weight of evidence." The motion for a new trial must be overruled.(1)

2. But even in personal torts, where the jury find outrageous damages, clearly evincing partiality, prejudice, and passion, the court will interfere for the relief of the defendant, and order a new trial.

Thus, in Clerk v. Udall,(2) upon a trial at nisi prius, the jury gave excessive damages, and for this cause a new trial was granted. The second jury gave the same damages, and a second trial was moved for, and denied, because there ought to be an end of litigation; but several cases were cited, which the chief justice allowed, that where, upon the second trial, the jury have doubled the damages, a third trial had been granted.

The rule will apply to every species of personal tort. Although no case has actually occurred, it has been held, that even in crim. con., formerly thought to be an exception, if the court can perceive that the jury, in their finding, were actuated by undue motives, or even under the influence of gross errors, the verdict would be set aside, as is intimated in Chambers v. Caulfield.(3)

In cases of assault and battery. Goldsmith v. Lord Sefton.(4) The plaintiff, a sheriff's officer, had arrested Colonel M., who immediately escaped into the defendant's house. The defendant coming home soon after, found the plaintiff there, watching Colonel M., who, however, contrived to make his escape. The plaintiff, some time after, retired to an alehouse in the neighbourhood; Lord Sefton followed him, and demanded to see his warrant. This was at first refused. Some altercation took place, and Lord Sefton held out his horsewhip, in an attitude of menace to

(1) Et vide M'Dowall v. Murdock, 1 Nott & M'Cord, 237. (2) 2 Salk. 649. (3) 6 East, 244. (4) 3 Anst. 808.

the defendant, who opposed his stick, which Lord Sefton took out of his hand, and threw away. For this assault the action was brought, and the jury, on a writ of inquiry, gave £200 damages. A rule nisi was obtained, on the ground of excessive damages. And, per Macdonald, C. B.-"By the whole current of authorities, it appears that we are bound to protect a party, where, by the improper warmth or worse passions of a jury, damages glaringly and outrageously great have been given against him. We cannot say what the damages ought to be, but can only send it for the investigation of another jury." Hotham, Baron-"It is as much the duty of the court to protect the party from injustice of the jury, as to submit to their finding in those things which are exclusively within their province. The present verdict is such as cannot be justified. It is an insult on the judgment of the court, to suppose it a fair verdict."(1)

So in Jones v. Sparrow.(2) Action of assault and battery, tried before Lord Kenyon, when it appeared in evidence, that the plaintiff, who was a servant to the defendant, after having received a slight blow from his master for impertinent behaviour, violently beat him. The jury gave a verdict for the plaintiff, with £40 damages, which the defendant moved to set aside, on the ground of excessive damages; and Duberly v. Gunning was relied on in resisting the motion. Lord Kenyon, Ch. J.-" It must be remembered, that, although the case of Duberly v. Gunning was decided after a very full discussion of the subject, the court were not unanimous in the determination. whether rightly or not decided, that is a case sui generis, and cannot govern the present." And motion granted.

But

(1) Vide Grey v. Grant, 2 Wils. 252. Benson v. Frederick, 3 Burr. 1845. Durham v. Wood, 1 Term Rep. 277.

(2) 5 Term Rep. 257.

And in Goldsmith v. Lord Sefton.(1) Thompson, B., mentions a case in the common pleas, where, upon a writ of inquiry for an assault, £200 damages were given, and set aside as excessive.

So in cases of malicious prosecution. Chambers v. Robinson.(2) Action for a malicious prosecution of an indictment for perjury. The chief justice allowed the plaintiff to give in evidence an advertisement put into the papers by the defendant, of the finding the indictment, with other scandalous matter, though an information had been granted for it as a libel, not (as he said) that the jury were to consider it in damages, but only as a circumstance of malice. The jury found a verdict for the plaintiff of £1000. The defendant moved for a new trial, on account of the excessiveness of damages; and the court said it was but reasonable he should try another jury before he was finally charged with £1000, so a new trial was granted upon payment of costs; and a new trial being had, the same damages were given again, upon which the defendant applied to the court, who said it was not in their power to grant a third trial. The latter clause, it is presumed, after so many repetitions of the remedial power of the court, would not now be considered as law.(3) Indeed, the whole decision has been questioned.(4)

And in Harry v. Watson,(5) where £3000 had been given in an action for a malicious prosecution, the court of common pleas, on a motion to set aside the verdict for excessive damages, said, they had the power of granting a new trial, and inclined to grant it in this case; but the plaintiff agreed to accept £1500, and so the matter ended. So in actions of slander. It is worthy of remark, that this action in which the courts evince so strong a disin

(1) 3 Anst. 808. (4) 2 Wil. 249.

(2) 1 Str. 691. (3) Vide 4 Burr. 2108. (5) 4 Term Rep. 659, in notis.

clination to interfere on either side, has proved to be the first regularly reported case in the whole class of torts, where the court granted a new trial on the ground of extravagant damages, and that too, after a trial at bar.

In Wood v. Gunston.(1) Wood brought an action against Gunston, for speaking scandalous words of him, and, amongst other words, for calling him traitor, and obtained a verdict against him at bar, with £1500 damages. Upon the ground that the damages were excessive, and that the jury favoured the plaintiff, the defendant moved for a new trial. Glyn, Ch. J.-"It is in the discretion of the court in some cases to grant a new trial, but this must be a judicial and not an arbitrary discretion; and it is frequent in our books for the court to take notice of miscarriages of juries, and to grant new trials upon them; and it is for the people's benefit that it should be so; for a jury may sometimes, by indirect dealings, be moved to side with one party, and not be indifferent betwixt them. But it cannot be so intended of the court; wherefore let there be a new trial."(2)

So in actions for false imprisonment, new trials have been had, because of outrageous damages. As

In Ash v. Ash.(3) Action for false imprisonment, and verdict £2000 damages, although the plaintiff had been confined by her mother only two or three hours. A new trial was granted on account of the excessiveness of the damages. And by Holt, Ch. J.-" The jury were shy of giving their reason for their verdict, thinking they had an absolute power to find it as they pleased. This is a mistake, for the jury are to try the cause with the assistance of the judge."

So, in a recent case in the English common pleas, Price v. Severn.(4) Action for false imprisonment. The plain

(1) Styles, 466. (3) Comb. 357.

(2) Vide supra, 3. 7.
(4) 7 Bing. 316.

tiff, claiming relationship to the defendant's wife, importuned him for pecuniary relief, until he was obliged to warn him off his premises. He still continued his importunities, and having refused to quit the premises, the defendant directed a constable to take him into custody, and the plaintiff was taken to an inn for the night. Next morning he was brought to the defendant, and after some little conversation, said he must have some money. The defendant went away, and returned in a few minutes with two sovereigns, which he told the plaintiff he might take, or go before a justice. The plaintiff consented to take the money, but said he must have something for the keep of his horse. The defendant gave him half a crown, and directed the butler to furnish some refreshment. The jury gave a verdict for the plaintiff £100 damages. The defendant obtained a rule nisi, on the ground that the damages were excessive. Tindal, Ch. J.-"I am as little disposed as any man to interfere with the province of a jury, and I should not be induced to send a case down again for excessive damages, except where those damages are enormous and disproportionate. I consider them such in this case, on account of the limit which the plaintiff himself put on his demand in the first instance." And after recapitulating the facts, his lordship concludes "It seems to me, that if accord and satisfaction had been pleaded, it would have been a bar to the action. A verdict for £100, as we cannot but see on the evidence of the plaintiff himself, is far beyond what he merits. The case, therefore, must go before another jury." The other judges concurred, and the rule was made absolute.

So in the supreme court of this state. M'Connell v. Hampton.(1) Action for false imprisonment. The defendant was commander of the army of the United States

(1) 12 Johns. Rep. 234.