
    Barry v. Green.
    
      [_New Trial. — Excessive Damages.]
    GreeN had declared against Barry in the Circuit Court of Sumner for an assault and battery, and obtained a verdict and judgment for |600. The circumstances were now detailed in the bill and answer, which will presently be adverted to. Barry hath also sued Green for an assault and battery; which suit is yet depending in the Circuit Court for the. county of Smith. ■ Barry has been indicted for assaulting Green with intent to- kill him, and has been acquitted. ■ Barry filed his bill for an injunction in the Circuit Court, and obtained one; but it was afterwards dissolved on the answer of Green. The bill stated the circumstances of the assault, and these were answered by the defendant; and the bill and answer were now read in this court.
    Barry presented to one of the judges of the Supreme Court a new bill for an injunction to be proceeded on in the Circuit Court. It stated the former bill, and the matters contained in it, and referred to the answer of Green. He stated, both in the former bill and in this, that Green is insolvent, and that in case he should levy the |600 of Barry, and the latter should afterwards recover against Green, that he * would not be able to pay. In the answer Green offered to give security.
    The judge out of court directed application to be made in court, and it was now done accordingly.
   Haywood, Judge.

I believe the damages in this verdict to be excessive ; and certainly a court of equity may, upon a bill filed for the purpose, order a new tidal at law, and in case of insolvency of one circumstanced as Green is, may order the execution to be suspended until the untried cause shall be finished. But in ordering a new trial at law, it should appear that some untoward circumstance prevented an application for one to the court who heard the cause ; or some invincible obstruction that rendered the application ineffectual, though in justice it ought to have succeeded. The counsel for Barry offers to depose that the notes of the evidence at the trial could not be collected to be presented to the court on the motion for a new trial; and therefore it could not be made effectually. The answer says that the judge’s notes were full and complete. A new trial may be granted for excessive damages, where they are enormous. The circumstances here show that a much smaller sum would have been sufficient. But I concur in the remark made by Judge RoaNE, that we are a court of appellate jurisdiction, and this is an application for a second injunction, upon a bill filed in the Circuit Court; we have no power over the cause in its present state, nor until it comes into this court by appeal. Were we to act now, we might by and by be called upon to examine our own acts with a view to the reversal of them, which nothing could be more incongruous. Motion for a second injunction refused.

See Boyers v. Pratt, 1 Hum. 90; Bridges v. Vick, 2 Hum. 515; Thompson v. French, 10 Yer. 459; Martin v. England, 5 Yer. 313; Theavenought v. Hardeman, 4 Yer. 565; Branch v. Bass, 5 Sneed, 366; Fowlkes v. Webber, 8 Hum. 530; Campbell v. Hancock, 7 Hum. 75; Crabb v. Nashville Bank, 6 Yer. 332; Dixon v. Caruthers, 9 Yer. 30; McKinley v. Beasley, 5 Sneed. 170; King’s Digest, 2380, 2427, 9392, 9450-54.  