1790.
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 2d and 3d 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
