
    John J. Hodges v. Ward L. Causey.
    1. Doas. Killing. Trespassing.
    
    Notice by plaintiff to defendant to keep off of the latter’s premises with his dogs, will not alone justify the former in killing a dog of the latter running through rows of mature' corn, even if defendant apprehended that the animal would speedily pass into and damage open cotton standing in the same field.
    2. Same. Property. Right to 7cill. Nature and instincts.
    
    The owner of a dog can maintain an action against a person who wrongfully kills it; but when the right to kill a trespassing dog is in question, the nature and instincts of the animal may properly he considered.
    3. Same. Proof of value. Opinions.
    
    The owner of a dog wrongfully "killed by defendant is not compelled to prove its market value: if it has no market value, he may prove its special value to him by showing its qualities, characteristics and pedigree, and may, as to value, offer the opinions of witnesses who know such qualities, etc.
    From: the circuit court of Sunflower county.
    HoN. F. A. Mosttgomeey, Judge. •
    Hodges, the appellant, was the plaintiff in the court below; Causey, appellee, was defendant there. The suit was an action of trespass for-the killing by defendant of plaintiff’s dog — an English deerhound.
    At the trial of the case defendant’s evidence showed, or tended to show,-that at the time of the killing the dog was running through defendant’s field, and that the killing was done to prevent the. dog from damaging appellee’s cotton, which was in the same field with the corn, through the rows of which •the-dog was running; that appellant had been notified twice to keep his dogs off of appellee’s farm.
    The first instruction given by the court for defendant is as follows; “The court instructs the jury that the plaintiff must prove the market value of the dog to their satisfaction, by a preponderance of the evidence, or they will find for the defendant.”
    The second instruction given for defendant was this: “The court further instructs the jury that if they believe from the evidence that Causey gave the plaintiff actual notice to keep off his premises with his dogs, then Causey had a right to kill the dog if she was damaging his crop, and he could not otherwise prevent her running through the field.”
    The plaintiff’s instructions as asked were modified by the . court so as to make them harmonious with the defendant’s instructions above quoted. The trial resulted-in a verdict and judgment for defendant, from which plaintiff appealed to the supreme court.
    
      W. S. & W. R. Ohapman, for appellant.
    The first and second instructions given for defendant are clearly erroneous, and the court below erred not only in giving them, but as well in modifjdng the plaintiff’s instructions so as to conform them to the charges given defendant. This will be apparent from an examination of the following authorities: Code 1S92, § ISIS; Jones v. Illinois, etc., Railroad Go., 75 Miss., 970; Heilegnann v. Rose (Texas), 13 L. ft. A., 275; Bowers v. Horan (Mich.), 17 L. It. A., 773; Graham v. Smith (Ga.), 40 L. It. A., 503; Mullaliy v. People, SO N. Y., 365.
    
    
      Franh Johnston, for appellee.
    According to the evidence the defendant had no other adequate remedy, or any other means of protecting his property from invasion by the plaintiff’s dog.
    The owner of a herd, upon discovering a number of bucks tupping his ewes o,ut of season is, after' making ineffectual efforts to drive the bucks off, justified in killing them. Thomas v. Slate, 14 Tex. Ct. App., 200.
    In the case of Brill v. Flager, 23 Wend. (N. Y.), 354, a dog was in the babit of haunting the defendant’s household and howling and disturbing the family. The defendant shot the dog, and was sued in.trespass for its value. The court said: “It would be mockery to refer a party to his remedy by action; as it is far too dilatory and impotent for the exigency of the case. Whatever unlawfully annoys or does damage to another is a nuisance, and may be abated by the party aggrieved, so that he commit no riot in the doing of it.”
    In Hodge v. State, 11 Lea (Tenn.), 528, it was held that a person has a right to protect his premises against depredations of mischievous dogs, and for that purpose may use such means as are reasonably necessary, and if the depredating animal is thereby caught in a steel trap and mutilated, it would not be needless torture under the satute against cruelty to animals.
    In Livermore v. Batchelor, 141 Mass., 179, the lower court found the facts, without a jury trial, to be that the defendant had a reasonable ground to believe that the trespassing dog would kill his poultry, but did not find that he had reasonable ground to believe that it was necessary to kill the dog to prevent it from killing his fowls. On this ground the defendant was held liable for killing the plaintiff’s dog. The ground of the decision plainly is, that if the finding of facts had been extended to the latter point, the defendant would not have been held liable.
    In the case now before the court this dog, on at least four occasions, had chased deer through the defendant’s cotton crop; the defendant had twice notified plaintiff not to thus trespass on his land, and finally, the defendant testified, without contradiction, that shooting the dog was the only way that he had of preventing these trespasses. The defendant could not catch and impound the dog. It was useless to try to drive it away, for it would return. And the dog could climb any ordinary fence. The owner of the dog was entirely at fault. It would be a singular state of the law if a landowner had, under such circumstances, no adequate remedy, and could not protect liis property.
    
      Thomas R. Baird, on same side.
    Mississippi “dog law,; is embraced in our statute making-dogs property in the sense of being subjects of larceny, and tbe decision of this court in Jones v. Illinois, etc., Railroad Go., 75 Miss., 970. The court’s attention is called, however, to the .cases of Hubbard v. Preston, 15 L. P. A., 250, and Lipe v. Blaclmclder, 25 Ill., 119. In the latter it is held that hounds running across a wheat held may be shot if they cannot be otherwise kept out of the crop. See, also, King v. Kline, 6 Pa., 318.
   Weiteiet.d, J.,

delivered the opinion of the court.

It may be that “property in clogs is of an imperfect or qualified nature,” as held in Sentell v. Railroad Co., 166 U. S., 698 (17 Sup. Ct., 693, 41 L. Ed., 1169); Ward v. State, 48 Ala., 161; Town of Wilton v. Town of Weston, 48 Conn., 325; and City of Carthage v. Rhodes, 101 Mo., 175 (14 S. W., 181, 9 L. R. A., 352). And it is doubtless true that much of the conflict of decision touching this subject is due to the varying statutes of different spates as regards their being the subject of larceny, etc. Put it is very correctly said in the learned note to Hamby v. Samson (Iowa), 67 Am. St. Pep., at page 297, s.c. 74 N. W., 918, that “in the United States there has been a quite noticeable tendency in legislation and judicial decisions to recognize a complete property in dogs.” When the right to kill a trespassing dog is in question, doubtless the difference in nature and instincts between the dog and ordinary domestic animals, as the horse or cow, may properly enter into its solution. Tt is said in the exhaustive note to this same case of Hamby v. Samson (Iowa), 40 L. R. A., at page 510, s.c. 74 N. W., 918, that “it is generally held that a merely trespassing dog cannot be killed,” and the authorities pro and con are cited. In that note, and also in the note to Railroad Co. v. Munger, 49 Am. Dec., at page 260, illustrations are given of the conditions under which it would be lawful to kill a trespassing dog: Sheep-killing dogs may be killed ; dogs destroying deer, fowls, or other animals, where necessary to their preservation; howling clogs on one’s premises may be killed, etc. But it is said the dog must be killed at the time, and not on account of past damage done by him. Id., and authorities. The true rule is thus stated in 67 Am. St. Hep., note, at pages 294, 295, s.c. 74 N. W., 918: “But one is never justified in going to excessive lengths in the defense of himself or his property from assault or injury. The method of defense adopted must bear a certain relation to the character or seriousness of the threatened injury. The fact that a dog is trespassing does not justify his wanton or malicious destruction.” And again: “In any case, the question whether the defendant was justified in killing or injuring the plaintiff’s dog should be submitted to the jury, to be decided from a consideration of the peculiar facts and circumstances of the case.” The court virtually told the jury, in its modifications of plaintiff’s instructions, that, “if they believed defendant had warned plaintiff not to let his dogs run in his field,” defendant was not liable. This was error. IsTotice to keep his dogs out was one fact, but not the only fact, to be considered. Notice of that sort is not conclusive. See authorities collected in paragraph 3, 49 Am. Dec., 259. When it is borne in mind of what great value some dogs are, the reasonableness of the general rule against the right to kill a mere trespassing dog is apparent. See Mullaly v. People, 86 N. Y., 365, and note, supra, 40 L. R. A., s.c. 74 N. W. Here at the time this English deerhound was killed, she was running through the corn rows in November, when the corn was thoroughly matured. She had done at that time no damage to the cotton. The defendant says he killed her to prevent her doing damage by knocking out cotton from the stalks. The jury should not have been told that notice was a perfect defense. All the circumstances in evidence were before them, and the reasonableness of the alleged necessity of killing tbe dog to save property should have been left to them, as a question of fact, under proper instructions as to tbe law.

The court also erred in its instruction as to tbe necessity of proving market value. Tbe doctrine supported by reason and the authorities is that you may prove tbe market value if tbe dog has any, and, if not, then his “special or pecuniary value to bis owner, to be ascertained by reference to bis usefulness and services.” Heiligmann v. Rose (Tex. Sup.), 16 S. W., 932 (13 L. R. A., 275). And it is perfectly competent to prove tbe pedigree, characteristics and qualities of tbe dog, and then prove, by witnesses who know these things, their opinions as to the value. Bowers v. Horen (Mich.), 53 N. W., 535 (17 L. R. A., 773). And on both these propositions see, specially, the notes to Hamby v. Samson (Iowa), 67 Am. St. Rep., 292, 293, s.c. 74 N. W., 918, with the authorities, and the other in 40 L. R. A., 515, 518 (viii.), et seq., s.c. 74 S. W., 918.

Judgment reversed, verdict set aside, and, cause remanded for a neio trial.  