
    *Michael Hess v. Jonathan Lupton.
    Action for damages consequent on an act innocent in itself, and injurious only in consequence of particular circumstances, the declaration must set out the circumstances showing the wrong.
    This is a writ of error reserved for decision in the county of Monroe.
    
      In the second count of the declaration (the first having been withdrawn), the plaintiff declares that the defendant being possessed of a certain dwelling-house, and uninclosed yard and ground contiguous thereto, in the vicinity of a public highway, unlawfully placed thereon a large quantity of fish, brine, fish-brine, pickles, pickle-brine, and other acrid and corrosive substances, in divers open vessels, viz: casks, hogsheads, barrels, kegs, and pails, and continued the same in the said uninclosed ground, from September 1,1832, until September 1,1833; and during that time he so negligently and improvidently conducted that divers cattle of the plaintiff, viz: six oxen, etc., entered on the said uninclosed land, and then and there ate, drank, and swallowed the said fish, brine, fish-brine, pickles, pickle-brine, salt, and other acrid and corrosive substances, so that they, viz: the said six oxen, etc., died.
    The defendant demurred.
    The court of common pleas gave judgment for the defendant upon this count, to reverse which, the plaintiff brings this writ of error.
    Archbold, for plaintiff,
    insisted that as the plaintiff’s cattle were not wrongfully on the uninclosed land of the defendant, he could not place any substance upon his land injurious to them without negligence and liability for the loss; and he cited 29 Ohio Stat. 456, 471; 4 Ohio, 427; Deane v. Clayton, 7 Taunt. 489; 1.Stark. Cas. 150, 287; 11 Mass. 127; 1 Camp. 517; 3 Ib. 399; 1 Cowen, 78.
   Judge Lane

delivered the opinion of the court:

Where an act complained of is innocent of itself, and injurious only from the circumstances under which it is done, those circumstances should be stated in pleading. If one leave an open pit in an uninclosed lot in a town, into which his neighbor’s beast falls and perishes, an action lies; but if such an accident happen in a pit left open in a place remote from the haunts of cattle, no suit is sustainable, for the risk of *doing mischief is so small that the exposure is not negligent. To show a cause of action in such a case, therefore, it is necessary to set forth in the declaration the situation of the pit; that it was left unsecured in a place where cattle were accustomed to resort. This principle should govern the present case. No wanton or malicious mischief, no intention to injure is pretended. The situation of the place where the noxions substance was left, its proximity to the haunts of cattle, and the risk of injury must be stated more fully than in this declaration, to make a case of liability for negligence.

Judgment affirmed.  