
    *John R. Jackson v. John Boast, John Hart, and Another.
    Trespass — New Trial — Smallness of Damages — Statutes.
    
    
      
      “New Trial — Smallness of Damages — Statutes.—Mr. Minor (4 Min. Inst. [3d Ed.] 931) says: “There has never been a doubt that the power to grant new trials for excessive damaged exists at common law, as well in actions ex delicto as in actions ex contractu; but smallness of damages seems not to have been ground for a new trial, at least in actions of trespass, unti it was made such by statute, apparently for no better reason than that actions for torts, at least actions of trespass vi et armis, were considered as bearing an analogy to prosecutions for crimes, as to which it is an admitted doctrine, that whilst a new trial may be granted upon the application of the accused, upon the ground that the punishment inflicted by the iury is too great, no such application is allowed on the part of the commonwealth because the penalty assessed by the jury is too small. (N. C. 1873, ch. 173, § 15, V. C. 1887, ch. 166, § 3392: Jackson v. Boast,, 2 Va. Cas. 49; Rixey v. Ward, 3 Rand. 52; Humphrey’s Administrator v. West, 3 Rand. 516; 6 Com. Dig. 227, Plead (R. 17).)”
      In Rixey v. Ward, 3 Rand. 55, Jtjdgis Cabeud, delivering the opinion of the court, made use of the following language: “The courtis of opinion, that the act of Assembly (1 Rev. Code 510, §-96.) authorizes the granting óf a new trial, in such an action as this (i. e„ action of slander) when the damages found by the jury, are manifestly too small; and that, when a new trial is granted for such cause, it is not necessary to state, on the record, the 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.”
      And in Watterson v. Moore, 23 W. Va. 406, Snyder, J.. in giving the history of the statute concerning new trials, said: “The statute as first enacted was simply that, ‘not more than two new trials shall be granted to the same party in the same cause' -Code of 1794, chapter 76, section 34. Subsequently in Jackson v. Boast, 2 Va. Cas. 49, decided in 1816, it was held that, ‘a new trial could not be granted for smallness of damages in trespass.’ Soon after this decision the General Assembly passed the act providing that ‘new trials may hereafter be granted as well where the damages are manifestly too small, as where they are excessive’ — Code 1819, chapter 128' sec. 96. And in the revision of 1849, these several statutes were embraced in one in the language and form in which it now appears in our Code, chapter 131, section 15, hereinbefore copied.”
      See the principal case cited to the same point in Moses v. Old Dominion, etc., Co., 82 Va. 29; foot-note to Gimmi v. Cullen, 20 Gratt. 439.
    
   Adjourned question from Prince George Superior Court. It was Assault and Battery, and damages ten dollars. The only point adjourned, was, whether a new trial could be granted in Trespass for smallness of damages.

The Court, after examining the authorities, particularly those referred to in 6 Bacon’s Abr. 665, Wilson’s ed. decided, that a new trial could not be granted for smallness of damages in Trespass. This matter has since that decision, been changed by Statute-See 1 Rev. Code of 1819, ch. 128, § 96, p. 510.  