Wormley v. Gregg

Citations

• 65 Ill. 251

Syllabus

<p>1. Animal—proof of knowledge of vicious habit in. Where plaintiff, in an action on the case against the owner of a dog, to recover damages sustained by his team running away in consequence of an attack of the dog in a public street, alleged in his declaration that the defendant, well knowing the dog was of a fierce, ferocious and mischievous nature, and therefore improper, dangerous and unsafe to suffer him to go at large upon the public streets not properly secured, and that the dog was accustomed to run out from the premises of the defendant, and it was contended that under the act of 1853, relating to dogs, it was not necessary to allege or. prove the defendant’s knowledge of the propensity of his dog: Held, that as the action was at common law without reference to this statute, it was necessary to prove the scienter as charged in the declaration.</p> <p>2. It is only when the declaration alleges the defendant to be the owner of the dog that the allegation of knowledge of its vicious propensity, and proof thereof, is dispensed with.</p> <p>3. New trial—on the ground of newly discovered evidence. Where an application for a now trial was based upon the fact of newly discovered evidence, which was merely cumulative, and it was not shown by the affidavit of the proposed witness: Held, no error to refuse the application.</p>