Dempsey v. Paige , 4 E.D. Smith 218 ( 1855 )

By the Court.

Daly, J.

The defendant waived any objection to the regularity of the warrant by joining issue upon the merits. (Sperry v. Mayor, 1 E. D. Smith, 361; Bray v. Andreas, id. 390.)

To entitle a defendant to a jury it is required, by statute, that he shall demand one “ before an order is made for an adjournment, after joining issue.” The demand in this ease was not made until after issue joined, and after the cause was adjourned, when the parties appeared upon the adjourned day for trial. It was then too late.

Where there is a conflict of evidence, we do not interfere with the finding of the justice, unless the evidence be of such convincing character as to lead to the conclusion that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected, through mistake, to deliberate upon the whole of the testimony.

The evidence offered was properly rejected. The offer was not to prove that any thing was said in the conversation in which the alleged slander was uttered to modify the import of the slanderous words, or that any thing more was said in that connection than already appeared, but that only the con-

vernation related to the acts of the defendant in violating his contract, and receiving more money than was due. Such proof amounted to nothing, unless the defendant also showed, that in the conversation itself such explanation was made by the defendant as limited the meaning of the slanderous words to those acts, and showed that the words, though in themselves denoting criminality, were used in a sense and in a connection indicating that no criminal imputation was intended ; and this the defendant did not offer to show. The judgment should be affirmed.

Judgment affirmed.