
    James vs. Caldwell.
    Tlie declaration stated, that the defendant, with force and arms, drove, chased and set his dogs upon the plaintiff’s mare, and thereby caused her to run upon and against a stake of wood with great force and violence, so that said stake of wood penetrated the side and ribs of the mare, of which she afterwards died: Held, that an action of trespass, vi et armis, would lie. '
    This was an action of trespass, vi et armis, brought by the defendant in error, Caldwell, against the plaintiff in, error. The declaration was as follows: “Thomas J. Caldwell, by his attorney, complains of William James in custody, &c., of a plea of trespass; for that said defendant on the — day of-in the year 1833, in said county, with force and arms, drove, chased and set his dogs after a certain roan mare of him the said plaintiff, of great value, to wit, $500, at, to wit, in the county aforesaid: and thereby caused the said mare to run upon and against a stake of wood with great violence, so that the said stake of wood penetrated between two of the ribs of the said mare into her chest or belly; whereby the said mare afterwards, on the •— day of-in the year aforesaid, died, and was wholly lost to the said plaintiff,” &c. .
    The defendant pleaded not guilty, and upon the trial in the circuit court, the jury rendered a verdict in favor of the plaintiff. A motion for a new trial was entered, upon the ground that the verdict was against evidence, which was overruled, and a writ of error prosecuted to this court. It is deemed unnecessary to detail the evidence, as the court was of opinion that it was sufficient to support the verdict.
    
      R. Jlnderson and G. S. Yerger for plaintiff in error,
    contended, 1st, that the verdict was against evidence.— 2d, that from the facts stated In the declaration, case, and not trespass, was the proper action. They cited 2 Danes ab. 488, 499, 491: 1 Ld. Raymon, 284: 1 Salkeld, 13: 1 Strange, C33: 5 T. Rep. 649: 1 Ch. PI. 124: 1 East, 5 ’ ^ r ’ 106: 17 Mass. Rep. 244.
    
      ■Churchwell for defendant.
    A new trial will not be granted, though the jury may have found against the form of the action where substantial justice has been done. 3 John. Rep. 105: Lofft. 521: Bos. & Pul. 338: 2 Term. Rep. 4.
    Did the jury find against the weight of evidence? We believe they did not; but if they did, this court will not grant a new trial upon that ground alone. 3 John.'Rep. 180: S John. Rep. 369: Salkeld 64S: 1 Lofft. 146, 391: 3 Wilson 45: 1 Bur. 54.
    The rule is, this court will not grant a new trial unless the weight of evidence against the verdict is such as to force the opinion or belief that injustice will be done unless it is granted. Peck’s Rep. 364, Bowman’s lessee vs. Cox: 3 John. Rep. 170: 3 Wilson 541: 1 Cowp. 597. Again, this court will not grant a new trial where there is evidence on both sides. 3 John. 271: 2 John Rep 46: 2 Strange 1142.
    Again, the court will not grant a new trial because in their opinion the jury may have erred in their conclusions. This is a rule founded injustice, in a deep knowledge of human nature, a long experience of the'practice in courts of law and jury trials, and sustained by facts and circumstances known only to a jury. They can see the witnesses, observe their manner of giving testimony, their hesitation, their anxiety, their prejudices against one party, and their prepossessions for the other, when this court only can see the testimony as put in the re- ■ cord by a lawyer, by an interested and sometimes blinded advocate. The jurors are therefore the best judges, and the only proper and safe judges of facts. 1 Blackstone, 1: 1 Wilson, 22: 1 Black. 148: 1 Dallas 284.
    
      Jarnagui argued on the same side.
   Catron, C. J.

delivered the opinion of the court.

The declaration states, that James with force and arms drove, chased, and set his dogs upon the mare of Caldwell, and thereby caused her to run upon and against a stake of wood, with great force and violence, so that said stake of wood penetrated the side of the mare, of which' she afterwards died.

It is moved to arrest the judgment, because the facts set forth will not support an action of trespass, m et ar-mis; and it is insisted for James, that the injury of the mare running on the stake was consequential, and' case could only be supported. . The dogs were the instruments of assault as much as a stone thrown from the hand would have been. The violently chasing the mare was in itself a trespass, if unlawful for the defendant to do so; but the declaration does not state this;' yet the chasing of the nag forced her on the stake, and the injury was immediate, and 'proceeded from the act of the defendant. The whole was but one act, as in Scott vs. Shepherd, for throwing a squib, 2 Wil. 403. In that case one was cited much in point to the present. It is this. “If a man be riding on the way, and another man striketh his horse, by which the rider fallelh and is hurt, he which is cast off his horse shall have trespass against the other. The stroke given is to the horse, and not to the rider, but he is instantly hurt by the fall, in consequence of the act of striking the horse.” This case rests on the ground that the defendant, in committing the trespass, used an agent, the horse ridden; but the whole was one act, proceeding from the defendant, and immediate in point of time. We therefore think this first ground against James, the plaintiff in error.

The next is, whether the proof sustained the declaration. The defendant, James, and some of his family were pulling corn in the field, and others hauling. One of the smaller sons was muidme the gap nr the fence; tt 1 r • 11 . 1 , 1 Helelt it, and the mare wentin. I he boy set the dogs on her; she ran across the field, pursued by the dogs, and being partly blind, ran against the farther fence, and thrust a stake through her side.

That the father assented or dissented to the act is not proved, but must be inferred; and we can only say, as-did the court in Slater vs. Baker and Stapleton, (1 Wils. 362, cited 3 Wil. 409,) “that the plaintiff in this case ought to receive satisfaction seems to be admitted; so we will not look with eagle’s eyes to see whether the evidence applies exactly or not to the case, when we can see the plaintiff has .obtained a verdict for such damages as he deserves, but ,we will establish such verdict if possible.”

The constant course of this court has been in conformity to the doctrine holden above, and could not be otherwise without violating the act of 1809, making it our duty to decide causes without regard to nice technicalities. Let the judgment be affirmed.

Judgment affirmed.  