
    Mary Lloyd v. Honore Monpoey.
    It is unusual for tlie Court to grant a new trial on the ground of excessive damages where injuries have heen done to property under highly aggravated circumstances ; the amount must always he a matter for the sound discretion of a jury.
    Where, in action on the case for heating a negro, evidence of the defendant’s character is given, to which no ohjection is made on the trial, it will not furnish a ground for a new trial.
    Where a new trial is moved for, on the ground that one of the plaintiff’s witnesses had heen bribed to swear falsely, to which fact the witness mates affidavit, it will he sufficient ohjection to the admission of the affidavit, that a copy of it was not submitted to the plaintiff; hut waiving that ohjection, a new trial will not he granted on that ground, ut semble.
    
    This was an action on the case, for beating a negro of the plaintiff, tried in the Inferior City Court of Charleston, March Term, 1820.
    *4471 '"'The Recorder has made the following report of the case :
    “ Miss Lloyd, the plaintiff’s daughter, said that Chloe was the property of the plaintiff; that defendant came into her mother’s house, in Bull street, whilst the family were at the dinner table ; that in her presence, and in that of her mother, the defendant assaulted Chloe violently with his fists, knocked her down, gave her four or five blows about the head, kicked her twice in the back; and swore he would have her ears ; that the family were much alarmed ; that the defendant gave no reason for his conduct; that when knocked down, Chloe bled profusely, in which state the defendant kicked her ; that in consequence of this beating, Chloe was sick a little more than a month, and kept her room about two weeks. Upon being cross-examined, this witness said the defendant lived in the city of Charleston, near her mother’s, and had done so for some years ; that he made this assault in June, 1819 ; that she never heard of the defendant’s having made any complaint to her mother, against Chloe; that the defendant, in striking Chloe, knocked her head against the ketch of the window, which she believed occasioned the bleeding; that Dr. Bennett was sent for by her mother, to see and prescribe for Chloe ; that Chloe was mild and peaceable ; that she was once punished upon an accusation of having robbed the defendant, who "himself had her punished ; that the defendant was in the habit of coming to her mother’s house, and she never saw or heard of any quarrel between the plaintiff and the defendant; that Chloe, after she had been beaten, laid down for a considerable time, apparently insensible ; the witness believed her to be dead.
    
      “ Mr. Thomas Bennett, for the plaintiff, said he believed Chloe belonged to the .plaintiff; always saw her in the plaintiff’s possession, who claimed her as her own; knows she was desirous of selling her ; that he saw Chloe.shortly after she had been beaten ; she then seemed insensible; he examined her ' *4481 woundSj *which were considerable, particularly looked at one on her -* head, which bethought had proceeded from her head having been forced violently against a hard flat surface; that Chloe’s clothes were very bloody ; that the witness thought her skull had been fractured when he first examined her, but afterwards he changed his opinion ; that Chloe was very much injured, and continued in a state of insensibility a long time. Upon being cross-examined, Mr. Bennett said, that when Chloe was punished at the time alluded to by the preceding witness, it, had been afterwards discovered that the theft with which she had been charged, had been committed by her husband, and that she was innoeent; that he often saw Chloe, who appeared to him to be trustworthy, and was, he knows, much confided in by her mistress, the plaintiff. When the witness entered the plaintiff’s house to see Chloe, he thinks the dinner table was standing.
    “Nancy (lough, for the plaintiff, said that Chloe was the wife of her brothers’ sprvant; that when Ohloe had been beaten in June last, she was called to nurse and attend her during her sickness ; Chloe’s back was very much bruised, and she had a deep cut on the back of her head during- the witness’ attendance upon Ohloe, she miscarried ; Ohloe, for the first fortnight, could not get out of her bed; that in witness’ opinion, bruises of the nature of Ohloe’s are very injurious to the constitution, as is a miscarriage; that in the fourth week of her confinement, Ohloe got up, and attempted to do the ordinary business of the house, but could not. Witness is a professed nurse, and has herself had eight children.
    Doctor Holbrook, M. D., for the plaintiff, said that a violent kick in the back, during pregnancy, frequently occasioned a miscarriage ; that when a miscarriage is produced by such a cause, the constitution is generally materially injured ; that it frequently destroys future breeding, and renders a woman less capable of undergoing ordinary work.
    Sarah Hancock, for the defendant, said that she *lived near the r*, .„ plaintiff when Ohloe was beaten ; that on a Tuesday, she heard of the L beating, and on the next day witness saw her sitting up in her bed ; that on the Friday after she saw Ohloe in a back piazza shelling beans ; on the Sunday after, witness saw her at the street gate; and in the week following, Ohloe was walking about the yard, and sewing ; that witness heard that Ohloe stole a fowl from the defendant’s yard; Ohloe confessed that she had taken the fowl, but not that she had stolen it; that Ohloe is very impertinent ; has heard her very impertinent to the defendant. Upon being cross-examined, the witness said that she lives in the house with defendant, and has done so about two years ; her husband having been absent that time : witness heard Ohloe say she had killed a fowl of defendant, not that she had stolen it; saw the defendant when he was going to the plaintiff’s house, at the time when Ohloe was said to have been beaten by him ; he then seemed to be cool, not at all in a passion ; when the witness saw the wench at the time she has specified, she did not appear to have been at all injured.
    “ George Hancock, for the defendant, said he saw Ohloe shortly after it was said she had been beaten ; when he saw her she was standing at the plaintiff’s gate ; she looked much as usual; could not discover that there had been anything the matter with her.
    “ Mr. Patrick Duncan was called by the defendant, to testify as to the plaintiff’s character. I considered this irregular, but as it was not objected to by the plaintiff’s counsel, he was examined. Mr. Duncan said the plaintiff bore a respectable character, and that he formerly had known the defendant, that his general character was then very bad, what it was at present, he did not know.
    “ The counsel for the defendant contended, that the plaintiff had not proved that Ohloe was her property, without which she could not recover, and that the plaintiff in no event, could recover more than to the precise amount of the injury which she had sustained *in consequence of the beating which riurq her negro had received. *-
    I told the jury, that the plaintiff had sufficiently established that the negro woman beaten was her property, and that they were entitled-to take all the circumstances oí the case into consideration, and to give their verdict accordingly.
    The jury found a verdict for the plaintiff, in the sum of $500.”
    This was a motion for a new trial on the following grounds:
    1. Because the damages were excessive.
    2. Because the plaintiff did not prove a property in the negro ; but, on the contrary, it was proved that the property did not belong to her.
    3. Because evidence as to defendant’s character, not put in issue, was admitted. . '
    4. Because evidence was admitted as to damages that arose after the com meneement of the action.
    
      5. That evidence was admitted to prove a material fact not averred in the declaration, viz., miscarriage, in consequence of the beating.
    6. Because the witness, on whose testimony the plaintiff chiefly relied, was bribed, and was intoxicated when examined, circumstances not within the knowledge of the defendant, or his attorney, till after the trial of the cause.
    7. Because the- verdict was, in other respects, contrary to law and evidence.
   The opinion of the Court was delivered by

Nott, J.

It is very unusual, in cases of this sort, to grant a new trial on the ground that the damages are too high. They furnish no certain rule by which the damages can be estimated. The amount, therefore, must always be a matter for the sound discretion of the jury, and must be regulated by the evidence of the case, and the circumstances of the parties. The verdict does not appear so unreasonable as to authorize interposition of this Court. The defendant rushed violently -I into the house of the plaintiff, an unprotected widow, beat her servant most outrageously, in the presence of her family, when they were quietly at their dinner, and spread terror and consternation through the whole house, by his rude and riotous conduct. The disturbance of the peace of the family, and the indignity offered to their feelings, were sufficient considerations for the verdict. But besides, slaves have no personal rights in this country. It is only through the medium of their owners that they can receive that security and protection for their persons, which it would be a reproach to the character of the State to withhold from them. In any point of view, therefore, I think the verdict may very well be supported.

The second is a mere technical objection, which is not to be encouraged. The evidence was sufficient to go to the jury, and sufficient to sustain the action.

Third. The evidence ofcharacter was first introduced by the defendant’s counsel, and as far as the examination was carried, it passed without objection, and was not ruled by the Court; it therefore furnishes no ground for a new trial.

The fourth ground is not supported. Evidence was not admitted of damages which arose after the commencement of the action. It was only evidence of a subsequent fact, which went to show the extent of the injury, which had been previously committed.

The fifth ground appears to be founded on a supposition that the evidence of miscarriage was given for the purpose of enabling the plaintiff to recover the value of the child lost; but I apprehend that the object of that testimony was merely to show the violence of the beating, and for that purpose it was properly admitted.

But the most substantial ground, and indeed the only one on which the Court has had any difficulty, is the sixth; the facts stated in that ground, are'attempted to be supported by the affidavit of the witness herself, that *she had been bribed, and had -sworn falsely on the trial. It -* would be a sufficient objection to the admission of this affidavit, that a copy of it has not been given to the person accused of the subornation of perjury, that the charge might be rebutted. But even waiving that objection, I do not think it ought to be received. The discovery of parol evidence, after a trial, has never been admitted in this State, as a good ground for a new trial. The tampering with witnesses, to which it would lead ; the frauds- and perjuries which it would introduce, and the endless litigation which would ensue, admonish us to be careful-how we depart from that long settled, and, I think, safe and necessary rule.

It-is contended, however, that this case forms an exception to that rule, inasmuch as the subsequent testimony comes from the witness herself, who cannot be mistaken. But if she cannot be mistaken, she may be perjured. And there is as much reason to believe that the last oath is false, as to doubt whether the first was true. It is nothing more or less, then, than allowing the witness to impeach her own testimony. And would not the case be equally strong, if the fact to which she swore on the trial had been contradicted by any other credible witnesses. Would it not indeed be stronger; for she proclaims her own infamy by the very testimony which she herself produces. It is admitted that the affidavits of other persons to the same fact, ought not to be admitted. And would it not be a strange inconsistency to admit the deposition of a witness, in which we can have no faith, to impeach her own testimony, when we would not admit the depositions of others to the same point, of the truth of which we had no doubt ? That verdicts are gained or lost, and that damages are increased or diminished by perjury, daily experience teaches us is no unusual occurrence. But it seems to be an evil resulting from the imperfection of human nature, to which it is better to submit, than to introduce *a practice calculated to extend the mischief which we would endeavor to prevent. L

The granting of new trials depends much upon the discretion of the Court, and I can conceive a case so peculiarly circumstanced, as to authorize a departure from the general rule, by which we have heretofore been governed. But this does not appear to me to be a case of that description. The only material fact proved by this witness, which was not proved by any other, if, indeed, it was material, of which I have great doubt, was the miscarriage. Now the existence of that fact was distinctly submitted to the jury on the trial below; and from the general character of the witness, it is not unreasonable to suppose, that the jury entirely disregarded her testimony. But suppose they gave full credit to it, I cannot perceive that it must necessarily have enhanced the damages. The nature and extent of the injury were sufficiently shown by the other witnesses, and their testimony, without the evidence of this woman, might very well authorize the damages that were given. That such a beating might cause a miscarriage, no one, perhaps, can doubt, and whether it did produce that effect or not, to my view, was not vastly material in this case.

The admission of illegal evidence may be a good ground for a new trial, however immaterial it may appear to this Court, because it cannot be seen what importance the jury attached to it. But the evidence in this case was not illegal, nor do we know that it was untrue. We have no reason, therefore, to believe, that even if a different verdict should be given on another trial, greater justice would be done. If no illegal evidence has been admitted, if the verdict is consistent with the evidence which has been given, if we do not see that injustice has been done, nor a probability that greater justice will be done, there can be no ground for a- new trial.

Gantt, for the motion. Hunt, contra.-

The last ground in this case is a mere matter of form, and furnishes nothing for the consideration of the Court, which has not been already noticed.

*454] *The motion is, therefore, refused.

Bay, Colcock, and Richardson, JJ., concurred.

Johnson and Huger, JJ., dissented on the sixth ground.

Cited 11 Rict. 596. 
      
       Ante, 416.
     
      
       1 N. & McC. 287, 549.
     
      
       N. & McC, 154; 1 Bay, 492; Harp 267; 2 Rich. 194; Rich, 280.
     
      
       2 MoC. 160.
     
      
       2 MoO. 160.
     