#### Aaron Ogden *against*Thomas Gibbons. *(a)*

in trespass *quare clausum fregit.*

THIS was a rule to shew cause, why the verdict should not be set aside, and a new trial granted. The verdict was received by the Chief Justice, at the *Essex*circuit in *September*1818. The declaration complained that the defendant, on the 20th of *September*1816, with force &c. entered the home-lot of plaintiff, situate &c. and trod down &c. the grass &c. to the value of one dollar, and did then and there enter into the dwelling house of the said *Aaron,*on the said close there then being, and did then and *there unlawfully fix and post up on the door of the said house, a wiclced, malicious, and insulting printed hand-bill, the tenor of which is as follows, *to wit ': “*To Col. *Aaron Ogden,*Sir, As you refused to receive a letter which I sent you by Gen. *Dayton,*yesterday, I will give it publicity through another channel. For like *Nicanor*upon *Judas,*you made war upon me on the *Sabbath*day. But first, of the letter you had received by the hands of Gen. *Dayton,*which is as follows : To Col. *Ogden. Eliz.*30th *May*1816. Sir, I was this day arrested in a suit at law, in your name, in the city of *New- York,*after I was on board of the sr,eam-boat returning to *Elizabeth-Town.*As we reside within half a mile of each other, and you never intimated to me or any of my friends, any claims or cause of action against me, I pronounce your conduct *rascally.*I don’t regard your suit *in terrorem,*but I must teach you to proceed with decency.” Copy of the letter you declined receiving by the hands of Gen. *Dayton. “*To Col. *Aaron Ogden, Elizabeth-Town,*25th *July*1816. Sir, I understand that *599you have interfered in a dispute between Mrs. *Gibbons*and myself, which has been brought on by *John Trumbull -*and wife. My fiiend Gen. *Dayton*will arrange with you the time and place of our meeting. *Elizabeth-Town,*26tb *July*181(3. *Thomas Gibbon.”*To which printed hand-bill was added a written postscript in the hand-writing of the said *Thomas Gibbons,*the tenor of which is as follows: “ P. S. As you have been furnished with such an hand-bill as' the above, on the first ulto., I hope you are prepared to explain yourself for your wanton interference in a case so delicate. If you stand mute I shall adjudge you as pleading guilty, and treat you as a convict.” And other wrongs &c. to his damage &c. five thousand dollars.

The plea was *not guilty.*When the cause was called at the circuit, the defendant moved the postponement of the trial, for two reasons. .1. Because the attorney of the plaintiff, when requested to furnish a copy of the declaration, gave to the defendant’s attorney, one which was variant from that in the circuit record, in this, that in the copy, the name signed to the writing set forth in the declaration, was *Thomas Gibbons,*and in the record *Th: Gibbons;*which latter was according to the fact, the copy being incorrect. 2. Because *Samuel Burt,*a material witness, was absent. Defendant swore that *Burt*was a material witness, and by his own and *J. Periam’s*affidavits he proved; that on the 2nd of *September,*a subpoena was shewn to *Burt’s*wife, and a copy left at his house in *Elizabeth-Town;*that bis wife said, at the time, that he had gone to the westward and was not expected back before the trial: she was requested, when he returned to give him the copy of the subpoena and request his attendance, but no fee was left for him. It also appeared, that the trial had twice before been postponed by the defendant; once on account of the sudden illness of Gen. *Dayton,*one of his witnesses, who was taken sick 'while attending the court: the second time for the absence of *J. M. Trumbull,*one of his witnesses, who was subpoenaed, but not present when the cause was called. On this occasion the plaintiff offered, at his own expense, to procure *Trumbull’s*attendance, in an hour or two ; but the defend*600ant declined accepting the offer, and the trial was post-

Upon these facts being shewn, the Chief Justice ordered the cause to proceed.

The plaintiff then proved; that some day *in September*1816, about noon, the defendant went with a horsewhip, cane, and paper in his hands, to the plaintiff’s 'office, which is a building standing back from the street, and adjoining the house, having two rooms below, with bed rooms above; that he fastened with wafers to the door, which was half way open, a hand-bill, and then went away. It remained on the door a short time, and was read by one or two, when the plaintiff’s daughter took it down. The plaintiff was from home at the time, but returned in a few minutes after; his wife and daughter were there, and the family seemed alarmed and disturbed. The path-way to the office is gravelled, and usually left open. The passage through the office communicates with the house, but is not often used by the family. *G. G. Barber,*a son-in-law of the plaintiff, is a practising lawyer, clerk of the Borough Court of *Elizabeth,*notary public, and master and examiner in chancery, and uses the office in common with the plaihtiff, for all the purposes of his business, but does it by the permission of the plaintiff, and claims no right of property or possession in it, although in speaking of it, he usually calls it his office. Defendant was formerly on good terms with the plaintiff, and visited at his house. The hand-bill set out in the- declaration was then proved and read to the jury, after which the plaintiff rested.

The defendant then gave in evidence, a letter from the plain*tiff to defendant, in the following words. “ *Elizabeth-Town, June*1,1816. *Thomas Gibbons,*esquire, Sir, I subjoin a copy of a letter which I have written and sent this morning. I have further to add, that I am extremely sorry for the mistake, and am ready if required, to reimburse such expenses as it may have occasioned you. I am &c.” Copy, *“ David B. Ogden,*esquire, Dear Sir, I parted with the endorsed note of Mr. *Gibbons,*after the instructions I had left with you, to put it in suit; but some how in the'hurry of business, having immediately *601after made two journies, the one to *Princeton,*the other to *Sussex*court; I inadvertently omitted to give you timely - notice, as I understood on my return yesterday from *Sussex,*the suit has been commenced. You will therefore, please to discontinue it immediately; charge me with the costs, and take such measures, as may be necessary to discharge the bail, and give the due notice, both to him and Mr. *Gibbons.*I am &c.” The defendant also gave in evidence, a note in these words : “ On or before the first day of *April*next, I promise to pay to *Peter Coryell,*or order, two thousand, one hundred and eighty-three dollars, and thirty-four cents, without defalcation or discount, for value received. *New-York,*20th *November*1815, and signed *Th: Gibbons,*and endorsed ‘ *Peter Coryell,’ Aaron Ogden,”*which note was the one on which the suit was brought in *New- Fork.*General *Dayton*testified, that on the 25th of *July*1816, he received a letter, addressed to the plaintiff, enclosed in a note to himself, with a request to deliver it to the plaintiff. On the morning of the 26th, he went to the door of the plaintiff’s office, and informed him that he had called on some matters of business. Plaintiff replied that he was then too unwell to attend to business, and as soon as he was well enough, he must go to *New- York.*He then informed plaintiff, that he would waive two matters of business and proceed to the most important ; informed him he had a letter and presented it. When plaintiff saw the hand-writing, he declined receiving it, saying, “ I can receive no letter from that quarter, for I have already received one, couched in such terms, as forbid all further communication.” He then went into an explanation, of what he supposed to be its object, viz: that Mr. *Gibbons*had understood that the plaintiff had been interfering in a dispute between him and Mrs. *Gibbons,*and he wished to know if plaintiff had done so, and to explain the motives of his conduct. Plain*tiff replied, that “ he had no explanation to make.” Upon being urged, he added, “ Mr. *Gibbons*would not like to hear the explanation.” “Nay,” said General *Dayton, “*that is the very tiling he wishes.” Plaintiff then replied, “ tell Mr. *Gibbons*I have no explanation to make, and if he thinks I have done him wrong, he must pursue such *602measures to obtain redress, as he thinks proper.” The ■witness then said he would acquaint Mr. *Gibbons,*with the answer, and left him. Sometime after this, defendant being at General *Dayton’s*house, at dinner, said, “that as Col. *Ogden,*would not receive the letter he had sent him by witness, he would carry it himself, and if he was'not at home, he would put it up, where he could see it.” That he then went to plaintiff’s office, with a whip and cane in his hands, being the same he almost always carried with him, when out from home; that he came back to General *Dayton’s*house, and was standing with him in the door, in full view", when plaintiff returned home, a few minutes after. Being cross-examined, he said, that on the 30th *May*1816, he received from defendant, a letter in his hand-writing, to be delivered to the plaintiff, the contents of which he knew, for defendant felt himself injured; that he called at *Rivers’*tavern, where plaintiff was en. gaged in business, and requested the landlord to call him, who did so, and he delivered it, but plaintiff put it in his pocket without opening or reading it. Witness, at the time he delivered these letters, was not on terms of social intercourse with the plaintiff, but only spoke to him, on matters of business. Plaintiff, when he refused to receive the letter at his office door, did not say that he had received a letter through witness couched in offensive terms, nor deny generally that he had interfered between Mr. and Mrs. *Gibbons.*

Plaintiff then read to the jury, his note of the 3rd *Jwne*1816, which defendant produced upon notice, in these words; “ Col. *Ogden*informs Mr. *Gibbons*that Col. *Ogden’s*note to Mr. *Gibbons*on the first instant, was written and sent, before the receipt of his note to Col. *Ogden,*of the 30th *May*preceding.”

The defendant called *Peter Coryell,*who testified that he received the promissory note before mentioned, from defendant, in part payment for some land ; that defendant twice offered to pay it before it wfas due, if he would deduct the interest, which he refused, as he did not want the money. Defenda3it then said, if he would not make the discount and take the money, he would carry *it from court to court, throughout the *United States;*that intimi*603dated by his threat, he consulted Gol. *E, Dayton,*who advised him, as the note was payable in *New- York,*it might be collected there; he therefore endorsed the note and gave it to Col. *Dayton,*who, as his agent, passed it to plaintiff and took a writing for the money. Plaintiff placed it in the *Union Bank.*

The plaintiff called *John Low,*who testified that the note was left in the *Union Bank*for collection, and that defendant saw it there before its maturity ; that it was protested for non-payment, and notice given; that banks discount notes where drawer lives in a different state, if they have good endorsers in the city, and would discount this, from respect to the parties, they being often in the city. *Ephraim Clark,*testified, that he lived in defendant’s house and keeps tavern in it, and a few days after putting up the hand-bill, he went to defendant’s and inquired of him, about it, telling him he understood lie had challenged Col. *Ogden.*Defendant said he did not know, for he had not said challenge, nor a word about challenge, but Col. *Ogden*might make what he pleased of it, but he would read the hand-bill to him; which he did. Defendant added that he went from Gen. *Dayton’s*to Col. *Ogden’s*with a horse-whip in his hand, and if he had found him at home, he meant to have whipped him within an inch of his life, in his own house, for he knew ho was a coward ; that Col. *Ogden*saw him coming and sneaked through the back way, over the fence and came round the corner by Col. *Mayo’s;*the reason he gave for saying this was, that when he enquired of Col. *Ogden’s*servant if he was at home, he said he was, and he (defendant) first saw him, near the corner opposite Col. *Mayo’s,*getting over the fence.

Gen. *Dayton*being again called by defendant, testified, that he saw defendant before the note was due, tender to *Coryell,*the amount, after deducting the interest; that he was present at the giving of the note, and it was dated in *New- York,*to secure *New- York*money in payment, but not to oblige payment to be made there; that *Coryell*expressly said, his object was to get *New-York*money, and it was understood between them, that it should be paid where they lived, in *Elizabeth-Town,*but he did not recollect any *604thing said about a discount of the interest if paid before *Peter Coryell*being called, said there was no stipulation on his part, to receive the money when defendant *chose, and discount the interest; nor to receive payment at *Elizabeth-Town.*

After the evidence was closed, the jury found a verdict for five thousand dollars damages. Upon the coming in of the *postea,*a rule was granted, on motion of the defendant, to shew cause why a new trial should not be allowed. In support of this rule, the following reasons were filed.

1. Because the Chief Justice before whom the said cause was tried, refused to put off the trial of the cause, upon the application of the defendant, although it appeared that the defendant’s attorney had been furnished by the attorney for the plaintiff, with an alleged copy of the declaration materially' variant from the declaration contained in the transcripts in said cause: which copy of the declaration the defendant’s attorney and counsel had supposed was a true copy, and prepared the cause for trial accordingly, and knew not to the contra^ until the cause was moved and the transcript produced. And because the Chief Justice refused to put off the trial of said cause, although a sufficient affidavit, for that purpose, of the absence of a material witness on the part of the defendant, was made and read.

2. Because the jury assessed the plaintiff’s damages at five thousand dollars, the whole sum demanded in the plaintiff’s declaration, which damages are excessive.

3. Because the verdict of the jury was against the evidence in the cause.

4. Because the verdict of the jury, rendered in the cause, was against the weight of evidence.

5. Because the supposed injury upon which the jury found the said excessive damages, except the sum of one dollar for the trespass, was not real, but imaginary ; was new7, and without precedent.

6. Because the supposed injury for which the damages were given, except the sum of one dollar, in the plaintiff’s declaration mentioned, did not entitle the plaintiff to recover any damages, or at most, but nominal damages.

7. Because the jury ought to have assessed the plain*605tiff’s damages at part only of the sum demanded iff the plaintiff’s declaration; the possession of the premises: upon which the supposed trespass was said to be committed, or some part thereof, being in the possession of *Aaron Ogden*and *George C. Barber.*

**Vanarsdale*and *Halsey,*for the defendant,

on the first reason assigned, argued; that where a judge, at the circuit, errs in a matter of discretion, it will be reconsidered at bar, and a new trial granted. 7 *John.*306. That the Chief Justice did err, in compelling a trial at the circuit 1. On account of the variance between the circuit record, and the copy of the declaration furnished: that the circumstance of its being furnished by the plaintiff’s attorney, as matter of courtesy, if such it must be considered, did not lessen the injury or surprise; that it was such a variance as ’was calculated to mislead ; for relying on it, the defendant might alter his preparations for trial; that in this case it was absolutely necessary to set out the tenor of the hand-bill, if the pretensions of the plaintiff ■were right, and damages Were to be ascertained, not only from the injury of setting it up, but from the contents of the bill, which were alleged to be a libel and challenge; that tenor means a true copy; that this was not so, for *Th:*does not necessarily nor usually mean *Thomas;*and time ought to have been given to see w'hether the error was in the copy or the circuit record, for if the variance existed between the declaration and the hand-bill, it would have been fatal on the trial, to the admission of the evidence. 2 *Wil.*260. 2 *Salk.*660. 2 *Stra.*770. In the 2nd place; that the trial ought to have been postponed on account of the absence of the witness. In deciding this point, this court must place itself in the situation of the circuit judge, and determine from the facts then existing ; that the previous postponements were no cause *per se,*for forcing on the trial; that they were made on sufficient grounds, and left no suspicion or prejudice on the question; that a party was entitled to a postponement, upon affidavit of materiality of a witness, of his absence, of due diligence to get him, and of expectation of his being present at a future time ; that the affidavit in this *606casé, was full in all respects ; that there was no default in -giving the. fees to the witness, the person serving the subpoena had the money but could not deliver it, as witness was not found; that there could be no suspicion that witness was improperly out of the way, nor any suspicion from other causes; that th.e court did not require the materiality of the testimony to be disclosed, and defendant was not bound to disclose it unless required, nor was he bound to do here, what was not necessary there; that the fair *administration of justice requires that a party be not surprised, but fully heard, wThich was not the case in this instance.

Upon the other reasons they argued ; that the damages were excessive and outrageous, an injury to the extent of one dollar, not being proved ; if any were done, it was of a character totally distinct from the nature of the action, and such as could not be. considered in it; it arose from the contents of the hand-bill, and the allegation that it was slanderous and contained a challenge; that trespass *quart, clausum fregit*and slander could not be united, but if the slander were actionable, it must be separately charged; the two acts were different, and in this action the damages could be aggravated only by matters of the same character as the trespass itself, which were forcible and a continuation of it; that words never are evidence to aggravate a trespass, and the court ought not here to make the first precedent; that if the slander could be joined, it should be distinctly set out, with proper inuendos, allegations and averments, that the defendant might plead to it and justify if he chose; so that this might be a bar to another action, and that the distinction of actions and of offences might be maintained.

That even if it were proper to consider the hand-bill, yet the jury had been misled by considering it as a challenge; that it was not a challenge, the court had so decided, and Gen. *Dayton*had so explained, as did also the writing at the end of it; the object of it was, a peaceable and friendly explanation of wrongs which defendant supposed had been done to him. That if it were a challenge, yet it was not a ground on which damages could be given; a challenge, in itself, never was or could *607be the foundation of an action; no law gives compensationto the challenged; it is a public offence against morals and the peace of society, and must be punished as such ; and if pecuniary punishment be inflicted, it should be for the benefit of the public treasury ; it works no private injury ; it does no harm, except to the feelings; and injury to these alone, is never actionable; and if actionable must be directly, and not indirectly, charged and punished.

But even if a challenge be actionable, and may be joined to trespass *quare clausura fregit,*yet have the jury erred in considering *this,*as without excuse and justification ; it was excused by the facts in the case and by public sentiment and example ; and *the court will look into all the facts to see how far they justify the verdict. 2 *Wil.*205. If the hand-bill were false, it was no slander, and did no specific damage; if true, it was no ground for the verdict. *Coryell*refused to discount, and against his agreement collected the note in *New-York;*this was the commencement of the difficulty; the plaintiff interfered without cause, and the defendant was arrested and his feelings and interests wounded ; he complained; the plaintiff apologized; yet he commenced a new warfare, by interference in his family disputes. The defendant again asks for explanation ; it is insultingly refused ; and the hand-bill is posted. The letters were written and the hand-bill put up, under the unfavourable impression created by the plaintiff’s conduct, and it justified warmth of feeling and expression. The real injury was all on the defendant; on the plaintiff, only imaginary. The terms of the hand-bill, though hard, were justified by the facts until explained, which they were not when it was written and put up; the letters were sent by one with whom plaintiff transacted business, and an answer might have been given him without reposing confidence in the messenger, or trusting an enemy. The plaintiff ought to have denied his interference in justice to himself and to the defendant. In seeking his satisfaction, even if defendant did challenge, he is fully excusable. He was educated in the belief that such an act was just and honourable; he did not run counter to public opinion, nor shock the mind by new and unheard of outrage; he trod in the footsteps of some *608of the first men, and performed an act consecrated by the" blood of the country: and if it deserves punishment, he alone ought not to be made to bear the whole of it, and -suffer for example sake, because others are in like manner guilty.

That no specific damages are laid, as arising from this cause, and therefore, even if suffered, none can be recovered in this action. *Peak. N. P.*46. *Bul.*86, 89. *Salk.*642. 10 *Co. R.*130. 1 *Sid.*225. 2 *Saun,*171. 1 *Tidd.*391. 6 *Bac.*626, 556, 603. That the whole damages have been given to the plaintiff; whereas if injury is done to the possession, what is recovered in this action, must be in part due to *Barber,*for he had a joint possession, though he claims no property or ownership. That in cases of injury to the freehold, the court have full power to remedy a finding of excessive damage, or damage beyond the actual harm to the property, whatever doubt may exist as to their power, in *torts to the person, where the damages are ideal. 1 *Bur.*393. 2 *Wil.*405, 252. 3 *Wil.*61. 2 *Bl. R.*942. 4 *Mass.*41. *Pen.*578. 6 *Bac.*626. 1 *Mass.*12. That the court will grant a new trial here, because the damages given are outrageous ; against the sentiment of mankind; the effect of partiality, prejudice, passion, or corruption; of prejudice against the defendant; of partiality in favour of the plaintiff; evils which ought to be corrected by the court, where partialities and prejudice do not operate.

*Attorney-General*and *R. Stockton*for plaintiff,

argued in opposition to the rule. 1. That there had been a full and fair trial and no surprise by the variance ; that the whole declaration charged *Thomas Gibbons,*and therefore left no doubt who was meant; that the copy was given as matter of professional courtesy, not required by law, and the law imposed no pledge of accuracy; that with reasonable and common prudence he might have guarded himself ; that he was bound to look to the files of the office, where the declaration had been for 12 months and where the error would have been at once corrected, as it might also by the transcript twice before sent down, and by the indictment found on this same matter; that there really was no variance, but if there were it was not of a fatal *609kind; to be fatal, it must not merely be an abbreviation, but must make a word of another signification, in which case, as to strict identity, it would be a different paper. *Cow.*229. 1 *Leach.*172, 227. *5 John.*1, 30. 2 *Wils.*160. 5 *Mod.*167. 3 *Salk.*224. 2 *Salk.*660. 1 *T. R.*240. That if the variance were in the declaration, as the plea was not guilty, as it was matter of evidence, and the jury have found it, the court would not disturb the verdict. 2. As to the absence of the witness; that postponement of the trial was a matter of sound discretion which would not be investigated at bar, because the whole circumstances, conduct and manner could not there be known. 1 *Sel.*420. *Barnes*442; that the affidavit was deficient in three respects. 1. In not setting forth due diligence; he was in laches, the cause had before been twice noticed, yet he failed to take out his subpoena, until a little before the circuit, but he did not inquire at the time of trial, whether witness had returned, nor did it appear but he was at home. 2. The affidavit did not shew the nature and materiality of the testimony to be given by him: nor 3. That the fees were left to induce his attendance should he return in time; that there wras every appearance of an affected delay. 1 *Bl. Rep.*514. *Bur.*1514. He had before sworn to the materiality of *Trumbull,*yet did not call him on this trial; and he did not now satisfy this court that he was injured, by shewing the materiality of *Burt’s*testimony.

In considering the propriety of the verdict, it is said the hand-bill and the character of the matter it contains, cannot properly be considered in this action ; but this is not so. A plaintiff may have one writ for several trespasses, (Fitz. 197-9) as entering his house, beating his servants, or taking away his goods, or as in this case, affixing a libel to his door. The circumstances attending the trespass, and the conduct after entering, as the violence, abuse or calumny may be shewn in aggravation. *Salk.*119, 642. 10 *Co.*13. 6 *Mod.*128. 8 *Bac.*626. 1 *Tid.*391. If this were not so, all distinction would be taken away, and all trespasses, become simple and alike. The hand-bill must be looked into, to see the nature of the trespass. The true distinction is, that in this action, *610plaintiff cannot prove an additional fact, which may be ground of action in itself, unless it be stated in his declaration; if it be.there stated, then he may prove it, provided it be part of the same transaction. The plaintiff complains of the transaction at that time; it is one entire transaction, and is not to be separated. 2 *Wil.*252.

Damages for an injury of this sort, are discretionary, and to be regulated by a vast variety of circumstances, by the state, degree, trade, profession, rank, condition and estate of the parties. 2 *Wils.*246, 160, 205. *Cowp.*231, 131. They are peculiarly and emphatically left to the sound discretion of the jury, and the verdict will not be disturbed, unless they are enormous, such as all mankind are ready to exclaim against at first blush ; such as carry internal evidence of intemperance in the minds of the jury, and not merely such as the court would not have been willing to give. 2 *Will.*246,160, 207,405, 252. *Cowp*23. 2 *Bl. R.*946. 7 *Bac.*587, 667. 9 *John.*45. 2 *John.*63. 4 *Dall.*390. 2 *Pen.*580. 5 *Mod.*150. *Palm.*314. 1 *Lev.*97. 10 *John.*443, 4 Mass. 1.

The damages here are not enormous, they are justified by the character of the parties, and the circumstances of the case. The defendant has enjoyed every advantage of education and refined society; has made the law his study, and is possessed of ^immense wealth. The plaintiff sustains a high character, and has enjoyed the confidence of his fellow-citizens. In *May,*the defendant sent a libel, and called the plaintiff’s conduct rascally; he sent it by Gen. *Dayton,*the friend of plaintiff’s youth, but the enemy of his advanced age, when there was a post-office in the village, and both had servants by whom it might have been carried; it was sent unsealed, not to his office, but to a tavern, where he was engaged in public business. In *July,*he sent a challenge by Gen. *Dayton*and required the plaintiff to commit his explanations, his motives, his character, to the bosom of his enemy. The plaintiff saw the conspiracy against his life, but he met it like a Christian; submitted to the laws of God and the land, and appealed to the justice of hi's country ; and the appeal was not in vain. In the whole of the transaction, the plaintiff did the defendant no intentional *611wrong; lie inadvertently occasioned an injury by having him arrested, but he made a prompt and manly apology. The jury have properly estimated the facts, and the court will have respect in deciding this motion, to the injured feelings of the plaintiff; to the principles of public morals; and to the situation of the defendant. 2 *Ld. Ray.*995. 9 *John.*51.

No difficulty can arise from the idea that *Barber*held a joint possession, where the trespass was committed. No such possession existed, or if it did, the injury was to the plaintiff only, and he has recovered the only damages due to himself.

The parties pressed the court for an immediate decision, upon the rule. The court therefore pronounced its opinion, after the argument.

(a)

 Reversed in error, *post 853.*Cited in *Mann vs. Glover, 2 Gr. 200.*

Southard J.

remarked. I should have felt better satisfied to have taken a little longer to look into this matter; but, as I now see no cause to doubt, I am willing to yield to the request of the parties. Four questions seem to have been pressed upon the consideration of the court, by the argument of this rule. 1. whether the trial ought to have been postponed at the circuit ? 2. Whether the possession of Barber, was such as to render the plaintiff’s recovery illegal ? 3. Whether the contents of the handbill, were a proper subject of consideration, in assessing the damages ? And 4. Whether the damages were so excessive, as to call for an interference with the verdict. I will endeavour to express my view of each of these points.

*And 1. As to the postponement of the trial. A party who has encountered the expense of a preparation for the circuit, is entitled to a trial, unless his adversary can satisfy the court, that he has exhibited due diligence on his part, but has not been able to come prepared, and that justice will probably not be done, if the trial progresses. In ordinary cases, upon a first application for a postponement, an affidavit of the absence of a material witness, who has been legally subpoenaed, is sufficient. But a second or third application, by the same party, naturally induces a suspicion, that he is not so often unfortunate, but is *612seeking delay; and then, more particularity, and more evidence is required. But whether it be the first or third application, it is always addressed to the sound discretion of the court, and is refused or granted on such terms as justice to the parties requires. (a) The judge before whom it is made, has, in the manner and appearance and acts of the applicant, means of a correct decision, with which the court at bar, cannot be furnished. His determination of the question, therefore, affords strong presumption of correctness, but it is not conclusive. If a clear case of mistake on his part, be made out, and we perceive that injustice has been done, the evil will be remedied by a new trial. But the inquiry always is, has injustice been done ? has the party been injured ? If he have not, no good reason can be given, why he should receive the favour of trying his cause over again.

In the present case, the defendant supposes that the Chief .Justice erred on two points. 1. On account of the variance in the word Thomas, between the circuit record and the copy of the declaration, furnished to him by plaintiff’s attorney. (b)

I think there is more than one sufficient answer to the defendant’s complaint, on this point. The record, throughout uses the word *Thomas;*the copy of the declaration does the same: the abbreviation which is subscribed to the hand-bill is not a word of different signification, but means precisely the same thing. The defendant could not, therefore, have been left in doubt, or been deceived, by the copy furnished ; and I do not think that the variance would have been fatal in any ordinary case of pleading, even if it existed between the evidence and the record. It is very clear he has not been deprived of any possible means of preparation and defence; nor has he been, in the slightest degree, injured in the result. The record and the evidence correspond. *But 2. The provisions of our law, and the course of our practice, require the defendant to look to the files of the court, not only to see when the declaration is filed, but what it contains. *613And if lie chooses to depart from his interest and duty, in this respect, and derive his information from other-sources, he must take the consequences upon himself. If he relies upon copies of pleadings furnished by any person but the clerk, and he is led into error, as the law gives him no pledge of correctness, he must not apply to the court to relieve him from the effects of his own -want of care and caution. In this case also, the defendant had much to put him on his guard, and to prevent surprise. The circuit record had been twice before carried down, and the hand-bill had been presented to his observation, on a still more important occasion. He ought not to have been negligent in examining it.

The second reason offered for postponing the trial, was the absence of the witness. I cannot help believing that there^is more in the fact, that the fees were not left with the copy of the subpoena, than seemed to be supposed by the counsel, on either side, from the manner of their argument. It is an express requirement of our statute, that the fees shall be paid, and the amount is fixed. The third section of the act concerning witnesses, *Pat.*401, provides, “ that if any person on whom lawful process shall have been duly served, to testify &c. *and to whom shall have been paid or tendered, at the time of such service, fifty cents, if he is to serve in the county*&o. shall not appear according to the tenor of said process, having no lawful or reasonable let or impediment to the contrary, he shall, for every offence, forfeit” &c. Can wo, under the words of this section, consider a witness lawfully subpoenaed for the purpose of punishment for non-attendance, unless the fee be paid or tendered ? Clearly not. And can we say that the process has not been legally served, when we are about to punish the witness, and yet that it has been legally served, when we are inquiring into the default of the party, and determining whether he has used due diligence? that it is legal for one purpose and not for another? This would seem an unfit state of things. Besides it is altogether reasonable, that this provision of the statute should be strictly complied with. The witness comes to render a service to the party; his compensation is fixed; he often needs it, to *614bear his expenses, and he ought *to receive it. He is not bound to serve first, and rely upon the fairness of the party or a suit at law, to obtain his fee afterwards. In *England*no witness is bound to appear at all, even if subpoenaed, unless his *reasonable expenses*be tendered to him; nor if he does appear, is he bound to give evidence, until such charges are actually paid to him. 3 *Bl. Com.*369. 1 *Str.*510. 2 *Str.*1150. Here the statute fixes the sum to be paid. A party, therefore, seems to me not regularly to serve his process, but 'to stop short of strict’ and legal diligence, when he does not deliver or tender to the witness his fee, at the time of serving the writ. A delivery of a subpoena, or leaving a copy without it, ought not to avail where the service is brought in question. Wherever the copy is left with a view to produce attendance, the money ought also to be left. But the question here seems rather to be, whether the defendant was bound, under the information he received, to leave either the one or the other. Passing by this difficulty, therefore, let us look further into this point, and I think enough will appear to justify the decision of the Chief Justice, and to prevent us, from according to the defendant, the fa vour which he asks for this cause.

It is to be recollected that this was the third effort at postponement and for the same cause, the absence of a material witness. The trial was therefore properly ordered on. 1. Because the process to subpoena the witness, ought to have been taken out earlier, and greater diligence exhibited. 2. It was not shewn that the witness was expected by the next term, or at what particular time. It might be that he was expected at a period to which the trial could not reasonably be postponed. 3. The defendant ought to have shewn that the witness had not returned from the westward, and could not be brought before the court at that time. All the information given of his absence, was the declaration of his wife, that he was gone and was *not expected*back in time ;• but there is no proof that he was not then at home. For aught that appears, he might have been there, and had the process been served on him and the fee delivered, would have attended. 4. The materiality of his evidence was not sufficiently shewn. *615It was sworn to in the same way as in an ordinary application for a first postponement. The defendant should have - done more. He should have satisfied the judge, by a disclosure of what he intended to prove by him, that what he knew was material to the defence. Nor is it a sufficient answer, that the court did not require this to be done. It was not the business of the court to prescribe in what way, and for what reasons, the defendant should make his application ; but to decide upon its merits as he presented it. But in my view, the most important consideration, on this question, still remains. The foundation of this motion, is the injury which has been done to the defendant? How has he been injured? By being deprived of his evidence. If this witness could say nothing in his favour, he has not been injured, and there is no ground for this motion. Could this witness say any thing in his favour? We know nothing on this point. It rests upon the allegation of the defendant alone. Now we do not sustain such rules as this, and grant new trials upon the allegation of parties. We are as little informed whether the witness has returned and his testimony could now’ be procured. I am not willing to disturb a verdict, to put the parties to the expense of another hearing before a jury, without a full conviction that the verdict might, in some degree, be affected by the evidence which was excluded. The defendant has no confidence in the value of this evidence, or he has been strangely negligent in not exhibiting it to us. Upon this first question, therefore, I do not think the Chief Justice decided incorrectly; and if I believed that he did, I should still be opposed to this rule, unless, from sufficient evidence, I was convinced that the defendant had been injured by the absence of his witness, and there was reasonable ground to believe that his testimony might have some operation upon the verdict. We have no such evidence.

2. The second question to be considered is, whether the possession of *Barber*was such as to make the recovery of the plaintiff illegal ? But little need be said upon this question. If I correctly understand the evidence, *Barber*is a very near connexion of the plaintiff; he uses one of the rooms in his office for the purpose of transacting the various *616business in which he is engaged, without any right in it authority over it, except what is derived from the implied or express permission of the plaintiff. He pays no rent and claims no property or possession, which he could demand or enforce by legal means. Like a guest, he uses, possesses, and enjoys the room, through the friendship • and hospitality of his father-in-law. If this be so, the question is at an end. Can it be believed that this plaintiff, because he kindly permits a relation to use his property along with him, loses his right *and control over that property, and cannot bring a suit for injury done to it, without the permission of that relation and joining him in the action ? It will not seriously be contended. Why should *Barber*unite in the action? has he been injured? can he recover damages? did the plaintiff sue for or recover damages for what he has suffered on this occasion? Not at all. Why then disturb the verdict on this account ? Besides, if *Barber*had a possession in common, and the defendant entered upon it for the sole purpose of inflicting on the plaintiff alone, an injury like the one complained of, I have no idea that he must necessarily be united in the action.

3rd question. Were the contents of the hand-bill a proper subject of consideration with the jury ? There is no doubt that they were considered, and formed the principal item in the heavy account which was found against the defendant, and if they ought to have been excluded from the view 'of the jury, I cordially agree with his counsel that the damages are enormous, are outrageously excessive: five thousand dollars, for passing over a gravel-walk of half a dozen yards in length, and putting a man’s foot upon the sill of the door, would be intolerable, no matter who the parties, or what their situation. But is this the real case ? Of what does the plaintiff complain in his declaration? He complains that the defendant illegally entered upon his premises and put upon his door, an insulting and libellous hand- ■ bill.. Is this hand-bill to be regarded as part of his cause of complaint, or is it not ? Much ingenuity was certainly displayed by the counsel in the discussion and application of the cases to this question, but the conclusion at *617which they arrived, does not very well correspond with the principles of correct pleading, or the law of evidence. I am not here able to examine the cases, nor perhaps is it necessary: we may come to a satisfactory conclusion without. I understand it to be admitted, that it was proper to charge and prove the putting up of the hand-bill, because it was of the same character with, and a part of, the the trespass; but not proper to charge or. prove the contents of the hand-bill, because, they do not partake of the character of the trespass, and a remedy for them must be sought by an action on the case for the libel or slander.

But I do not perceive how the two are to be separated. The plaintiff complains of a trespass. The jury are to determine the *extent of it and the injury resulting from it. To do this, they must not only know what was done, but as far as possible the motives with which it was done. How will they learn them ? By being informed that defendant passed over the gravel-walk? No, for this was not all he did; and this he might have done with the best intentions, and have committed no punishable trespass. That he put his foot upon the sill and left a paper there ? No, for these acts might have been, and no harm done to the plaintiff. But they might also have been, and the plaintiff deeply wounded by them. How is the jury then to say whether he was or was not injured ? How are they to determine whether the defendant came as friend or foe? to leave a paper containing information salutary to his safety or poisonous to his reputation and peace ? to commit a trespass or to do a kindness ? It can only be done by looking into the contents of the hand-bill; and shall the jury be compelled to decide, and yet precluded from this only means of judging ? Suppose the contents oj the bill had been of a kind and friendly nature, and designed expressly for benefit to the plaintiff, would not the defendant have been permitted to shew it ? and would not the jury in such case have refused the plaintiff any thing ? yet the rule must operate both ways. A man enters my house and strikes my child: I may charge arid prove both acts, and he must compensate for both. But he not only enters my house and strikes my child, but when he does it, adds the most malignant and unfounded slanders *618of him. May I not charge or prove these, to shew the with which he did it and the extent of the wrong? I may, and the jury will estimate his acts accordingly. I understand the true rule on this point to be this; in trespass, you may charge and prove the whole circumstances accompanying the act, and which were a part of the *res gestos,*in order to shew the temper and purposes, with which the trespass was committed and the extent of the injury. A contrary rule would certainly produce the effect argued by the plaintiff’s counsel. It would take away all distinction from acts of trespass. And if this be the rule, its application to the present case is not difficult. The hand-bill was properly proved, and was good evidence in estimating the damages.

4. The remaining question to he considered is: are the damages excessive? suchas call for our interference, (a)

In giving an answer to this question, we cannot act safely un*iil we satisfy ourselves what is the import of that hand-bill. On the part of the defendant, his counsel, at the trial, and again here, allege that the letter was designed to obtain a peaceable and friendly interview; an amicable explanation of serious wrongs which he had suffered from the hands of the plaintiff; and that the put- ' ting up the hand-bill was designed to bring it to the notice of the plaintiff, and thus enforce the meeting. And they appeared, among other arguments to prove their positions, to derive some confidence from the decision of this court, in the case of the *State*v. *Gibbons,**(b)***That case has certainly been illy understood, if it be supposed that this court expressed the idea that this letter did not contain a challenge. The decision went on altogether - different grounds, and an expression of opinion on that point was carefully avoided; ojie of the court adding, “ whether challenge or not, is always a question for the jury, upon the whole evidence.” At the trial, the counsel for the plaintiff denied the conclusions in favour of the defendant. It was for the jury to pass.between them, and *619the amount of their verdict is conclusive proof of the light in which they viewed it. They have doubtless considered the letter as a challenge, as a demand that the dispute should be ended with blood ; and putting it up, as proclaiming and posting the plaintiff at his own door, as one who had deeply and malignantly injured another, and had neither the honesty nor courage to give him satisfaction. If in this opinion of the jury, they had no evidence to support them, and there is clear and manifest error, though it was a matter within their province, we must correct their mistake. But I cannot perceive clear proof that they did err. The language of the letter itself; the manner of sending it; the printing and publishing of the hand-bill; the posting of it on the door ; and the language which he used to *Ephraim, Ciarle;*are all strong indications of the temper that was felt and the object aimed at, too strong for me here, and on this motion, to question the decision of the jury. The letter must be regarded as a challenge; sealing it to the door as designed to irritate, wound, and disgrace the plaintiff.

Having fixed what we are to consider as constituting the trespass, we may now form an opinion whether the damages are excessive. And here it is necessary for me to remark, that this is a case, most decisively within the province of the jury. It is not simply and alone a case for a tort done to property, the value of *which may be ascertained by evidence, and where there are fixed rules and principles to measure the damages ; but it is one of character, of sentiment, of feeling; one where the court is not entrusted with the power to estimate the wrong, but the jury must exercise their discretion; a case depending much on the situation and circumstances, as well of the party injured, as of him who did the injury. In such a case, although the verdict may be set aside, if the damages given are so unreasonable as to indicate a want of ordinary discretion in the jury, so outrageous as to exhibit passion, prejudice, partiality or corruption, yet do I feel no authority to touch it, unless they be evidently such. Because I may feel that if I had been a juror, I should have discharged my duty by giving less, I am not therefore at liberty to say that less shall be given. This *620power is entrusted, and I think wisely entrusted, to other Considering then the character and circumstances 0f fjie parties, and the nature of the trespass complained of, are the damages enormous, outrageous, excessive ? I am not satisfied that they are. In the first place, the plaintiff is a man who has long filled a respectable rank in the estimation of the public and the honours of his country, and whose connexions and influence extend far and operate largely upon society. The defendant too, claims the possession of learning, of talents and of influence ; was once very extensively engaged in the study and the practice of the law; understands well the rights of others, and his obligations to respect them; and his example ought therefore to have influence. When then the jury believe that an outrage has been committed by such a man as the defendant upon such an one as the plaintiff, it is their duty to both, and for example’s sake, sternly to frown upon and liberally to punish it. In the second place, the defendant was admitted upon the argument and is well known to possess great wealth. By him, therefore," a light verdict would not be regarded. That which would oppress a poor man, he would not feel. In the third place, the trespass is one of peculiar aggravation. The publication of such a hand-bill can only be esteemed an effort to use the corrupted sentiment of the public on the subject of duelling, to drag the plaintiff to reproach, contempt and infamy: nay more, in this instance, it was approaching the residence of the plaintiff to disgrace him in the eyes of his own family; to stab him, .where.no medicine could cure the wound. This circum*stance I consider most highly aggravating, and most completely justifying the exemplary damages which are given. There is a dignity,' a sacredness about a man’s home, which enmity however irreconcilable, a thirst for revenge however keen and however excusable, ought never to be permitted to approach. Assail an enemy where we will; reprobate, expose and publish him as we may, still that place, where his sensibilities, his pride and his joys meet, ought to be secure: the inmates of his residence should never be made to feel our hate or his wounds. Sitting then where I do, and called to pass a judgment *621upon the damages which ought to be given in a case like this, I do not hesitate to say, that the verdict ought to stand. It is not only correct in itself, but deeply important for the example which it has set. The disposition which prevails among us to ‘ stanch our wrongs, real and imaginary, with the blood of our adversaries, has called long, but in vain, for something sufficiently powerful to repress and control it. It has spurned ridicule, disregarded reproof, and mocked at religion. Something, however, is to be hoped from verdicts like this, if they carry with them the public approbation. But if when a man who is challenged, has the firmness to appeal to a jury, his appeal is rendered ineffectual by the court, who ought so to administer justice as to repress crimes and control the passions, that hope too is gone; and who can measure the result? It is not such as I am willing to promote.

On all the questions, therefore, I think the defendant wrong, and that the rule for a new trial should be discharged.

Kirkpatrick C. J.

declared his entire concurrence, on all the points.

(a)

**See *Stokes*vs. *Garr, 2 Har. 451. Fuller ads. Den, Saxton, Spen. 61. State vs. Zellers, 2 Hal. 220.*

(b)

*Probasco vs. Probasco, Pen. *1012. Youngs vs. Sunderland, 3 Gr. 32.*

(a)

**See *Thompson vs. Morris Canal, 2 Har. 480. Berry ads. Vreeland, 1 Zab. 183. Winter vs. Peterson, 4 Zab. 524. Phillips*vs. *Phillips, 5 Vr. 208. Vunck vs. Hull, Pen. *815. Allen ads. Craig, 1 Gr. 294.*

(b)

*State vs. Gibbons, 1 South. 40.*

Rossell J.

concurred, but thought the damages larger than ought to have been given.

Rule discharged.