By the Court.
Benning, J.,delivering the opinion.
Was the court right in overruling the motion for a new trial ?
Only two of the grounds were insisted on ; viz : that as to the exclusion of the witness to the deed; and that as to the excessiveness of the damages.
1. We think that the court was right in excluding the witness offered to prove the deed. He was one of the parties sued, and there was another witness to the deed, and no excuse was given for not calling him. The ca.se, therefore, was not one in which there was room for the doctrine of necessity.
The damages were large, but we are not quite prepared to say that they were excessive.
It is true that there was evidence going to show, perhaps, that the two fighting squads were about equally to blame ; but then, it is also true, that there was some evidence going to show that the Umphreys squad was the more to blame. This was, first, evidence, that they stopped up the road, although the right to its use, was by special contract in old Hendricks; secondly, evidence that *159tbey commenced the actual hostilities; thirdly, evidence that they first resorted to their axes. This evidence, the jury had the right to believe ; -and if they believed it, tbey were authorized to find against the defendants. And if they were authorized to find against them, it can hardly be said that tbey might not find as much as they did. The wound was a terrible one.
Judgment affirmed.