Hamilton v. Langley ( 1835 )

Curia, per

O’Neall, J.

Upon the motion for a nonsuit, this Court concurs in opinion with Mr. Justice Earle, and principally for the reasons which he has given. The rule stated by Starkie in his treatise on Evidence, (4th part, page 1603,) that where a fact is simply alleged without vouching any instrument, and the instrument is used as mere evidence, a variance will not be fatal if the substance of the allegation be proved, covers the point made by the defendant on the motion for a nonsuit, for a variance between the record set out and that offered in proof. The record was, it is true, particularly alleged, but still it was a mere allegation of the record, without vouching it, and as in substance it was made out, it was sufficient.

See 2 Sp., 592; 2 Rich., 580. An. Wardlaw and Wardlaw, plaintiff’s attorneys. Griffin, defendant’s attorney.

The Court of General Sessions is a Court of general jurisdiction,^(a) and it was unnecessary to allege that it had jurisdiction of the indictment. So, too, it was unnecessary to state that the oath of the plaintiff was taken on a point material to the issue. As soon as it appeared from the declaration that the defendant’s words applied to a legal swearing on the part of the plaintiff, it became in legal contemplation an imputation of perjury.

As to the first and second grounds of a new trial, the Judge’s report explains away the first, and on the second we concur with him. Upon the third ground, I would remark that a question of damages is particularly for the jury, and it must be a manifest case of error upon which we would undertake to interfere. The opinion of the presiding Judge, that the damages found were too small, cannot help the plaintiff; for notwithstanding we are disposed to give effect to his opinion in all cases where it can be done, yet this is one of those cases in which he had not the means of saying that the verdict was against evidence. For the damages are more discretionary than otherwise with the jury.

The motions are dismissed.

Johnson and Harper., JJ., concurred.

(a) 2 McMul., 116. An.

(b ) See 2 McM., 118. An.