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as to provocation, in mitigation of damages. "The general rule is that anything which is a complete answer to the action must be pleaded either in bar or in justification; but it is also well settled in many cases that matters which go to the quantum of damages, merely to palliate the character of the offense, or to mitigate the amount which the jury may award, may be given in evidence under the general issue." Sedgw. Damages, 546. In Fraser v. Berkeley, 7 Car. & P. 621, Lord Abinger said: "In actions for personal wrongs and injuries [at nisi prius], a defendant who does not deny that the verdict must pass against him may give evidence to show that the plaintiff in some degree brought the thing upon himself." That is the rule applicable to the case before us. If this were not the rule, the plaintiff, in actions like the one before us, might get full comloss of rentals. Jones v. Metropolitan Elev. R. Co. 27 Jones & S. 437, 14 N. Y. Supp. 632.

And a new trial may be granted for inadequacy of damages, in an action to abate a nulsance and to recover damages occasioned thereby. Lefrois v. Monroe County, 88 Hun, 109, 34 N. Y. Supp. 612.

So, a verdict of a jury in an action of ejectment, finding for the plaintiff but allowing him no damages, will be set aside and a new trial awarded, where there was no question as to his being entitled to mesne profits, and their value was fixed by the testimony. Duncan v. Jackson, 16 Fla. 338.

And a verdict for the plaintiff for nominal damages in trespass to try title will be set aside and a new trial granted where the right of the plaintiff to recover the land was in question, and the defendant had been in possession for three years, and the land was proved to be worth from $40 to $50 per annum. Duff v. Hutson, 2 Bail. L. 215.

So, a verdict for one cent in favor of the plaintiff in an action for trespass for taking property from plaintiff's premises will be set aside and a new trial granted, as the jury were bound to find damages, at least to the value of the property taken. Porteous v. Hazel, Harp. L. 332.

The general rule that a verdict in actions sounding in damages will not be set aside on account of excess or deficiency of the damages does not apply when a pecuniary injury has been sustained, the extent of which can be ascertained as in cases of trespass for destroying a building the cost of which is clearly proved, In which case the jury would have no power to find a less sum than the injury actually amounted to, though there might be an exception, even in such a case, where a trespass was committed under circumstances of mitigation or provocation on the part of the plaintiff which bordered on a justification. Hopkins v. Myers, 1 Harp. L. 56.

But the rule has been held to be different with reference to a mere naked trespass.

Thus, the court will not grant a new trial in an action sounding in damages, as trespass, etc., because the jury assessed only half a farthing for damages, as it is in their power to assess such damages as they please in such a case. Marsham v. Buller, 2 Rolle, Rep. 21.

Nor will a verdict for the plaintiff for six cents, in an action for trespass by a tenant against his landlord, be set aside as inadequate where the plaintiff had abandoned the use of the premises and the landlord merely entered

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pensation for damages which he might have partly caused by his own conduct. "Malice and provocation in the defendant are pun. ished by inflicting damages exceeding the measure of compensation, and in the plaintiff by giving him less than that measure." Robison v. Rupert, 23 Pa. 523. As to the matter of the setting aside of the verdict by his honor because of inadequacy of damages, this is, so far as we can find, the first case in the history of judicial proceedings in the state; and it may be further said that it has been generally thought that our courts could not set aside a verdict for inadequacy of damages. Nevertheless it may be said to be true that it is generally considered that there is no reason which can be advanced in favor of setting aside verdicts because of excessive damages which does not apply to setting them aside for inadequacy to put them in good order and condition. Bloomingdale v. Steubing, 10 Misc. 229, 30 N. Y. Supp. 1056.

But while a new trial could not be granted for smallness of damages in trespass at common law it may be under 1 Va. Rev. Code 1819, chap. 128, 96, p. 510. Jackson v. Boast, 2 Va. Cas. 49.

The judgment of witnesses as to value, how. ever, is not as a matter of law to be accepted by the jury in place of their own, and a party against whom damages are assessed by a jury cannot complain that such damages have been placed at a lower sum than fixed by the witnesses. Powell v. Missouri P. R. Co. 59 Mo. App. 335.

And a verdict in an action of trespass to try title will not be set aside for inadequacy. though the damages given are less than those fixed by the witnesses, and though the court agrees with the witnesses, where the amount of the damages was a mere matter of opinion with the witnesses growing out of circumstances upon which the jury were as competent to express an opinion as the witnesses themselves. Hopkins v. Myers, Harp. L. 56.

But in Weeding v. Mason, 2 C. B. N. S. 382. in which upon an execution of a writ of inquiry In an action for dilapidations, surveyors called upon one side estimated the damages at a low figure, and those called upon the other side at a much higher figure, and the jury returned a ver. dict for a much lower figure than that made by any of the surveyors, the inquisition was ordered to be set aside without costs unless the defendant would consent to the entry of a ver dict equal to the smallest amount testified to by the surveyors.

See also Benzon v. Burlington & M. River R. Co. 18 Neb. 659, 26 N. W. 467; Phillips v. Phil. lips, 34 N. J. L. 208; Blanchard v. Loges, 11 Neb. 460, 9 N. W. 568; Chicago, R. I. & T. R. Co. v. Yarbrough (Tex. Civ. App.) 35 S. W. 422; Mostyn v. Coles, 7 Hurlst. & N. 872, 31 L. J. Exch. N. S. 151, 10 Week. Rep. 355; Hawkins v. Alder, 18 C. B. 640; Learned v. Castle, 78 Cal. 454, 21 Pac. 11, 18 Pac. 872; Richards v. Rose, 24 Eng. L. & Eq. 406, 9 Exch. 218, 23 L. J. Exch. N. S. 3, 17 Jur. 1036, 2 C. L. Rep. 311, infra, V.; and Engel v. Fischer, 44 Ill. App. 362, supra, I.

IV. Rule in actions for personal injuries.

a. Generally.

The earlier English cases, and some American cases, have made the broad statement of the

of damages. It seems to be settled, upon | injuries. In a recent English case (Phillips examination of numerous authorities, that v. Southwestern R. Co. [1879] L. R. 4 Q. B. at common law the courts claimed and had Div. 406), the common-law rule was relaxed. the power to set aside verdicts for inad- The action was for damages for personal inequacy of damages; but it further appears, juries sustained through the defendant's from the earlier cases, that it was most negligence, and there was a motion for a new seldom done. And, too, in the cases where trial on the ground of inadequacy of damsuch verdicts were set aside, they were ex- ages. It appeared upon the facts proved treme cases, cases where the jury had been that the jury must have omitted to take into palpably influenced by caprice, or gross par- consideration some of the matters involved tiality, or some other unworthy motive, and in the plaintiff's claim for damages. The where the damages did not amount, in point counsel for the defendant in that action conof fact, to damages at all, but were mere attended that a new trial could not be granted tempts to evade substantial damages. The on account of the damages being too small, English judges, however, as we have said, because the action was for unliquidated damdid not doubt their power to set aside such ages, unless there had been some misdirection verdicts, but declared in many cases that on the part of the judge or some misconduct they would not do it because they had no on the part of the jury. The court said: rule to go by. This was especially the case "We think the rule contended for has no apin actions of tort for damages for personal plication in a case of personal injury, and doctrine that as a general rule courts will not It aside. Welch v. McAllister, 13 Mo. App. 89; set aside verdicts and grant new trials in ac- Chouquette v. Southern Electric R. Co. (Mo.) tions for tort on account of the smallness of 53 S. W. 897. the damages. Mauricet V. Brecknock, 2 Dougl. 509; Queen v. Justices of West Riding of Yorkshire, 1 Q. B. 624; Kennedy v. Wray, 7 West. L. J. (Ohio) 414; Hackett v. Pratt, 52 Ill. App. 346; Colyer v. Huff, 3 Bibb, 34.

At common law new trials were not allowed upon the ground that the damages awarded by the jury in actions for tort were insufficient, at least in trespass vi et armis, and there is much authority that the rule applied in all actions for tort. Hackett v. Pratt, 52 Ill. App. 346.

So, in Burges v. Nightingale, Barnes' Notes, 230, it was held that an inquisition upon a writ of inquiry will not be quashed by reason of the smallness of damages where the jury and any damages, but that the rule might be different had they found no damages.

And in Lord Stafford's Case, Bull. N. P. 27, clted in Duberley v. Gunning, 4 T. R. 655, the court, though they thought that the verdict of one shilling was much too small, did not feel warranted in granting a new trial because they had no rule to go by.

And in Bourke v. Bulow, 1 Bay, 49, It was said that though the jury in an action sounding in damages might have given the plaintiff larger damages, the court did not think it proper to set aside a verdict because the damages were small In order that the plaintiff might have another chance of getting more, and would not do it unless very peculiar circumstances appeared to Justify it.

We have seen, however, from the cases in supra, III., that this rule does not apply to torts against property when there is a standard of measurement of the damages, and it seems to have been considerably modified, even with reference to torts purely personal.

The rule laid down in Coffin v. Varila, 8 Tex. Civ. App. 417, 27 S. W. 956, which was a case of excessive damages, that courts will not set aside verdicts in actions for personal injuries, either on the ground that the damages are excessive, or inadequate, unless it is apparent that the jury acted under some bias, prejudice, or improper influence, or made some mistake of fact or law, appears to be more accurate, at least from the more modern standpoint.

Thus, the general rule now is that where the verdict is elther so great or so small as to indicate that in rendering it the jury either disregarded the testimony or acted from passion or prejudice. It is the duty of the court to set

And while in actions for personal torts and actions sounding purely in damages courts will usually refuse to grant new trials for smallness of damages, it being the peculiar province of the jury in such cases to estimate the injury, relief will be granted where the finding is gross ly inadequate and the compensation given entirely disproportionate to the injury proved to have been sustained. Bishop v. Macon, 7 Ga. 200, 50 Am. Dec. 400; Lefrois v. Monroe County, 88 Hun, 109, 34 N. Y. Supp. 612.

And a new trial may be granted in an action for damages where, the verdict of the jury upon the fact of responsibility being accepted as correct, the damages allowed are elther in excess of or less than any amount which an impartial and just enforcement of the responsibility requires. Dobson v. Philadelphia, 7 Pa. Dist. R. 321.

And a verdict for $125 in an action for damages for personal injuries will be set aside and a new trial ordered on the ground that the verdict was against the evidence, where the evidence in the case makes it manifest that if plaintiff was entitled to a verdict at all he was actually damaged in a much greater sum. Lough v. Romaine, 4 Jones & S. 332.

The rule that a verdict in an action for damages for personal injuries will be set aside when no reasonable proportion exists between it and the circumstances of the case is applicable to cases of inadequacy of damages, as well as where the damages are excessive. Beattle v. Moore, Ir. L. R. 2 Eq. 28.

And a new trial will be granted in an action for tort if the verdict is for an unreasonably small amount of damages, and the damages are capable of being definitely ascertained. Wilson v. Morgan, 58 N. J. L. 426, 34 Atl. 752.

A verdict for the plaintiff in an action for tort may be set aside for inadequacy where the nature of the injury received and the means by which it was produced are such that the damages may in a good measure be computed by estimating the loss of time, the expenditure incurred, etc. Bailey v. Cincinnati, 1 Handy (Ohio) 438.

And a verdict in an action for injury to the person awarding damages, so small as to be inconsistent with the undisputed evidence, will be set aside at the instance of the plaintiff. Miller v. Delaware, L. & W. R. Co. 58 N. J. L. 428, 33 Atl. 950.

And a verdict in an action for a collision,

that it is perfectly competent to us, if we think the damages unreasonably small, to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insufficient to meet the justice of the case. The rule must therefore be made absolute for a new trial."

There are conflicting decisions on this question in the courts of several of the states, but we believe that the conclusion arrived at by the English court in the case quoted from is the correct conclusion, and we will adopt it as the conclusion of this court. Holding, then, as we do, that the superior courts of this state have the power to set aside verdicts for inadequacy of damages, for less than half the amount of the expense account for repairs to the carriage and continuing the journey and for medicines and medical attendance, to say nothing of personal injuries received, will be set aside on motion of the plaintiff as inadequate. May v. Hahn (Tex. Civ. App.) 54 S. W. 416.

So, a new trial must be granted, even in actions ex delicto, where the jury has responded only to a part of the demand made upon it by the law and evidence. Moseley v. Jamison, 68 Miss. 336, 8 So. 744.

There is no inexorable rule of practice precluding the granting of a new trial on the ground of the smallness of the damages; and where the smallness of the damages shows that the jury may have made a compromise, and instead of deciding the issue submitted to them have agreed to find for the plaintiff for nominal damages only, a new trial will be granted, such a case being the same in effect as if the jury had been discharged without a verdict. Beattie v. Moore, Ir. L. R. 2 Eq. 28; Kelly v. Sherlock, L. R. 1 Q. B. 697, 6 Best & S. 480, 35 L. J. Q. B. N. S. 209, 12 Jur. N. S. 937; Falvey v. Stanford, L. R. 10 Q. B. 54, 44 L. J. Q. B. N. S. 7, 23 Week. Rep. 162, 31 L. T. N. S. 677.

In Beattie v. Moore, Ir. L. R. 2 Eq. 28, supra, Gibbs v. Tunaley, C. B. 640, infra, IV. e, 1, was distinguished and explained on the ground that it appeared in that case that the judge told the jury that if they thought the defendant had been guilty of any degree of negligence the plaintiff would be entitled to nominal damages, but that if they were of the opinion that the injury was attributable to the defendant's carelessness and want of skill they ought to give serious damages, and that the jury in finding a farthing were merely following the direction of the judge.

So, the rule that a new trial will not be granted for the smallness of the damages, in an action founded upon tort sounding merely in damages, does not apply to cages in which the verdict has been the result of contrivance by the defendant, or surprise on the plaintiff, or the partiality or misconduct of the jury. Colyer v. Huff, 3 Bibb, 34, dictum.

But where there is no measure of damages in a case of tort, the court will be slow to interfere with a verdict on the ground of inadequacy If it can see any reasonable ground to support It. Beattie v. Moore, Ir. L. R. 2 Eq. 28.

In actions sounding in tort a wide latitude is given to juries, and courts will interfere with a verdict because it may be less than should

we logically conclude that such power is discretionary with them, and that it is not reviewable by us. The power to correct prejudiced and grossly unfair verdicts must be vested somewhere, and, in our judgment, it is best that such power be confided to the judges who preside over the trials. They are presumed to be learned in the law, impartial in their judgments, and upright in their conduct, and, with most rare exceptions, they have measured up to the standard of that presumption.

As to the order contained in the judgment in reference to the allotment of the homestead to the defendant, R. V. Collins, and the sale of the excess by a commissioner, we see no error. The deed of conveyance from the defendant, R. V. Collins, and wife, to Eure was found to be fraudulent, and all the parties thereto, including the beneficiaries, were have been given only in the most extreme cases. Fawcett v. Woods. 5 Iowa, 400.

There is no certain rule by which damages can be measured in actions of tort sounding entirely in damage, and the court will not interfere, either on account of excessive or insufficient damages, unless the verdict is palpably wrong. Duncan v. Finnyhorn, Sneed (Ky.) 262.

The general rule is that the court will not interfere in actions sounding altogether in damages on account either of excess or deficiency of the damages, except in cases where they are so inconsiderable or so great as to excite a belief that the jury have acted under an improper influence. Hopkins v. Myers, Harp. L. 56.

And a verdict in an action for damages for personal injuries should not be disturbed, though the court may regard it as inadequate, unless something is shown which indicates that the jury were actuated by passion, prejudice, or corrupt motives, or that they made an important and manifest mistake. Lancaster v. Providence & S. S. S. Co. 26 Fed. Rep. 233. And see Reger v. Rochester R. Co. 2 App. Div. 5, 37 N. Y. Supp. 520, supra, I.

To justify the interference of the court with a verdict in an action for damages for personal injuries it must appear from the testimony that the damages awarded are so grossly disproportionate to the injury that in awarding them the jury must have been influenced by a perverted judgment. McDermott v. Chicago & N. W. R. Co. 85 Wis. 102, 55 N. W. 179; Robinson v. Waupaca, 77 Wis. 544, 46 N. W. 809; Boggess v. Metropolitan Street R. Co. 118 Mo. 328, 23 91 Mo. 547, 4 S. W. 437; Berry v. Lake Erie & S. W. 159, 24 S. W. 210; Pritchard v. Hewitt, W. R. Co. 72 Fed. Rep. 488.

Or that there must have been mistake or oversight in failing to take into consideration the proper elements of damage in assessing the amount of recovery. R. Co. 72 Fed. Rep. 488. Berry v. Lake Erie & W.

Where substantial damages are awarded in an action for tort in which there is no fixed rule of measurement of the damages, the verdict will not be set aside and a new trial awarded merely because the amount is less than the court thinks ought to have been given. Ibid.; Walker v. Smith, 1 Wash. C. C. 202, Fed. Cas. No. 17,087; Fawcett v. Woods, 5 Iowa, 400; Reger v. Rochester R. Co. 2 App. Div. 5, 37 V 1. Supp. 520; Brooks v. Ludin, 1 N. Y. Supp. 338, Affirmed in 25 Jones & S. 145, 6 N. Y. Supp. 510.

And a new trial will not be granted merely

before the court. The court, as a court of equity, got control of the lands conveyed in the deed, and it had the power to order their sale after the defendant's homestead had been allotted him, and the disposition of the proceeds to satisfy the claim of the plaintiff under his judgment. The objection raised by defendant's counsel to the manner in which the court ordered the allotment of the homestead to be made is without force. It is true that the law has declared two ways of allotting a homestead,-one by petition, and the other under execution. But there are other methods besides those. In Littlejohn v. Egerton, 77 N. C. 379, the superior court of Franklin county was instructed by this court to appoint three commissioners to lay off the homestead of the plaintiff, with instructions to give notice at the time to the defendants, and "in all particulars to observe, as near as may be, the requirements of the Constitution, and of the homestead

to enable the party to the action to recover vindictive damages. McKee v. Ingalls, 5 Ill. 30; Johnson v. Weedman, 5 Ill. 495.

To set aside a verdict for inadequacy, in an action for a personal wrong, is within the discretion of the court, to be exercised very cautiously, and perhaps never, for this cause alone. where the action is of a vindictive nature and the damages are arbitrary, though there might be a flagrant case, even of that nature, in which the court might interpose. Taunton Mfg. Co. v. Smith, 9 Pick. 11.

So, in Brown v. Union R. Co. 51 Mo. App. 192, it was held that courts have no authority to annul the verdict of a jury in an action for personal injuries solely on account of the smallness or insignificance of the sum allowed. They have the authority only when gross inJustice clearly appears aliunde the verdict.

Texas Rev. Stat. art. 1448, providing that new trials may be granted as well when the damages are manifestly too small as when they are too large, applies to actions ex delicto, as well as to actions ex contractu. Allison v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 29 S. W. 425.

See also, on this subject, infra, IV. e, 1. And see Robinson v. Waupaca, 77 Wis. 544, 46 N. W. 809; Davis v. Central R. Co. 60 Ga. 329; Flanders v. Meath, 27 Ga. 358,-infra, V.

b. Actions for libel and slander.

As a general rule the Injury inflicted by a libel or a slander is purely personal, and not susceptible of measurement by any standard. Libel and slander cases therefore fall within that class of cases in which a verdict will not be set aside for inadequacy unless it is such as to shock the understanding and show bias, passion, or prejudice, and some of the cases, notably the early English ones decided contemporaneously with those mentioned in supra, IV. a, seem to have adopted the more stringent rule that a verdict cannot be set aside for inadequacy unless there has been some mistake of law by the court, or in calculation by the jury. The last-named rule was adopted in Rendall 7. Hayward, 5 Bing. N. C. 424, 7 Scott, 407, 2 Arn. 14, 3 Jur. 363, 8 L. J. C. P. N. S. 243; Forsdike v. Stone, L. R. 3 C. P. 607, 37 L. J. C. P. N. S. 301.

So, in Hayward v. Newton, 2 Strange, 940, the court refused to set aside a verdict in an action for slander because of its smallness, though it said it did not see why it was not

act." That the clerk was instructed by his honor to appoint the three commissioners is not objectionable, for the clerk is but the hand of the court in this matter. Neither is it objectionable that the lands are situ ated in two counties. The court has the power to make the order, and a report is to be made to the next term of the superior court of Franklin county, after the allotment of the homestead and the sale of the excess by the commissioners, in each matter. Hines v. Moye, 125 N. C. -, 34 S. E. 103. The last clause of the judgment to which exception is made by the defendant, if erroneous, is harmless, for the reason that none but parties to the action are bound by the judgment in the cause, unless notice of lis pendens has been properly filed, and of that we are not informed.

There was no error in the proceedings below.

Affirmed.

within the reason for setting aside a verdict for excessive damages.

And in Lord Gr v. Heath, Barnes' Notes, 445, it was said that in point of reason there is the same cause for setting aside a verdict for inadequacy as for excessiveness, but as the difference had always been taken and the practice long settled, and as no instance of a verdict being set aside for inadequacy had been found, the court refused to set aside a verdict of 12d. in an action for slander.

So, in Wavle v. Wavle, 9 Hun, 125, it was held that the amount of damages to which the plaintiff in an action for slander in which the defense was a justification is entitled, is not fixed, definite, or certain, or capable of being made so by computation, and is wholly within the discretion of the jury, and an order setting aside a verdict for 6 cents, and granting a new trial, was reversed on appeal.

In the above case, McDonald v. Walter, 40 N. Y. 551, supra, II., was distinguished upon the ground that in that case the damages sought to be recovered were capable of being rendered certain by computation.

So, a verdict for the plaintiff for 18. in an action for slander will not be set aside as a result of a misapprehension by the jury of the judge's charge, where the judge told them that the case was not one that called for large damages, but merely such as would set the plaintiff's character right with the world. Mears v. Griffin, 2 Scott N. R. 15, 1 Mann. & G. 796.

The amount of damages to which the plaintiff in an action for libel is entitled is a question for the jury, and the court will not interfere with the verdict on the ground of inadequacy, though the libel was reiterated, and the court would have been better satisfied if the jury had assessed the damages at a higher figure. Kelly v. Sherlock, L. R. 1 Q. B. 686, 6 Best & S. 480, 12 Jur. N. S. 937, 35 L. J. Q. B. N. S. 209.

And a new trial will not be granted in such actions for inadequacy except in very extreme

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diet in an action for slander with the view of setting it aside for inadequacy, its effect upon the costs must be entirely laid out of consideration. Mears v. Griffin, 2 Scott N. R. 15, 1 Mann. & G. 796.

So, in Manton v. Bales, 1 C. B. 444, in an action for injury to the plaintiff's reputation by the sale of goods of an inferior quality with the plaintiff's name stamped upon them, the plaintiff being a manufacturer of the saine kind of goods, the court refused to set aside a verdict in which the damages were estimated at £5 on the ground of inadequacy under the well-known rule precluding the interference with a verdict for a small amount as against evidence.

But a new trial in an action for slander may be granted under 1 Va. Rev. Code, 510, § 96, where the damages found by the jury are manifestly too small. Rixey v. Ward, 3 Rand. (Va.)

52.

And a finding of the jury in an action for libel, that the libel was published with malicious intent to injure, justifying the giving of a verdict for exemplary damages, but awarding to the plaintiff 6 cents only, warrants the conclusion that they acted under some bias or mistake of law, and requires the setting aside of the verdict as inconsistent, and the direction of a new trial. Cottrill v. Cramer, 59 Wis. 231, 18 N. W. 12.

And a verdict for one farthing, in an action for slander in which, though there was no proof of any actual damage, there was no evidence that the plaintiff had done anything to provoke the slander or to show that he had disentitled himself to claim such a verdict as would be practically sufficient to vindicate his character, is so inconsistent with the facts as to warrant the court in setting it aside as inadequate and granting a new trial. Falvey v. Stanford, L. R. 10 Q. B. 54, 44 L. J. Q. B. N. S. 7, 23 Week. Rep. 162, 31 L. T. N. S. 677.

In the above case the court said with reference to Rendall v. Hayward, 5 Bing. N. C. 424, 7 Scott, 407, supra, that, if the circumstances were such as to leave no doubt that the jury had fairly exercised a judgment upon the issue before them and upon the amount of compensation due in the shape of damages, the practice in that case would, in the absence of other considerations restricting its application, be generally followed in the exercise of the discretion of the court.

ally Incurred by him in defending himself and obtaining his release from the unfounded charge was £17, 148, where there was no intentional violation of right or duty upon the part of the jury. Bradlaugh v. Edwards, 11 C. B. N. S.

377.

So, in Baker v. Dixie, 2 Strange, 1051, the court refused to set aside a verdict for 58. damages in an action for malicious prosecution, on account of its smallness, upon the ground that it was not a false verdict, as finding for the defendant would have been.

And in Mauricet v. Brecknock, 2 Dougl. 509, which was an action for maliciously suing out a commission of bankruptcy against the plaintiff and maliciously holding him to bail, the court refused to set aside a verdict of £5, though it appeared that the bill of costs of the plaintiff for superseding the commission of bankruptcy amounted to upwards of £30.

But the expense of defending against such prosecution, or of procuring relief from such imprisonment, is a tangible element of damages, and the more modern rule would seem to permit, though It does not require, the consideration of this element, and with reference to this subject, as well as with reference to all others, a verdict may be set aside where it is so small as to shock the understanding and show bias or prejudice.

Thus, a verdict finding the defendant guilty of malicious prosecution, but giving the plain. tiff only nominal damages, should be set aside and a new trial granted, where the actual dam age was shown with such definiteness as to be capable of being classified under a particular head, and determined by a legal measure. v. Leyenberger, 17 Ill. App. 167.

Paul

And a verdict in favor of the plaintiff for $5, In an action for malicious prosecution will be set aside as inadequate and as against instructions, where the undisputed evidence proves that the plaintiff paid or became liable to pay about $150 for counsel fees, and to procure the attendance of his witnesses in making the defense to the prosecution instituted against him by the defendant, and the court charged the jury that if they found for the plaintiff they should allow him his reasonable expenses in that behalf. Waufle v. McLellan, 51 Wis. 484, 8 N. W. 300.

So, while an arrest without a warrant is justifiable, where such an arrest is made and the prisoner is detained longer than a reasonable time for suing out a warrant, and he is hand

e Actions for malicious prosecution and false cuffed and carried out of the county and there

imprisonment.

The Injury caused by malicious prosecution and false imprisonment, like libel and slander, seems to have been formerly regarded, at least in England, as not susceptible of legal measurement, so that a verdict in an action therefor would be conclusive, however small it may have been.

Thus, a new trial was refused in an action of

trespass and false imprisonment for taking plaintiff before a magistrate upon an unfounded charge of felony, because a question of character was involved, though the jury had given only one farthing damages, as the court had no means of knowing that their estimate was an Improper one. Apps v. Day, 14 C. B. 112.

And it is in the discretion of the jury in an action for false imprisonment to give the plaintiff such damages as they may consider sufficient compensation for the wrong he has sustained irrespective of any expense he may have incurred in his defense, and an award of only a farthing by way of compensation for his detention for several hours at the police station will not be set aside, though the expense actu

incarcerated for days under no warrant whatever, it is false imprisonment for which a findIng by the jury of $25 is no compensation for the injury, and will be set aside and a new trial Potter v. Swindle, 77 Ga. 419, 3 S. E. granted.

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