Cole v. Perry

Curia, per Sutherland, J.

The verdict is supported by the weight.of evidence, as to the speaking of the words. All the plaintiff’s witnesses, four in number, and one of the defendant’s, swear that'the charge made against the plaintiff was, that he aided and assisted his brother in burning the jail at Ballston, and murdering the man in it; while two witnesses' only, on the part of the defendant, understood the éharge' to be, that he aided and assisted his brother in escaping from the jail; not in burning it. All the witnesses were present at the speaking in question ; and had equal means of hearing.

The evidence offered by the defendant, that the plaintiff was geñerally suspected of having aided his brother in escaping from Ballston jail, was properly rejected. The view with which it was offered does not appear to have been explained at the time. It was contended at bar, that it was admissible in corroboration of the evidence given by the defendant’s witnesses, that such was, in fact, the charge made by the defendant. The defendant sought to fix upon the plaintiff, the general reputation of having been guilty óf a crime entirely different from that which the plaintiff showed he had charged upon him; and then the fact of that general reputation was to be used as evidence that the defendant never made the charge which *five witnesses had sworn to. The natural effect of the testimony' was, not to corroborate the defendant’s witnesses; but to mitigate the damages; not by showing the general character of the plaintiff to be bad, but that he was suspected of having been guilty of a particular crime. It was inadmissible in every point of view.

Mor can we interfere with the verdict, on the ground that the damages are excessive. Though heavy, they do not afford evidence either of partiality, prejudice, intemperance or corruption, on the part of the jury; (5 Co wen, 119, and the cases there cited.)

Mew trial denied.