Stuart v. Simpson

1 Wend. 376 | N.Y. Sup. Ct. | 1828

By the Court,

Savage, Ch. J.

The plaintiff was nonsuited in the court below, because, in the opinion of the court, there was no evidence to prove that the defendant knew the apprentices to be such. The circumstances relied on, are the youthful appearance of the boys, and the mahogany dust on their clothes. The court were right in deciding that these would not warrant the jury in finding that the defendant knew them to be apprentices. In my opinion the judge was correct, also, in refusing testimony to shew that other apprentices had been employed. The point contested, was the knowledge of the defendant in this particular case, and the evidence offered did not prove it. If, therefore, the scienter was necessary to be proved, the court below, in my judgment, decided correctly.

But it is said that slight circumstances are sufficient to go to the jury, and whether the defendant knew the boys to be the plaintiff’s apprentices or not, was a question for the jury. I agree that courts should be extremely cautious, on the subject of interfering with the province of the jury; yet it is matter of common practice to set aside verdicts as against evidence, and sometimes because they are against the weight of evidence. If, therefore, the evidence would not authorize a jury to find a verdict for the plaintiff, or the court would set it aside if so found, as contrary to evidence, in such cases it is the duty of the court to nonsuit the plaintiff

As to proof of knowledge. It seems to be necessary, on authority, (2 Ch. Pl. 269, n. y., Stark. Ev. 1310, 11,) and the obiter opinion of Lord Kenyon, in Fores v. Wilson, (Peake’s N. P. Cases, 55.) It seems highly reasonable it should be so; and Starkie holds it necessary to prove the fact of soliciting, which is not shewn in this case, otherwise than by the payment of the twenty-five cents. No questions were asked, and no solicitations are sworn to. On the whole, I am satisfied, that if the defendant has been guilty of the offence charged upon him, it is not substantiated by evidence.

The court below was correct, and their judgment should be affirmed.