Woodard v. Paine & Lake , 15 Johns. 493 ( 1818 )

Per Curiam.

The motion for a new trial in this case must be denied. From the nature of the cause, and the testimony that was given, there was room for an honest difference of opinion as to the conduct of the defendants, and as to the damages sustained by the plaintiff. We are inclined to think that the better conclusion is, that the magistrate acted under an honest and real impression that he had jurisdiction of the case before him. The testimony is pretty strong to show that the property was purchased in, under the constable’s sale, for the benefit of the plaintiff, so that he has only sustained damages to the • amount of the judgment against him. But the testimony on both these qUeS{¡ong might well^ be considered doubtful; it depended very much on the credibility of witnesses, and it was fairly submitted to the jury ; and we cannot say that they have so much erred as to warrant us in interfering and setting aside the verdict.

The declarations and confessions of Hine were properly excluded. He was a competent witness, and his confessions could not be received in evidence. There was no direct proof that he was the plaintiff’s agent, or acted in his behalf. U pan the whole, although the damages are higher than we think they ought to have been, yet, as it is an action sounding in tort, the verdict must stand.

Motion denied