Hastings v. Palmer
20 Wend. 225
N.Y. Sup. Ct.
1838
Check Treatment
By the Court, Co wen, J.

The proof of special damage was properly rejected. The report which influenced Chappell might as well have been imputed to any other of his neighbors, as to the defendant. To make the offer of evidence complete, it should have been proposed to show in some way that the special injury arose not only from the words in question, but was a consequence of the defendant’s use of them.

The judge also had a right, in his discretion, to disallow the evidence offered in aggravation of damages, at so late a stage of the cause. Strictly, the plaintiff, or party holding the affirmative, is bound, in the first instance, to introduce all the evidence on his side, except that which operates merely to answer or qualify the case as it is sought to be made out by his adversary’s proof. At this alone, the evidence in reply must be pointed. The following cases show that to be the settled practice at the English nisi prius, with the power of the judge to qualify it in his discretion. Whittingham v. Bloxham, 4 Carr. & Payne, 597. Giles v. Powell, 2d id. 259. George v. Radford, 3 id. 464. Brown v. Giles, 1 id. 118. Rex v. Stimpson, 2 id. 415. Knapp v. Hascall, 4 id. 590. Rowe v. Brenton, 3 Man. & Ryl. 133, 139, 304, on different days of a trial at bar. Rex v. Hilditch, 5 Carr. Payne, 299 ; and see Rex v. Findon, 6 id. 317. The rule with its reasons and qualifications, is very well stated by Mr. Justice Mills, in Braydon v. Goulman, 1 Monroe, 115, 117, 118, on error brought for improperly receiving supplemental evidence of damages: “ In strict practice, he who has the affirmative, ought to introduce all the evidence to make out his side of the issue; then the evidence of the negative side is heard; and finally, the rebutting proof of the affirmative, which closes the investigation. An adherence to this rule generally, *227will be found necessary in all courts of original jurisdiction 5 and without it confusion, loss of time, and captious and irritable conduct must follow. We say generally ; for it will often be found proper, for good reasons, to depart from it, in order to attain complete justice; and when this ought or ought not to be done, must, in a great measure, be left to the sound discretion and prudence of the court.”

Nine other grounds are taken for a new trial, eight of which are objections to the charge of the judge, and the ninth, that the verdict is against law and evidence. We think the charge was right, and the verdict was not against either law or evidence.

New trial denied.