Jackson ex dem. Fowler v. Loomis

12 Wend. 27

• Court: New York Supreme Court
• Decided: May 15, 1834
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

Whatever was the name of the soldier, it is clear that the name Fowles appears on the pay rolls; and there is no reason to doubt but that the same person was calle'd Fowler by his messmates. The question which the jury have passed upon is whether this soldier died In 1781, or whether he survived the revolutionary war and is now alive. The documentary evidence shews his death, and that his pay stopped on the day he was returned by Connolly to have died. Fifteen witnesses testify that he lived at the close of the war and was discharged. They may be mistaken ; they swear to a fact which happened 48 years before the trial, and which they had no particular interest in remembering. The returns of Connolly were made out at the time, as was also the pay roll, and the patent was issued in 1791, to a person representing himself to be the administrator of the soldier. If the soldier survived, it is strange that he should have waited more than 30 years before inquiring about his land; and after so many trials, wherein his identity has been questioned ; if living, it might reasonably be expected that he would be produced.

The question was proper for the jury. Had their verdict been the other way, as it was in Jackson v. Ames, on testimony very similar, it would not have been disturbed; so here, the jury having found for the defendant, and the testimony being contradictory, it should not be disturbed. In cases like this, the verdict should not be set aside, unless decidedly against the weight of evidence. In this case, if the balance is in favor of the plaintiff, it is so only in consequence of the number of his witnesses. The character of the testimony produced for the defendant being documentary, existing at the time the event is supposed to have happened, or shortly thereafter, entitles it to more credit than evidence resting in the memory of men during so great a length of time.

New trial denied.