Babcock v. Porter

The plaintiffs move for a new trial in this case, on the ground that the verdict is against the evidence. They claimed, on the trial, to recover the whole amount of the original indebtedness from Warner to Hall; but the jury gave them only a part of it.

The claim of the defendant, (that the remainder of such indebtedness was due to Whitaker, Hammond & Co., at the time of the service of the process, in the original suit by the plaintiffs, against Hall, on the defendant,) and which constituted the defence, rested mainly on the testimony of Whitaker alone. It is conceded, that if Whitaker was not entitled to full credit, the defence was not made out; and the question before us, therefore, depends on the credibility of this witness. His interest in the event of the suit; the mode in which he caused the claims to be presented to the commissioners on the estate of Warner; his conduct respecting the order on the defendant, procured by him from Hall; the entries in the books of Whitaker, Hammond & Co.; his want of recollection as to some facts which it is presumable-he would remember ; and some other circumstances of less weight, affecting his testimony, which it is unnecessary to detail; constitute *580proper topics of consideration in estimating the credit due to him, and undoubtedly tend to detract from it. On the other hand, his general good character for veracity, which we have a right to infer, in the absence of any attempt to impeach it; the want of any evidence directly contradicting him; and his explanations of the most material facts which appeared to militate against the truth of his testimony ; furnished evidence in his support. And it is to be considered, that several of the facts stated by him, which have been much commented on, by the plaintiffs’ counsel, for the purpose of discrediting him are not of a decisive character, but are susceptible of an explanation, compatible with the truth of his testimony as to the main fact which was the subject of enquiry, the title of Whitaker, Hammond & Co. to the claims in question. We refer to the presentation of the claims to the commissioners in the name of Hall, rather than of Whitaker, Hammond & Co.; the manner in which the transactions between Hall and W. H. & Co., were entered on the books of the latter, and the procurement of the order, by Whitaker from Hall. These topics, and all the others suggested by the evidence bearing on the credibility of the witness, were fairly submitted to the jury, and considered by them ; and although we might have come to a contrary conclusion, on this point, and have been better satisfied with a different result, we do not think that we are authorized to say, that their verdict was so manifestly and palpably wrong, that it should be disturbed.

This conclusion renders it unnecessary to consider the questions of law presented by the defendant, whether he was so described in the original writ of foreign attachment, that he could be subjected in the suit, as the trustee of Warner ; and also, whether the repeal of the act of 1846, (ch. 23. p. 22.) extending the process of foreign attachment, in suits against assigning insolvent debtors, to their trustees, (by virtue of which act alone said original suit was brought,) destroyed the remedy of the plaintiffs, in the present action. These questions have been raised, by the defendant, not for the purpose of obtaining a new trial on his own behalf, which he does not move for, but only for the purpose of defeating this motion of the plaintiffs, in case the verdict should be considered as not sustained by the evidence.

*581A new trial si not advised.

New trial not to be granted.