It appeared, at the argument of this case, that the plaintiff, *Page 610 during the trial, obtained leave to amend by inserting an additional count in the declaration to recover at common law for injuries to his cow by the defendant's dog.
Among the instructions to the jury were these: "That if the plaintiff's cattle, at the time when the injury complained of occurred, were trespassing, the defendant would not be liable." These instructions, whether applied to either count, were clearly wrong. It makes no difference whether or not the plaintiff's cow was trespassing upon the defendant's field: the latter could only use such means as were necessary and reasonable to drive her out of his premises. The statute exempts the owner from liability for injuries done by his dog to a party while engaged in the commission of a trespass. If the dog, of his own motion, and without any agency on the part of the defendant, had attacked the plaintiff's cow while trespassing upon his field, the defendant would not, under the statute, have been liable; but it was altogether a different matter when the defendant caused his dog to inflict injuries upon the trespassing cow. The statute does not permit any such thing, and it is only excusable when done in defence of one's self or of his property.
LADD, J., concurred.
A new trial granted.