Harrison v. McKinney ( 1803 )

The Court,

Bay, J.,

absent, were clear that, there was not any Ipgal evidence to warrant the jury in finding damages to any certain amount. That even in case the affidavit had been attached to the writ at the time of service, the evidence would have been insufficient, unless the defendant had particularly referred to it; or otherwise had ascertained or expressed-the particular quantum of the debt in his acknowledgment,

A ne w trial was ordered.

Mots. ?n this ease it was contended in behalf of the plaintiffs, that the court wight not to grant a new trial unless the defendant would make oath that he did not justiv owe the plaintiffs the amount of the sum for which the verdict was given; for that notwithstanding the judge or jury may have committed a mistake on a trial at law, yet if upon the whole substantial justice has been done, She court will not irraut a new trial. Sed non allocatur — for though the defendant may owe the money, yet it ought not to be recovered from him by a judisia1 proceeding Without proof. If iher had been legal proof on which the verdict might stand, the court would not grant a new trial though the judge had oommitted an «nor on the trial, unless the party applying for it would swear justice was not done ; but ip, this «asa no sufficient legal evidence was given to ¡authorize the verdict.