preponderance of the evidence, or is based on no evidence. whatever;* and in Texas, that the verdict of a jury founded on conflicting testimony will not be set aside unless it be very apparent that they decided wrong.t The court again holds itself at liberty to set aside verdicts and grant new trials, in that class of cases where there is no fixed legal rule of compensation, whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance. But this power is very sparingly used, and never except in a clear case. So in an action for malicious indictment of the plaintiff for perjury, where a verdict of £400 was obtained, on a rule for new trial it was insisted that the verdict was excessive. But it was refused, and Lord Mansfield said, "New trials are not to be granted in this class of cases without very strong grounds indeed, and such as carry internal evidence of intemperance in the minds of the jury."+ The doctrine has been repeatedly affirmed in this country. So Mr. J. Story has decided, that in cases of tort the verdict will not be disturbed unless it is so excessive or outrageous with reference to all the circumstances of the case, as to demonstrate that the jury have acted against the rules of law, or have suffered their passions, their prejudices, or their perverse disregard of justice, to mislead them.§ So again, the same sagacious Judge has said, "A court of law will not set aside a verdict upon the ground of excessive damages, unless in a clear case, where the jury have acted upon a gross mistake of facts, or have been governed by some improper influence or bias, or have disregarded the law." Again, in another case Mr. Justice Story said, "The damages are certainly higher than what, had I sitten on the jury, I should have been disposed to give, and I should now be better satisfied if the amount had been less. * * It is one thing for a court to administer its own measure of damages in a case properly before it, and quite another thing to set aside the verdict of a jury merely because *Cicely vs. State of Mississippi, 13 Smede & M., 202. + Perry vs. Robinson, Adm'x, 2 Texas R., 490. Gilbert vs. Burtenshaw, Cowper, 230. Whipple vs. Cumberland Man'g. Co., 2 Story, 661. it exceeds that measure. The court, in setting aside a verdict for excessive damages, should clearly see that they are excessive; that there has been a gross error; that there has been a mistake of the principles upon which the damages have been estimated, or some improper motives, or feelings, or bias which has influenced the jury. * * Upon a mere matter of damages, where different minds might and probably would arrive at different results, and nothing inconsistent with an honest exercise of judgment appears, I, for one, should be disposed to leave the verdict as the jury found it."* So in New Jersey, too, it has been declared that the court, in actions of trespass for personal torts, where damages can be gauged by no fixed standard, but necessarily rest in the sound discretion of the jury, interferes with a verdict on the mere ground of excessive damages with reluctance, and never except in a clear case.+ The forbearance of the court to interfere with the jury is so great that, in actions of tort, the general rule is, that a new trial will not be granted for smallness of damages. But it seems that if the jury so far disregard the justice of the case as to give no damages at all where some redress is clearly due, the court will interpose. So where, in case for negligence for defendant's servant driving against the plaintiff, it appeared that the plaintiff's thigh was broken, and considerable expense incurred for surgical treatment. The plaintiff obtained a verdict; damages one farthing. A new trial was granted on payment of costs, and Lord Denman said, "A new trial on a mere difference of opinion as to amount may not be grantable, but here are no damages at all."§ Although it is conceded that the courts have the power of granting a new trial in cases of crim. con., still it seems that the power has never been exercised. Even in cases where rules of *Thurston vs. Martin, 5 Mason, 197. + Berry vs. Vreeland, 1 Zabriskie, 183. Lord Townshend vs. Hughes, 12 Mod., 150. Rendall es. Hayward, 5 New Cases, 424. Mauricet vs. Brecknock, 2 Doug., 509. Hayward vs. Newton, 2 Strange, 940. Barker vs. Dixie, 2 Strange, 1051. 21 Vin. Abr., 486, Trial, Y. G. Lord Gower vs. Heath, Barnes' Notes, 445. Regina vs. Justices of West Riding, 19 B., 624, 631. § Armitage vs. Haley, 4 Q. B., 917. See, also, Cook vs. Beal, I. Ld. R., 176; S. C., 3 Salk., 115. Brown vs. Seymour, 1 Wils., 5. Austin vs. Hilliers, Hard., 408. | Duberly vs. Gunning, 4 T. R., 656. Smith vs. Masten, 15 Wend., 270. law have been disregarded, or where for any reason the verdict cannot be supported, the power of the court to set aside. the decision of the jury will not be exercised without regard to the justice of the case. So, where a verdict was obtained for principal and interest, as to which latter the defendant was clearly liable, but there being no count adapted to it the verdict was not strictly regular, the court nevertheless refused to set it aside, saying, "In motions for new trials, the court may fairly endeavor to do that which advances the justice of the case; and by refusing this rule we only save the defendant from paying with the tremendous amount of accumulated costs, what he is in justice bound to pay at once."* Thus, again, where the jury have given such excessive damages that the court feel bound to set aside the verdict, they will, instead of simply ordering a new trial, give the plaintiff the option of reducing the verdict to the sum which the court considers reasonable, and on his remitting the excess will deny the motion for a new trial, and this in actions of tort as well as on contract. Or the court may send the cause back to a second jury on the quantum of damages alone.‡ A question has presented itself as to the mode in which the jury may arrive at the quantum of damages in cases where they are greatly divided on the question of amount; and it has been decided that if they agree beforehand that each juror shall mark the sum to which he conceives the plaintiff entitled, and that the total of these amounts divided by twelve (the number of jurors) shall be the verdict, the whole proceedings will be void, and a new trial will be ordered, for the reason that the whole thing is a mere matter of chance. So in New York, it has been decided that the jury will not be allowed to arrive at a verdict by each of the jurors marking down a particular sum and then dividing the whole amount by the number of jurors, and on assignment of error in fact, the judgment for this cause will be reversed.§ So in England, the court will not permit the jury to arrive at a verdict by splitting a difference. But if * Harrison vs. Allen, 2 Bing., 4. + Diblin vs. Murphy, 8 Sandford S. C., 19. Guerry vs. Keston, 2 Rich. R., 507. Young vs. Englehard, 1 Howard Miss. R., 19. Boyd vs. Brown, 17 Pick., 458. § Harvey vs. Richell, 15 J. R., 87, and Roberts vs. Failis, 1 Cowen, 238. | Hall vs. Peyser, 18 Mees. & W., 600. the same course be taken in order to ascertain with more accuracy how the jury stands, the rule is different and it has been held not improper for them to arive at their verdict by each marking a sum and dividing it by twelve, provided they do not previously bind themselves to adhere to the result of the arithmetical computation.* To the other rules which we have thus briefly enumerated, intended to maintain the dignity of the law and the harmony of the administration of justice, is finally to be added that to which we have had so frequently to refer in these pages-that the measure of damages is a matter of law to be decided by the court; and that whenever it shall appear that the jury have disregarded the instructions of the bench in this respect the verdict will not be permitted to stand. *Fowler vs. Colton, Wisconsin Reports by Burnett, 178. CONCLUSION. WE have in the preceding pages taken a survey of the subject of compensation as awarded by the legal tribunals known to English and American jurisprudence. But much of the great demesne of justice still remains unexplored. The Courts of Admiralty, of narrow jurisdiction but broad and liberal doctrines, and the Courts of Equity, with their vigorous and complete specific performance, have not been even touched in these pages.* *It would seem that we do not owe our doctrine of specific performance to the Roman law. "According to the principle, "aliud pro alio invito creditori solvi non potest,' the plaintiff by the civil law may, as a general rule, bring his suit for the specific performance which constitutes the object of a debt, and the court is to give its judgment, and to issue execution accordingly. Still, there being no other means of execution recognized by the later civil law than such as are directed against the debtor's property, a specific performance cannot be compelled except in the case of things due in specie, which, if requisite, are taken from the debtor forcibly (manu militari), while in all other cases, if the debtor refuses to obey the execution can only be directed against his property. The latter is done, either by sale at auction of personal or real estate (even rights or claims) belonging to the debtor, for the purpose of satisfying the creditor by paying him off; or by ejecting the defendant and putting the creditor into possession (exmissio et immissio), so as to enable the creditor to pay himself by means of the possession and enjoyment of real estate, or so as to secure him through the debtor's claims or rights. See Gaius III., 168. fr. 176, D. 50, 16; fr. 13, § 4, D. 36, 1; fr. 17, § 2; fr. 44, D. 40, 4; fr. 86, D. 40, 12; fr. 68, D. 6, 1; fr. 15, D. 42, 1; fr. 8, D. 43, 4; const. 2, 7, C. 7, 58; fr. 5, § 6, D. 7, 6; fr. 12, D. 8, 5; fr. 4, § 1, D. 39, 2; fr. 15, D. 89, 1; const. un, C. 8, 6. Hence, if the specific object be lost or deteriorated, or if, for some reason or other, cannot be produced by the debtor, its value (æstimatio) is exacted; and the same is the case where the debtor is prevented from performing any act purely personal, or where its performance would be no longer of any use to the creditor, or where it is refused by the debtor altogether, or at the due period and in the due manner. For the Romans very justly regarded compulsion in such cases as inconsistent with personal freedom, and could not resolve to restrict the latter, when the creditor is amply protected by his right to full compensation for the non-fulfilment ('si non facit debitor quod promisit, in pecuniam numeratam condemnatur, sicut evenit in omnibus faciendi obligationibus'); and thus they adopted the principle, ad faciendum nemo præcise cogi potest.' And it would seem to be always safest and best to take the side of freedom and of the debtor, wherever there be a doubt. With regard to such acts, however, as may be performed by another person |