Majority
p. 101Comfort against Thompson. ALBANY, Jan. 1813.
Headnote
In an action |°eforeWa a found and judgment ffiv° on for the decourtwhi not ^ cause the verdearly against Sere being no ^]ee|ejliU'ityIN ERROR, on certiorari, from a justice’s court. Comfort brought an action of debt against Thompson, before the justice, to recover the penalty under the act to prevent injury by dogs, passed the 24th of March, 1801. (Sess. 24. c. 62.)
The plaintiff, in his declaration, stated, that the defendant, after being notified that his dog had chased and killed sheep, had kept him, and not killed him, &c. The cause was tried by a jury. The plaintiff proved that the defendant’s dog had killed one of bis sheep, and two sheep belonging to another person, on the 10th of September last. That verbal notice of the fact was given to the family of the defendant immediately after; and afterwards to
p. 102
the defendant himself. The suit was commenced on the 11th of November, and a penalty of above 30 dollars had accrued. The justice charged the jury, that the plaintiff might waive the whole penalty, and recover only what he demanded, which was 25 dollars. The jury found a verdict for the defendant.
The verdict is, no doubt, clearly against evidence ; hut this being an action for a penalty, there is no new trial granted, in such cases, on the ground of the verdict being contrary to evidence, provided the verdict be for the defendant, and there be no irregularity in the case. (2 Stra. 899. 1238.) There is, at least, as strong reason for applying this rule to such trials in justices’ courts, as in any other.
Judgment affirmed.