at Burlington, when the plaintiff, a private citizen, was arrested and tried by a court martial. The plaintiff came to the defendant to make some communication relative to the enemy, and the defendant said the communication was false, and ordered the plaintiff to be taken to the guardhouse. The plaintiff was confined from Tuesday until Sunday, and lay on the floor of the guard-house without any bed, but was allowed to procure his own provisions and rations of a soldier, and was permitted to speak to others, in the presence of the officer. The jury found a verdict for the plaintiff for $9000 damages. A motion was made to set aside the verdict, and for a new trial, on the ground of excessive damages. The court, per Thompson, J., after reviewing the testimony-" It must strike every one at first blush, that the damages given by the verdict are unreasonable, and indeed outrageous. It is not, therefore, a case of the mere assessment of damages, upon an undisputed state of facts, but where different men might very honestly draw different inferences, as to the motives which influenced the conduct of the defendant. To refuse a new trial, would, in effect, be saying, that a new trial ought never to be granted in actions of this description." New trial granted. Van Ness, J., dissenting.(1)

So in actions on the case, ex delicto. Thus, in Pleydell v. The Earl of Dorchester.(2) Action on the case for diverting the plaintiff's water-course. The jury gave a verdict for £3000, which this court, on a former day, set aside, upon motion as being excessive, and not warranted by the evidence-it being a mere question of the deterioration of property, and, therefore, not like cases of personal injuries, as actions for adultery, slander, and the like. The court

said, that having taken this matter into their consideration

(1) Et vide 3 Monroe, 145. 2 Southard, 847.

(2) 7 Term Rep. 525.

since it was last mentioned in court, and having referred to several precedents, particularly one in Sty. 466, by which it appeared to have been the practice, in such cases, to let in the defendant to a new trial, upon the terms of the former verdict; standing as a security, in the mean time, for the damages, which might be given upon another trial, they thought the rule was founded in justice and convenience, and fit to be enforced, not only upon this, but upon all future occasions of the same kind.(1)

3. In personal torts and actions sounding in damages, the court will refuse new trials for smallness of damages, for the same reasons that prevail on questions of excessive damages. To entitle the application to succeed, the jury must have clearly manifested an abuse of their power. Thus,

In Marsham v. Buller or Bulwer.(2) Action of trespass; the jury found for the plaintiff, and gave half a farthing damages. Richardson, in arrest of judgment, said, that the damage which the jury gave ought to be valuable, and there is no such coin as half a farthing. Doderidge, J., said to Richardson-"Your purse is full, but if you were at Oxford, you would get a draught of beer for half a farthing. Haughton, J., said, "You may have fieri facias and levy half a farthing by an egg." So the plaintiff had judgment.

Lord Kenyon, in Duberley v. Gunning,(3) recognises the principle-"If we can set aside a verdict in such a case as this, for excess of damages, I presume we shall be equally warranted in so doing where we think the damages too small; and yet in Lord Strafford's case, although the court thought that one shilling damages

(1) Ante, Cutton v. Barnes, Litt. Sel. Cas. 136. (2) 2 Ro. Rep. 21. Cro. Jac. 458. Jenk. 335.. (3) 4 Term Rep. 651.

given against him were much too small, they did not think themselves warranted in granting a new trial on that account, because they had no rule to go by."(1)

In slander the court have refused to interfere on this ground. In Lord G-r v. Heath.(2) Action upon the statute of Scan. Mag. for the following words spoken of the plaintiff, "G-d d-n my Lord G-r, he is a rogue, and all on his side are rogues; if the mob would stand by me, I'd drive them all, or lay the town in heaps." The words were proved upon the trial, notwithstanding which the jury found only 12d. damages. Darnal, for plaintiff, moved to set aside the verdict by reason of the smallness of the damages; but not being able to produce any instance of a verdict being set aside merely for that reason; though for excessive damages, verdicts have been frequently set aside, and in point of reason there is the same cause for setting aside one as the other, yet as the difference had been always taken, and practice long settled, the court said they would make no rule.

So in Hayward v. Newton.(3) An action was brought for these words, spoken of the plaintiff as a wine merchant-"You are a rogue, villain and rascal, and fill by short measure," and the jury gave twenty shillings damages; and though it was thought a hard case, yet the court said it has always been denied to set aside a verdict for smallness of damages, and therefore denied it in this case. Quaere tamen ? Is it not within the reason of the rule setting aside a verdict for excessive damages ?(4)

In cases of malicious prosecution, the court have refused to set aside the verdict on this ground, as in Barker v. Dixie.(2) Though the court, in that case, held, what

(1) Et vide Bull, N. P. 27. (2) Barnes, 445. (3) 2 Str. 940. (4) Vide Marsh v. Bower, 2 W. Blacks. 851.

5 Price, 334.

2 Burr. 664.

it is presumed would not, construed strictly, be now regarded as law, that they could not grant a new trial on the account of the smallness of the damages. The court were evidently driven into this remark, by a process of reasoning limiting the extent of their remedial power to cases where attaint would have lain; forgetting the large discretion with which it clothes them, extending to all classes of cases, and which, on all other occasions, they uniformly assert. It is the only modern instance in which the court have suggested a doubt of their power.

In Mauricet v. Brecknock,(1) it is laid down, as a general rule, not that the court cannot, but that they will not, set aside a verdict, in an action for a tort, on account of the smallness of the damages.(2) This is not intended to apply to extreme cases. They form an exception.

Wherever, therefore, the jury transcend their limits, and suffer themselves to be influenced by caprice, gross partiality, or passion, it presents a proper care for the interference of the court, who will correct the perversity of the verdict, whether it appears in the shape of damages, or a finding intended to avoid damages entirely, and so to defeat justice. (3)

We have had occasion to notice a salutary application of this rule, in a recent case in England, Levi v. Milne,(4) where, for a gross libel, the jury would have given the plaintiff one shilling; but that costs would have followed the verdict. Gasalee, J., observes "It is impossible to read this publication, without seeing its libellous tendency. The name given to the plaintiff is one commonly employed by the lower orders, as a term of reproach to persous in his station. The case in Burrow,(5) does not lay it down as a general rule, that a new trial shall never be granted,

(1) Supra, p. 411.

(2) 2 Doug. 509.

(3) Vide "Perverse Verdicts," ante, p. 421. (4) 4 Bingham, 195. Supra p. 123.

(5) Burton v. Thompson, 2 Burt. 661.

where it is probable the damages may be small. In that case, the jury found for the defendant; and Mr. Justice Foster, who tried the cause, reported that the charge was proved, but the injury was so inconsiderable, that half a crown, or even a much smaller sum, would have been sufficient damages. And it was for this reason, and not the probable sinallness of the verdict, in the event of a new trial, that the court denied the motion."

The case of Bacot v. Keith,(1) already cited, strongly recommends the rule. The jury, in so aggravated a case as the shattering of the plaintiff's arm with buck-shot, having rendered a verdict with only one dollar damages, against the man who could be guilty of so atrocious an assault, furnished an example of that partiality and prejudice, to which the courts constantly refer as an exception to the general rule of not granting new trials in personal torts.(2)

In Virginia, it appears, the rule at common law was held so strictly against a motion of this kind, as to require the interposition of a statute.(3) The present practice there, is thus laid down, illustrated by an example in slander, the action of all others requiring some liberality of opinion in motions for new trials." When a new trial is granted for such cause, it is not necessary to state on the record the grounds for awarding it, since it will be presumed that the order of the court upon a subject which the statute has put within its jurisdiction, was correct, unless the contrary appeared." In Rixey v. Ward,(4) for slander, the jury assessed the damages at $50. On motion of the plaintiff, on the ground of the smallness of the damages, for reasons

(1) 2 Bay, 466. Ante, 373. Et vide Johns. Cas. 255. 9 Ibid. 36. 2 Cowen, 479. Ante, "Verdict Against Evidence," Chap. XI. (2) Et vide N. C. Law Rep. 276.

(3) Vide 1 Rob. Prac. 378.

(4) 3 Randolph, 52,