Scovell v. Kingsley

Daggett, J. It is a very plain principle of law, that the plaintiff could not support the issue joined on either of these counts, unless he proved the words to have been spoken before the date and service of the writ. The time, then, of speaking the words, became materia], and thus far indispensable. The testimony of Hartsliorne leaves it in entire uncertainty ; and thus it is not, and cannot be ascertained, whether the testimony is relevant and admissible, or irrelevant and therefore improper. Surely, such testimony cannot be legal; for the rule of law, and the only reasonable principle, is, that he who offers testimony in support of a fact, should show it, pertinent to the issue. But in this instance, upon the principle assumed, the jury must ascertain, without any proof, when the words were spoken, and then either reject the testimony, as not bearing on the issue, or admit it, as pertinent. The testimony is to be weighed and deliberated upon, by the jury, as to the point of its legality, and not as to its import. This is manifestly irregular. No principle is better settled, than that the question of the legality of testimony, must be decided by the court; — its weight, when admitted, is to be ascertained by the jury. Such testimony might have been received to prove malice, but not to support the right of recovery. Any further observations on a point so plain, would be superfluous. A new trial, is, therefore, to be granted. The other Judges were of the same opinion, except Brain-ard, J., who was absent. New trial to be granted.