The opinion of the court was delivered by
Hebard, J.By our statute, the plaintiff, at the time he sues out his writ, is required, also, to make out his declaration of his claim, which goes along with the writ; and this, of course, must determine the nature of the action. If it were usual or allowable for the plaintiff to call the defendant into court, by merely stating the name of the action, without making any statement or specification of his claim, there would be more propriety in regarding the name, alone, as of some importance. The reason for having the cause of action declared and set out, is, to give the defendant notice of what is to be preferred against him ; and, that being done, there is no principle of law better settled than that he - cannot afterwards change the form of action. The authorities are full on this subject. But the action, and consequently the form of it, depends much more upon the matter alleged and set forth as the ground of the claim, than upon the mere name that happens to be given to it.
In Carpenter v. Gookin, 2 Vt. R. 495, the court say that “as a description of the matter of demand, or cause of action, so far as to specify the general nature of the action. *411is all that is usual, or necessary in a suit before a justice of the peace, the plaintiff is at liberty, when the cause comes by appeal to the county court, to file a declaration in proper form, upon the particular cause of action, described or specitied in the writ.” In this case, and in a number of other subsequent cases, in this state, the “nature of the action,” and the “cause of the action,” and the ‘form of the action,” are indiscriminately spoken of when discussing this question; but in no case, I believe, is any thing said about the name of the action.
Swift in his Digest, page 639, uses similar language. He says, the plaintiff may amend, “provided he does not change the form or ground of action.”
Cowen’s Treatise, 333, is full on this point. It is there laid down that «the MH5P nf action, stated at length, shall be deemed the true one,” and nofthe name by which it is canea. In this case, the plaintiff, in his original declaration before the justice,- commenced his declaration by stating, “ in a plea of trespass, ” and then proceeded to state the ground of his complaint, in such a way as did not admit of its being trespass, — in other words, he so stated it as to make it trespass on the case. No act is alleged against the defendant, only a neglect, or an omission to do that, which, if it had been done, the plaintiff would not have sustained the injury. The new declaration which he filed in the county court, counted upon the same facts as the original declaration, and recited the same transaction, and nearly in the same words, in the most important parts.
It could not, then, be changing the cause of action, or-the form of action. This disposes of all there is objectionable in the declaration.
The next objection is to the charge of the court.
On the trial in the county court, the defendant requested the court to give the jury certain instructions in relation to certain negligences of the plaintiff, on account of which, he was not entitled to recover ; and upon this request to charge the jury, and refusal to charge as requested, the defendant excepts, and not from the general charge of the court, in relation to the plaintiff’s right to recover, nor from a charge given at the request of the plaintiff. This is important to be noticed in considering the case. If the court’had been request*412ed to charge the jury in relation to the extent and nature of the evil propensity of the cow, and the extent of the defendant’s knowledge of that propensity, we might suppose that all that is detailed in the bill of exceptions, is all that was said upon that part of the case. From what comes to us in the bill of exceptions, it will be seen that the defendant was raising no question in relation to the evil propensity of the cow, nor of defendant’s knowledge of that propensity, but it was in the first place, that defendant was not liable on account of the place in which the injury was sustained, and, in the next place, that the injury happened through the negligence of the plaintiff, and that the defendant, therefore, was not liable. But we think the defendant was not entitled to such a charge upon either of these points. If the cow had this vicious habit, andjhis. wa.s known to it , hcr crcrcyTcf Have restrained the cow, —. and, in regard to the question of negligence on the part of the plaintiff, that must depend upon the attendant facts and circumstances, and was properly submitted to the jury. It will be noticed that so much of the charge as is set forth in the bill of exceptions, is in relation to the request of the defendant, relative to those points already stated, but does not pretend to be a statement of the charge of the court, in relation to what was necessary to have been proved by the plaintiff, in relation to the mischievous propensity of the cow, nor of the defendant’s knowledge, — and what the charge of the court was, in relation to that part of the case, does not appear, excepting what is incidentally stated in the other part of the charge : — and we perhaps, would be justified in presuming that the charge in that respect, was unobjectionable, or the defendant would have excepted to it at the time.
The case finds that the cow, on one occasion, had hooked a horse, and that was known to the defendant, and she caused buttons to be put upon her horns, as a preventive. Only one act of hooking, before the one complained of, was proved. Still, others might have existed, — and how far the circumstances tended to prove it, or would authorize a jury to arrive at that conclusion, is not for this court to say. It is enough to say that they might have that tendency.
But, taking the charge of the court upon the mischievous propensity of the cow, as it has come to us, we discover *413nothing erroneous in it, although it might have been more full. It is evident the court did not intend to rest it upon a single act of hooking, for, when speaking of hooking horses, the court used the expression in the plural number, and did not confine it to a single instance.
Upon the whole, we are satisfied with that part of the charge to which the defendant excepted; and in relation to the other, if we are at liberty to revise it, without its being excepted to, we are not convinced, from what appears in the case, that there was any error.
Judgment affirmed.