#### Joshua Young *v.*Peter Hairston.

When there are several counts in the declaration, and on one of them improper evidence was received, if the party against whom the evidence was offered obtained a verdict on that count, he has no right to a new trial on the other, on which the verdict was against him.

This was an action on the case, in which the plaintiff declared in two counts *;*1st, for slanderous words, in accusing the plaintiff of stealing sheep ; 2d, for maliciously prosecuting the plaintiff for stealing sheep.

The defendant pleaded not guilty, and the statute of ^imitations. The cause was tried before his Honor Judge SwaiN, at Guilford, on the last circuit. The plaintiff proved the speaking of the slanderous words, charged jn the declaration ; and to support his second count, pro ■ duced the original record of his acquittal in Stokes County Court, where a charge of stealing sheep was preferred against him by the defendant. He also proved, that the slanderous words were spoken by the defendant immediately after the verdict of not guil ty was returned, and relied upon the date of the verdict to rehut the plea of the statute of limitations. The defendant objected to the introduction of the original record of Stokes County Court, and insisted, that by an act of Assembly, the plaintiff could only use a certified copy. The objection was overruled, and under the instructions of Ms Honor, the jury found a verdict for the plaintiff, on the first count in his declaration, and assessed his damages to §1250 ; and on the second count, a verdict was returned for the defendant.

A rule for a new trial was obtained, 1st, because the original record had been improperly read to the jury *;*and 2d, because the damages were excessive..

*56Upon a rule for a *n^vr*trial on the ,;round of excessive damages, the decision of foe Superior Court is conclusive.

His Honor being satisfied with the verdict, as to the damages, and thinking, if there had been any error in permitting the original record to be read, it had not prejudiced the defendant, as the jury had found for him on jho second count, discharged the rule, and the defendant appealed.

No counsel appeared for the defendant, and the case was submitted without argument, by *Mash,*for the-Plaintiff.

Haui, Judge.

The case states that the plaintiff introduced the original record of the trial, for the purpose of supporting the second count in his declaration, which was for a malicious prosecution; and that this evidence was objected to by the defendant's counsel, on the ground that an act of Assembly required the production of a certified copy, and not of the originalrecord in such a case. The act of Assembly relied upon has not. been pointed *out;*and tiic regret is the less, as the plaintiff has failed, upon that count in his declaration, and the defendant can have no interest in further examining the question.

With respect to the testimony introduced by the plaintiff, in reference to the plea of the statute of limitations, the objection taken cannot be sustained. The witness-stated, that the words were spoken after the trial of the indictment in the County Court. It was surely competent for the plaintiff to prove- by the record, when the trial took *place;*and the record for that purpose was entirely sufficient.

With respect to the claim which the defendant may have for a new trial, on account of the damages being excessive, it is sufiicierit to say, that the judge of the Superior Court, who tried the cause, was the sole judge of that question. He has stated, that he was satisfied with the verdict. This court did not hear the evidence, and of course ought not, and cannot control any opinion of the judge below, formed upon that evidence.

Per Curiam. — Judgment affirmed-