
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Harrison & Co. v. McKinney.
    A mere acknowledgment by the defendant to an officer, who serves a writ, that the debt is just and will be paid, but not stating the amount, nor referring to any document ascertaining the precise sum due, is n#t. sufficient of itself to sustain a verdict in favor of the plaintiff.
    Motion for a new trial on behalf of the defendant.
    This was an action of assumpsit tried before' Gkimke, J., ia Charleston district. The sherifl’s deputy who served the writ on the defendant, proved at the trial, that the defendant said at the time it was a just debt he ^vas sued for, and that he would pay it; but mentioned no sum, nor did the witness know how much the debt was, orto what sum the defendant alluded when he said it was a just debt. It appeared that the plaintiffs had made an affidavit of the debt, which was annexed to the writ at the trial, hut was not affixed to it when the writ was served. The Judge at the trial left this evidence to the Jury, with directions that they might find damages to the amount of the sum sworn to by the plaintiffs, if they should believe that the defendant in his own mind knew the amount of the debt, and meant that sum when he acknowledged to the de„ puty sheriff that it was a just debt.
    The jury found for the plaintiffs the sum mentioned in their aft fidavit.
    The grounds of the motil n in this court were, 1. Insufficiency of legal evidence to warrant a verdict. ‘J. Misdirection »f the Judge.
   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.  