3. Nor will the court set aside the verdict in trifling actions, although the jury may have found against law. By the English practice, in addition to other suits frivolous in in their nature, an action is considered as trifling when the sum to be recovered is under £20.(1) This of course is not meant to comprehend penal, nor what are called hard actions, sounding only in damages. And, although in this country no particular class of cases, nor any specific sum is designated, except in equity, as infra dignitatem curiæ ; yet numerous cases have occurred, so utterly frivolous, as to fall within the principle of the rule.

In Barker v. Dixie,(2) case for a malicious prosecution of an indictment for felony, the jury found for the plaintiff, and gave 5s. damages. And upon motion for a new trial, on account of the smallness of damages, the court held there could be no new trial on that account; for this was not a false verdict, as finding for the defendant would be, and would subject them to an attaint.

In Marsh v. Bower.(3) Action for words. The defendant's wife had said to the plaintiff's wife, who had been a witness on a writ of inquiry, "You have forsworn yourself, and your ears ought to be nailed to the pillory." The words were fully proved on the trial; but the jury found a verdict for the defendant. Lord Mansfield, who tried the cause on the home circuit, reported, that he expected a verdict for the plaintiff, but with very small damages, as the words were spoken in heat and passion, and never afterwards repeated. The court unanimously declared that they would not grant a new trial, for the sake of sixpence damages, in mercy to the plaintiff, as well as the defendant. And therefore a rule having been obtained to show cause

(1) Vide 2 Tidd, 916. 2 Cromp. & Jer. 14. 5 Price, 334. 9 Price, 59, and 1 Tyrwhitt, Index, "New Tria's."

(2) 2 Str. 1051. Et vide Ibid. 940. (3) 2 W. Blacks. 851.

why a new trial should not be awarded; they, without hearing the defendant's counsel, discharged the rule.(1)

So in Burton v. Thompson.(2) On showing cause against a rule for a new trial, Mr. Justice Foster reported, that it was an action for a libel; that the charge was proved by the plaintiff; that the injury done to him thereby appeared upon the evidence to be so very inconsiderable, that if the jury had found for the plaintiff, he should have thought half a crown, or even a much smaller sum, to have been sufficient; but that the jury had gone too far, and, instead of giving the plaintiff very small damages, had found a verdict against him. Lord Mansfield." It does not follow, by necessary consequence, that there must always be a new trial granted, in all cases whatsoever, where the verdict is contrary to evidence; for it is possible that the verdict may still be on the side of the real justice and equity of the case. Here the jury have found for the defendant, and the plaintiff must pay the costs before he can have a new trial.-I do not think that we ought to interfere, merely to give the plaintiff an opportunity of harrassing the defendant, at a great expense to himself, where there has been no real damage, and where the injury is so trivial as not to deserve above a half crown compensation."(3)

In Brantingham v. Fay.(4) Where, in an action of debt for a penalty in a special agreement, though the court were of opinion that the plaintiff was entitled to a verdict, but no damages were shown, nor any rule by which the jury could ascertain the damages, they refused to set aside a nonsuit and grant a new trial, merely to give the plaintiff an opportunity to recover nominal damages.(5)

(1) Vide Price v. Everitt, 1 East, 583, in notis.

(2) 2 Burr. 664.

(3) Vide Stevens v. Aldridge, 5 Price, 334.

(4) 1 Johns. Cas. 255. Et vide 3 Johns. Rep. 239, (5) Vide Roberts v. Karr, 1 Taunt. 495.

And in Feeter v. Whipple.(1) Case against defendant as sheriff for an escape. The plaintiff made out his case, and the judge charged the jury, that the plaintiff was entitled to recover in damages, as much as he had lost by the escape; and that they would be warranted to find a verdict for the plaintiff for $45, the amount of property sold on the executions. The jury found a verdict for the defendant. A motion was made to set aside the verdict, which was submitted to the court without argument. Per Curiam-"The action is sounding in tort, the sum in controversy small, the value of the prisoner's property uncertain, and the evidence on that point contradictory; it is not a case for a new trial."

So, in Hurtin v. Hopkins.(2) Action for a libel, and proof for the plaintiff complete. The judge charged the jury that the publication was libellous, and that the defendant, having wholly failed in his justification, the plaintiff was entitled to a verdict. The jury found a verdict for the defendant. A motion was made to set aside the verdict and for a new trial. Per Curiam-"The general rule is not to grant a new trial, in actions of this nature when the verdict is for the defendant, and there is no other ground for the motion than that the jury have misunderstood or disregarded the evidence. The case before us was not that of a very aggravated libel, nor were the cases, in general, of that character to which the rule has been applied. A jury would rarely, in a gross case of defamation, find a verdict against the plaintiff; if they did it would be pretty good evidence of prejudice, partiality or corruption. The court do not mean to lay down a rule for such extreme cases, but they certainly would not be

(1) 8 Johns. Rep. 369.

(2) 9 Johns. Rep. 36.

justified, by the precedents, to interfere in the present case."(1)

And in ex parte Baily, (2) on an application for a mandamus, the court having intimated that they would hold the courts below to the discharge of their duty in extreme cases, and would correct their decisions, where their discretion has been abused, say, in conclusion-"Even where a verdict is plainly against law, the court may many times properly deny a new trial; as, if the controversy be very trifling in its nature, or contemptible in amount."(3)

In Vermont, in Bullock v. Beach,(4) the court adopts these positions, that a new trial will not be granted on the ground of new discovered evidence, if such evidence be merely cumulative; neither will a new trial be granted, unless the court be of opinion that injustice has been done by the verdict; nor will a new trial be granted where the amount in controversy is trifling.(5)

4. But where an important principle is involved, and the verdict is to be followed by serious consequences to the party against whom it is found, if against law, a new trial will be granted, without regard to the amount, or any other collateral matter.

This rule is sufficiently illustrated in the case of Levi v. Miln, (6) where the jury found for the defendant, although the plaintiff's case was clear. Burrough, J., cites, with approbation, a saying of Justice Buller, that the courts would not permit a jury to find contrary to the facts of the

case.

(1) Vide 4 Marsh. Kent. Rep. 450. 546. (2) 2 Cowen, 479. (3) Vide 5 Johns. Rep. 137. 10 Johns. Rep. 447.

(4) 3 Verm. Rep. 73.

(5) Vide post, "Smallness of Damages," Chap. XII.

(6) 4 Bingham, 195. Supra, p. 123. Et vide Vernon v. Hankey, 2 Term Rep. 113.

So, in Turner v. Lewis.(1) Gurney moved for a new trial, on the ground that the verdict was against evidence, and the opinion of the learned judge before whom the cause was tried. It was an action of trespass for entering the plaintiff's close, and cutting down trees. Defendant pleaded the general issue, and liberum tenementum, which was denied in the replication. The question upon the trial was, as to the exact line of boundary in a fence between the plaintiff's and the defendant's land, and whether the trees were on the plaintiff's or the defendant's side. The jury, after a view of the locus in quo, found a verdict for the plaintiff, for the value of the trees cut down, and taken away by the defendant. The court, after inquiring what was the amount of the damages found by the jury, and ascertaining that they were under £20, suggested that the smallness of the damages might afford an answer to the application; but, upon Gurney's observing, that as the action was brought for the purpose of trying a right of a permanent nature, and which might become the subject of future litigation, this case was not affected by the general rule, that a new trial is not to be granted where the damages are under £20; the court assented to that proposition, and granted a rule nisi.

And the court will order a new trial on questions deciding important rights, where the judge expressed an opinion on the trial contrary to the verdict, although he afterwards report, that he was not dissatisfied with the finding of the jury. As in the Earl of Mountedgecombe v. Symons.(2) The plaintiff had brought an action on the case for diverting a water course. The jury found a verdict for the plaintiff. The defendant obtained a rule nisi for a new trial, on the ground that the finding by the jury was adverse to the direction of the judge. The judge reported

(1) 1 Chitty's Rep. 265.

(2) 1 Price, 278.