Hoomes v. Kuhn

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Hoomes v. Kuhn, Wythe 136 (1791),[1] was a brief decision by Wythe dismissing a new trial for civil charges of assault and battery.


Jacob Kuhn thought that one of John Hoomes's slaves had stolen from Kuhn's store in Bowling Green, Virginia, and Kuhn whipped the slave "very severely".[3] When Hoomes heard about the whipping, he confronted Kuhn and hit him. Kuhn hit back, and a fight began that Kuhn lost badly.

The first Fredericksburg trial

Kuhn sued Hoomes in the Fredericksburg District Court for assault and battery, and also sued Hoomes's slave for theft.[4] During the first trial, Hoomes called Elliot and Roy[5] as witnesses. The first trial ended with a hung jury.

The second Fredericksburg trial

Before the next trial in Fredericksburg, Hoomes ran into Elliot in Hanover and asked him to testify again. Elliot promised to appear, but when the trial date came, he could not due to sickness. Roy was in Essex, Virginia, at the time of the next trial, so Hoomes sent a servant to Roy with a subpoena to appear (instead of using a sheriff). When Roy got Hoomes's subpoena to appear as a witness, he saw that it said the trial was taking place that very day. Because of that, Roy thought there was no point in trying to appear, but the trial did not actually take place until three days after the date listed on the subpoena.

Kuhn sent a carriage to Bowling Green to get Elliot as a witness. Elliot sent a letter back with the carriage reiterating that he was too ill to appear in court, but that Woolfolk and Weathers[6] were at the fight and could also say what happened there.

Hoomes's attorney did not object to beginning the trial on the planned date, nor did he ask for a continuance. Hoomes's attorney did not tell the court that Hoomes had tried to get Elliot and Roy as witnesses again, apparently because Hoomes had not mentioned it to him.

The jury awarded Kuhn £100. Hoomes's attorney moved twice for a new trial, but the judge rejected both motions.

The judge asked Kuhn if he would consent to a new trial if Hoomes paid Kuhn's court costs up to that time, but Kuhn refused, so the court ordered a judgment against Hoomes for £100.

At the High Court of Chancery

Hoomes filed a bill with the Chancery Court asking it to order the District Court to hold a new trial on the assault and battery charges. Hoomes listed Elliot's and Roy's absence as reasons (Hoomes did not say whether he could find other ways to prove what they would have testified about), and said that Kuhn introduced a surprise witness. This witness was not at the fight, but he testified that before the fight Hoomes was asked to discipline his slave for the alleged theft, but Hoomes refused. Hoomes said that if he had been given notice of this new witness, he would have been able to disprove the testimony.

Kuhn replied that Hoomes's attorney had the chance to delay or hold over the trial, but did not, even though Hoomes knew that Elliot's testimony was important. Roy was not at the fight, so his testimony was not important. Kuhn added that the surprise testimony Hoomes complained about was acutally provoked by Hoomes's attorney.

At the Chancery Court, Elliot testified that Kuhn whipped Hoomes's slave and described Hoomes's and Kuhn's fight; Elliot said that Kuhn "defend(ed) himself with alarcity".[7] Roy testified that he helped Kuhn whip Hoomes's slave under Kuhn's orders (Roy worked for Kuhn at the time), and that no one had asked Hoomes to discipline his slave up to that point.

Brooke, Kuhn's attorney in the District Court cases, testified that Hoomes's attorney agreed to begin the trial and gave no indication he wanted to postpone or continue it. Brooke also testified that the new testimony Hoomes complained about went to the jury without objection from Hoomes's attorney. Brooke also said that after the first trial, he decided that Elliot's testimony was important, so he advised Kuhn to get Elliot as a witness for the second trial. One of Hoomes's attorneys from the Fredericksburg trials also testified before Wythe, but his testimony did not contradict Brooke's.

The Court's Decision

The Chancery Court dismissed Hoomes's bill. Wythe noted that the District Court judge had already rejected motions for a new trial, and Wythe said he had heard nothing from the evidence that would change the District Court judge's mind. In such a situation, it would be improper for the Chancery Court to interfere.

Hoomes appealed to the Virginia Supreme Court of Appeals, but the Supreme Court affirmed Wythe's decision.[8]


  1. George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852): 136.
  2. The background information on this case came from the Supreme Court of Appeals opinion, Hoomes v. Kuhn, 8 Va. (4 Call.) 274 (1792). Wythe's opinion itself is only two sentences long, and gives no background on the case - not even the arguments made or testimony taken before him.
  3. 8 Va. at 274.
  4. Hoomes also sued Kuhn for whipping Hoomes's slave and won £17. 8 Va. at 274.
  5. The decision does not give Elliot's or Roy's other names; it is unclear whether these are first or last names.
  6. These seem to be last names; their first names do not appear in the opinion.
  7. 8 Va. at 276.
  8. The Supreme Court remarked that Hoomes did not seem to care much about the trial as shown by his sloppy preparation. 8 Va. at 278-79.