Crump v. Hubbard

Opinion of the Court, by

Ch. J. Boyle.

THE errors assigned in this case question, first, the sufficiency of the plea of set-off upon which issue was joined; and secondly, the propriety of the decision of the inferior court in overruling an application for a new trial.

We have no doubt of the sufficiency of the plea, at least after verdict. It alleges a consideration and an assumpsit in apt words and in due form, and although the presice sum is not stated, but left blank, yet the plea, with an allusion to the demand for which the action was brought, avers that the plaintiff was indebted to the defendant in a greater sum. This, we apprehend, is substantially good; for if the defendant had alleged a particular sum, he would not have been bound to have proved it.

The application for a new trial was made upon the whole evidence produced on the trial by both parties, consisting principally of the positive testimony of a witness in support of the defendant’s account, and of circumstantial evidence on the part of the plaintiff, to disprove it.

In such a case, as the propriety of the verdict depends upon the credit of witnesses and the influence of circumstances, of which the inferior court, from their having witnessed the transaction, have a better opportunity of judging correctly than this court can have, it is obviously improper that we should interfere, for the purpose of correcting the decision of the inferior court. This court has accordingly, for many years past, uniformly refused to do so.

Judgment affirmed with costs.