William Pickering, plaintiff in error v. Daniel Orange, defendant in error, 1 Scam. 338

Smith, Justice, delivered the opinion of the Court: This was an action on the case brought by Pickering, to recover damages for the destruction of a certain number of sheep and Iambs, alleged to have been killed by the dogs of Orange. The declaration contains three counts. The first alleges that the dogs were accustomed to hunt, chase, bite, worry, and kill sheep and lambs, the defendant well knowing their propensities and habits.

The second sets forth the killing of the sheep and lambs; that the dogs were of a mischievous and ferocious disposition, and accustomed to bite^hunt, chase, worry, and kill sheep, the defendant well knowing, &c. The third count is the same, with the additional allegation, that the dogs were also accustomed to kill hogs, cattle, and other live stock, in addition to sheep. Issue was joined on the first and second counts, and a demurrer interposed to the third. The Circuit Court sustained the demurrer to the third count, and gave judgment for costs.

On the trial of the cause, the plaintiff offered to produce evidence that the dogs of the defendant were of a ferocious and mischievous disposition, and accustomed to bite and worry men and hogs, which being objected to by defendant’s counsel, was rejected by the Court, to which decision the plaintiff excepted. The errors assigned are that the Circuit Court erred in sustaining the demurrer, and in rejecting the evidence offered. Both errors are well assigned. The third count is sufficient in every particular.

The grounds of action, in cases of fhe present kind, are the vicious and dangerous habits and propensities of the animals kept by the owner, and his negligence in not taking proper care to prevent the commission of injury by them, after a knowledge of their propensities and habits. This has been assigned in the counts, as well as the particular acts done; and the count is not vitiated by the averment that the dogs were accustomed to attack and kill other animals, than those alleged to have been killed. The evidence offered was competent.

It tended to prove the issue, and was therefore admissible; and it ought to have gone to the jury. Besides, the ground of the action being the ferocious and mischievous habits of the dogs of the defendant, and his knowledge thereof, and want of care in not restraining them, but permitting them to go at large, it was competent for the plaintiff to show their vicious habits by proof of the attack by them on other animals than the particular ones named in the declaration. The rule of evidence on this point is well settled.

It has been held that it may be shown that if the animal had once done mischief in the destruction of one kind of animals, and the owner permit it to go at large, he will be held answerable for other injuries afterwards done by the same animal, though of a different kind from that before done, if he knew of the commission of the previous injury. The judgment of the Circuit Court is reversed, with the costs attendant on the judgment of demurrer in the Circuit Court; and full costs in this Court; and the cause remanded with directions to award a venire de novo. Judgment reversed. Ld. Raym. 110; 2 Stark.

Ev. 533, and cases there cited.