3 Barb. 31 | N.Y. Sup. Ct. | 1848
By the Court,
The verdict in this case, for 350 dollars, may be disproportionate to the injury inflicted by the defendant; but it was probably the result, in part, of the manner in which the defence was conducted. The justification was a decided failure; and no doubt the attempt to estafe':
The exceptions to the charge are too general. It has been repeatedly ruled that the judge’s commentaries upon the evidence are not the subject of exceptions. If he inadvertently misstates the facts, the counsel must correct him at the time. If he gives an opinion upon the evidence, it cannot be reviewed upon exceptions. It is common experience to apprize the jury as to the effect of their verdict upon the parties, in respect to the question of costs ; and the practice has been expressly and repeatedly approved. (Elliott v. Brown, 2 Wend. 497.) The scope of the charge is right, and is not obnoxious to the criticisms made upon it.
The main point in the case is the objection of the defendant’s counsel to the observation of the circuit judge as to the waste of time, occasioned by calling a great number of witnesses to impeach or to sustain the character of a witness in the cause. This observation was made while the defendant’s counsel were examining witnesses to the character of James Powell, one of the plaintiff’s witnesses; and the judge concluded by limiting the number of witnesses to impeach or sustain the character of the witness assailed, to three witnesses on a side. This general observation of the judge was sound and correct; but whether sound or not cannot be questioned by bill of exceptions. The circuit judge had no doubt a discretion with respect to the number of witnesses to be examined on this collateral question. The judge might, by the civil law, stop the multiplication of witnesses to the same matter. (Cowen & Hill’s Notes, 396. Wood’s Civil Law, 317. 2 Dom. b. 3, title 6, § 3, art. 14.) It has been the constant practice at the circuit in this state, on the collateral issue as to the character of the plaintiff, or that of any of the witnesses, either to lay down a rule in the commencement, limiting the number to
The limitation of impeaching and sustaining witnesses to three on a side in this case, looks, to a person unacquainted with such trials, like depriving the parties of a right. But the surrounding circumstances would enable the judge at the circuit, to perceive whether any benefit would result from an increase of the number. There is perhaps nothing in which a defendant in an action of slander is more likely to err, than in his judgment of the necessity of impeaching the character of the plaintiff, or of his principal witness. The pleasure he derives from hearing others assail a character which he has as-persed, blinds him to the consequences which often result from an indiscreet or needless attack. If the character of a witness or party is in truth bad, it can be shewn by a few witnesses as well as by many. If the character is shewn to be bad, from the transaction itself, as when he is an accomplice of a criminal, or when on cross-examination he exhibits himself to be a villain, general evidence of bad character will add nothing to it. There is perhaps no part of circuit experience in which so great abuse of what the law permits to be done for the discovery of truth, is exhibited, as in examinations to general character ; and it would become intolerable were it not restrained by the presence and power of the presiding judge.
In the present ease, I have no doubt the defendant suffered more from the attack he made upon the witness by general evidence, than from being réstráinéd from repeating it. Be that as it may, we cannot interfere upon a bill of exceptions : and the motion for a new trial must be denied.