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4 Cal. 381

Benedict v. Cozzens

California Supreme Court

Decided October 15, 1854

California Supreme Court · decided 1854-10-15

This was an action to recover damages from the defendants for a malicious prosecution, and the damages were laid at $10,000. At the October term, 1852, on the first trial, after the plaintiff had made some progress in the cause, he offered certain depositions in evidence, which on objection by the defendants, were rejected by the Court, and thereupon the Court, a ithe instance of the plaintiff, withdrew a juror.

Good law ✅— No negative treatment on recordhow we know

Decided 1854-10-15

How this case has been cited

Cited by 8 later decisions — most recently February 1952

8 state decisions

3018541860187018801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Mr. Justice Heydeneeldt

¶1delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

¶21. The withdraAval of the juror was made to operate as a continuance by the Court. Such must, then, have been the design of it, and otherwise unexplained, it must bo presumed to have been done by consent, or without objection. Under any circumstances, it is no ground for reversal.

¶32. The substitution of papers is always within the discretion of the Court, and no notice of the motion to apply for it need be given, when the notice can be of no use. The *383principal paper substituted here, was the declaration, to which the defendant had the opportunity afterwards to plead or demur. The only thing the defendant could have shown, if he had had * notice on the motion to [383] substitute, was that the paper offered was in some respects different from the one lost. But this difference, if it was material, could afterwards as well be adopted by motion to amend.

¶43. There was no error in refusing the new trial. In requiring a remittitur of a portion of the judgment as terms for refusing the motion, the Court used a sound and admitted discretion. It is only saying that, although the verdict is excessive, yet had it been so much less it would not be excessive. By the reduction, the action of both Court and jury is made to coincide pro tanto against the defendant, and where that is the case, the result of the coincidence ought to be the measure of the judgment.

¶5Judgment affirmed, with ten per cent, damages.

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