The following statement was agreed by counsel to be a part of the adornments in the declaration as demurred to " on the 3[rd] day of October Geo W. Hutchins, was had been using Fortunes mare returned with her and hitched her near the place, where Fortunes tin shop was kept. The mare got loose and nothing more was seen or heard of her until next morning, although diligent search was made for her as soon as it was discovered she had got away She was formed next morning in the bottom of the chasm complained of, which is immediately opposite the lot in which she was usually kept. The mare was badly injured and died on the day she was discovered"
Parker Ch. J says in the case of Smith vs. Smith 2 Pick 624 to entitle that Plaintiff to an action for damages resulting from a nuisance he must show, that hearted with common and ordinary care, And so we take the law to be, if a person should go with his beast he along upon a nuisance which (with ordinary care) he might have avoided he ought not to have damages for his loss is the consequence of his own negligence in effect this was decided in the case of Butterfield vs. Forester 11 East 60. The facts of the present case show, that Fortune mare, after being used, was hitched near his tin shop, and where of course she could not remain long without notice, It is the custom of the people generally when in the streets, to hitch their horses to a hook, peg, first, tree, or rack and leave there while the riders attends respectively to their own business, the thing is daily (and frequently every day) done, by the most