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Strang agt. Newlin.

SUPREME COURT.

WM. F. STRANG agt. HOWARD NEWLIN.

Every person in possession of any dog, or who shall suffer any dog to remain about his house, for twenty days previous to the injury of the sheep by such dog, shall be deemed the owner of the dog for all the purposes of this title. (2 Rev. Stat., 4th ed., p. 112.)

In order to maintain an action under this statute, where the defendant denies that he is the owner of the dog, the plaintiff must prove that the defendant had the possession, or suffered the dog to remain about his house, for twenty days previous to the injury of the sheep.

Second District, General Term, December, 1869.

Before J. F. BARNARD, TAPPEN and GILBERT, Justices. APPEAL from judgment at special term.

JOHN L. HILL, for appellant.

O. T. COFFIN, for respondent.

By the court, TAPPEN, J.-The defendant's liability is to be determined by the construction of a provision in the Revised Statutes, with reference to the owners or possessors of dogs that kill, or injure sheep.

The dog in question was on the defendant's premises, as the property of the previous owner of the farm, which the defendant had purchased a short time before the occurrence. The dog remained about the premises after the defendant took possession. The proof does not show that, in fact, the defendant was the owner of the animal; members of the defendant's family had, during the time specified, fed the dog when he was around the house. The previous owner of the farm had removed from the place, leaving some goods, however, to be subsequently removed,

Strang agt. Newlin.

The statute in question, (4 Rev. Stat., vol. 2, pp. 112, 113) provides that every person in possession of any dog, or who shall suffer any dog to remain about his house, for twenty days previous to the injury of the sheep by such dog, shall be deemed the owner of the dog for all the purposes of the title. The object of the statute was to afford immediate redress to the owner of any sheep killed or injured by dogs.

The fact that there was an owner of the dog, does not exempt from liability any other person who suffers a dog to remain about his house for the space of twenty days; because by such sufferance the dog has an opportunity to attack sheep in the neighborhood.

The defendant is chargeable in law with suffering the dog to remain about his house, because the dog did so remain, and every man is chargeable with the reasonable control of his own household and premises; and, in the language of the statute in question, for the purposes of its title, the defendant is to be deemed the owner because of such tolerance, and because there was, in fact, no other possessor, and the sheep being killed or injured by such dog during such possession, the defendant is to be deemed owner of the dog, for the purpose only of compensation to the owner of the sheep.

In Auchmuty agt. Ham, (1 Denio, 500,) the court says: "The legislature evidently intended by the provision in question, to cast upon any person having possession, or suffering the dog to remain for the space of twenty days, &c., the responsibility, whether in fact such possessor was or not the owner."

The liability of the defendant is, therefore, created by statute; he is chargeable with knowledge of the statute; and the person claiming to have been damnified by the loss of sheep by such dog, is not obliged to seek out or find the true owner of the dog. But, assuming the law to be here correctly stated, the evidence, on the part of the plaintiff, does not show that the defendant had such possession, or

Strang agt. Newlin.

: suffered such dog to remain for twenty days; this proof is essential to the maintenance of the action, when the defendant shows upon the trial that he is not the owner of the dog. The defendant offered proof, tending to show that he was not such owner, and if his liability is to be determined by possession, then the plaintiff should have proven such possession or tolerance for the period of twenty days, &c. The proof does not establish this fact. If it be claimed that the defendant was in fact the owner, that presents a question not determined in the case. The complaint charges defendant's liability to have arisen from harboring or keeping the dog, &c.

Judgment should, therefore, be reversed, and a new trial granted at circuit; costs to abide event.

BARNARD, J., dissented.

Vanderheyden agt. Gary.

SUPREME COURT.

NANNING VANDERHEYDEN, respondent, agt. WILLIAM GARY and others, appellants.

Notices of pendency and returns to attachments, may be amended by inserting in the notices and inventories, a specific description of a lot of land omitted by mistake.

Albany General Term, December, 1869.

APPEAL from an order made at special term by Justice INGALLS, amending notices of pendency and the returns to attachments by inserting in the notices and inventories, a specific description of a lot of land omitted by mistake.

The language of the inventory on the return to the attachments was: "One farm of land, being partly situated in the town of Brunswick and the city of Troy, known as the Gary farm, and containing three hundred and fifty acres of land, be the same more or less; a printed discription of said farm is hereunto annexed." The notices of pendency contained the same specific description.

The printed description referred to was very long, and embracing specific descriptions of a large number of separate lots, but a specific description of one lot of twenty acres was omitted.

The motion papers showed:

First. That the defendants owned, and were in possession of the twenty acre lot at the time of the issuing of the attachments.

Second. That this was known to the deputy sheriff who had charge of the attachments, that he intended to levy on the twenty acre lot, and to include it in the printed description, supposed it was included, but that it was omitted by oversight and inadvertence.

Vanderheyden agt. Gary.

Third. That the twenty acre lot has, for more than twenty years, been known as a part of the so-called Gary farm.

Fourth. That shortly after the levy under the attachments, the defendants made a general assignment for the benefit of creditors, that this lot is claimed and this motion is opposed by the assignee alone, and that no one else has any interest adverse to the plaintiff.

C. E. PATTERSON, for appellants.

IRVING BROWN, for respondents, cited, as to the validity of the levy, (7 How., 381; 8 How., 77; 20 How., 430; as to the power to amend, 1 Cow., 430; 8 How., 79; and as tc the rights of the assignee, 17 N. Y., 28, 580).

By the Court.-Order affirmed.

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