
    Wilson McAdams v. Walter W. Sutton.
    Motion for leave to file petition in error to the District. Court of Logan county.
    The defendant in error brought an action against the plaintiff in error, and Martin McAdams, under the statute(S. & S. 10), to recover damages for the injury, etc., of certain sheep hy the dogs of the defendants.
    The language of the statute is, “ And if any dog or dogs-owned, harbored, or kept by two or more persons, or any two or more dogs, owned, harbored or kept by different persons, shall kill, etc., any sheep . . . the owners,, harborers, or keepers of such dog or dogs, shall be jointly and severally liable to the owner or owners of such sheep . . . for all damages done by such dog or dogs.”
    The averment of the petition was that “ certain pack or' lot of dogs owned, harbored and unlawfully kept by the defendants, wounded, etc., certain sheep of the plaintiff's.”' The answer was a general denial. It appears from the-bill of exceptions that testimony was offered tending to-show, that the dogs were not the joint property of the defendants, but that some of them were owned by one of the defendants separately, and some by the other defendant separately. Each of the defendants asked the court to instruct the jury, that if they found that the dogs were not the joint property of the defendants, the plaintiff could not-recover, which instruction the court refused to give, and did charge that in such case the plaintiff could recover. The-verdict was for the plaintiff It is to reverse this ruling that leave is asked to file a petition in error.
    
      Wm. Lawrence, and Keman Kernan, for the motion :
    The statute makes three classes of cases of recovery for sheep killed.
    1. By “ dog or dogs owned, harbored, or kept hy the same • person.”
    
      2. By “ dog or dogs owned, harbored, or kept by two or more persons.”
    3. By “ two or more dogs owned, harbored, or kept by different persons.”
    The action is brought under the third clause, and the averment of the petition is a joint ownership.
    The proof must correspond with the allegation of the petition. Gould’s Pleadings, 172, sec. 7; 1 Greenl. Ev. 119, sec. 51; Nash’s Pl. & Prac. 120.
    The analogy of criminal charges proves this. Stevens & Everett v. The State, 14 Ohio, 386.
    
      West, Walker Kennedy, contra:
    Formerly it was doubtful whether a several owner was ■liable for any portion of the damages done by dogs owned, harbored or kept by different persons severally, except that done by the dogs severally kept, owned, or harbored by "him. The object of this statute was to extend the liability, and make each person interested answerable for the entire damages done, whether his interest in the dogs be joint or several; its object being that the fact of interest, not the nature and extent thereof, should create a full liability.
    The action is in tort, and is in the nature of a tortious trespass, and is governed by the same rule.
   By the Court.

Where, in an action under the statute ■(S. & 8. 10), against several defendants to recover damages for the injury, etc., by dogs, of certain sheep, the averment of the petition is: “A certain pack or lot of dogs owned, harbored, and unlawfully kept by the said defendants ■wounded, etc.,” proof that some of the dogs were owned by one of the defendants separately, and some by the other defendant separately, does not, under section 131 of the code, constitute a material variance.

Motion overruled.  