From Edmund Randolph
Novr. 4. 1792.
E. R. to J. M.
Presuming, that No law, subsequent to my departure from Virginia, has changed the modes of practice, which prevailed during my familiarity with them, I proceed to answer the queries.
1. If A’s judgment stands, and B. goes to a new trial, A cannot repeat any offset or plea, which was used in his, (A’s) suit on the former occasion. Errors of the jury or omissions of the party will not be rectified, or indeed inquired into. A’s situation will, under these circumstances be peculiarly hard. For if both verdicts existed to their full amount, A. would receive £205–13..6 - £161..4..4 = £44–9..2; but if the reduced verdicts remain, A. will lose £50; and if on a new trial in B’s action, the same damages of £161..4..4. should be again found, A. will lose upwards of 100 £.
My advice is, that A. should decide for himself, whether upon a future hearing of both cases before a jury in the county court, he can certainly be victorious. If he should think otherwise, let him calculate, whether it may be advantageous to submit to the present loss of £50. If on the other hand, he is persuaded, as he probably is, of his chance of success, the effort should be to bring both causes on together, taking care to lay damages, large enough to comprehend any recovery. This may be accomplished, by letting B’s appeal in the district court wait for trial, until the event of A’s appeal is known or certainly foreseen: an event, which must, in my opinion, be adverse to B. If A. succeeds in reversing B’s judgment then let him confess error on B’s appeal. By doing this, A. will have the costs to pay. But he may then begin with a new suit, and with any damages. B. will be driven to a great dilemma, I suspect, by this measure. For he will be obliged either to try his cause over, with no more damages than 100 £, or to dismiss and also to begin de novo. In the former case, B. will be fairly caught, and in the latter will be put to at least equal difficulty with A. However, if B. should be able to prevail upon the county-court, after his cause shall be returned thither for a second trial, to increase the damages, he may save the expence of a dismission. But I do not think, that an increase of damages is allowable in such a suit.
Should it be asked, why may not A. take the chance of increasing his damages also, the answer is, 1. that he will be compelled to confess error in toto or not at all, and 2. that he too would upon principle be excluded from a right of increase.
2. As to resort to equity, I doubt the result, the whole subject being of a pure common-law complexion, originally, and nothing having occurred in its progress, to create an ingredient for chancery. But if every thing else should fail, let it be tried.
These are hints only. A’s counsel will use them, as is best.
RC (DLC). Docketed by JM.