| Conn. | Jun 15, 1841
The questions ■which have been discussed, do not arise from the facts appearing upon this motion.
The defendants, in support of their motion, rely upon what they suppose to be the mistake of the judge in the court below, in his instructions to the jury regarding the acts necessary to constitute a selection, by the defendants, of the ram to become forfeited, under the statute in addition to an act relating to sheep, passed in 1824.
Upon an inspection of the motion, we do not discover, that there was, on the trial, any evidence from which a question on that subject could arise, and which made it necessary for the judge to call the attention of the jury to it.
It does not appear from the record introduced in evidence, on the trial, by the defendants, that -they ever made, or attempted to make, any selection ; and this wás all the proof of any kind introduced by them. But they insisted, that the fact of a selection appeared from the proof introduced by the plaintiff. We do not think so. It was proved, by the plaintiff that, the defendants secretly removed the ram in question, several miles off; that they afterwards brought him back, in the night) and kept him privately, and afterwards killed him ; and that before this, they had kept him privately confined in the barn, in the cellar, and in the office of one of the defendants. But it is no where intimated, that these acts of the defendants, or either of them, were done with an intention of selecting this ram from others, as the subject of forfeiture ; nor do any of these acts conduce to show this; on the contrary, they prove convincingly, that the intention was to conceal entirely from the plaintiff all knowledge of the ram.
The defendants, therefore, could not have been prejudiced, at the trial, by any remarks of the judge, on the subject of a selection, even if they were not strictly, legal;- which we do not intend to intimate. '
We do not advise a new trial.
New trial not to be granted,