Carroll v. Weiler

Mulln, P. J. We must assume the law to be that when dogs kill sheep or do other damage jointly, the owner of each is liable only for the damage done by his own dog. Van Steenburgh v. Tobias, 17 Wend. 562; Auchmuty v. Ham, 1 Denio, ,495. Hence a joint action will not lie against them. The amount of damage for which each owner is liable must be ascertained by the jury, and the court will not, except in cases of manifest injustice, interfere with their verdict. Wilbur v. Hubbard, 35 Barb. 303. The identity of defendant’s dog as one of the two that did the injury was found upon conflicting evidence and cannot be disturbed. The question put to defendant whether he had killed his dog since the former trial was competent on cross-examination. In the [133] absence of evidence as to the cause of the killing, it might be inferred that the dog was killed to destroy proof of his identity, or that the defendant believed him to have been engaged in killing the sheep, and he killed him to prevent further loss. In either view, the killing was inconsistent with defendant’s evidence on the trial, and was competent on cross-examination. The evidence of McCarty that he saw the defendant’s dog with his, in his McCarty’s orchard, was competent to .show that the dogs were known to each other, and on one occasion at least were in company, thereby laying the basis for a presumption that when a feast was to be had on plaintiff’s sheep, they would enjoy it together. The defendant gave no intimation in the .justice’s court in his pleadings, or otherwise, that he intended to insist upon the payment of damages by McCarty as an accord and satisfaction, or as payment of the damages done by defendant’s dog. It was too late to raise it in the county court. The judgment is right and must be affirmed. Judgment affirmed.