Gardner v. Harrell, 4 N.C. 381, 1 Car. L. Rep. 381 (1814)

Jan. 1814 · Supreme Court of North Carolina

4 N.C. 381, 1 Car. L. Rep. 381

Gardner v. Harrell et als.

This was an action of trespass, assault and battery. The defendants plead the plea of justification, and attempted to give evidence of an arrest, under a State warrant, issued by a magistrate, for larceny. The warrant was delivered, by the magistrate, to the plaintiff. The defendants, previous to the trial, were advised by their attorney, to give the plaintiff notice to produce the warrant, or they would give parol evidence of its contents. The defendants introduced a witness to prove the notice, who deposed, that the defendants had carried him to the plaintiff to take notice, and be a witness, concerning something in the case, but what it was the witness could not recollect, as it had entirely escaped his memory. The defendants failing to introduce evidence of notice, in consequence of which, the Court refused to receive any testimony in relation to the warrant, the plaintiff obtained a verdict for 150l. A rule for a new trial, on the annexed affidavit, being obtained, it was discharged by the Court, and an appeal taken to the Supreme Court.

Seawell, J.

delivered the opinion of the Court.

This is an application to the Court, upon the defendant’s affidavit to set aside a verdict which the plaintiff has obtained, and to accord a new trial, upon the ground, that injustice has been done the defendants, through surprise at the trial.

As the great object of a new trial is the attainment of justice, it rarely happens that Courts refuse their interference, where it appears necessary to effect that end. And it may be remarked, that it as seldom happens the party making an affidavit to obtain a new trial, omits any circumstance tending to shew he has merits on his side.

In this case, it is probable, the plaintiff was notified to produce the warrant on the trial, and that the witness, Hyman, had forgotten it when he gave his evidence. But it does not appear the defendants were deprived of any advantage. If they believed they would be able to justify, if permitted to prove the contents of the warrant, it was in their power to have stated it in their affidavit. If they exceeded their authority, the pretext of acting under the warrant would aggravate the case. And without the Court’s taking that for granted which does not appear, and which, if true, rests in the knowledge of the defendant, there are no grounds for setting aside the verdict.

Wherefore, let the rule for new trial be discharged.