
    *James Durrell, Henry P. Bowman, and John Huff v. Henry Boyd, Assignee of Leander R. Carver.
    ■ Motion for leave to file a petition in error, to reverse the judgment of the Superior Court of Cincinnati.
    The action belowwas brought by the defendant against plaintiffs herein, in the Superior Court of Cincinnati, for the wrongful taking and conversion of certain personal property.
    The facts of the case are as follows:
    Henry Boyd claimed the property under an assignment to him,, made by Carver for the benefit of his creditors.
    Durrell was a constable of Cincinnati township, and had in his hands sundry executions against Carver, in two of which Huff & Bowman were plaintiffs. A levy was made by Durrell under the executions, upon the property assigned by Carver to Boyd.
    Boyd sued for the taking and conversion thereof. The defendants justified the taking and conversion under the executions; and charged that the assignment from Carver to Boyd was fraudulent.
    The case was tried to a jury, and a verdict was rendered for the-plaintiff for $1,500. The defendants moved for a new trial: 1. Because the verdict was contrary to the law and the evidence; 2. Because the damages assessed by the jury were excessive.
    The court, on hearing the motion, was of opinion that the jury had erred in the assessment of the damages to the extent of $450, and ordered that unless the plaintiff would remit from the verdict that sum, that -a new trial would be granted. The plaintiff entered the remittitur, and the court overruled the motion for a new trial, and entered judgment on the verdict for the balance thereof,. $1,050. To all which defendants excepted.
    
      *JR. L. McCook, for the motion, made the following points:
    After the court had found that the jury had so grossly erred in the assessment of damages, it erred in overruling the motion for a new trial:
    1. Because the court assumed the right to assess the damages against the will of the defendants. Bill of Rights, sec. 5; secs. 375 and 598, Code; Clapp v. Hudson R. R., 19 Barb. 466; McGatrick v. Wason, 4 Ohio St. 569.
    
      2. Because a new trial should have been granted, and the case-sent to another jury. Sec. 397, subd. 5 of the Code; Swan’s R. S. 661; Points v. Commonwealth, 4 W. & S. 52; Huston v. Morrison, 10 Texas, 1; Walworth v. Pool, 4 English.
    3. Because the verdict was an entirety, and when found to be-erroneous, it could not be cured by requiring the plaintiffs to remit a part, and entering a judgment on the balance thereof, against the will of the defendants. Lambert v. Craig, 12 Pick. 198; Boyd v. Brown, 17 Ib., 453.
    
      J. M. Gitchell, against the motion.
    The court will not interfere with the áction of an inferior tribunal upon a mere theoretical case. The party complaining must have-been injured by the action of the court below to entitle him to relief here. In this case the action of the court was in favor of the-plaintiffs, and against the defendants in error.
    A motion for a new trial is always addressed to the sound discretion of the court. Whether that discretion was properly exercised in this case, this court has no means of determining, even if they sought to know.
    It is not true, as assumed by the plaintiffs in error, that “the-court assumed the right to assess the damages against the will of the defendants.” The most that can be said is, that the court found that the damages assessed by the jury were to a certain extent excessive; and to that extent the defendant in error entered a remittitur. The ^greater includes the less. The amount for which the judgment was rendered was as much the verdict of the-jury as was the greater amount. It was not an assessment of damages by the court, but by the jury.
    It is well settled that courts of law. have the right to set aside-verdicts, upon the sole ground of “ excessive damages.” The right to determine what amounts to excessive damages in any particular-case, carries with it the right to say by how much such damages-are excessive. That right the court has exercised in this case. The record shows that a remittitur to the amount of such excess was-entered. If, then, it was clear to the court that the verdict, after deducting the amount of the remittitur, was right and supported by the testimony, it was then clearly a matter within the discretion, of the court to refuse the motion for a new- trial. And such has-been the established and invariable custom of the courts throughout the whole country. Howard v. Grover, 28 Maine, 97; Young v. Englehard and another, 1 How. (Miss.) 19; Guerry v. Herton, 2 Richardson, 507; Anderson v. Tarpley, 6 Smedes & Marsh. 507; Blunt v Little, 3 Mason, 102; Diblin v. Murphy, 3 Sandf. Sup. Ct. 19.
   By the Court.

Motion overruled.  