Unknown County MsArchives Court.....Taylor, David 1834
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:27 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

DAVID TAYLOR vs. SAMUEL K. SORSBY.

pages 97-99

If it is manifest to a reasonable certainty, that justice has not been done, 
the court will grant a new trial.

It is an evident mistake, in point of law, for the jury to take out a 
deposition not read on the trial, and constitutes a strong reason for granting 
a new trial.


OPINION OF THE COURT-By the HON. POWHATTAN ELLIS.

On the trial of this case, a verdict was obtained for the defendant, and 
motion for a new trial was made, on the following reasons filed: 1st, because 
the verdict was contrary to law and evidence. 2ndly, because of the discovery 
of new and material evidence since the trial. 3rdly, upon the mistake or 
misbehaviour, in point of law, of the jury. Upon the argument of this motion 
in the court below, the judge doubting as to the law and the rule of decision 
refers the said motion, with the accompanying affidavits, to the Supreme 
Court, for adjudication. In the absence of the report of the judge who 
referred the motion, we feel much embarrassment in coming to any clear or 
satisfactory result, as the affidavit of Taylor, evidently refers to facts 
which do not now appear before us, and which must have influenced the jury in 
the rendition of their verdict. In relation to the discovery of new and 
material evidence, since the trial, the affidavit of the plaintiff states that 
the negro girl Levina, the property said to have been converted by the 
defendant, was taken out of, and from his possession, in Georgia, by one 
Israel Mares, who was afterwards arrested by Archibald Grissam, on a charge of 
stealiag slaves, and committed to gaol, and while in custody, he either did, 
or pretended to sell, said Levina, to one Limington who brought the girl into 
this state, and sold her to the present defendant. Taylor further states, that 
since the trial of this cause, he has discovered, that John P. M’Neal, of the 
city of Natchez, and a clerk who was in the store of said M'Neal, are material 
witnesses for him in this cause, and he expects to prove by them, that one 
Nash, the partner, or agent of Limington, who sold the negro to defendant, 
wrote to the late Mr. Sutherford of this city, stating that plaintiff had a 
claim to the girl in controversy, and that he intended to prosecute it; and 
that it would be advisable for Sorsby, to remove the property beyond the reach 
of such claim. It is further stated, that Nash, the partner or agent of 
Limington, who sold the negro girl to the defendant, acknowledged she was the 
same person claimed by Taylor, and that it was necessary she should be removed 
beyond the reach of his claim. New trials are frequently necessary, and 
sometimes indispensable, for the purpose of obtaining the ends of substantial 
justice. But the important right of trial by jury, should not be disturbed, 
unless upon the most unequivocal evidences of injustice to the party who 
complains; otherwise, the rights of the jury would be literally transferred to 
the courts, and they would, instead of the jury, become the triers of facts in 
contravention of one of the leading features clearly expressed in our 
political association. However, if it is manifest to a reasonable certainty, 
that justice has not been done, the courts will always interfere, and give the 
party an opportunity of having his cause reexamined by a second jury. The 
plaintiff claims the interposition of the court, upon the ground, that 
defendant knew that the negro girl Levina, belongcd to him, from the 
intimations he had received from Nash, the partner or agent of Limington, who 
had sold him the property sometime previous to the institution of this suit; 
although the facts stated in the affidavit, are not sufficient within 
themselves, unconnected with other circumstances, to warrant the court in 
awarding a new trial, yet they might present a case for the consideration of a 
jury from which they could reasonably draw inferences not very favorable to 
the defendant’s right of property. This, connected with the evident mistake of 
the jury, in point of law, in taking out with them the deposition of Campbell, 
which was not read on the trial, presents, we think, a proper case for the 
exercise of that sound discretion, given to us by the acknowledged decisions 
in our courts of law.

Let a new trial be granted.

Note: It has been decided in England, that if a deposition, part of which was 
rejected as incompetent, be handed to the jury by the plaintiff's counsel, 
though the rejected parts had not been read by the jury, the verdict will be 
set aside. Pratt's Case, 21st. Vin. 451. It has been also decided in this 
country, that even if the jury take out the deposition by mistake, the verdict 
will be set aside, unless the evidence contained in the deposition, be 
altogether irrelevant and immaterial to the issue, so that it could not have 
influenced the finding of the jury. 4 Wash. 157. 5 Mass. 405.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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