Where the judge is satisfied. But a new trial, when no injustice appears to have been done, will be refused, notwithstanding the verdict was, in the opinion of the judge before whom the cause was tried, contrary to the weight of evidence. In Ashley v. Ashley, (1) the judge, before whom the cause was tried, reported that the weight of evidence was with the plaintiff, and that, in his opinion, the jury ought to have found a verdict for him. A new trial was refused, the court observing, that, as there *was evidence for the [*408] defendant, the jury were the proper persons to judge on which side the weight of evidence was. And in Smith v. Huggins, (2) a new trial was refused, although Lee, Ch. J., reported, that the evidence for the plaintiff was very weak, and that he had summed up the evidence strongly for the defendant.(3) And held, in Fehl v. Good,(4) that though a verdict be against the opinion of the judge who tried the cause, yet if it turned upon the credit of witnesses, a new trial will not be granted, except in extraordinary cases."(5) It may be proper to add, that in most of the states a different practice prevails from what obtains in England. There, the case is reported by the judge who presided at the trial; here, generally, it is made up by the counsel on both sides, and settled by the judge. Of course, where this practice prevails, it is not probable that the opinion of the presiding judge can have the same controlling influence as in the English courts. With us, in New York, not only does this practice in making up the case exist, but since the amendment of the constitution, the judges of the Supreme Court sit only in bank, and do not, as formerly, travel the circuit, and preside at Nisi Prius. To them, therefore, this last rule has strictly no application. (1) 2 Str. 1142. (2) Ibid. (3) Et vide 1 W. Blacks. 1; 2 Str. 1105. (4) 2 Binn. 495. (5) Vide 2 Serg. & Rawle, 298; 2 S. C. Con. Rep. 452, 323. General remarks. *CHAPTER XII. BY REASON OF THE DAMAGES. I. General remarks. II. In actions for personal torts. III. Exception to general rule in case of tort. I. General remarks. THE object of an action being the recovery of a sum of money for a demand unjustly withheld, or a breach of contract or wrong committed, it is the special province of the jury to ascertain the justice of the demand, the terms of the contract, or the extent of the injury, and, by their verdict, to liquidate the amount. In actions on, or arising out of contracts, they are furnished by the evidence with a rule to measure the just amount; but in actions sounding in damages, or torts to the person, they are to be guided by their sense of justice. It is here, however, they are most liable to err. Their feelings and passions are appealed to and excited, and necessarily more or less mix up with the facts; and hence their finding frequently betrays undue motives, and manifests an excess of feeling on one side or the other; sometimes in a culpable excess of damages, and at others in an unjust diminution. At one time, it was doubted whether, in cases of mere personal tort, the court had the power to interfere, on the ground of excessive damages, or the contrary.(1) But the practice has been long settled, conceding to the court the right to control verdicts in relation to damages, as well as to every other incident, in all cases without exception; (2) with this difference, [*410] *however, that on questions of contract, or when an (1) Vide Sayre's Law of Damages, 210-238; 3 Anst. 808; 1 Term Rep. 277; 5 Taunt. 277. (2) Vide Sayre's, ut supra; 2 Tidd, 917; Gra. Prac. 514. In actions for personal torts. ascertained test of the correct amount is furnished, the court interposes the correction with less reluctance than in cases of mere injury, when the damage is at large, and the finding on that point must of necessity be arbitrary. The practice, in this particular, is thus laid down by Justice Buller:-"In actions founded upon torts, the jury are the sole judges of the damages; and therefore, in such cases, the court will not grant a new trial on account of the damages being trifling or excessive. But in actions founded upon contract, and where debt would lie, and before Slade's case would have been brought, the court will inquire into the circumstances of the case, and relieve if they see reason.(1) To this part of the subject the subsequent rules will apply. II. In actions for personal torts. In personal torts and actions, generally sounding in damages, it being within the strict province of the jury to estimate the injury; unless there be a manifest abuse, the court will not interfere. In its general acceptation, this rule applies equally to an unjust lessening of the damages, as to an intemperate excessas well in inquests as contested cases. In an Anonymous case, (2) the defendant moved for a new writ of inquiry into London, and to stay the filing of the former, because of excessive damages given; but it was denied. Chisvers v. Lambert.(3) Skinner moved for defendants to set aside the inquisition taken before the coroner, upon a writ of inquiry for excessiveness of damages, which were £50. It was an action brought for a false return of a rescous, whereby the present plaintiff, one Cripple, having brought his action against the defendants for the false return, had recovered £20 dam ages. The court made a *rule; whereupon Eyre showed [*411] (1) Bull. N. P. 327. (2) 1 Mod 2. (3) Barnes, 229. In actions for personal torts. cause, and produced affidavits, that plaintiff, who kept a tavern at Twickenham, was taken up by a writ of rescous, founded upon the said return, and carried to Newgate, where he was some time imprisoned and put to very great expenses; and the counsel for the defendants attended before the coroner at the execution of the writ of inquiry. The court discharged the rule. So in Burges v. Nightingale.(1) A writ of inquiry was execu ted, and plaintiff moved to quash the inquisition, by reason of the smallness of damages, which was denied. Prince, for plaintiff; Wright, for defendant. The court ruled that where the jury find any damages, the inquisition must stand; aliter, had they found no damages. And in Mauricet v. Brecknock.(2) Motion for a rule to show cause, why the inquisition taken upon the writ of inquiry in this cause, should not be set aside, on account of the smallness of the damages. It was an action on the case, for maliciously suing out a commission of bankruptcy against the plaintiff, and also tor maliciously holding him to bail for £1,020. The defendant let judgment go by default, upon which a writ of inquiry was executed, and the jury gave only £5 damages. The affidavit upon which Baldwin moved, stated that the plaintiff's attorney had proved, before the jury, that his bill of costs to the plaintiff for superseding the commission of bankruptcy, amounted to upwards of £30, and that no evidence was produced on the part of the defendant. The court, after some difficulty, granted the rule. And, upon cause shown, Lord Mansfield.-"He has confessed malice in point of form, and merely for the purpose of [*412] letting the plaintiff in, *to prove the degree of injury he has received." And rule discharged.(3) These are cases on writs of inquiry, but they fall within the rule, the courts taking no distinction between inquests and ver (1) Barnes, 230. (2) 2 Doug. 509. In actions for personal torts. dicts,(1) and are well calculated to illustrate the principle embraced in it, that the jury are the sole judges; and so long as no abuse appears, their finding will be conclusive. As a further illustration, the decisions of the courts, in contested cases, may be adduced, in applications for new trials in every species of tort, on the ground of damages; Exempli gratia,— Actions of crim. con., a species of personal tort, sui generis, from its nature placed almost beyond the control of the courts, and emphatically consigned to the province of the jury, in the matter of damages. Here the courts will not interfere, without proof of the most flagrant abuse. In Wilford v. Berkley:(2) Motion for a new trial, for excessiveness of damages. It was an action for criminal conversation with the plaintiff's wife, and the jury, a special one, had given £500 damages. The defendant was a clerk in the Exchequer, during pleasure, and at a salary of £50 a year only, which was his whole subsistence. The court were all clear and unanimous that, although there was no doubt of the power of the courts, to exercise a proper discretion in setting aside verdicts, for excessiveness of damages, in cases where the quantum of the damage really suffered by the plaintiff could be apparent, or they were of such a nature that the court could properly judge of the degree of the injury, and could see manifestly, that the jury had been outrageous in giving such damages as greatly exceeded the injury; yet the case was very different, where it depended upon circumstances which were properly and solely under the cognizance of the jury. They held the *case of criminal [*413] conversation, to be of this latter kind: for the injury suffered by the husband, and the estimate of the damages to be assessed, must, in their nature, depend entirely upon circumstances, which it was strictly and properly the province of the jury to judge of, and in the present case, they could not say that £500 was too much, or that £50 would have been too little. (1) Vide 5 Johns. Rep. 138, in notis. (2) 1 Burr. 609. |