Technically, the animals in question were trespassing on the plaintiff’s premises. . The trespass, however, was wholly involuntary. *248Perhaps the plaintiff; might have maintained an action for such trespass, though that is by no means clear, for the reason that it appears that the gate of his lane, through which the animals went on his premises, had been left open. If it was his duty to keep the gate shut, then, his neglect to do so would defeat his action, for a man cannot recover for an injury occasioned, in any degree, by his own default. And, in such a case, it was lawful for the defendant to go upon the plaintiff’s land after the animals, and chase them back into his own land. (Addison on Torts, ch. 6, § 1.)
The question, however, before us is, not whether a trespass was committed by the defendant’s animals, but it is, whether the plaintiff had the right to seize them summarily, and detain them until payment by the defendant of the sum of $2, arbitrarily and unlawfully demanded by the plaintiff. The statute which authorizes the summary seizure, by private individuals, of animals belonging to their neighbors, is entitled “An act to prevent animals from running at large in the public highways.” (Laws of 1862, ch. 549, as amended by Laws of 1867, ch. 841.) The second section thereof provides that, “ it shall be lawful for any person to seize and take into his custody, and retain till disposed of, as required by law, any animal which may be in any public highway, and opposite to land owned or occupied by him, contrary to the provisions of the foregoing section; or of any animal which may be trespassing upon premises owned or occupied by him.” As the statute is in derogation of the common law for the protection of private rights, it must be construed strictly, and limited by such construction to the object which the Legislature intended to accomplish. Such object seems, to us, to be perfectly plain. It was, as declared by the title of the statute, to prevent • animals from running at large in the highways. We think, also, that the authority to seize animals which are trespassing, is limited to animals running at large, and that the phrase “ contrary to the provisions of the foregoing section,” in section 2 of the said act, was intended to qualify the whole section, and should be transposed accordingly. For it would be unreasonable to suppose that the Legislature intended to confer upon private persons the power of redressing injuries to themselves, occasioned by trespasses on their-*249lands, disconnected from the prohibition contained in the first section of the statute. Indeed, an enactment having that effect would be, at least, of doubtful constitutionality.
The first section of the act makes it unlawful for any cattle, horses, &c., to run at large in any piiblic highway, &c. Were the animals of the defendant running at large, within the meaning- of the statute, when they entered the plaintiff’s premises ? We think not. The statute is a penal one, yet it was not intended to punish misfortune. The phrase “running at large,” implies permission or assent, or, at least, some fault on the part of the owner. When animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them, they cannot be said to be running at large. Statutes must have a sensible construction, with reference to the evil to be remedied by them. Pór example, animals may be running at large, although, when seized,' they were walking or lying down. A horse that has thrown its rider in the highway and escaped, a cow turned out of a pasture at evening and going home, droves of sheep, hogs, or other cattle being chiven to market, though for the moment unattended by the drover, can hardly be said to be running at large, within the meaning of the statute. Nor, in our judgment, were the plaintiff’s horses running at large when the trespass complained of was committed. The defendant’s horses escaped from his premises, without his knowledge, and, as far as it appears, without any fault or negligence, on his part. Immediately after their escape, he sent a servant in pursuit of them, when they were found, within a very short time, upon the defendant’s premises. The escape was a mere accident. Such a case cannot reasonably be brought within the statute cited.
We think, therefore, that the verdict of the jury was right and that the County Court erred, and the judgment appealed from must be reversed, with costs.
Pratt, J., concurred. Barnard, P. J.:The Court of Appeals in Jones v. Sheldon, 50 N. Y., 477, held *250that chapter 811 of Laws of 1867, had no reference to animals which were taken under its provisions, unless the same escaped upon the owner’s premises from the highway.
It was the duty of the plaintiff to make a complaint under oath, that the animals which he applied to sell under this act were seized under its provisions. The affidavit did not state that the animals in question escaped from the highway. The jurisdiction of the justice to issue the summons depended upon this fact. It was improper to amend the complaint by inserting this allegation at the time the owner answered; he was there to answer the complaint upon which the proceedings had been taken, and he objected to the amendment; he was then entitled to have the proceedings dismissed. (2 Wait Law & Practice, 759, 150, 98.)
Judgment of County Court reversed and that of justice affirmed, with costs.