Bebee v. Steel , 2 Vt. 314 ( 1829 )

Hutchinson, J.

delivered the opinion of the Court. — This appears to be an action of trespass and false imprisonment; to which the defendant has pleaded the general issue and a special justification, that the imprisonment was by virtue of a writ of attachment, with a deputation to one Corey. This plea is traversed. These issues, it seems, went to the jury; and exceptions were taken to the neglect to charge, as requested by the defendant, and to one decision of the court.

An exception was taken to the court’s refusing to allow the defendant to withdraw the general issue, after the jury were em-pannelled, and before any testimony was given them. This exception is not now urged. If it were, it was a matter of discretion with the court to allow it, or not, under the circumstances. If asked for before the jury were impannelled, it would generally be granted of course : if afterwards, it might be deemed inexpedient; as it would vary the course of presenting the testimony calculated by the plaintiff. At any rate, the allowance or disal-lowance of such a motion cannot be assigned for error.

Anew exception is now urged in argument; that the testimony in the case will not support trespass, but only case. This is started out of time. The county court were not called upon to decide it, and made no decision upon it'. We are now revising the decisions of the county court, on the exceptions taken at the trial, and brought up here by motion under the late statute,just as we should if brought here by a writ of error. And this question, not being raised there, is not before this Court. But, if the question were regularly before us, we can entertain no doubt but that the jury were warranted, from the testimony detailed in the exceptions, to find, that this arrest was made by the defendant and Corey, when Corey's name was not in the deputation. If they so found the fact, the action must be trespass, if any thing.

The exception about the copy of the writ is raised in this wise. The defendant, on aformertrial of this cause,had used a copy of this writ in evidence,which remained with the files. Atthis trial, the plaintiff had procured the original writ from the justice,and had itin court. The defendant gave the plaintiff"notice to produce it. He refused unless he could have the copy. On finding the copy in the files, he delivered the original to the defendant, and it was read to the jury. The plaintiff’s counsel then said, he putthecopy in, also, as evidence ; but did not then read it. This copy had no name in the deputation but that of Corey, while the original exhibited several names, so erased,that it was not easy to decide which was intended to remain as the name of the person deputised. In the closing argument the plaintiff’s counsel proceeded to remark upon the copy in connection with the original. This was objected to,because it had not before been read. But the court permitted it, considering it as put in at the beginning without objection.

Mattocks and Starkweather, for plaintiff. Fletcher and Cushman, for defendant.

_ We consider there was no error in this decision. There was no need of the plaintiff’s reading the copy when its original had just been read. Saying he put itin as evidence, and placing it with the other paper evidence, was sufficient. Besides, it is difficult to discover how the defendant could be injured by its use; since it tended to prove that Corey’s name was the one considered by the. justice, at the time he made the copy, as the name that he knew was correctly there.

The remaining exception relates to the court’s neglect to charge the jury, that the defendant’s advising Cargill not to give bail for the plaintiff, should have no effect to aggravate the damages. It seems the court were requested so to charge, but gave no charge upon the subject. This neglect was error ; but not of the kind the defendant complains of. The court should have instructed the jury, that, if they believed that testimony, it tended to show that feeling of heart in the defendant, that determination to crowd the plaintiff to the settlement afterwards made, which could not be effected by lawful measures, which ought to be considered by them in assessing damages. If it had not the desired effect upon Cargill, it showed a malicious spirit in the defendant. Probably a correct charge upon this point would have doubled the damages. But the plaintiff does not complain of this error, and the defendant cannot avail himself of it.

The judgment of the county court is affirmed.