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; B. the Superior Court for Franklin County L.) 429; Quincey v. Perkins, 76 N. C. 295. in favor of plaintiff in an action brought to Granting that the trial judge, in the ex: recover damages for an assault and battery. ercise of a sound discretion, could have set Affirmed.

aside the verdict as to damages, yet when he The facts are stated in the opinion. refuses to exercise a discretion, and atMr. F. S. Spruill, for appellant: temps to assign a reason, and gives a wrong The statute sets out the grounds upon or illegal one, such ruling is reviewable error. which a judge may, "in his discretion," en- Clark's Code, $ 274, cases cited under captertain a motion to set aside a verdict. tion Want of Power, 1 230; Beck v. Bell. Clark's Code, $ 412, subsec. 4.

amy, 93 N. C. 129; Gilchrist v. Kitchen, 86 The language of our statute not only does N. C. 20; Hudgins v. White, 65 N. C. 393. not confer upon the trial judge a right to set A new trial will not be granted on the aside a verdict because of inadequacy of ground that the damages found are inadedamages assessed, but expressly deprives him quate. of that right, if, indeed, he ever had it. The 16 Am. & Eng. Enc. Law, p. 589; Pritchard principle Expressio unius exclusio alterius, v. Hewitt, 91 Mo. 547, 60 Am. Rep. 265, 4 if it has any place in the construction of S. W. 437; 4 Minor, Inst. 758 ; Gray v. statutes, must apply here.

Second Ave. R. Co. 65 N. Y. 561; Taylor v. Young v. Hairston, 14 N. C. (3 Dev. L.) 'Davis (Tex.) 13 S. W. 642; Price v. Bailey, onliquidated or where vindictlve or exemplary | 15, It was said that it is the province of the jury damages are authorized, where actual damages to see that justice is done, but when the assessare shown witb such definiteness as, to furnish ment is manifestly unjust, whether too small or a reasonably certain measure, the court may too excessive, a new trial should be granted ; look into the circumstances proved, and grant a but this was also a case of excessive, and not innew trial if the amount awarded by the verdict adequate, damages. Is manifestly inadequate. Hackett v. Pratt, 52 And in Meyer v. Fiegel, 38 How. Pr. 424, the III. App. 346.

court named as a ground upon which a new And where the law Itself prescribes the rule of trial will be granted damages which are paldamages to which alone a party is entitled If he pably insufficient; but the motion was for a new recovers at all, an award of a sum not war- trial on newly discovered evidence. ranted by the rule is such evidence of passion, And in Robb v. Carnegie Bror. 145 Pa. 324, 14 prejudice, mistake, or misapprehension that the L. R. A. 329, 22 Atl. 649, it was said that where verdict ought not to be permitted to stand. Mc- the amount of a verdict shows that it must have Donald v. Walter, 40 N. Y. 551.

been arrived at by the adoption of an erroneous So, where the amount to which a party to an

measure of damages or a mistake in computa. action was entitled is susceptible of adjustment tion, the trial judge should not hesitate to set and ascertainment by fair and not very difficult it aside; but the case was not one of inadequate computation, and the figures to form the basis of damages. the calculation are presented in an intelligent

So, in Peterborough v. Sadler, 12 Mod. 317, a and tangible form, and a verdict is rendered new trial was granted where a former verdict lower than the lowest estimate, It should be set

had been rendered and set aside as excessive aside as clearly contrary to the evidence. Faw. because of the great difference between the two

verdicts. cett v. Woods, 5 Iowa, 400. And a verdict for nominal damages when the damages, and no certain rule can be prescribed

But where there is no standard for measuring plaintix is entitled to more will be set aside and for the guidance of the Jury, the court will not a new trial awarded, though given under the ordinarily grant a new trial though the damrecommendation of the court. Duff v. Hutson, ages awarded him be manifestly small, unless 2 Bail. L. 215. And a judgment will be reversed on appeal dice or passion or other improper motives.

the inadequacy was plainly produced by prejuwhere a prima facie case was made entitling the Moseley v. Jamison, 68 Miss. 336, 8 So. 744. plaintiff to recover a much larger sum than that allowed, and no contradictory evidence was of setting aside a verdict of a jury for Inadequacy

The court is justified in interfering with and fered to disprove the prima facle case. State ero only in those cases where it appears that the rel. Scott County Comrs. v. Wilson, 90 Ind. 114 jury in fixing the amount were actuated by prej.

So, in Tutton v. Andrews, Barnes' Notes, 488, udice, passion, and partiality or corruption, os It was held that notwithstanding the notion falled to understand and apply the rule of dam. which had prevailed that where damages are ex

ages appertaining to the case, or where it can be cessive a new trial may be granted, but not clearly seen from the record that under all the where the are less than they ought to be, an

circumstances of the case the amount awarded Inquisition will be set aside and plantiff given was unreasonable and unfair. leave to execute a new writ of inquiry, where ter R. Co. 2 App. Div. 5, 37 N. Y. Supp. 520.

Reger v. Rochesthe sheriff permitted improper evidence to be given by the defendant whereby the damages quacy is only rarely exercised, especially in ac

The power to set aside a verdict for inade were lessened.

tions for personal wrongs, such as slanders, batAnd in Collins v. Albany & S. R. Co. 12 Barb.terles, and the Uke; but where the foundation 492, and Clapp v. Hudson River R. Co. 19 Barb.

of the action is a breach of contract, and the 461, the rule was laid down that when the dam-damages are capable of estimation, If there is a ages found by the jury are either so large or 80 glaring deficiency justice requires that the case small as to force upon the mind of every man shall be revised. Taunton Mfg. Co. v. Smith, 9 familiar with the circumstances of the case the rick. 11. conviction that by some means the jury have And in the consideration of the question of acted under the influence of a perverted judg. setting aside a verdict for inadequacy the court ment, It is the duty of the court, in the exercise on appeal will assume that the jury found every of a sound judicial discretion, to grant a new fact going to mitigate or reduce the damages trial; but both were cases of excessive damages. which they could properly find from the proof.

And in Mobile & M. R Co. v. Ashcraft, 48 Ala. 'Robinson v. Waupaca, 77 Wis. 544, 46 N. W. 809.

66 II). 48; Young v. Rossi, 30 Fed. Rep. 231; part of the verdict on the ground that the Henderson v. WcReynolds, 38 N. Y. S. R. 734, damages assessed were inadequate, and let 14 N. Y. Supp. 351; 1 Graham & Waterman's the others stand. On appeal from that rulNew Trials, p. 447; Gregory v. Chambers, 78 ing, this court declared the appeal prema Mo. 297; Hayward v. Newton, 2 Strange, ture; and upon a second trial the defendant, 940; Barker v. Dixie, 2 Strange, 1051; Ben. Ruffin Collins, renewed his exception to the jamin v. Stewart, 61 Cal. 608; Merony v. order on the first trial setting aside that part UcIntyre, 82 N. C. 103.

of the verdict as to damages, and the grantMr. c. M. Cooke for appellee.

ing of a new trial on that issue alone. The

two issues which were eliminated from the Montgomery, J., delivered the opinion of second trial, and which were found by the the court:

jury for the plaintiff on the first trial, to In the first trial of this action,-an action wit, the first and third issues, were in these for damages growing out of an assault and words: (1) "Did the defendant, R. V. Col. battery committed by defendant, Ruffin Collins, wrongfully damage the plaintiff, as al. lins, upon the plaintiff,-all of the issues leged in the complainti" (3) ""Was the deed were found for the plaintiff. In response to of trust executed by R. V. Collins and wife the issue as to the amount of damages which to S. E. Eure with the fraudulent intent to the plaintiff was entitled to recover, the jury hinder and delay and defraud said R. V. Col. answered $350, and his honor set aside that 'lins's creditors ?” Upon the second trial, the

So, in Fogg v. Stinson (Me.) 4 New Eng. Rep. Conrad v. Dobmeler, 57 Minn. 147, 58 N. W. 146, 8 Atl. 455, It was held that a new trial will 870. not be granted when It does not appear that the And such a verdict may be set aside as against verdict is unreasonable in amount, but there evidence. Gartner v. Saxon, 19 R. I. 461, 36 was nothing in the case to show whether the Atl. 1132. verdict was complained of as inadequate or ex- And a motion for a new trial in an action of cessive.

assumpsit should be granted where the verdict Nor will a new trial be granted for inade- was for a less sum than the party was entitled quacy of damages where the only dispute was as

to. Hallberg v. Brosseau, 64 Ill. App. 520. to the allowance of a certain offset, and the evi. And a verdict in an action upon an account dence was conflicting, and the difference be- stated will not be sustained where it is for a tween the verdict and the amount which should

sum greatly less than the damages suffered as have been found, if anything, is so trilling as to shown by the evidence in writing, which was bring the case within the maxim De minimis non

practically undisputed. Porter Sherman curat leo. Engel v. Fischer, 44 Ill. App. 362, County Bkg. Co. 36 Neb. 271, 54 N. W. 424. and see also Nichol v. Bestwick, 28 L. J. Eq. N.

Thus, a verdict for $25 in an action for serv. 8. 4, infra, II.

Ices rendered will be set aside and a new trial But the difference between a verdict for $37.- granted where by the uncontradicted evidence 90 and $75.81, wbich was the amount due, is

they were worth $150 or $200. Hood v. Ware, not too small to justify a new trial, and the fact 34 Ga. 328. that it would cost the county for another trial

And a judgment in an action for services for more than the difference amounted to is of no ef- $16 is erroneous where the only evidence on the fect. Galloway v. Weber, 55 III. App. 366.

Issue was that it took thirteen days' labor to do II. Rule in contract actions.

the work which was worth $2 a day. Fagan v.

Whitcomb (Tex. App.) 14 S. W. 1018. It is within the power of the court in an ac- And a verdict for the plaintif for $125 in an tlon for breach of contract to set aside a ver- action brought by him for his services as an at. diet upon the ground that the damages are too torney will be set aside as contrary to the evismall. Taunton Mfg. Co. v. Smith, 9 Pick. 11. dence, and a new trial granted, where the proof

The role that verdicts will not be set aside on of the value of the services rendered justified account of their smallness does not apply to ac-ixing the amount at not less than $230, avd tions on contract. Woodford 1. Eades, 1 there was no evidence warranting the finding Strange, 425 ; Colyer v. Huff, 3 Bibb, 34.

of the less amount. Shropshire 7. Doxey, 25 As a general rule in cases of breach of con- Tex. 127. tract, there are fixed standards of value with ref- So, a verdict will be set aside and a new trial erence to the injury dore, capable of estimation ordered in an action for wages quantum meruit by direct proof, and if a glaring deficiency ap- where the amount found was less than that pears in the amount of the verdict, justice de- fixed by any witness in the case as the value mands a revision. Watson v. Harmon, 85 Mo. of the services rendered. Howev. Lincoln, 23 443,

Kan. 468. And a verdict for a much less sum in an ac- And a finding upon an inquest of one penny tion on contract in which the plaintiff was en damages for the plaintin in an action on a debt titled to recover his whole claim or nothing will of £333 for an apothecary's bill will be set aside be deemed to show that the jury in determining for smallness, and a new writ of inquiry issued. the case either wholly disregarded the evidence Markbam v. Middleton, 2 Strange, 1259. or misapprehended its effect, or overlooked some And a verdict for $100 for the plaintiff in an important fact, or necessarily found some fact in action for the contract price of drilling a well favor of the defendant which was wholly Incon- and furnishing casings, etc., in which the sistent with a verdict for any amount in favor amount earned was established without dispute of the plaintin, and may therefore be set aside. at $249.80, and there was an undisputed offset of Powers v. Gouraud, 19 Misc. 268, 44 N. Y. Supp. $25, in which the court charged the jury that 249.

If the contract was found to be as alleged the So, setting aside a verdict and granting a new plaintiff was entitled to $224.84, is proper. trial in an action for breach of contract is not ly set aside as inadequate, and as in direct conan abuse of discretion where tbe finding in favor travention of the instructions of the court. of the plaintii entitles bim to substantial dam- Bigelow v. Garwitz, 40 N. Y. S. R. 580, 15 N. Y. uges, but only nominal damages are awarded.' Supp. 940.

, jury, in response to the single issue as to 1 port should be returned to the next term of damages, answered $600. His honor gave that court. judgment for the plaintiff, and against the The case is before us on two exceptions,defendant, R. V. Collins, for that amount, one to the ruling of his honor in the first and after reciting that the conveyance by the trial setting aside the verdict for inadequacy defendant, R. V. Collins, and his wife, of his of damages, and the ordering of a new trial lands lying in Nash and Franklin counties, on that one issue alone; and the other to the had been conveyed in fraud of his creditors, judginent, as to its form and substance, as ordered that, subject to the homestead ex- to the allotment of the homestead, and the emption of defendant, R. V. Collins, the sale of the excess. Both points raised on the lands so fraudulently conveyed be sold to appeal are important as matters of court satisfy the plaintiff's judgment, and the clerk practice and procedure, and a: matters af. was instructed to appoint three commissionfecting the substantial property rights of the ers to appraise and allot to the defendant, defendant. R. V. Collins, his homestead therein, who On the question as to the power of the su. should report their proceedings to the next perior courts to grant new trials on one or term of Franklin superior court; and it was more of several issues, and to let the others further ordered that the excess over the stand, and the practice of this court to order homestead should be sold by a commissioner new trials on particular or restricted issues, then named by the court, and that his re.' the authorities are numerous, and cover a

So, the presiding judge in an action for dam- And in Russel V. Ball, Barnes' Notes, 455, ages for breach of contract in neglecting to re- it was held that where a demand is certain, as ceive and pay for property sold, may, upon a by promissory note, the court will set aside a motion made upon his minutes, set aside a ver- verdict for too small damages, but not where dict for a sum far less than the amount of the the damages are uncertain, as in a case for damages, and award a new trial on the ground damages for curing a wound. of inadequacy of the verdict, though upon the So, a verdict in an action upon a fire-insurevidence a verdict for the defendant would not ance policy under which the plaintiff made amihave been disturbed. McDonald v. Walter, 40 | davit of damage to the extent of £1,085 rendered N. Y. 551.

in his favor for £500, will be set aside and a And the fact that stock purchased upon false new trial granted, where the policy contained a representations as to its value afterwards be- condition that the plaintiff should forfeit all came worthless will not prevent setting aside benefit under the policy If there was any fraud a verdict for 6 cents rendered in an action or false swearing in the claim he made. Levy bronight by the purchaser for such false repre- v. Baillie, 7 Bing. 349, 5 Moore & P. 208, 9 L. J. sentations, as it does not necessarily follow that C. P. 108. the purchaser would have retained the stock un- But proof that a verdiot in an action upon an til its value was gone. Cowles v. Watson, 14 insurance policy was for a less sum than the Hun, 41.

estimation of the loss by the plaintiff does not And in Woodford v. Lades, 1 Strange, 425, establish fraud and false swearing, or authorize a verdict of one cent damages for the plaintiff the court to say that the jury was under such in an action on contract for stock between the improper Infuence that their verdict should be plaintiff and another, each of whom deposited disturbed. Moore v. Protection Ins. Co. 29 Me. $200 in the hands of the defendant for the re-97, 48 Am. Dec. 514. covery of the money on the failure of the other So, a finding of the jury in executing a writ to perform his agreement, was set aside, and aof inquiry in an action on a covenant for nonnew trial granted.

payment of rent reserved on a lease, for less So, a verdict for the plaintiff in an action than the rent in arrear, will be quashed, and a upon a bond for only one fourth of the principal new writ of inquiry granted on payment of the and interest due thereon will be set aside as costs. Parr v. Purbeck, 8 Mod. 196, and see against evidence and in violation of law, and a also Wolf v. Goodhue F. Ins. Co. 43 Barb. 400, new trial ordered, where no evidence was given infra, VII. by the defendant. Carwile v. Harvey, 15 Rich. Nor will the court refuse a new trial in an L. 314.

action of covenant by a lessor against a lessee And see State ea rel. Scott County Comrs. v. upon a lease reserving an increased rent for Wilson, 90 Ind. 114, supra, I., for a similar every acre of certain lands converted into tillbolding with reference to a verdict on a county age, where the jury gave damages for the actclerk's bond.

ual injury sustained instead of the increased And a verdict for $50 for the plaintiff, in an rent, on the ground that the verdict was consistaction on a note for $100 in which it was al- ent with justice. Farrant v. Olmius, 3 Barn. & leged that the note was passed for a loan of $50 Ald. 692. under a verbal stipulation that if the bearer And a verdict for $100 in an action for use would repay the $50 the note should be given and occupation, in which the uncontradicted up, otherwise it should be forfeited, will be set evidence as to value fixed It at $475, will be aside and a new trial granted, as the note would set aside as against the weight of evidence. be usurious if such agreement was found to ex. Hoe v. Hoey, 39 N. Y. S. R. 221, 15 N. Y. Supp. ist, and therefore vold, and the plaintiff would 105. be entitled to recover tbe whole amount if the And asking a question of a witness in an acagreement did not exist. Fowler v. Word, Harp. tion for rent, which suggested the plaintiff's L. 372.

wealth and the defendant's poverty, to which And a verdict in an action upon a promissory an objection was overruled, will be deemed to note given for the purchase price of lands, the have occasioned passion or prejudice, and to title to part of which failed, allowing the de- warrant a new trial, where, by the verdict, the fendant about one half of the lowest estiinate rent of an agreed amount of $275 was practicalplaced upon such part by the witnesses, will be ly reduced to $60. Fonda v. Lape, 29 N. Y. S. set aside as against evidence, and a new trial R. 327, 8 N. Y. Supp. 792. granted. Fawcett v. Woods, 5 Iowa, 400.

And where a tenant under a lease containing long series of years. The following are some mington & W. R. CO. 84 N. C. 192; Merony of them: Strother v. Aberdeen & A. R. Co. v. McIntyre, 82 N. C. 103; Holmes v. Godwin, 123 N. C. 197, 31 S. E. 386; Silver Valley 71 N. C. 306; Key v. Allen, 7 N. C. (3 Min. Co. v. North Carolina Smelting Co. 122 Murph.) 523; Barnes v. Brown, 69 N. C. N. C. 542, 29 S. E. 940; Rittenhouse v. Wil. 439. mington Street R. Co. 120 N. C. 544, 26 S. Before such partial new trials, however, E. 922; Nathan v. Charlotte Street R. Co. are granted, it should clearly appear that the 118 N. C. 1066, 24 S. E. 511; Pickett v. Wil- matter involved is entirely distinct and mington & W. R. Co. 117 N. C. 616, 30 L. R. separable from the matters involved in the A. 257, 23 S. E. 264; Blackburn v. St. Paul other issues, and that the new trial can be F. & M. Ins. Co. 116 N. C. 821, 21 S. E. 922; had without danger of complications with Tillett v. Lynchburg & D. R. Co. 115 N. C. other matters. Such partial trials are not 662, 20 S. E. 480; Jones v. Swepson, 94 N. C. of strict legal right, but of sound legal dis700; Boing v. Raleigh & G. R. Co. 91 N. C. cretion. There was no violation of the limi199; Price v. Deal, 90 N. C. 290; Jones v. tation in such matters in the case before us. Mial, 89 N. C. 89; Lindley v. Richmond & The issues were clearly separable, and each D. R. CO. 88 N. C. 547; Crawford v. Geiser one could have been answered without deMfg. Co. 88 N. C. 554; Roberts v. Richmond pendence or complication upon the others. & D. R. Co. 88 N. C. 560; Allen v. Baker, 86 The contention of the defendant is that on N. C. 91, 40 Am. Rep. 444; Burton v. Wil-' the second trial various matters favorable a covenant to repair underlets the premises to the jury to find for the plaintiff unless the one who enters into a similar covenant, and the breach of warranty was established, in which lessor brings action on the covenant in the first case they would have to find a verdict for the lease against his tenant and recovers, the dam. defendant for the $500, and a verdict for the deages and costs recovered in that action, and fendant is found without allowing him the $500, also the costs of defending it, may be recovered it is a proper exercise of discretion for the as special damages in an action by the tenant trial justice to set aside the verdict and grant against the under-tenant for breach of his cove- a new trial. H. B. Smith Co. v. Chapin, 38 N. nant to repair, and if the jury assess the dam-Y. S. R. 463, 13 N. Y. Supp. 799. ages at the sum recovered in the former action So, a judgment upon a verdict in an action for breach of covenant to repair only, the in- upon contract not allowing interest to the plainquisition will be set aside and a new writ of in- tiff to which he was entitled is erroneous, and quiry issued. Neale v. Wyllle, 3 Barn. & C. should be reversed. Winn v. Young, 1 J. J. 533, 5 Dowl. & R. 442, 27 Revised Rep. 418. Marsh. 51, 19 Am. Dec. 52.

As to what degree of inadequacy will warrant And a judgment and verdict in an action in the court in acting in rent cases, see Galloway which the answer admits an indebtedness to v.Weber, 55 Ill. App. 366, supra, I.

the plaintiff of a larger amount will be reversed So, a verdict for the plaintiff for nominal on appeal, and the cause remanded with direcdamages only in an action on an implied war- tions to the court below to render judgment for ranty of the soundness of a negro will be set the admitted sum. Coffman v. Brown, 7 Colo. aside as. against evidence, and a new trial or- | 147, 2 Pac. 905. dered, where the unsoundness of the slave at But the fact that the jury found a verdict the time of the sale was conclusively estab- for a less sum than that fixed by any of the witlished, and it appears that a full price was nesses as the amount of damages in an action paid. Verdier v. Trowell, 6 Rich. L. 166. for breach of contract to erect and complete

Or where the testimony as to the diseased a bridge, is not a ground for a new trial where condition of the slave was uncontradicted, and the amount of damages was merely a matter of It appears that he was injured from 25 to 30 opinion. Brewer v. Tyringham, 12 Pick. 547. per cent upon the purchase price. Wallace v. But see Howe v. Lincoln, 23 Kan. 468, supra. Frazier, 2 Nott & M'C. 516.

And in actions on contract in which the damand a verdict for one cent in an action for ages may be more or less a matter of calculadamages for deceit and breach of warranty of tion, although the plaintif may be prima facie soundness of a horse sold, will be set aside as entitled to a full measure of damages, where inadequate where the evidence shows that the the actual amount of damages has been in any horse was of no value, and that in the condi- degree affected by the conduct of the plaintiff tion he was represented to be in he would bave or his agent, that is a legitimate element of been worth at least $200. Traylor v. Evertson consideration, and the jury are at liberty to (Tex. Civ. App.) 26 S. W. 637.

diminish the damages on that account, but If A party deceived by fraudulent misrepresenta- they do so unreasonably and arbitrarily the tions has the right, in an action for damages court can grant a new trial as for a verdict because of the fraud, to be placed in the pecun- against evidence. Wilson y. Hicks, 26 L. J. iary position which the representations entitled Exch. N. S. 242. bim to believe he was securing by means of the And a verdict for the plaintiff for merely transaction, and a verdict adopting his theory nominal damages in an action for breach of con. of the case, but limiting his recovery to 6 cents, tract will not be set aside for inadequacy when where the damages were many thousand dollars, the damages were not a mere matter of comwill be set aside as inadequate, as the jury had putation, and there were views upon which the no discretion on the subject, but were under a jury might not unreasonably consider that there legal duty to recompense him for the entire was no substantial damage, especially when the amount of his loss. Cowles v. Watson, 14 Hun, matter in dispute amounted to but a small sum. 41.

Nichol v. Bestwick, 28 L. J. Exch. N. S. 4. And where, in an action for the contract So, while a verdict would not be sustained price and extra work of supplying and placing if it were established that the jury had lessened a beating apparatus, the defendant alleges the damages with a view to reducing them below breach of warranty, and claims that $500 ap. $20 in order to affect the amount of costs to parently paid thereon was really a loan made which the plaintiff would be entitled, it will not by him to the plaintiff, and the court charges 'be disturbed where there was no proof that

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to the defendant on the issue as to the of time, pain, and permanence and effect of amount of damages might have been cut off, injury; and the jury which hears the whole which would have been relevant and com- could judge more impartially all of the ispetent on the first trial under the first issue, sues than another jury could, hearing only and that, therefore, the defendant might the testimony on the issue as to damages. have suffered by the manner in which the The answer to that argument is that whatcase was tried on the second trial. The ever evidence could have been introduced on argument of the defendant's counsel is that the first trial upon the first issue, in miti. upon the first issue as submitted in the first gation of damages,-such matters as the de trial, “Did the defendant, R. V. Collins, fendant's counsel urged in his argument, wrongfully damage the plaintiff, as alleged could be, as a matter of law, gone into on the in the complaint?” all the circumstances second trial upon the issue as to damages. attending the assault are drawn out. If If no attempt was made by the plaintiff in there be anything to repel malice, to mitigate the second trial to show malice in the defendthe damages,-any conduct on the part of the ant in making the battery upon the plaintiff, plaintiff provoking the assault, as foul then the damages could have been only actual language or insulting words,-it comes out damages. If malice or aggravation was atin the investigation of the evidence on the tempted to be proved to recover punitive first issue, and the same jury hears the evi• damages, then it was permissible for the dedence as to the extent of the wound, the loss ' fendant to show the conduct of the plaintiff they so reduced It other than the verdict itself. | bad character and was stealing potatoes at tbe Brewer v. Tyringham, 12 Pick. 547.

time, the character and act of the slave going See also Scott V. Baldwicke, 2 Mill, Const. only in mitigation of damages. Richardson v. 410; Anonymous, 2 Salk. 647; Wilson v. Hicks, Dukes, 4 McCord, L. 156. 26 L. J. Exch. N. S. 242,--infra, V.; and Whit- Nor is setting aside a verdict in a statutory well v. Atkinson, 6 Mass. 272, infra, VII. proceeding to assess damages claimed by a landIII. Rule in actions with relation to property priating his land and constructing a railroad

owner against a railroad company for approand property rights.

over it for the value of the land actually taken Actions to recover for Injuries to property, or

and used an abuse of discretion, where there to recover property, or secure property rights, was evidence of other and additional damages like actions upon contract, usually have ixed to his land besides the value of the land so standards of value which are capable of estima-taken and used. Georgia Southern & F. R. Co. Lion by direct proof, and in such cases when a

v. Jones, 90 Ga. 292, 15 S. E. 824. glaring deficiency in the amount of the verdict And the supreme court on appeal may correct appears, justice demands a revision. Watson a judgment in an action for damages for the v. Harmon, 85 No. 443.

appropriation of land under the right of eminent Thus, a verdict for $1 in an action for con- domain, where it appears that interest had not version must be set aside and a new trial

been allowed in the court below where It should granted where the minimum valuation of the have been, without reversing and remanding the property converted, Axed by the witnesses, was

Alloway v. Nashville, 88 Tenn. 510, 8 $3,300. Ibid.

L. R. A. 123, 13 S. W. 123. And a refusal to set aside a verdict and grant

But a verdict in a proceeding by a railroad a new trial in an action in trover is error where company to condemn lands in which a turnpike the jury found the defendant guilty of a con

company had an easement required by the rail. version of the goods, but assessed the damages road to cross the turnpike, for $25 for land at a sum much less than their real value. Bern- | taken and $275 for consequential damages, will stein v. Walker, 25 Ill. App. 224.

not be set aside as too small. Shelbyville & So, a bailor of property which is lost by the E. Turnp. Co. v. Louisville & N. R. Co. 21 Ky. ballee, If he is entitled to recover at all against L. Rep. 548, 51 S. W. 805. the bailee is entitled to have the value of the So, a judgment for $2.1242 in an action property lost, and a verdict in an action there against a common carrier for negligence in carfor assessing the value of the property at much rying horses, causing their injury, will be reless than its true value will be set aside and a versed as against evidence, and the cause renew trial granted. Wise v. Freshley, 3 Mc-manded, where it appears by the evidence that Cord, L. 547.

some of the injuries were of a permanent charAnd setting aside a verdict and granting a acter, and the damages were assessed by the witQew trial are not an abuse of discretion in an nesses at from $10 to $75 each on six horses, action for the value of the contents of a lost and but one witness testified that the horses trunk, where the verdict does not accord in any

were not injured, and his testimony was of an reasonable manner with the evidence, though Inconclusive character. Eggleston v. Gull, C. the testimony as to damages was conflicting. & S. F. R. Co. (Tex. App.) 18 8. W. 137. llall v. The Emily Banning, 33 Cal. 522. So, a verdict for $5 in an action against a

And a verdict for the plaintif for nominal clty for the value of property destroyed bs or damages only, in an action brought by the own. der of the city authorities, will be set aside as

er of property against a lessee for cutting down Inadeyuate, and a new trial awarded, where it a grove of large trees surrounding the build. appears by the upcontradicted evidence that the ings, will be set aside, and a new trial granted. property was worth $1,378.14. Bishop v. Ma where the evidence shows that the injury was con, 7 Ga. 200, 50 Am. Dec. 400.

serious. English v. Clerry, 3 FIII, L. 279. And the jury in an action for injury to or

And a verdict in an action for damages to destruction of property are not at liberty, di- the rental value of plaintiff's house because of rectly contrary to the evidence, to award and the building and operating of a rallroad along arbitrary sum below Its real value, and a nomin. Its side, inding that he had suffered six cents al verdict in an action for shooting and killing damage in four years, 18 totally Inadequate, and the plaintir's slave will be set aside and a new will be set aside and a new trial granted, where trial granted, though it appears that he was of there was uncontradicted testimony as to the


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