23 F. Cas. 504 | U.S. Circuit Court for the District of District of Columbia | 1820
delivered the opinion of the Court.
A motion has been made, in this cause, for a new trial on the ground of excessive damages.
In eases of tort, courts have seldom granted new trials unless the damages are so excessive as to imply gross partiality or corruption on the part of the jury. This is not a case of that kind; and although the Court should think the damages unreasonable, (which however we do not say,) yet we should not be justified by precedent in setting aside the verdict on that ground.
In the argument upon the special verdict, it has been contended,
1st. That the corporation of Alexandria had no authority to make the by-law under which the defendant attempts to justify the act.
2d. That if they had, the justification under that by-law is not made out in point of fact; that is to say, it does not appear, by the special verdict, that the dog was “ found going at large, within the limits of the corporation, without his ownerand
3d. That if the dog was in a situation in which he might be lawfully killed by the defendant, yet the manner and means of killing, were unlawful, and therefore the defendant must be considered, in law, a trespasser ab initio.
As the opinion of the Court upon the second point is in favor, of the plaintiff, it will be unnecessary to decide the other two.
The special verdict does not find that the dog had not such a collar as is required by the by-law of the 24th of September, 1804; so that the defendant cannot justify under that law. The only by-law under which he can claim a justification is that of the 28th of April, 1811, which enacts, “ That it shall be lawful
The special verdict does not find that the dog was “ found going at large without his owner.” We do not suppose it necessary that the jury should have'found the fact in so many words, but in order to justify the defendant they must have found facts which, in law, amount to the same thing. They find only that the dog, “ being found upon the foot-pavement in one of the public streets of the town,” “ was shot by the defendant and killed,” “ and that he was, at the time of his being so shot and killed, peaceably pursuing his accustomed and daily route from the said stable along the paved footway in the street, and close along the plaintiff's said garden-paling to the said gate.”
All this may be true, and yet the dog might not be going at large without his master. He might have been led by a string by a servant, or he might have been with his master. The Court can infer no fact from the facts found ; and the facts found do not amount, in law, to the facts required by the by-lawin order to justify the defendant.
As this view of the case seems to be very clear and decisive of the cause, we abstain from giving any opinion upon the other points made in the argument.
Judgment. The Court, having heard the arguments of counsel upon the special verdict found in this cause, and the same being considered, the Court is of opinion, that inasmuch as the jury have not found that the dog in the declaration mentioned, was, at the time of the defendant’s killing him, found going at large without his master, within the meaning of the by-law of the 28th of April, 1811, in the said special verdict recited, the defendant was not, in law, justified in shooting and killing the said dog, in the circumstances stated in the said special verdict. Whereupon it is considered by the court that the plaintiff recover of the defendant the sum of 275 dollars so as aforesaid assessed by the jury as his damages, and for his costs about his suit in this behalf expended.