Brown v. Wilde — 12 Johns. 455

Majority

p. 455

Brown against Wilde.

Headnote

tNafhfne4 jLtí,ere ?s°"eíiSdes“sotSattto ?ea?tt,0doubtfuL wrti not“db“re-the verdict™ re against the weight of evidence.

a former tr.ia> by-consent-bu* offeredd<othernt' fence,which was fa"!™™,undoes not appear that injustice has judgment6, wm ground, be re-

IN ERROR, on certiorari to a justice’s court.

THE plaintiff in error brought an action of trespass on the case", -in the court below, against the defendant in error, for fraud, in the sale of a horse. The defendant-pleaded not guilty, and the cause was tried by a jury : there was considerable evidence'on bóth sides, as to the fraud, and the jury found a verdict for- the • -ii defendant. In the course ol the -evidence, it appeared that 1 1-there had been a former trial between the same parties, in reíatian to a pair of horses, of which the horse in question was one. The justice, in answer to the allegation in the affidavit, that the -evidence of the former trial was objected to, as inadmissible under the general issue, returned, that it was admitted under the agreement of the parties.

The judgment must be affirmed. Whether there had been any fraud in the sale of the horse, was a proper question for the jury, and there having been evidence before the jury that rendered the question, at least, doubtful, we do not, in such cases, interfere, even where the verdict is against the weight of evidence. The evidence of the former trial was not admissible under the general issue, if there had been no agreement between the parties on the subject^ but the justice was warranted from the agreement, which he states, to draw the inference that the objection was waived., At all events, the defendant did not rest upon the former trial as his sole defence; but the merits of the question of fraud were entered.into at large, and we cannot say that injustice has been done.

Judgment affirmed.