East Kingston v. Towle.

the concession that the town could not be charged with damages without notice of the hearing, and an opportunity to be heard on that question. The disposition of that case depended "upon the construction and constitutionality of the first section of the act of July 8, 1850;" and it would seem to have been admitted on all hands that the act would not have been valid if it had not provided for proper notice of the hearing on the question of damages. If the defendant in the present case had received notice of the application to the selectmen and had an opportunity to be heard before them, he might be bound by their determination, as was held in Littleton v. Richardson; but nothing of that kind appears in this case.

In this case the owner of the animals injured took the order on the treasurer as his remedy for the loss he had sustained. The amount was paid by an estimate of the actual damage done, and was received as the compensation for it. The recovery by the town, instead of the party who suffered the injury, does not change the nature of the payment, when made by the defendant. His interest in the question of damages is the same whether he pays the amount to the owner of the animals or to the town; and if the payment is called a forfeiture or penalty, or the statute a police regulation, still the interest of the defendant in the amount is the same, and his right to be heard on the question cannot be evaded by the name giver to the payment or to the law.

We are of opinion that, so far as the statute undertakes to bind the defendant by the decision of the selectmen, fixing the amount of the damage, without giving him an opportunity to be heard on the question, it is not a valid law, because it is in violation of an elementary principle of law and justice, to wit: that a party is not to be bound by a judgment or other determination to which he was a stranger; that it is not a wholesome and reasonable law within the meaning of the constitution, which grants and defines the legislative authority, nor within the general scope of legislative power, because it is contrary to reason and natural justice.

Has the owner of the dog the right, under the constitution, that the question of damages should be tried by a jury?

"In all controversies concerning property, and in all suits between two or more persons, except in cases where it has been otherwise heretofore used and practiced, the parties have a right to trial by jury." Bill of Rights, art. 20.

Provisions in the constitutions of some of the states, intended to

East Kingston v. Towle.

secure the right of trial by jury, expressed in terms corresponding more or less nearly with this in our bill of rights, have been held to apply only to cases where an issue is joined and some right tried, and not to a mere inquiry of damages, in which the title to the property damaged or taken is not involved. In this state I understand that an inquiry of damages has been regarded as falling within the provision which guarantees the right of trial in all controversies relating to property, unless a different usage prevailed before the constitution was adopted in the class of cases to which the particular case under consideration belonged. Backus v. Lebanon, 11 N. H. 19; Dalton v. North Hampton, 19 id. 361; Petition of Mt. Washington Road Co., 35 id. 134. Even if this provision in our bill of rights should be narrowed in construction, as similar provisions have been in some other jurisdictions, it would not relieve this case from the constitutional objection, for the cases to which that construction has been applied are where the sole question is as to the amount of compensation which the owner of property shall receive for it, or for some right in it, and not where an issue is tried on the fact whether the property has been injured or wrongfully taken, and the question of damages is an incident to the finding of the issue for the plaintiff; for what is really, and in substance, proposed to be done by this statute?

The owner of the animals is the real party injured; the owner of the dog is the party liable for the injury. The amount to be recovered in the suit by the town is the actual damage as determined by the selectmen, and that amount is the compensation to the owner of the animals for his damages. It is his remedy for the injury he has suffered, and, having taken the order, he has no other remedy. The statute assigns the right of action to the town, and the owner of the dog answers to the town, instead of answering directly to the owner of the animals in an action brought in his own name. The result, so far as the owner of the dog is concerned, is the same as if the suit were brought directly by the owner of the animals to recover damages for the injury he has sustained. The question, whether the defendant's dog was concerned in doing the damage, is tried by the jury; but if they find for the plaintiff, instead of the jury's assessing the damages as incident to the verdict, and as part of the verdict, the defendant is by this act made conclusively liable for the amount as determined by the selectmen. One tribunal tries the question of the defendant's liability for the damage, and another

East Kingston v. Towle.

tribunal fixes in advance the amount of the damage, in case the issue as to his liability is found against him. In a trial by jury for an injury to person or property, the assessment of the plaintiff's damages is as much a part of the verdict for him as the finding of the issue; and a trial which should refer the assessment of the damages for the plaintiff to another tribunal would not be a trial by jury, according to the course of the common law, nor the trial secured to every subject by the bill of rights.

The damage for killing, maiming and worrying sheep and other domestic animals is uncertain and unliquidated, as much as in an action for an assault and battery. If the question of liability for the damage could be tried by the jury, and the inquiry as to the amount of the damage withdrawn from the jury, for aught that I can see, the same thing might be done by the same machinery in a case of assault and battery. Suppose this act had provided that when any person should be assaulted and beaten within the limits of any town, he might present his claim for the damages to the selectmen, and, on their drawing an order for the amount fixed by them, the town might recover the same amount of the party who was guilty of the assault and battery, in an action of assumpsit, the right of the defendant in that case to have the jury assess the damages, as part of the trial, would stand, under the constitution, exactly as it does under the statute of 1863. And by a like contrivance in all cases of injury to property, as in trespass to land, trespass for taking and carrying away goods, an essential and often the most important part of the trial by jury might be assigned to another tribunal.

The trial by jury, secured to the subject by the constitution, is a trial according to the course of the common law, and the same in substance as that which was in use when the constitution was framed. Opinion of the Judges, 41 N. H. 551. In all actions for injury to property the trial by jury included the assessment of the plaintiff's damages when the verdict was for him. This we regard as an essential part of the trial by jury intended to be secured by the constitution. By this act the defendant is deprived of the right to such a trial, and, so far as the act undertakes to make the defend ant liable for the amount of damage fixed by the selectmen, we think it is in violation of the constitution, which secures the right of trial by jury in all controversies concerning property."

It is said that the amor nt which, by the statute, the owner of the

East Kingston v. Towle.

dogs pays in the action by the town is in the nature of a penalty or forfeiture. There are cases where a penal action may be maintained to recover the amount, or double the amount, which an individual has suffered by a violation of his private rights; but in such cases the party subject to the penalty is as much interested in the assess ment of the damages, and has the same right to a hearing on the question of damages, and to the same mode of trial, as where he is sued in a civil action sounding in damages, and the amount of the damages is determined by the jury who try the general question of the defendant's liability for the penalty. Com. Dig. Pl. 2, § 14; Wybord v. Tuck, 1 Bos. & Pull. 458; 3 Burn's Ec. Law, 534; 7 Went. Pl. 243. See also Greene v. Briggs, 1 Curt. C. C. 311. It would not relieve the act from constitutional objection if the suit by the town were held to be in the nature of a penal action.

So far as the act undertakes to charge the defendant with the amount of damage determined by the selectmen, we are of opinion that it is not a valid law, because it gives the owner of the dog no opportunity to be heard before the selectmen on that question, and therefore is not a wholesome and reasonable law within the general scope of legislative authority conferred by the constitution on the general court; and also because the act is so far in violation of the provision in the bill of rights, which secures the right of trial by jury in all controversies concerning property.

An act may be in part beyond legislative authority, and within it for the residue; and if the act is capable of being administered in the parts which are within the power of the legislature to enact, it will so far be valid. Fisher v. McGirr, 1 Gray, 1; State v. Wheeler, 25 Conn. 290; Santo v. The State, 2 Clarke (Iowa), 165. It would be in the power of the legislature to make towns liable for damage done by dogs, and to give the towns a right of action to recover the actual damage from the owners of the dogs, as is done in the case of obstructions placed on highways; and we think an action may be maintained on this statute by the town to recover from the owner of the dog the actual damage, which the jury who try the cause find the owner of the animals to have suffered, not exceeding the amount of the order drawn by the selectmen. If the declaration in this case relies on the order to establish the amount of damage, it may need amendment by inserting an averment that the actual damage was equal to the amount of the order drawn.

By the statute the owner of the dog is made liable for the damage

Janvrin v. Town of Exeter.

done, whether the dog was accustomed to kill and worry sheep or not. We are not acquainted with any rule of evidence which will allow the character of the dog, or the fact that he had killed or worried sheep before, to be admitted as evidence that he did the damage complained of in this suit. To show that he did this mischief it is not competent to prove that he had done similar mischief before, more than it would be to prove that a defendant sued for an assault and battery had beaten other men before, or the same man.

JANVRIN V. Town OF EXETER.

(48 N. H. 83.)

Reward for apprehension of criminals—Action on.

The selectmen of a town, under the authority of a general statute, offered a reward for the apprehension and conviction of a person guilty of the com mission of a high crime. The plaintiff, claiming to have performed that service, brought action to recover the reward. Held, on demurrer, that the action was well brought. Held, also, that if two persons jointly per formed the service they must be joined as plaintiffs.

THIS was an action of assumpsit brought to recover a sum of money promised in a "notice of reward," signed by the selectmen of the town, for the apprehension and conviction of the person or persons guilty of a burglary, described in the notice. A demurrer was sustained pro forma, and the court also held, that if any person beside the plaintiff had, actuated by said notice, assisted in performing the service, this action could not be sustained.

J. J. Bell, for plaintiff.

C. H. Bell, for defendant.

BELLOWS, J. The authority of the selectmen, in behalf of a town, to offer a reward for apprehending and securing any person charged with having committed any capital or other high crime, is expressly conferred by chapter 735 of the laws of 1848; and as no special remedy is provided by the statute the contract may be enforced by action in some appropriate form. It stands, for aught we can see, upon the same ground as an offer of a reward by a private person, VOL. II.-24