1790.
fendant answerable, would be alike wanting in either case. There seems no difference in point of fairness, between the defendant’s receiving the money under a judgment of court, without fraud or collusion, and his receiving it from the hands of Fairchild himself. If Fairchild had received the money on these notes himself, and paid it voluntarily to Amory, it could not be pretended that the plaintiff, although the money ought to have been paid to them, could have any recourse to Amory; for, if it might be the subject of controversy when a man receives a debt, whether the debtor pays it out of his own money or another’s, who would be safe in receiving money? The nature of money, and the nature of commerce, forbid such an enquiry. The payment by Smith, the agent of Fairchild, was in effect a payment by Fairchild; and its being made in consequence of a judgment of court, could, at least, not weaken the defendant’s right of receiving it.
For these reasons, we are of opinion, that the present action is not supportable against Amory, and consequently that the verdict was against law. The motion for a new trial is therefore granted.[1]
Cowperthwaite, versus Jones, et. al.
Amotion 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.
Shipper, 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. 2d. Because the damages are said to be excessive. 3d. 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- ↑ In consequence of this decision, the cause was removed into the Supreme Court, where the principles contained in Judge Shippen's opinion, were also recognized and established. See post.
