Oswald et al. v. Kennedy
| Decision Date | 24 May 1864 |
| Citation | 48 Pa. 9 |
| Parties | Oswald <I>et al. versus</I> Kennedy. |
| Court | Pennsylvania Supreme Court |
It was not error on the part of the court to express an opinion that the damages in a case of this nature ought to be more than nominal, when the question is fully left to the jury as to what damages should be given. That was what the learned judge did in this case, and it is fully justified by innumerable authorities, which it would be an affectation of research to encumber an opinion with. A few of them are cited by the defendant in error, and none to the contrary. This is enough for the first assignment of error.
The second assignment is not sustained by the facts. A nolle prosequi was entered on the trial as to Levi Kauffman. This was all right if the plaintiff chose to do so, and after that no verdict could be rendered against him.
The jury returned in substance a verdict of acquittal as to Daniel Comfort, and the court directed of course the proper verdict as to him. This was clearly proper. There was evidence against all the defendants against whom the verdict was rendered, and this assignment fails for want of substance.
We have more than once held, that no bill of exception lies to a refusal to strike out evidence received without objection: Robinson v. Snyder, 1 Casey 207; Ashton v. Sproule, 11 Id. 495. In such circumstances the party has no other remedy than to ask the court to charge that it be disregarded, which, if refused, and the evidence be improper, the injury can be redressed by writ of error. The defendants did not avail themselves of this right, and we need not discuss the question whether the testimony about the pistol was improperly received or not.
We see nothing wrong in this record, and the judgment is affirmed.
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