Brooks v. Bemiss

8 Johns. 455 | N.Y. Sup. Ct. | 1811

Per Curiam.

The principal point, upon the motion for a new trial, is, as to the admissibility of the evidence, which was offered on the part of the defendant, and rejected by the judge.

The defendant offered in evidence the record of a trial at the Ontario sessions, of the term of June, 1809, and it was rejected, on the ground that the notice annexed to the plea, set forth that the record of a trial, of the term of June, 1810, would be given in evidence. The year in the notice was an evident clerical mistake, as the time specified in the notice was even subsequent to the joining of issue in the cause, and subsequent to the giving of the notice itself. The question is, whether the day In the notice was material to be proved exactly as stated. The notice did not affect to set forth the record according to its tenor, or with a jOr out patet, &c. and the allegation of the time was not matter of substance, but of description merely. The notice only intended to inform the plaintiff, that the defendant would rely upon an acquittal of one William Adams, upon an indictment at the Ontario sessions, for an assault and battery upon the plaintiff, notwithstanding the plaintiff’s oath. This was the substance of the notice, and the time was not material, so that it appeared to be before the publication of the libel. It was no further an essential part of the notice; and the record ought, accordingly, to have been received, notwithstanding the variance as to the time. This was the doctrine in Purcell v. Macnamara, (9 East, 157.) even in a case of special pleading. This just and liberal rule applies, with still greater force, to the case of a notice, which has never been regarded with the same criticism and nicety . ° as a special plea.

The matter offered in evidence, in justification of the first count, was properly rejected. The charge imported that the plaintiff was a liar. That was its meaning and substance; and that charge cannot be justified, by giving the opinion of one or more individuals. Such a species of defence might lead to the grossest abuse and calumny, even of a party of good general character, and of unimpeachable conduct. The defendant can only justify the charge by proving the fact.

But on account of the rejection of the evidence of the record, the verdict must be set aside, and a new trial awarded, with costs, to abide the event of the suit.

New trial granted.