1786.
whole debt, whereas the action, ʃounding merely in damages, the Jury ought to have been left at liberty to find what damages they thought fit. Accordingly a new trail was ordered, and on the fecond trail the Jury were told, that they might find what damages they pleafed, and, on fome favorable circumftances appearing for the Defendant, they found only Ł. 500. in damages.
The fimilarity of this cafe with that before the Court, inclines me ftrongly to admit a re-hearing of the caufe as to this point, whether, if the Court fhould be of opinion that the Refpondent is anfwerable on the point of grofs negligence, they are bound to eftimate the damages by the real lofs, or whether they may not mitigate them, according to the circumftances, and degree of negligence in the Refpondent.
the court, on confideration, directed a re-hearing as to this point only ; and, after argument, reducing the damages, they gave the following judgment:
The court do award, that the Refpondent do pay to the Appellants the fum of Ł.948. 15. 10. 1-2. and the intereft thereof from the 22d day of January 1785, together with the fourth pact of the cofts by them paid in the former caufe by Silas Talbot qui tam againft them and others ; and alfo the cofts of this fuit in the Interior Court ; and that each party pay their own cofts in this court ; the whole of the aforefaid intereft and cofts to be taxed by the Regifter, or this Court.
