
    Joseph E. McCoy vs. Thomas E. Lemon.
    
    
      Mayhem — Damages: Increase of by Court.
    
    The common law rule, tliat,Jn cases of Mayhem, the Court may increase the damages, 'super visum vulneris, does not exist in South Carolina.
    BEEOBE WAKDLAW, J., AT SUMTEB, SPBING- TEEM, 1856.
    The report of bis Honor, the presiding Judge, is as follows;
    “This was- an action of trespass for assault, battery, and mayhem. The pleas were non cut. and son assault demesne.
    
    
      “ It appeared that unkind feelings existed between the par-tiés, who were near neighbors. That whilst the plaintiff was, with an axe, in the discharge of public duty, working on a road, the defendant, who was not a hand on the road, made appeals to the defendant about a previous fight between the defendant’s brother and a hireling of the plaintiff, although plaintiff requested that his name might not be used. That, thereupon the plaintiff made a very offensive charge of moral delinquency against the defendant, to which the defendant replied by the d — d lie. That instantly the plaintiff struck a severe blow with the axe at the defendant’s head, which the defendant dodged so that only the axe handle hit him. That a fight ensued, in the course of which the defendant, the larger man, bit and gouged the plaintiff, and the plaintiff attempted to gouge bim. That afterwardgj;he plaintiff uttered horrid imprecations against the defendant^lay suffering for a long time, and in consequence of the defendant’s acts lost one eye and the use of one thumb.
    “ The jury found for the plaintiff thirty dollars — a sum which I thought very small, to be found by those who had ascertained his right to recover something.
    “After the verdict was rendered, the plaintiff was presented for my inspection, and I could not but perceive that he was maimed in the manner described in the declaration and shown by the evidence. Whereupon the plaintiff moved for a rule against the defendant, to show cause why the damages should not be increased. Upon return of the rule, I refused to interfere — not because I considered the damages sufficient, nor because I thought the Circuit Court was not the tribunal to which the plaintiff’s application should be made, if it could be properly made anywhere; but because I thought that, under the laws and practice of this State, no Court possesses the power to increase or diminish the damages in due form found by a jury, in any other way than by granting a new trial.
    “ The plaintiff appeals from my refusal to increase his damages ; and under notice given, will also make to the Court of Appeals his motion for increase, as if the rule was returnable to that' Court.”
    The plaintiff appealed, and now moved this Court to reverse the decision of his Honor, on circuit, and either to increase the damages here, or to send the case back to the Circuit Court, with instructions to the Judge, at the next term, to increase them, on the grounds:
    1. That, by law, the damages may be increased by the Court in • actions of assault, battery, and mayhem; and, in this State, the authority so to increase the damages is vested in the Circuit Judge, with right of appeal.
    
      2. That tbis is a proper case fer tbe exercise of such authority; and bis Honor erred, it is respectfully submitted, in refusing to exercise it.
    3. That tbe verdict having negatived tbe plea of justification, tbe plaintiff was entitled ex débito justicice, to recover damages commensuraté with tbe injury be sustained from tbe loss of bis eye and the injury to bis thumb.
    
      Spain, for appellant.
    Tbe action, is trespass vi et armis, for mayhem,, which consisted in tbe destruction of an eye, and tbe loss of tbe use of thumb of tbe right hand. Verdict, thirty dollars for plaintiff — “ a sum,” says tbe circuit Judge, “ which 1 thought very small to be found by those who bad ascertained bis right to recover something.” So thought tbe plaintiff and bis counsel, and hence tbe motion to tbe Circuit Judge to increase tbe damages super visum vulneris. Tbe motion was refused, and hence tbis appeal. Tbe refusal on tbe part of tbe Circuit Judge was not based upon tbe notion that tbe jury bad found damages sufficient in amount, but because “ no Court possesses the power to increase or diminish tbe damages in due form found by a jury, in any other way than by granting a new trial.”
    To tbe first branch of tbe proposition tbe plaintiff objects— to tbe second be accedes. “ To increase tbe damages,” some Court possesses tbe power, as a Court,11 otherwise than by granting a new trial,” but only in this form of action. Tbe right “ to diminish” is properly negatived.
    Tbis is an action at common law, and tbe common law incidents attend it, unless these incidents have been repealed by statute. “ One remarkable property is peculiar to the-action for mayhem ; viz., that tbe Court in which tbe action is brought have a discretionary power to increase the damages, if they think tbe j ury at tbe trial have not been sufficiently liberal to tbe plaintiff; but tbis must be done super 
      
      visum vulneris, and upon proof that it is the same wound concerning which evidence was given to the jury.” Note 5, 3 Black. 121.
    
      Benton vs. Bayne's, Barnes Notes, 153, where the damages were increased. Brozvn vs. Seymore, 1 Wils. 5, in which Lee, C. J., said, “ there is no doubt but the Court can increase the damages, &c.” See cases cited. Many other cases have been found to the same effect from “ blach letter” down to the date of Christian’s note to 3 Black. Here is an unbroken current of common law authority in favor of the motion; and what is the objection to the exercise of the power, as is admitted would and ought properly to be invoked and exercised in this instance, if it existed in this State ? What has deprived our Courts of their common law “ power” in this particular ?
    
      Obsoletism cannot be properly urged, and if'Urged should not prevail. The Court should exercise its “ power” in proper cases, however novel or unpopular the case invoking the aid of the Court.
    The English Courts and ours have declared “ that an Act of Parliament” (of the .State) “cannot be repealed by non-user;” (State vs. Tidwell, 5 Strob. 7.)
    The Act of 1712, (2 St. 409, (“ imported into our code” the British Statute, 4 and 5 Phil, and M„ Ch. 8, “ since it appears in the schedule accompanying that Act, by the designation of the names of those who wore the crown, the year, chapter and title.” Per Withers, J., Id. Thus, “ a person seducing away from'her father’s house a maid under sixteen years of age, and deflowering her afterwards, without the consent of her parents or guardians,” was held to the penalty imposed by' said statute in 1802, State vs. Findley, 2 Bay, 418 : though that “ was the first conviction which ever took place in Carolina, under the statute of Phil, and M. for that offence.”
    That statute was passed by the British Parliament in 1557, two hundred and forty-five years before it was ever enforced in Carolina, and ninety years after the Act of 1712.
    
      As non-user does not repeal an Act of Parliament in England, or an Act of tbe Legislature in tliis State, tbe plaintiff insists, under tbe 5 Sec. A. A. 1712, (2 St. 413,) ‘‘ that all and every part of the common law of England" is tbe statute law of Carolina, “where tbe same is not altered by tbe”'Acts of tbe British Parliament enumerated in tbe schedule to tbe Act of 1712 “ or inconsistent with tbe particular constitutions, customs and laws of this Province;” certain exceptions not affecting tbe point under consideration being specified in said section.
    If, therefore, tbe statute of Phil, and Mary became statute law in Carolina, for the reasons (or any other) given by tbe Judge in tbe case of Tidwell, and was therefore obligatory on our own courts, so did “ tbe common law of England” become “imported in our code,” as statute law, by said 5 Sec. of tbe Act of 1712, except so far as it was “inconsistent with tbe particular constitutions, customs and laws of”' tbe then Province.
    Tbe common law, then, could no more become “ obsolete by non-user,” than could tbe statute of Phil, and M., both standing on the same footing of authority, to wit, tbe Act of 1712.
    As to tbe point under consideration, no change of tbe common law was made by any British statute, because since 1712 we find English Judges doing precisely what we now urge upon tbe Court.
    ■ No constitution of tbe “ Province” can be found to speak upon tbe subject; there has been no “ custom,” for we find no proof of it: and no law can be shown to tbe contrary. It thus' appears that tbe motion should be granted, and" tbe increase made, as sought by tbe plaintiff.
    But this is enough to show that tbe Common Law is tbe law of South Carolina, and must be recognized as such, without reference to any other authorities.
    Objection on tbe Circuit was made tbat-a Nisi Prius Court could not increase thé damages. This is tbe English Law. But its application is denied. Change of organization is not destructive of right. "The power” must exist under our law; and it must reside in our Circuit Judges; else the remedy, or right of the party is lost; because, under the organization of our Courts, motions can only be made on Circuit, and appeals can only be taken, under the Constitution, (Art. 10, Sec. 3, 12 St. 13,) “at the conclusion of the Circuits'1 to-the "Judges” who “shall” then “ meet and sit at Columbia ” or Charleston, “ for the purpose of hearing and determining all motions which may be made for new trials, and in' arrest of judgments, and such points of law as may be submitted to them.” The plaintiff, by his notice failing on the Circuit, had the right to be heard in the Appeal Court. One or the other was bound to grant his motion, and increase the damages. The Circuit Court was the proper tribunal, in this State.
    Blanding, contra.
    There is no Court in this State which has the power to increase the damages. This Court is appellate, and cannot exercise jurisdiction in any other way than by appeal; and the authorities show that a Nisi Prius Court has no such power, 3 Com. Dig. Damages increased, and the Circuit Court is a Nisi Prius Court, 7 Stat. 295. — He further cited Act 1767, 7 Stat. 245 ; 7 Stat. 260 ; Jac. Law, Die. Amercements ; 7 Stat. 325, 335, 340 ; /State vs. Simons, 2 Spear, 767; Bran vs. Norton, 2 McM., 147 ; 2 Black. Com., 42; Leigh vs. Kent, 3 T. B., 364; Magna Charta, § 14, and contended that the rule had never been adopted in this State, and could not now be enforced because it was repugnant to the Constitution and law of the State, to the trial by jury, and the practice of the Court.
    
      J. S. C. Richardson, in reply.
    That the law contended for by the appellant exists in England to this day, and is familiar to the profession at Westminster, is scarcely controverted. We find it not only in the decisions of tbe Courts, but recognized by elementary writers as late as 1847. Law Lex., Mayhem, p. 413. Several objections, however, are raised to its exercise here. It is said, in the first place, that Nisi Prius Courts have never exercised the power; that our Circuit Courts are Nisi Prius Courts, and this Court has only appellate powers; there' is, therefore, no Court in this State with authority to enforce the rule. That this Court is appellate we admit, and has no power to exercise jurisdiction in the matter as an original motion. But we deny that our Circuit Courts have only the limited and intermediate jurisdiction of Nisi Prius Courts. On the contrary, we say that each District Court in this State has original, complete and final jurisdiction, and possesses in itself all the powers of all the three great Common Law Courts which sit at Westminster Hall. Prior to the year 1768, the only Common Law Court of general jurisdiction which existed in this State, or rather Province, was a Court consisting of a Chief Justice and two or more Judges, which sat at Charleston. In 1734, 7 Stat. 184, the jurisdiction of this Court was declared by statute, and the Chief Justice and Judges were invested with all the Common Law powers of the Courts of King’s Bench, Common Pleas and Exchequer at Westminster. In 1768, 7 Stat. 197, and again in 1769, P. L., 269, Nisi Prius Courts were established for certain districts in the Province — the Court at Charleston retaining the general jurisdiction, the writs being returnable there, and the record being there kept. 1 Brev. Dig. Intro. 14. As long as this system prevailed, the motion now made could only have been made at Charleston. But in 1789, 7 Stat. 253, that system was superseded by our present District Court system, and now each "District Court possesses all the powers of the Court at Charleston, see Act 1791, .7 Stat. 260, that is, it has original, complete and final jurisdiction, and possesses all the Common Law powers of the three great Common Law Courts which sit at "Westminster. Tbe objection, therefore, so far as tbe powers of tbe Circuit Court are concerned, is not well taken.
    But it is said tbat tbe rule bas never been,put in practice in tbis State, and tbat it is obsolete, and no longer part of our law. In 1712, 2 Stat. 413, tbe great body of tbe Common Law was adopted and made tbe common law of South Carolina. Tbat common law, thus adopted, is tbe perfection of reason; and its principles having their foundation in truth, are in their very nature immortal. This vital principle of tbe common law is strongly illustrated by the cases. In 1818, on an appeal of murder, Thornton, the appellee, threw down his glove before tbe Chief Justice of England, and demanded trial by battle. (1 Barn. & Aid., 405.) Tbe case was discussed before tbe Judges, and it involved the question whether tbe right of trial by battle still existed as part of the common law of England. Upon tbis point Lord Ellen-borough, Chief Justice, said : “ Tbe general law of tbe land is in favor of tbe wager of battle, and it is our duty to pronounce tbe law as it is, and not as we may wish it to be. Whatever prejudices therefore may justly exist against tbis mode of trial, still, as it is tbe law of tbe land, tbe Court must pronounce judgment for it.” In 1824, in Postell vs. Jones, Harp. 93, the question first came before the Courts of this State whether fees conditional at tbe common law, .existed under the law of this State. It was.held that they did,' although it was then supposed that in England they had “been entirely annihilated by the statute de donis.” In 1837, ■the question arose in this State, for the first time, whether a feoffment, with livery, by tenant for life, would bar contingent remainders. It was contended that the law was obsolete. But, said Harper,-Ch., “I am not aware that we can regard any law as obsolete, merely because for a long time no case has arisen under it; nor can I conjecture what length of time would be necessary to have tbe effect.” Medfern vs. Middleton, Rice, 467, Dud. Eq. 119. These authorities are enough, and sbow conclusively that non user is no objection to the common law.
    Other objections are hinted at rather than urged. It is said that it is contrary to the spirit of our laws, our institutions, our constitution, that a single Judge should assess damages — that this belongs to the jury, and it is an invasion of their right for the Court to do it. There is nothing in any of these objections. The trial by jury has been had in this case. They have found the defendant guilty, and have assessed such damages as they deemed proper. Is it any invasion of their right for the Court to increase- those damages ? If ’this had been an indictment for the battery, the Judge would have determined the amount to'be paid by the defendant; and merely because the money to be paid is called damages, and not a fine, does that alter the nature of the thing so as to make the exercise of the power so monstrous? But the thing itself is done at every Court. In the sum. pro. jurisdiction the Judge alone may assess the damages, and in fact does it in almost all the cases; and in Bird vs. the Wilmington and Manchester Railroad Company, the Court of Appeals in Equity, expressly decided, in December, 1855, that the Court of Equity has the power, without the aid of a jury, to assess damages in a case of trespass upon land.
    
      
       This case was argued and decided at May Term, 1856, but the opinion was not filed until Qctober, 1857.
    
   The opinion of the Court was delivered by,

WhitNEB, J.

The merits of this case, as presented on Circuit, are in no way involved by the present motion.

The battery of which the plaintiff complained had occasioned the loss of an eye, and the jury returned a verdict for thirty dollars. This appeal rests on the refusal of the Judge on Circuit to increase the damages, after verdict, on motion of plaintiff’s counsel, super visum vulneris.

This Court has been urged by a very learned and ingenious argument, to administer a remedy never, so far as we are informed, adopted by the Courts in tbis country. Not a single case has been found in any book of American Reports in support of tbe present motion, notwithstanding the great research displayed by counsel. Neither has there been for a period of more than a century any recognition of the rule by any adjudged case in England to which we hake been able to procure access. It is true modern text writers, in brief paragraphs, allude to this peculiarity as appertaining to the action of mayhem; and Mr. Christian, in a note, 3 Black. Com. 121, states the point fully, that “ a remarkable property peculiar to the action for a mayhem is deemed to exist,' viz.: that the Court in which the action is brought have a discretionary power to increase the damages, if they think the jury at the trial have not been sufficiently liberal to the plaintiff; but this must be done super visum vulneris, and upon proof that it is the same wound concerning which evidence was given to the jury.” — The same ’principle is stated in Bul., N. P., 21, and Steph., N. P., 225, each deriving authority from the same sources.

Whatever reason may have existed heretofore to justify this peculiarity, in cases sounding in damages, we would be wholly at fault to deduce a rule akall consistent with modern practice.

In the last case at Lent Assizes, in 1742, and referred to by Christian, Brown vs. Seymour, 1 Wils., 5, the application was refused, though the Judge said, there was no doubt of the rule. In the case of Cook vs. Beal, 1 Raym., 176, I think in 1696, the Court resolyed, “ 1st, That if a wound be apparent, though not a mayhem, an eye injured, not out, but wound visible;” 2d, “ For loss of nose, though not a mayhem,” or 3d, “If a grievous wound," the Court may increase the damages. In Smallpiece vs. Bockenham, referred to in Buller, it seems witnesses and jurymen were examined, who all said that no evidence was given that any blow had been inflicted upon tbe eye, or that tbe party bad lost an eye by tbe battery ; and for tbis reason tbe Court would not increase tbe damages “for new evidence ought not to be given, for tbis is a censure on tbe first verdict and a correction of it.”

Tbe question before tbe Court is one purely of damages;' and by what standard could a Judge remodel tbe verdict ? Under tbe Mosaic Law there was a rule: “ Eye for eye, tooth for tooth, band for band, foot for foot,” but under our present dispensation no such law of retaliation prevails. Tbe legitimate object of tbe proceedings in our Courts of justice • is at once to make reparation to tbe injured party, and to deter others from tbe like. "We have no standard value of an eye; and hence, according to tbe cases, in awarding damages, there must be consideration of tbe nature, quality, and degree of tbe wrong done. For centuries tbe wit of jurists has been taxed to settle tbe province of judges and juries; and though not yet clearly defined in every conceivable case, much progress has been made. Damages, strictly speaking, are a compensation given by tbe jury for an injury or wrong sustained by tbe complaining party before action brought: Co. Lit., 257. Tbe quantum of damages being in most cases intimately blended with questions of fact, must have been generally left with tbe jury — Sedg. Dam., 21; but, says tbe same author, tbe limits of their power were not at first as clearly defined as they have become in later days. In tbis course of development we find, in Poll’s Abr. 11, p. 703, it said, “tbe • jury are chancellors, and they can give such damages as tbe case requires in equity,” whilst again it is said, “tbe old books are full of cases where, on judgment by default, and even on demurrer, tbe Gourt themselves fix tbe amount of damages, and the remains of tbis is seen in the power exercised by tbe English Courts in cases of mayhem.”

Other facts appear in our judicial history, illustrating tbe point under consideration, as we trace tbe gradual establishment of our practice as settled, at tbis day.

In tbe earlier cases, tbe Courts refused to interfere in granting new trials on account of excessive damages; 2 Mod., 150; Comb., 357; or for smallness of damages, 2 Stra. 941, tbougb in eacb a different rule obtained, sparingly exercised. 1 T. R., 277; 7 T. R., 529 ; 2 Barn., 354; 2 Tidd, 916.

Tbe Constitutions adopted by the different States of this Union, as well as tbe'whole current of legislation and adjudication, demonstrate tbe great jealousy of tbe American people on the subject of jury trial. So universally regarded as a great palladium in England and America, we may well be cautious of any innovation, tbougb tbe same sentiment should equally guard tbe improvement which timé and experience have engrafted on our judicial proceedings. Our reverence for tbe common law must have its just limit, and we may well hesitate to adopt any principle not recognized for tbe past hundred years. Tbe trial by jury has taken tbe place of other forms once in favor, and tbe judgment of a panel of twelve men has- been incorporated as an indispensable element in tbe judicial administration of tbe country. Our notions may well be pronounced inveterate as to this mode of securing rights and redressing wrongs.

At this day we may lay it down as settled, that in all cases sounding in damages, these damages are to be assessed by tbe jury, under tbe authority of tbe Court, and. not by tbe Court independently of tbe jury; in all cases of vindictive damages¿^ejmOTnt_mustjiepen.(LQn-.tbe»aaun.d.Ei§cretion of the jury. Hence, according to a series of adjudged cases, where- there is no rule of law regulating the assessment of damages, and tbe amount does not depend on computation, tbe judgment of tbe jury, and not the opinion of the Court, is to gmmrnTWFEe principle is familiar, and scarcely needs a reference. 16 Pick. 541; 1 Wash. 142; 2 Bail. 252 ; Id. 408.

- This rule in no way conflicts with tbe practice of again submitting a case to tbe judgment of another jury in extreme cases, when tbe verdict is extravagant or trifling.

Tbe question therefore recurs in such a case as tbe present, wbat legal rule exists whereby to measure the damages and dispense with tbe judgment and sound discretion of a jury? However conclusive tbe argument of counsel on tbe subject of tbe transfer of certain powers exercised and distributed by tbe Courts of England to tbe law Judge in South Carolina, and however a Court, organized as ours and charged with tbe administration of tbe common law, might have been impressed a century ago by tbe doctrines and authorities now urged and relied upon ; yet looking as we must to the long sleep into which this practice, at best not very clearly defined, has fallen in tbe mother country, and still more to tbe fact that it has never been transplanted in our soil, and is now wholly incongruous with our usages and institutions, this Court has not seen its way to tbe conclusion urged. Other and better rules of. practice, efficient and satisfactory, have been adopted, in committing that class of cases sounding in damages to tbe jury, under tbe supervision of tbe Court, and relying on tbe proper corrective against mistake, ignorance, prejudice, and caprice, by granting new trials when tbe damages are excessive or nominal. I may add that it would be hazardous, inconvenient, and to some, extent subversive of our judicial machinery, to attempt this retrograde, and perhaps would justly subject this Court to a charge of judicial usurpation.

Tbe motion to increase tbe damages is refused.

O’Neall, Wardlaw, Withers, Glover, and Munro, JJ., concurred.

Motion refused.  