
    Connell v. Putnam.
    A declaration in case, for wrongfully and injuriously keeping a vicious liorse, which attacked and injured the plaintiff’s servant, may be amended by adding a count for negligently permitting the horse to go at large without a keeper, whereby the same servant was kicked and injured
    Case, for wrongfully and injuriously keeping a vicious liorse, which attacked and injured the son and servant of the plaintiff. The evidence was, that the horse was at large, feeding upon the grass between the travelled road and the sidewalk, and kicked the boy, and fractured his thigh bone, while he was passing on the sidewalk, not meddling with the liorse. There was no evidence that the horse was vicious. The defendant moved for a nonsuit.
    The plaintiff moved to amend his declaration, by adding a new count for negligently permitting the horse to run at large without a keeper, whereby the son and servant of the plaintiff was kicked and injured.
    A nonsuit was ordered on the original count, and the amendment was allowed. The defended excepted.
    
      Page 8f Norris, for the plaintiff.
    
      Pike Sf Blodgett, Gould, and Rolfe, for the defendant.
   Allen, J.

The amendment does not change the form nor destroy the identity of the cause of action. The original count involved negligence. A wrongful keeping of a vicious animal is a negligent keeping. Keeping it with that degree of care which would exclude legal liability, would not be wrongful; and that want of care which would make the keeping injurious to another, would bo negligence as well as a wrong. The original count charged negligence in keeping a vicious horse. The amended count made negligence, in permitting a horse to go at largo without a keeper, the gist of the action. Both counts set up negligence as the gravamen, but each states the particulars of the injury differently. The vice of the animal is omitted in the second count, but it is the same boy, receiving the same kick and consequent injury from the same horse, and all through the negligence of the owner. The amendment introduced no new cause of action, but was necessary to obviate a variance between the proof and some of the particulars of the declaration, and was properly allowed. Stevenson v. Mudgett, 10 N. H. 338, 340; Barrett v. Salisbury Manf. Co., 28 N. H. 440, 452; Davis v. Hill, 41 N. H. 336; Bailey v. Smith, 43 N. H. 409; Taylor v. Dustin, 43 N. H. 493; Stearns v. Wright, 50 N. H. 293; Cahill v. Terrio, 55 N. H. 571; Gilman v. Cate, 56 N. H. 160, 165, 166; Burnham v. Plant, 57 N. H. 41.

Exception overruled.

Bingham, J., did not sit.  