4 Denio 127 | N.Y. Sup. Ct. | 1847
There was sufficient evidence to warrant the jury in finding that the cow and calf were destroyed by the defendants’ swine. But it was not shown that swine, ordinarily, have a propensity to attack and destroy animals in the condition of this cow and calf; nor was there any evidence that the defendants were aware of the vicious propensity, in this or any other respect,- of these swine. For these reasons the plaintiff wholly failed to show any right of action against the defendants. The scienter is the gist of the action in ¡these cases, and the principle applies to swine - as it does to other, domestic animals which are mansueta natures. (1 Chit. Pl. 94, 7th Am. ed.; Jenkins v. Turner, 1 Ld. Raym. 109; Rex v. Huggins, 2 id. 1583; 1 Cowen’s Tr. 342.)
The defendants were, undoubtedly, liable for the trespass of the swine-in the plaintiff’s close, although not for this unnatural injury done' by them. But the trespass on the land was not complained of in this case, and as to the cow and calf it makes no "difference that they were destroyed on, the plaintiff’s land, where the swine-were trespassing. This is not like the case in 4 Burr. (Beckwith v. Shordike, p. 2092,) where the action was trespass for breaking the plaintiff’s close, with guns and dogs, and killing his deer; and where the defendant was held liable for a deer-killed by one of his dogs, although it did not appear he had any knowledge of the propensity of the animal to do such an injury. But the decision was placed on the express ground that the defendant was himself a trespasser, with his dog, in the plaintiff’s close, at the time the damage was done, so that the jury were authorized to find, as they had done, that the act of-the dog was the voluntary trespass of the master. If this declaration had alleged the scienter of the defendants, it might very well be urged that they had waived the objection
The plaintiff was not entitled to recover upon the evidence, and the judgment should be reversed.
Judgment reversed.
