Campbell v. Miller , 3 Mart. (N.S.) 149 ( 1824 )

Mathews, J.

delivered the opinion of the court. This is a suit commenced to recover two negro slaves, described in the plaintiff's petition, to which he claims title. The answer contains a general denial and also a plea of title from a person authorised to sell by the plaintiff, &c. Judgment was given for the defendant, and the plaintiff appealed.

This is the second appeal. The case was remanded for a new trial by a judgment of this court at the last term.

On the last trial a witness was offered to prove the confession of the appellant, that he had authorised the person who sold to the defendant, to sell and convey the slaves in dispute for and on account of the former. An objection was made to the introduction of this witness on the part of the plaintiff, and being overruled his counsel took a bill of exceptions. Although it may possibly be in conformity with the laws of the state of Mississippi, to pass the title to slaves by verbal sale and delivery, and that a contract of mandate, for the purpose of effecting such sales may be proven by parol, yet these laws have not been exhibited to the court below or to us, in such a manner as to forth the basis of an opinion on this subject.— We must therefore resort to our own state laws, as the rule of decision on this bill of exceptions. And a simple reference to that part of them, which relates to the transfer of slaves, is sufficient to shew the incompetency of the witness offered in this case. But independent of the direct operation of our rules of evidence; according to the general principles of all laws on that subject, oral evidence ought not to have been permitted to go to the jury after it had been discovered that the power said to have been granted was in writing, and that writing wholy unaccounted for.

The judge erred in admitting this testimony to the jury: and this may not be a good reason for again remanding the cause, as this court might disregard it, and procede to give such judgment as the evidence properly received would authorise, and the justice of the case require. have

But we have been in the habit of allowing great weight to the verdict of juries, even when they have been general both as to law and fact, and not confined to facts alone. This concession of influence is founded in a belief, which we should reluctantly change, that they are what their denomination purport them to be, a representation of truth. If one jury, by improper bias, or any other cause may have mistaken the facts of a case as exhibited by the whole evidence, or in our opinion have given an erroneous verdict, it is our custom to remand the suit for a new trial, in order that another jury may decide the facts. How

How far this comity ought to be extended on a repetition of verdicts, contrary to a very great preponderance of evidence, is not required now to be expressed.

The testimony, as it comes up in the record, has been by us attentively examined and carefully weighed, and it does appear scarcely to leave roomfor a doubt against the claims of the plaintiff.

As one of the parties to this suit has claimed a trial by jury; and as we are unwilling in the slightest degree, to invade the privileges belonging to a trial per pais; and as this is the second time which we have so widely differed with the jury in their conclusions on the facts of the case,

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, and that the cause be remanded for a new trial, and that the appellee pay the costs of this appeal.

Thomas & Oakley for the plaintiff, Baldwin for the defendant.