1 Bur. 175 | Wis. | 1843
This was an action for slander in the district court for Bacine county, in which Colton was plaintiff and Fowler defendant. The defendant pleaded the general issue, and notice of special matter to be given in evidence on the trial in justification, as follows: “The defendant will give in evidence, under the general issue,
After the plaintiff had closed his evidence on the trial, the defendant offered evidence in justification, which was objected to, on the ground of the insufficiency and immateriality of the notice, which objection was sustained by the court, and the testimony rejected. This is the first error assigned.
The notice is allowed to be filed with the general issue. He may or he may not rely upon it, and the plaintiff is bound, notwithstanding the notice, to prove the facts set forth in the declaration. Vaughan v. Havens, 8 Johns 109. Generally, a notice must contain in substance, all the substantial matter of a special plea, but is not required to be in form. In actions upon contract, a notice is sufficient if it contain such a statement of special matter to be given in evidence at the trial as may prevent the plaintiff from b eing taken by surprise. The statute has prescribed no form, and each case must in some degree, depend upon its peculiar circumstances, and upon the application of a sound discretion in the court at the trial. Cham
After the testimony offered by defendant had been rejected, the defendant moved for leave to amend his notice, which was not granted by the court, and this is the subject of the second error assigned. The notice then on file had been allowed to be amended, according to the rules of the court, before the trial. Even if the refusal of this second amendment were the subject of error, we could not say that the court committed any error in this particular, for every indulgence was extended to the defendant that could reasonably be desired. The act concerning amendments provides, that “the court in which any action shall be pending shall have power to amend any process, pleading or proceeding.” This is not obligatory upon the court, but merely discretionary for the furtherance of justice. Now it is well settled, that the allowance or disallowance of amendments, when it is a matter of discretion, is not the subject of error. Mandeville v. Wilson, 5 Cranch, 15; Marine Ins Co. v. Hodgson, 6 id. 206; Chirac v. Reinicker, 11 Wheat. 280; Sheely v. Mandeville, 6 Cranch, 253; Walden v. Craig, 9 Wheat. 576; Ordroneaux v. Prady, 6 Serg. & R. 510; Clymer v. Thomas, 7 id. 180.
The court, in the charge to the jury, remarked, “that in considering the character of the plaintiff, you will also consider the character of the witnesses for and against, and give their testimony such weight as it may deserve. Such a witness as Isaac Goodpasture, when called upon this subject, will not be entitled to much weight.” In this, error is alleged, but there is none apparent. This was an opinion of the court, not in the least binding on the jury. An opinion of a fact, not given as binding on
The defendant moved for a new trial on the alleged ground of misconduct of the jury in agreeing upon their verdict; and at the argument of this motion, he offered to prove “that the jury in ascertaining the amount of damages, marked the sums which they would allow, and then added the sums so marked together, and divided the whole by twelve and took the quotient as their verdict, which they returned into court; that the sums so marked varied from $50 to $1,000; and the defendant offered the affidavit of H. N. Wells to prove the fact, or, if the affidavit was not admissible, a witness was offered to prove them on the stand.” It appears that this offer was presented at the argument of the motion for a new trial, when the court made this entry: “The motion for a new trial being taken up for consideration, this offer is overruled.” The affidavit referred to did not appear to have been taken on notice.
The supreme court of the United States will not take cognizance of questions of law, which may arise in the circuit or district courts upon motions for a new trial, as it is a motion addressed to their discretion (Wood v.
Judgment affirmed, with costs.