Robinson v. Wilson

22 Vt. 35 | Vt. | 1849

The opinion of the court was delivered by

Bennett, J.

"We think there was no error in the county court, in excluding the record of the conviction of the plaintiff in the prosecution in behalf of the state. It might have been procured by the testimony of this very defendant, who now proposes to use the record. If put in, it would prove nothing as to the excess of force. Both parties may be guilty of a breach of the peace, and liable to be proceeded against criminally.

In relation to the allowance of the certificate by the county court, it is mostly a question of fact; and the decision of the county court is not revisable, so far as it proceeds on matter of fact. If it were allowed in an improper case, it would perhaps be otherwise. The opinion of the jury, that they did not consider the trespass wilful and malicious, is not material. The court are to determine that fact; and they have the right to determine it upon what was disclosed upon the trial. Where there has been a full trial, it would be absurd to hold, that, on the question whether the certificate ought to be allowed, the court are bound, as matter of law, to hear the case over again. We think it is safe to hold, that it must rest in the sound discretion of the county court, whether the case is such an one, as to require a farther hearing. We cannot perceive, that any legal inference, as to the character of the assault, is to be drawn from the verdict of the jury. If any inference is to be drawn, it was an inference of fact, which the county court might draw.

From the verdict of the jury it might be supposed, they considered the excess of force as small; and it is not usual for juries to measure the excess of force by so small a scale, as was adopted in this' case, provided it was upon that ground the verdict was given for the plaintiff; but probably it might have been a compromised verdict. But be this as it may, the amount of damages given by the jury cannot control the county court in relation to the certificate. They are to judge for themselves, whether it should be allowed on the ground that the trespass was wilful and malicious, or not.

The result, then, is, that the judgment of the county court is in all things affirmed.