Page:Parker v. Lewis, Hempst. 72 (Super. Ct. Ark. Terr. 1829).pdf/7

78 Rh    of new trials granted for excessive damages in this description of actions. It was done in Wood v. Gunston, Styles, 462; in Ash v. Ash, Comb. 357; in Chambers v. Robinson, 1 Strange, 692; in Clerk v. Udall, 2 Salk. 649; in Jones v. Sparrow, 5 Term Rep. 257; and in McConnell v. Hampton, 12 Johns. Rep. 234. In the last case a verdict had been obtained in an action for assault and false imprisonment, for nine thousand dollars, and a new trial was promptly granted by the supreme court of New York, for excessiveness of damages. Although the defendant was one of the most wealthy men in the United States, Chief Justice Thompson says, in giving his opinion, "that courts have a legal right to grant new trials for excessive damages, in actions for torts, is nowhere denied; but on the contrary, has been universally admitted, whenever the question has been agitated."

It is said by the court in the case of Payne v. Trezerant, 2 Bibb, 33, that it was the duty of the court whenever the juries will take upon themselves to disregard the laws of the land, and clear and indubitable testimony, to set aside their verdicts toties quoties, until twelve men can be got firm enough to defend and support the legal institutions of the country. In More’s Administrator v. Chery, 1 Bay, 369, a third new trial was granted on similar grounds. But it must be borne in mind that the case now before the court is not for a personal tort, but is for an injury done to property, and the jury in their assessment of damages should have been governed by the pecuniary loss, unless it had been established by evidence that the defendant Lewis had been guilty of acts of malice and oppression, in which case the damages might have been enlarged. It is true, the record of the judgment confessed before the clerk in vacation was not read to the jury; but it was among the papers introduced by the plaintiff, and referred to in the argument of the counsel for the defendant. But, even admitting that there was no evidence before the jury of the confessed judgment, and that they ought to have found vindictive damages, still we are clearly of opinion the damages found by the jury are outrageously and flagrantly excessive.

The jury in the case now before the court, though highly