
    *Rixey v. Ward.
    November, 1824.
    Slander — New Trial — Damages Too Small. — The act of Assembly (1 Rev. Code. 510, § 96,) authorizes the granting of a new trial, in an action of slander* when the damages found by the jury are manifestly too small.
    Same — Same—Same—Record.—when a new trial is granted for such cause, it is not necessary to state, on the record, the grounds of awarding it.
    New Trial — Condition Precedent to. — If the judgment awarding a new trial, directs the payment of costs of the first trial, without saying that the costs shall be paid before the new trial is had, it shall nevertheless be considered a precedent condition.
    Ward brought an action of slander against Rixey, in the Superior Court of Culpeper, in September, 1819. The jury found a verdict for the plaintiff, and assessed his .damages at $50. On the - next day, the plaintiff moved for a new trial, which was granted by the Court, for reasons appearing to them, without stating what those reasons were. The judgment is in these words; “On the motion of the plaintiff, and for reasons appearing to the Court, the verdict and judgment rendered in this cause on yesterday, is set aside, and it is ordered, that the plaintiff pay the costs of this term, and that a new trial be had at the next Court, until which time, the cause is continued.”
    At the second trial, the jury gave $500 damages, and the Court rendered judgment on that verdict. The defendant Rixey appealed to this Court.
    Johnson, for the appellant,
    made three points:
    1. The Court had no power ta grant a new trial for inadequate damages, in such a case as this. The act of 1819, (1 Rev. Code, 510, ch. 138, § 96,) only gives the power of granting new trials, where the damages were manifestly inadequate. It could not appear to the Court, that $50 were manifestly an insufficient compensation in this case. There was no criterion by which they could measure the exact sum due as a compensation for the injury complained *of. Impey’s Prac. 133, 351. In Chancery practice, a bill of review cannot be brought by the party prevailing, on the ground, that he has less decreed him than he is entitled to. 3 Madd. 413. The same doctrine prevails at common law, as appears by Burton v. Thompson, 3 Burr. 665; Eiggon v. Ford, 5 Munf. 15.
    3. It was error to grant a new trial, without stating on the record the causes for which it was granted. The Court ought to shew enough, to justify their judgment; because every record ought to shew the authority upon which a judgment is founded. This necessity is rendered evident by the construction which has always been given to the act of Assembly, declaring that more than two new trials shall not be allowed. It has always been held, that this prohibition only applies to cases where there is a difference of opinion as to the facts, between the Court and jury. But, for other causes, as for instance, those which affect the fairness of the trial, a Court may grant as many new trials as they think proper. Now, unless the grounds of a new trial are stated on the record, how can the appellate Court decide, whether the particular case falls within the one or the other class of cases; or, in other words, whether the new trial was proper or not? In Graves v. Short, Cro. Eliz. 616, it was decided that the grounds of a new trial ought to be spread upon the record. Hume v. Beall, 3. Munf. 326, differs from this case, because the verdict there was rendered on a writ of enquiry; and, in Boswell & Johnson v. Jones, 1 Wash. 322, it is admitted that, under some circumstances, it may be necessary to state the grounds of a new trial, on the record.
    3. The payment of costs ought to have been made a condition precedent of the new trial. 1 Rev. Code 495, § 27. But in this case, the Court merely directed the payment of costs, which may not be corn-plied with, until alter the new trial.
    *Leigh, for the appellee.
    The act of Assembly (1. Rev. Code 510, eh. 128, § 96,) is decisive of the first point: made by Mr. Johnson. The terms ol the act. are general, and make no exception of any particular class of cases. If it does not operate on such a case as this, it can have no operation. For, the Courts always possessed the power of granting a new trial for inadequate damages, where the damages could be brought to some certain standard; and it was only in cases of personal tort, (assault and battery, crim con, slander, and the like,) that the rule prevailed, that a new trial for smallness of damages could not be granted. This being the state of the law when the act of 1819 passed, and that act declaring in general terms, that a new trial may be granted where the damages are manifestly too small, there cannot be a doubt that the act was intended to operate on such a case as this. As to Mr. Johnson’s inference from the word “manifestly,” it cannot receive the sanction of the Court. That word was ouly intended to prevent new trials, where the inadequacy of the damages was trivial or doubtful. Although the amount of injury complained of, cannot be made the subject of arithmetical calculation, yet the inadequacy of the damages may be so gross, as to leave no doubt on any mind.
    As to Mr. Johnson’s second objection, it was not necessary to state the grounds of the new trial on the record, because the judgment of a Court of record is always presumed to be right, until the contrary is shewn. It was incumbent on the defendant to set forth his objections. The same principle will solve the difficulty suggested by Mr. Johnson, respecting the power of the Court, in some cases, to grant more than two new trials. If the particular case falls within the exception to the rule, the party asking the new trial, and not the party opposing it, must state the grounds of his motion on the record. No instance can be found, where the record states the grounds of a new trial, ^unless they are presented by the opposing party, by a bill of exceptions; and the practice of Courts, in such a case as this, ought to be respected. The cases of Hume v. Beall, and Johnson & Boswell v. Jones, are decisive in my favor.
    With respect to the costs, the judgment in this case substantially complies with the law; and the Court will put that construction upon it.
    November 19.
    
      
      SIander. — See monographic note on “Libel and Slander” appended to Bourland v. Eidson, 8 Gratt, 27.
    
    
      
      New Trial — Damages Too Small. — That the dam ages were too small was not the subject of review before the statute to be found in the Code of 1819, ch. 128, § 96, p. 510. Moses v. Old Dominion Iron, etc., Co., 82 Va. 29; dissenting opinion of Lacy, J., citing principal case as authority. See further, monographic note on "New Trials” appended to Boswell v. Jones, 1 wash. 322.
    
    
      
       Same — Same — Record. — when a new trial is granted for such cause, it is notnecessary to state in the record the ground for awarding it. since it will be presumed that the order of the court upon a subject which the statute has put within its jurisdiction, was correct unless the contrary appeared. Ward v. White, 86 Va. 220, 9 S. E. Rep. 1021, quoting from the principal case.
      And in Shrewsbury v. Miller. 10 W. Va. 122. it is said: “where a new trial is granted in a case appearing clearly within the j urisdiction of the court, it is not necessary for the court to state in the record the grounds for granting it, as it will be presumed it was correct, unless the contrary appears. Hume v. Beale, 3 Munf. 226. Rixey v. Ward, 3 Rand. 52.”
      See further, monographic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
    
      
       NewTrial — Condition Precedent. — In Pugh v. Jones, 6 Leigh 310, Tucker P., said (on the authority of the principal case) that the payment' of costs in the case at bar was properly a condition precedent of a new trial. See further, monographic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
   JUDGE CABELL,

delivered the opinion of the Court.

The Court is of opinion, that the act of Assembly, (1 Rev. Code 510, § 96,) author-ises the granting of a new trial, in such an action as this, when the damages found by the jury, are manifestly too small; and that, when a new trial is granted for such cause, it is nor necessary to state, on the record, 1lie grounds for awarding it; since it will be presumed, that the order of the Court, upon a subject appearing to be clearly within its jurisdiction, was correct, unless the contrary appear.

The Court is further of opinion, that the judgment in this case, in relation to the costs of the trial, was, in effect, conditional; for, the subject remained completely within the power of the Court; so that, if before the second trial, it had been objected, that the costs had not been paid, the Court might, for that cause,_ have set aside the former order, and might have entered judgment on the first verdict.

The judgment is affirmed. 
      
      Judges Brooke and Coalter, absent.
     