complainant, but using no more violence than was necessary to regain possession of the windows. He then took the windows home and replaced them in the building..

...

The Court instructed the jury that the respondent could not legally retake the windows in the manner before stated, and that the acts testified to were sufficient to sustain the complaint for assault and battery. A verdict was thereupon taken, by consent, against the respondent, and motion was made to set the same aside for misdirection of the Court.

Goodall, for the respondent. . . . After the property was illegally taken from the possession of the respondent, he might lawfully retake it, using no more violence than was necessary for this purpose. . . . Blaisdell (Solicitor), for the State. . . . Under such circumstances the respondent had no right to retake them by force, but was limited to his civil remedy.

...

The

UPHAM, J. The defence in this case is a justification. question arising is, whether the justification is made out. . . . The windows passed by deed, and the respondent was in actual possession of them as parcel of the premises conveyed, when they were dissevered from the house by the complainant without leave or authority from any one. . . .

The case becomes, then, a question as to the extent of violence which may be exerted by the owner or his agent in reclaiming property taken from him by a wrongdoer, under a mistaken claim of title, and where the retaking attempted is immediately consequent on the taking.

...

It is a well settled principle of law that, in certain cases of necessity, a party injured is allowed to seek his own remedy; to retake his property; to repel force by force; to abate nuisances, &c. . . A power of retaking property, under certain circumstances, is necessarily incident to the protection of the above rights. But this right of recapture of property is far more limited than its defence when in our actual possession.

Where the property is immediately followed for recapture from the individual taking it, the same rule for the most part holds as in the defence of property in possession; the controversy is immediately