
    SNOWDEN against JOHNSON.
    In action for false imprisonment, a copy of the commitment is not legal evidence.
    This was an action by Snowden against the defendant, for an assault and imprisonment. The defendant was a justice of the peace, in the county of Cape May, and had committed the plaintiff to the jail of that county, on a charge of the breach of the peace, where he laid part of a day before he procured bail. The venue was laid in Burlington, where the plaintiff resided. An attempt had been made to change the venue to Cape May, but from the insufficiency of the affidavit on which the application was made, it was refused by the court. No plea was put in, and the plaintiff obtained judgment by default, on which a writ of inquiry was issued to the sheriff of Burlington, who returned an inquisition of $500 damages. It was now moved on the part of the defendant, to set aside the inquisition, on the ground of surprise, the admission of illegal testimony, and excessive damages. The defendant lived in Cape May, and his attorney in Cumberland; from some difficulty in communication, arising from the distance or some other cause, the defendant’s attorney did not attend, and the defendant appeared without counsel before the jury of inquiry. The sheriff' admitted the copy of the warrant of commitment in evidence, without the [*] original being accounted for as lost, or in any way in the power of the defendant, or out of the power of the plaintiff. The counsel for the plaintiff argued, that it was not the fault of the plaintiff that the defendant was without counsel, as regular notice of executing [355] the writ of inquiry had been given to the defendant’s attorney; that the copy of the warrant, under the circumstances it was offered in evidence, was competent testimony; and that in case it was not, yet as it was not objected to at the hearing, it was too late to take advantage of it now. 3 Johns. Rep. 63. That damages must be outrageous and beyond measure, to induce the interference of the court on that ground. 2 Blac. Rep. 939; Cowp. 330; 3 Wil. 60; 3 Wil. 306. But they considered the damages reasonable, and by no means immoderate; under the circumstances in the case.
   Rossele, J.

Was clearly of opinion, that the inquisition ought to be set aside; that from the facts disclosed, he was inclined to think the defendant had a legal defense if he availed himself of it; that the admission of the copy of the warrant in evidence was illegal; and that at all events, the damages were excessive; and that the inquisition ought to be set aside on that ground, if no other.

Peeeington, J.

Said, that although he considered the damages excessive, and more than he would have agreed to had he been on the jury, yet he could not say that he thought them so outrageous, as to come within the rule adopted by courts of law for setting aside the finding of a jury, merely on the ground of excessive damages. There were, however, other circumstances that weighed in his mind in this case, which, taken together with what he considered unreasonable damages, inclined him to allow the rule. It appeared to him that the defendant had been unfortunate through the whole progress of his cause; that his cause had been badly managed; he was entitled to a trial in Cape May, where the cause of action arose, and would have had the venue changed but for want of skill or attention in drawing or procuring the proper affidavit. The cause was of [*] course heard in a county where he was a stranger, and he without counsel, at a great distance from home; and there is reason to believe that local prejudices were afloat against him. Two very able, eloquent and ingenious counsel opposed him, and the sheriff admitted illegal evidence. It is true, that this was not objected to at the time; and had the defendant been aided by counsel, he inclined to think that it would be too late now to take the objection. But it appeared to him, that counsel must take their testimony against an undefended man, at their peril, and although the plaintiff ought not to suffer by the want of vigilance in the defendant, nor is he chargeable with the accidents which led to the unpleasant situation the defendant was placed in; yet it all went to show a hard case on the part of the defendant. This is an [356] application to the sound discretion of the court; and on the whole, he could not say that this was so satisfactory a proceeding as the unbiassed purity of judicial determinations called for, and was therefore of opinion that it presented a proper case for a review.

Kirkpatrick, C. J.

Said, that although he had at first doubted the .propriety of granting the rule, yet on the whole, he inclined to concur with his brethren, particularly as he considered the admission of the copy of the warrant improper ; and that the defendant, under all the circumstances of his case, had a right to insist on strict law; it might, therefore, be considered as the unanimous opinion of the court.

By the Court.

Let the inquisition be set aside, on payment of costs by the defendant.

The defendant’s counsel then moved for a rule nisi, to set aside the interlocutory judgment in this cause, and to he let in. to plead, and that the venue be changed to Cape May. On a question from Pennivgtov, J., whether it was not too late, the counsel for the defendant relied on the case of Coval v. Burnaford, 1 Bur. 568. The rule nisi was taken to be argued next term.

Cited in Obart v. Letson, 2 Harr. 78.  