Donaldson v. Ward

Opinion by

Mr. Justice McIver,

This was an action to recover the amount of an account for rice sold by plaintiff to defendant. A counter-claim was pleaded. Judgment was for defendant (Kershaw, J.), and a motion on a “case containing exceptions” was heard at the next term by Fraser, J., and refused. Plaintiff appealed upon the following grounds, only the first two of which were pressed in argument:

“ 1. Because the verdict rendered in said cause is against both the law and the weight of evidence. 2. That the damaged given by the jury in said cause are excessive, unreasonable and unjust. 3. That the verdict rendered by the jury is illogical. 4. That the defendant, while said trial was in progress, talked to one or more of the jurors, while the said trial was pending before said jury. 5. That one or more of the jurors who sat upon the jury had, before the trial, formed and expressed decided opinions adverse to the interest of the plaintiff; this was unknown to plaintiff until after the trial. 6. That his Honor erred in charging the jury, ‘ That if they believed that the plaintiff had failed to perform her part of the contract in every particular, then the defendant was entitled to recover damages.’ 7. Because his Honor should have granted the motion of plaintiff to strike out the first and second paragraphs of defendant’s answer.”

The judgment below was affirmed by this court, the exceptions being severally ruled upon as follows :

1 and 2. It is settled law that these matters 'are exclusively within the cognizance of the Circuit Court, and this court has no jurisdiction to hear or determine such questions.

3. No question of law is here presented, and therefore it need not be considered.

4 and 5. There is nothing stated in the “ Case,” by affidavit or otherwise, to establish the facts upon which these grounds are based ?

6. The charge as set out in the “Case” contains no such proposition, and therefore this ground needs no further notice.

7. It does not appear that any such motion was made, or, if made, upon what grounds based. The answer is not given, and, therefore, it is not known what were the first and second paragraphs. It is stated that defendant pleaded a general denial and a counter-claim, and no reason can be conceived why either of these defenses should have been stricken out.