Ex parte Baily

Curia. The motion for a nonsuit was properly overruled. The Judge then proceeded to charge the jury, that the question for them to determine was how the words were to be understood; and the principal subject of complaint is, that he confined his notice solely to the words in proof which were grammatically prospective, “ you will steal,” without expressly submitting other sets of words, which it is insisted were established by the proof. He told the jury, that it was for them to say, whether the words were prospective, and meant that the plaintiff would hereafter steal, or that he had . already committed theft; and though perhaps he may have laid too much stress on the word will, yet it was substantially a submission how they would understand the words, generally, as proved on the part of the plaintiff. It is objected that the Judge took no express notice of any other words than those proved by the witnesses P. T. & C. B. and particularly that he paid no attention to the admission which the defendant made to J. F. This would doubtless have been proper as showing an intention to charge the plaintiff with the crime of larceny, but the plaintiff’s counsel should have called the Judge’s attention to this testimony. Not having done so, he has no right to complain of the omission as erroneous. Nor is a mandamus the proper remedy. If the charge of the Judge was incorrect, the plaintiff should have taken his bill of exceptions, and reviewed it upon a writ of error. But aside from this difficulty as to the remedy, it is a sufficient answer to this application that the words proved would admit of some doubt as to their meaning, and where there is room for the least criticism upon their import, it is properly a question for the jury, whose decision is conclusive. It comes within the principle laid down by this Court in Wilson v. Supervisors of Albany, (12 John. 416.) We think the jury found against the weight of evi* [483] dence, but they had a right to decide. Slander is m the nature of a penal action, in which though the jury find for the defendant against the weight of evidence, a new trial is never granted. (Hurtin v. Hopkins, 9 John. 36.) As to the remedy by mandamus, it may be proper to remark, that though in extreme cases we might interfere, and control the Court below upon, questions of fact presented in the form of a motion for a new trial, yet it is a remedy which should be used very sparingly. A contrary course would draw before this Court, whenever one of the parties should be dissatified with the decision t>f the Common Pleas, an examination of those questions which address themselves merely to the discretion of that Court. We should be perpetually appealed to for the adjustment of rights undefined by law. This would result in an endless conflict of opinion upon questions which must from their very nature be finally determined by the Court below, because they cannot be reached by the rules of law; and although we may think the inferior jurisdiction has erred, yet we will not interfere. It is true, that extreme cases may be supposed, which would form an exception to this doctrine. Where an action is brought on a promissory note, the execution of which is proved beyond all doubt, and yet the jury find against it, should the Court below refuse a new trial, we might interfere ; but it would be improper to do this, in ordinary cases. Even where a verdict is plainly against law, yet the Court may many times properly deny a new trial; as if the controversy be very trifling in its nature, or contemptible in amount. Motion denied, (a) Footnotes [(a)] Vid. Macrow v. Hull, 1 Burr. 11; Farewell v. Chaffey, id. 54, and the cases there cited ; Fleming v. Gilbert, 3 John. 528 ; Hyatt v. Wood, id. 239; Hunt v. Burrell, 5 John. 137; Van Slyck v. Hogeboom, 6 John. 270; and Feeter v. Whipple, 8 John. 369.