5 N.J.L. 518 | N.J. | 1819
Lead Opinion
remarked. I should have felt better satisfied to have taken a little longer to look into this matter; but, as I now see no cause to doubt, I am willing to yield to the request of the parties. Four questions seem to have been pressed upon the consideration of the court, by the argument of this rule. 1. whether the trial ought to have been postponed at the circuit ? 2. Whether the possession of Barber, was such as to render the plaintiff’s recovery illegal ? 3. Whether the contents of the handbill, were a proper subject of consideration, in assessing the damages ? And 4. Whether the damages were so excessive, as to call for an interference with the verdict. I will endeavour to express my view of each of these points.
*And 1. As to the postponement of the trial. A party who has encountered the expense of a preparation for the circuit, is entitled to a trial, unless his adversary can satisfy the court, that he has exhibited due diligence on his part, but has not been able to come prepared, and that justice will probably not be done, if the trial progresses. In ordinary cases, upon a first application for a postponement, an affidavit of the absence of a material witness, who has been legally subpoenaed, is sufficient. But a second or third application, by the same party, naturally induces a suspicion, that he is not so often unfortunate, but is
In the present case, the defendant supposes that the Chief .Justice erred on two points. 1. On account of the variance in the word Thomas, between the circuit record and the copy of the declaration, furnished to him by plaintiff’s attorney.
I think there is more than one sufficient answer to the defendant’s complaint, on this point. The record, throughout uses the word Thomas; the copy of the declaration does the same: the abbreviation which is subscribed to the hand-bill is not a word of different signification, but means precisely the same thing. The defendant could not, therefore, have been left in doubt, or been deceived, by the copy furnished ; and I do not think that the variance would have been fatal in any ordinary case of pleading, even if it existed between the evidence and the record. It is very clear he has not been deprived of any possible means of preparation and defence; nor has he been, in the slightest degree, injured in the result. The record and the evidence correspond. *But 2. The provisions of our law, and the course of our practice, require the defendant to look to the files of the court, not only to see when the declaration is filed, but what it contains.
The second reason offered for postponing the trial, was the absence of the witness. I cannot help believing that there^is more in the fact, that the fees were not left with the copy of the subpoena, than seemed to be supposed by the counsel, on either side, from the manner of their argument. It is an express requirement of our statute, that the fees shall be paid, and the amount is fixed. The third section of the act concerning witnesses, Pat. 401, provides, “ that if any person on whom lawful process shall have been duly served, to testify &c. and to whom shall have been paid or tendered, at the time of such service, fifty cents, if he is to serve in the county &o. shall not appear according to the tenor of said process, having no lawful or reasonable let or impediment to the contrary, he shall, for every offence, forfeit” &c. Can wo, under the words of this section, consider a witness lawfully subpoenaed for the purpose of punishment for non-attendance, unless the fee be paid or tendered ? Clearly not. And can we say that the process has not been legally served, when we are about to punish the witness, and yet that it has been legally served, when we are inquiring into the default of the party, and determining whether he has used due diligence? that it is legal for one purpose and not for another? This would seem an unfit state of things. Besides it is altogether reasonable, that this provision of the statute should be strictly complied with. The witness comes to render a service to the party; his compensation is fixed; he often needs it, to
It is to be recollected that this was the third effort at postponement and for the same cause, the absence of a material witness. The trial was therefore properly ordered on. 1. Because the process to subpoena the witness, ought to have been taken out earlier, and greater diligence exhibited. 2. It was not shewn that the witness was expected by the next term, or at what particular time. It might be that he was expected at a period to which the trial could not reasonably be postponed. 3. The defendant ought to have shewn that the witness had not returned from the westward, and could not be brought before the court at that time. All the information given of his absence, was the declaration of his wife, that he was gone and was not expected back in time ;• but there is no proof that he was not then at home. For aught that appears, he might have been there, and had the process been served on him and the fee delivered, would have attended. 4. The materiality of his evidence was not sufficiently shewn.
2. The second question to be considered is, whether the possession of Barber was such as to make the recovery of the plaintiff illegal ? But little need be said upon this question. If I correctly understand the evidence, Barber is a very near connexion of the plaintiff; he uses one of the rooms in his office for the purpose of transacting the various
3rd question. Were the contents of the hand-bill a proper subject of consideration with the jury ? There is no doubt that they were considered, and formed the principal item in the heavy account which was found against the defendant, and if they ought to have been excluded from the view 'of the jury, I cordially agree with his counsel that the damages are enormous, are outrageously excessive: five thousand dollars, for passing over a gravel-walk of half a dozen yards in length, and putting a man’s foot upon the sill of the door, would be intolerable, no matter who the parties, or what their situation. But is this the real case ? Of what does the plaintiff complain in his declaration? He complains that the defendant illegally entered upon his premises and put upon his door, an insulting and libellous hand- ■ bill.. Is this hand-bill to be regarded as part of his cause of complaint, or is it not ? Much ingenuity was certainly displayed by the counsel in the discussion and application of the cases to this question, but the conclusion at
But I do not perceive how the two are to be separated. The plaintiff complains of a trespass. The jury are to determine the *extent of it and the injury resulting from it. To do this, they must not only know what was done, but as far as possible the motives with which it was done. How will they learn them ? By being informed that defendant passed over the gravel-walk? No, for this was not all he did; and this he might have done with the best intentions, and have committed no punishable trespass. That he put his foot upon the sill and left a paper there ? No, for these acts might have been, and no harm done to the plaintiff. But they might also have been, and the plaintiff deeply wounded by them. How is the jury then to say whether he was or was not injured ? How are they to determine whether the defendant came as friend or foe? to leave a paper containing information salutary to his safety or poisonous to his reputation and peace ? to commit a trespass or to do a kindness ? It can only be done by looking into the contents of the hand-bill; and shall the jury be compelled to decide, and yet precluded from this only means of judging ? Suppose the contents oj the bill had been of a kind and friendly nature, and designed expressly for benefit to the plaintiff, would not the defendant have been permitted to shew it ? and would not the jury in such case have refused the plaintiff any thing ? yet the rule must operate both ways. A man enters my house and strikes my child: I may charge arid prove both acts, and he must compensate for both. But he not only enters my house and strikes my child, but when he does it, adds the most malignant and unfounded slanders
4. The remaining question to he considered is: are the damages excessive? suchas call for our interference,
In giving an answer to this question, we cannot act safely un*iil we satisfy ourselves what is the import of that hand-bill. On the part of the defendant, his counsel, at the trial, and again here, allege that the letter was designed to obtain a peaceable and friendly interview; an amicable explanation of serious wrongs which he had suffered from the hands of the plaintiff; and that the put- ' ting up the hand-bill was designed to bring it to the notice of the plaintiff, and thus enforce the meeting. And they appeared, among other arguments to prove their positions, to derive some confidence from the decision of this court, in the case of the State v. Gibbons,
Having fixed what we are to consider as constituting the trespass, we may now form an opinion whether the damages are excessive. And here it is necessary for me to remark, that this is a case, most decisively within the province of the jury. It is not simply and alone a case for a tort done to property, the value of *which may be ascertained by evidence, and where there are fixed rules and principles to measure the damages ; but it is one of character, of sentiment, of feeling; one where the court is not entrusted with the power to estimate the wrong, but the jury must exercise their discretion; a case depending much on the situation and circumstances, as well of the party injured, as of him who did the injury. In such a case, although the verdict may be set aside, if the damages given are so unreasonable as to indicate a want of ordinary discretion in the jury, so outrageous as to exhibit passion, prejudice, partiality or corruption, yet do I feel no authority to touch it, unless they be evidently such. Because I may feel that if I had been a juror, I should have discharged my duty by giving less, I am not therefore at liberty to say that less shall be given. This
On all the questions, therefore, I think the defendant wrong, and that the rule for a new trial should be discharged.
declared his entire concurrence, on all the points.
See Stokes vs. Garr, 2 Har. 451. Fuller ads. Den, Saxton, Spen. 61. State vs. Zellers, 2 Hal. 220.
Probasco vs. Probasco, Pen. *1012. Youngs vs. Sunderland, 3 Gr. 32.
See Thompson vs. Morris Canal, 2 Har. 480. Berry ads. Vreeland, 1 Zab. 183. Winter vs. Peterson, 4 Zab. 524. Phillips vs. Phillips, 5 Vr. 208. Vunck vs. Hull, Pen. *815. Allen ads. Craig, 1 Gr. 294.
State vs. Gibbons, 1 South. 40.
Concurrence Opinion
concurred, but thought the damages larger than ought to have been given.
Rule discharged.