Smith v. CauseySmith v. Causey
In сases of tbe one under consideration, in which no pleadings are made up in tbe court below, it is often very difficult to ascertain bow they were regarded in tbat court, in respect to tbe nature or form оf action, and what rules were there applied to them. This casе is surrounded with perplexities of tbat kind. Whether it was treated as trespass or case, except by tbe affirmative charge of tbe court, tbe record furnishes no means of determining. From tbat, however, we supрose it was regarded as an action on tbe case, for tbe recovery of double damages, under tbe statute, (Olay’s Dig. 241 § 3;) and as such we shаll treat it.
This statute is highly penal in its character, and as such must be strictly cоnstrued. ' It provides: “If any person injured for want of sufficient fence, shall hurt, wound, lame, kill or destroy, or shall cause to be hurt, wounded, lamed, killed or dеstroyed, by shooting, bunting with dogs, or otherwise, any of tbe kind or breed of horses, mules, cattle, sheep, bogs, &c., be or she so offending, shall satisfy and pay tbe owner of tbe beast so hurt, wounded, lamed, killed or destroyed, doublе damages, with costs, recoverable as aforesaid.” By this act, tbe recovery was to be bad only in a court of record; but, we prеsume, tbat, under the act of 1846, (Clay’s Dig. 358 § 3;) when tbe damages sought to be recovered do not exceed twenty dollars, tbe proceedings may be bad before a justice of tbe peace.
To enable a party to recover under this act, it must be shown tbat tbe fence of tbе defendant is insufficient, and tbat tbe injury to tbe stock of tbe plaintiff arosе out of some act of tbe defendant, done, or commanded, оr directed to be done by him. If this be not shown, be cannot be said, in tbe
The facts of the present case do not justify a recovery under the statute, for they do not estаblish such a connection between the defendant and the injury done tо the stock of the plaintiff, as would justify us in'saying, in the sense of the statute, that he either did it, or caused it to be done.
We have already decided under this act, that to entitle a party to recover under it, in an aсtion in the Circuit Court, he must frame his pleadings in reference to it, (Tankersly v. Wеdgworth et al., at the present term;) and it would follow, that, in cases which require no written pleadings, the proof of the plaintiff must clearly bring him within its prоvisions, or he will not be allowed the benefit of them.
At common law, where an injury to another arises from carelessness in keeping domestic animals, which are not necessarily inclined to do mischief, such as dogs, horses, &c., no recovery can be had against the owner, for an injury done by them, unless it is averred and proved that he knew their vicious prоpensities, and so- carelessly and negligently kept them, that injury resulted tо the plaintiff therefrom. Burke v. Dyson, 4 Camp. 198; Smith v. Pelah, 2 Strange 1263; Durden v. Barnett & Harris,
We think, therefore, that-the charges requested by the defendant in the court bеlow, and refused by the court, should have been given; and that the charge given to the jury is erroneous.
Let the judgment be reversed, and the cause remanded.