delivered the opinion of the Court:
This was an action for malicious prosecution, in which the jury found a verdict for the plaintiff for $1,250. On a motion for a new trial, the court held the verdict too large, and the plaintiff expressed his readiness to enter a remittitur of $600, which would obviate the objections of the court, but the remittitur was not in fact entered. Judgment was however rendered for $1,250, less $600, to be remitted, etc. This judgment was informal, and must be reversed, with leave to the plaintiff to properly enter a remittitur and then take bis judgmént in the proper form.
The other errors are not well assigned. The instructions only lay down familiar principles of law and can not have misled the jury. The evidence as to what the defendant said at the time the prosecution of the plaintiff was dismissed by the justice was very properly excluded. A party can not be permitted to make evidence for himself in this way and claim its admissibility as res gestee. The naked fact to be proven in that part of the case was that the plaintiff, who had been arrested, was discharged by the justice. The law thereupon raises the presumption that he was discharged for want of proof of guilt, but why his prosecutor had failed to make the proof was certainly not a fact to be proven by the declarations of the prosecutor himself.
A cross error is assigned, that the court should not have compelled the plaintiff to remit a part of the damages. That is not the proper mode of stating the action of the court. The court can not compel the plaintiff to remit, but when there is a motion for a new trial on the ground of excessive damages, and the court states its intention to grant it on that ground alone, the plaintiff has the election either to take the verdict of another jury, or to remit so much of his verdict already gained as will obviate the objections of the court. If he chooses to take the latter alternative, he can not complain here. The granting of a new trial can not be assigned for error, and it necessarily follows, if a plaintiff prefers to give up part of his verdict to avoid a new trial, he can not assign that for error. The judgment is reversed and the cause remanded.
Judgment reversed.