COWPERTHWAITE v. JONES
2 U.S. 55 (1790)

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U.S. Supreme Court

COWPERTHWAITE v. JONES, 2 U.S. 55 (1790)

2 U.S. 55 (Dall.)

Cowperthwaite
v.
Jones, et. al.

Philadelphia Court of Common Pleas

August Sittings, 1790

A motion for a new trial having been made and argued in this cause, the President now delivered the opinion of the Court, in the following terms.

Shippen, President:

The motion for a new trial in this cause has been made on several grounds: 1st. Because the jury have misbehaved, in adopting an improper mode of estimating the damages; by setting down each the particular sum he thought just, and then dividing the aggregate by the number of jurymen. 2nd. Because the damages are said to be excessive. 3rd. Because the verdict was contrary to the evidence. And, 4th. Because it was founded on a mistake in point of law; the jury supposing that, on payment of the damages, the Negro, (whose freedom was in question) would be emancipated.

New trials are frequently necessary, for the purpose of attaining complete justice; but the important right of trial by jury requires they should never be granted without solid and substantial reasons; otherwise the province of jurymen might be often transferred to the judges, and they instead of the jury, would

Page 2 U.S. 55, 56

become the real triers of the facts. A reasonable doubt, barely, that justice has not been done, especially in cases where the value or importance of the cause is not great, appears to me to be too slender a ground for them. But, whenever it appears with a reasonable certainty, that actual and manifest injustice is done, or that the jury have proceeded on an evident mistake, either in point of law, or fact, or contrary to strong evidence, or have grossly misbehaved themselves, or given extravagant damages; the Court will always give an opportunity, by a new trial, of rectifying the mistakes of the former jury, and of doing complete justice to the parties.

The first objection, as to the manner of the jury collecting the sense of its members, with regard to the quantum of damages, does not appear to us to be well founded, or at all similar to the case of casting lots for their verdict. In Torts and other cases, where there is no ascertained demand, it can seldom happen that jurymen will, at once, agree upon a precise sum to be given, in damages; there will necessarily arise a variety of opinions, and mutual concessions must be expected; a middle sum may, in many cases, be a good rule; and though, it is possible, this mode may sometimes be abused by a designing juryman, fixing upon an extravagantly high, or low sum, yet unless such abuse appears, the fraudulent design will not be presumed.

The 2nd and 3rd objections may be considered together.

The action is brought upon a bond, given to the sheriff, upon his executing a writ of Homine replegiando. The condition is for prosecuting with effect, and for making a return, if awarded. The plaintiff discontinued his suit, and no return has been made; of course, if the case was divested of its particular circumstances, the defendants would be liable for the payment of damages, equal to the value of the thing replevied. The question then, upon the trial, was; whether the circumstances were such as, in justice and equity, ought to discharge the defendants, from the legal obligation they were under, to return the Negro, or pay the price of him.

Many circumstances were given in evidence; but the most material one in favour of the defendants, was, that when the writ of Homine replegiando was delivered to the sheriff to be executed, he was instructed by the defendants, or their counsel, not to take the Negro out of the possession of the master; but to leave him in his hands, during the dispute; that he was accordingly left in his possession, and from thence it was concluded that he, the master, and not the sureties, became responsible for him. The evidence upon this point comes from the sheriff himself; who, by consent, was sworn as a witness; he proved the leaving the Negro in his master's house, when he executed the writ, and that he did not either take charge of him, or deliver him [2 U.S. 55, 57]


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