Gaulden v. Lawrence

33 Ga. 159 | Ga. | 1862

By the Court —

Lumpkin, J., delivering the opinion.

We could not send this case back on account of the newly discovered evidence. If the forgetfulness of a party, at the trial, of a material fact, were held to be a sufficient reason to grant a new trial, it would be productive of great mischief, by eucouraging the grossest neglect in the preparation of a cause.

Neither does the obvious mistake of the jury in not allowing the credit of $200, endorsed on one of the .notes given in payment for the negro, constitute a good ground for a rehearing. The plaintiff could be compelled to count that amount off his judgment under an order of this Court.

Neither can we suppose there was any doubt in the minds of the jury as to the identity of the notes. Counsel for the defendant suggests that this may have been the reason why they found as they did. The notes bore the same date with the bill of sale, and were cut from the same sheet of papelón which the warranty was written. At any raid, this was enough to put the plaintiff upon proof that they were founded upon some other consideration. If the jury put their verdict upon this ground, which we apprehend they did not, it would, for this reason, be decidedly against the weight of evidence.

There is one ground upon which ive feel constrained to grant a new trial in the case. This sale was made in 1855, Phoebe was warranted to be a number one negro. The testimony in 1858 and 1859 is, that “ she was lazy, slothful, indolent and slovenly, requiring a great deal of attention and driving to get any work out of her, and then she could only be induced to do half as much work as an ordinary hand of the same appearance.” The witnesses testify that she was worthless, and that they would not have her as a gift. Was Phoebe a number one negro in 1855 ? Physical diseases may have supervened since the sale, but these traits of character originated in natural infirmities which grew with the growth of the woman; and Lawrence, the vendor, produced no proof to contradict this conclusion. Had he shown that in 1855 Phoebe was as he warranted her to be, a number one negro, that John P. Gaulden was a cruel or merciless man to his slaves, the jury might have concluded that the conduct of the woman was attributable to the change in her treatment. But no attempt was made to show that she was .different in 1855, when he sold her. The jury then were bound to reduce the price one half, or more or less, as in their opinion, and as instructed by the Court, she fell short of a number one negro. Mr. Gaulden may be an unpopular man. Character may have much to do in cases which involve character. But in questions of property — meum and tewm,— the measure of any other citizen’s rights is the measure of John P. Gulden’s rights.

Let the judgment be reversed.