¶1The plaintiff in error recovered a judgment of $8,00, in an action of trespass, against the defendant in error, before a justice of the peace of Onondaga county. This judgment was reversed by the county court. To show that the county judge was right in reversing this judgment, the counsel of the defendant relies on several grounds of error committed in the justice’s court.
¶21. The plaintiff had proved by one Reuben M. Handy, that the defendant had beaten a cow and a hog of the plaintiff, with stones and with great severity; and that he had been in the practice for the last two years of stoning and beating the plaintiff’s cow and hogs. On his cross-examination, the witness had testified, among other things, as follows: “ I don’t know that there has been a hog or cow along there but that he has stoned them’’ On the re-examination of this witness, the plaintiff’s counsel propounded the following question : “ Have you seen him stone cattle generally that were in the road ?” This question was objected to, and the objection overruled by the court, and the witness was permitted to answer. This was held by the county judge to be erroneous, and for that cause he reversed the judgment of the justice. We are bf the opinion that the judgment should not have been reversed for this cause, for these reasons: (1.) That the question merely involved an inquiry into a matter concerning which the defendant had previously examined the witness. . The testimony of Handy, given on his direct examination, had tended to show a long continued habit of the defendant of treating the plaintiff’s beasts with cruelty, from which special malice towards the plaintiff might well have been inferred. To rebut such an inference, the defendant gave evidence of a general practice of the defendant to *319beat off all animals indiscriminately with stones, from the highway near his premises. It was then clearly competent for the plaintiff to inquire into this practice. And in this view the justice was right in allowing the question. (2.) Suppose, however, the evidence was irrelevant and inadmissible, yet, the defendant having committed the first fault, in giving evidence of this description, it was in the discretion of the justice to receive evidence by way of cross-examination of the witness upon this topic, at the instance of the plaintiff. This principle is settled in the 24th of Wendell, 425, 6; and such is the conclusion of Messrs. Cowen & Hill, after a review of all the cases. (1 Cow-en & Hill’s Notes, 430, 431, 432.)
¶3II. Another ground of error relied on by the counsel for the defendant in error, is that a venire was issued when no issue was joined. The answer to this objection is, that the cause was tried on the assumption that the defendant had pleaded. The defendant’s counsel expressly consented to try the cause with five jurors; and gave evidence on behalf of the defendant. Any error, therefore, of this description, was waived.
¶4III. Again; it is said that other illegal evidence was admitted by the justice. The amended return does indeed show such to have been the fact; but, it also shows that the objection to such evidence was afterwards withdrawn. The cause was unskilfully tried before the justice; and much evidence that would not have been competent if objected to, was received, to the prejudice of the defendant. Injustice may have been done him by the jury; but we are compelled to say that all such errors were waived, and that no legal ground existed for reversing the judgment in the court below. We must therefore reverse the judgment of the county court, and affirm that of the justice.
¶5Judgment accordingly.