Underhill v. Taylor

By the Court, Cady, P. J. There was no error in the act of the judge in excluding the evidence offered in mitigation. [349] If Abraham K. Underhill did address irritating language to the defendant, it furnished the defendant with no apology, for afterwards, in a conversation with William V. R. Taylor, uttering slanderous words of the plaintiff. On the return of the summons before the justice, William W R. Taylor, the plaintiff therein named, did not appear in person, but Hervey Edwards appeared for him, without objection, and joined issue with Abraham K. Underhill, the defendant in that suit; and on the trial the plaintiff appeared in person. After the evidence in this cause, on the part of the plaintiff, was closed, the defendant moved the judge to nonsuit the plaintiff; and assigned as cause for the motion, “ that it appeared from the evidence, that the testimony of the plaintiff was extra-judicial; Taylor not having appeared in the cause before the justice on the joining of issue, and no evidence of Edwards’ authority having been produced before the magistrate.” The judge denied the motion, and the defendant’s counsel excepted. The judge rightfully denied the motion. Taylor appeared in person on the trial of the issue, which Edwards had joined for him. This was abundant evidence that Edwards had authority to join the issue. The motion for a new trial must be denied.