insurgents who was disabled in the very act of hostility to the government whose aid he now seeks? If the defendant, who is alleged to have committed the injury, was a friend of the United States, it would seem to be an ungenerous discrimination to subject him to damages for an act of which his government had the benefit; and if the defendant was a co-rebel with the plaintiff, and they were in pari delicto, the government would consult its dignity, and not interfere in their dispute.

But this must be understood to be restricted to acts clearly rebellious, or intimately connected with the Rebellion, and in aid of it; for, very clearly, the present courts will take cognizance of all matters of a civil nature between rebels, not intimately connected with and in aid of the Rebellion. In the view of the courts of the present government, the service in which the plaintiff was engaged was illegal. The act of going to the field of operations was illegal, and the contract of the defendant to aid him by carrying him to the field, was an illegal contract, and upon the supposition that both parties were rebels-the most favorable one for the plaintiff - there can be no recovery upon it. (Martin v. McMillan, ante, 468.)

The object was properly taken on the plea of the general issue. There is no error.

NOTE. As some misapprehension exists as to the extent of the principle administered by the presiding judge upon the trial of the case, below, the Reporter adds that during the same term of Allemance Court, in the case of Ireland v. The N. C. R. R. Company, (being a suit for damages occasioned by the same negligence that injured the plaintiff in the case above,) the plaintiff, who was also shown to be an officer of the Confederate States army, under the instruction of his Honor recovered a verdict for $2,000, the defendant having failed to show that he was then going in order to report to General Johnston; also that at the term, in the case of Clark, Adm'r, etc., v. The Raleigh & Gaston R. R. Company, it was shown that the intestate was an officer of the Confederate States army at home on furlough, and that he was killed by the negligence of officials of the defendant, whilst returning home from a visit of friends.

Under the instruction of his Honor, the plaintiff recovered a verdict for $3,000.

All these cases were conducted by the same counsel.1

1 Wallace v. Cannon, 38 Ga. 199, accord. The author of an immoral book, though it is copyrighted, cannot maintain an action against a pirating publisher, as the law recognizes no property rights in such a production. (Stockdale v. Onwhyn, 5 B. & C. 173; 2 Car. & P. 163; Lawrence v. Smith, Jacob, 471 and cases in note; Cf. Stallings v. Owen, 51 Ill. 92.) "The true view is believed to be, that, where one is seeking the help of the court in doing a wrongful thing, or compensation for having done it, or redress for another's having participated with him in it, or where in any other manner compliance with his prayer would involve an affirmance of his wrong as though it were a right, his suit will be rejected." (Bishop's Non-Contract Law, $ 59.)

CHAPTER V.

REMEDIES: DAMAGES.

BLODGETT v. STONE.

(60 N. H. 167.-1880.)

CASE, for diverting the water of a natural stream from the plaintiff's aqueduct. The defendant offered a brief statement alleging that the plaintiff had previously filed a bill in equity for an injunction against the defendant, based substantially on the facts now stated in his declaration, upon which an application for a temporary injunction had been denied after a full hearing of the facts before one of the justices of the court, and the equity suit had been entered "neither party," after the defendant had filed an answer denying the equity of the bill. No replication was filed, and no decree was ever entered up. The brief statement was rejected, and the defendant excepted. The defendant requested the following instructions to the jury, which the court declined to give, and the defendant excepted: "If the jury find that what Stone did was done from malice, still he is not liable unless his act caused actual damages to the plaintiff, and then only for the actual damages caused to the plaintiff, and the verdict in that case would settle nothing as to the legal rights of the parties." Verdict for the plaintiff.

Ladd & Fletcher for the defendant.

Ray, Drew & Heywood for the plaintiff.

CLARK, J. The facts stated in the brief statement constituted no defence, and it was properly rejected. The proceedings in the bill in equity were immaterial. No decree was entered

up. If the judge who heard the application for a temporary injunction denied it on the merits, it would not be a bar to a subsequent hearing on the bill, and it is no bar to this suit. The request for instructions, that the defendant was not liable unless his act caused actual damage to the plaintiff, was rightly refused. The plaintiff was entitled to a verdict for nominal damages upon proof of the infringement of his right, although no actual injury was shown. (Tillotson v. Smith, 32 N. H. 90; Bassett v. Company, 28 N. H. 438; Woodman v. Tufts, 9 N. H. 88; Munroe v. Stickney, 48 Me. 462; Chaffee v. Pease, 10 Allen, 537; Stowell v. Lincoln, 11 Gray, 434.)

Judgment on the verdict.

RICHARDS V. Sandford.

(2 E. D. Smith, 349: Common Pleas.-1854.)

C. Bainbridge Smith for the plaintiff.

Stephen P. Nash for the defendant.

By the court. WOODRUFF, J. An appeal is made from an order at special term denying the plaintiff's motion for a new trial, and we are urged to reverse that order upon two grounds; first, because irrelevant and inadmissible testimony was given on the part of the defendant; and secondly, because the damages are grossly inadequate to the injury sustained by the plaintiff, through the culpable negligence of the defendant.

But upon the second ground, I think a new trial should be ordered. The action is brought to recover damages sustained by the plaintiff, in falling over stones left upon the sidewalk in a dark night, in front of the defendant's premises, by which one of his teeth was broken out, and his face otherwise cut and bruised. Under a charge from the court, to which there was no exception, and which, though not contained in the case. as settled, we must assume to have been correct, the jury have found that this injury was sustained by the culpable negligence of the defendant, without fault on the part of the

plaintiff, and I think they were warranted by the evidence. in so finding. And for this injury the jury award to the plaintiff ten dollars damages only.

I fully agree that the general rule is, that in actions for torts, in which the rule of damages is not fixed by any definite ascertained rule, a new trial is not to be granted because the court think the damages either too great or too small. But this general rule is clearly open to exception, alike applying to excessiveness and inadequacy of damages. In the language of the court, in Collins v. The Albany and Schenectady Railroad Company, "Where the damages found by the jury are either so large or so small as to force upon the mind of every man, familiar with the circumstances of the case, the conviction, that by some means the jury have acted under the influence of a perverted judgment, it is the duty of the court, in the exercise of a sound judicial discretion, to grant a new trial." Such, in my judgment, is the character of the present verdict. It cannot be reconciled in any manner with an honest and intelligent purpose to give the plaintiff an indemnity for the injury received. It leaves the plaintiff to pay the costs of the litigation. The case did not call for exemplary damages, but a just indemnity was due to the plaintiff; and though there is no precise standard by which such indemnity can be measured, it seems to me a mockery of justice to call this verdict indemnity in any sense.

The case above referred to, from 12 Barb. 492, and the cases there collected, seem to me to present the true rule on this subject, and to call for our interposition.

On the other hand, I think the defendant should be permitted to avoid a new trial, 'as in that case, and in Armytage v. Haley, 4 Q. B. R. 917, by consenting to a modification of the verdict. If, therefore, he thinks proper to consent that the verdict be raised to one hundred dollars, judgment should be ordered for the plaintiff for that sum, and costs of suit, and a new trial be denied without costs of appeal. The order at special term should, I think, be modified in conformity with these views, and in default of such consent, a new trial should be ordered, on payment of costs.

Ordered accordingly.