ness and deliberation which the law would require, but the act was prompted by or sprang from a wicked, depraved, and malig nant disposition, then the act could not be justified. "Blackstone, in speaking of justifiable homicide, in carrying out the judgment of a court, says: — "' Also, such judgment, when legal, must be executed by the proper officer or his appointed deputy, for no one else is required by law to do it, which requisition it is that justifies the homi cide. If another person doth it of his own hand, it is held to be murder, even though it be the judge himself. It must further be executed servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is mur der, for he is merely ministerial, and is only jus tified when he acts under the authority and compulsion of the law; but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the com mission of homicide, and besides, this license might occasion a very great abuse of his power.' 4 Blackstone, 178. "It is very clear, therefore, from the high authority quoted, that all such highly penal provisions of the law must be strictly con strued; that where a statute authorizes a particular officer to perform an act; another cannot do it and justify under the authority given; that where an officer or a person is under certain circumstances given authority to take life, a dog cannot-of his own head do the act and afterwards his owner say : ' Be cause an officer under the circumstances could have done the act, my dog had like authority.' See also Bishop v. Fahay, 15 Gray, 61; Kerr v. Seaver, 11 Allen, 151. "It is also a circumstance to be noted that there is nothing in the case tending to show
that defendant's dog was licensed and had on a collar at the time he committed the act. If not, he was equally in the wrong and lia ble to be killed, and we do not see what right he had to punish others no more guilty than he was himself. "Nor do we think that the owner, in any case, would be prevented from recovering if his dog was licensed and he had kept a col lar upon him, in a case where the collar without his knowledge in some way either accidentally or otherwise got off, until at least a reasonable time thereafter had elapsed to enable him to discover the fact and re place it. It will be noticed that while the statute requires the dog to wear a collar, it does not prescribe the kind. If the plaintiff had put a paper collar upon his dog, expe rience teaches us that it would become soiled, and that frequent changes would become ab solutely necessary. If, under such circum stances, plaintiff had taken off the old in order to put on a clean collar, and while in the act defendant's dog, standing by and seeing the old collar taken off, could he at once before plaintiff had time to replace it bounce upon and kill plaintiff's dog? We think not. Or if plaintiff's dog in the pursuit of rats had torn or destroyed his collar, could the defendant's dog, watching for such an opportunity, take advantage of the circum stance and kill him before his owner had an opportunity to discover the fact and replace it? We are of the opinion that no such severe and deadly construction can be given to the statute. "We* have deliberately and gravely consid ered these important questions, and are sat isfied that the court erred in giving and refusing the charges above quoted. Judg ment reversed with costs, and a new trial ordered."
