
    VUNCK against HULL.
    Second new trial refused. Damages should be outrageously excessive for torts, to justify a new trial.
    This cause having been once tried, and a new trial ordered, State -Bep. 578, was tried again at the Monmouth circuit, and a verdict for the plaintiff for $500.
    
      It was now moved by the counsel for the defendant, for a rule to show cause why a new trial should not be had, on the ground that the damages were excessive; and also that, a juryman had given evidence to his fellow jurymen, after they had retired from the bar.
    [*] This was opposed by the counsel for the plaintiff. The misbehavior of the jury ought to be substantiated by affidavit; that the court having once exercised authority in setting aside a former verdict, ought not now that the defendant had failed a second time, to interfere; that he very much questioned the constitutional powers of the court to award a new trial, in a case circumstanced like the present; which is a case of tort, where the court 'had already set aside one verdict, on the score of excessive damages.
    In reply, the counsel for the defendant said, that the course of the court did not require an affidavit of the facts, on a motion for a rule to show cause; that the damages in this case, were not only excessive, but vindictive; that the first decision, instead of being against the application, furnished an argument in favor of it. It showed that it was the opinion of the court that the damages were excessive; that the power of courts over verdicts, was so firmly established, that this court would not suffer it to be debated, whether or not it had power to set aside verdicts for excessive damages.
    The counsel for the plaintiff explained. He said [596] he did not deny the right of the court to award new trials; but he did say, and was still of opinion, that the court had not a right to substitute its opinion, in the place of the jury, in the assessment of damages in actions arising on torts.
   Kirkpatrick, C. J.

The fact respecting the conduct of the jury, ought to be made out by affidavit. He thought, after two trials, the defendant ought to be bound by the verdict ; and was against the rule.

Rossell, J.

Was of opinion that the defendant was entitled to a rule to show cause. He had no doubt of the power of the court to award new trials in cases of this kind.

Pennington, J.

Unquestionably courts of law [*] hold a control over verdicts. But this power is to be exercised under a legal discretion; and it has become a rule not to set aside a verdict on the ground of excessive damages in cases of torts of this kind, unless the damages found by the verdict are outrageously excessive. We have had this case before us some terms ago; and, on the whole, I am inclined to think, that the defendant is not entitled to the rule.

Rule refused.  