LAW REPORT.

Evening Star, Issue 3282, 27 August 1873, Page 2

LAW REPORT.

SUPREME COURT.- IN BANCO,

Monday, August 25. (Before his Honor Mr Justice Chapman.)

M‘Comb v. Low.—We continue his Honor’s judgment herein I now proceed to notice a few of the most prominent cases on the subject. In the case of Sharpe v. Brice, 1 W. 81., 942, the action was in trespass against a Customhouse officer for an ineffectual search after prohibited goods, in which the jury gave LSOO damages. The learned judge who tried the case, Perrot, 8., was much dissatisfied with the verdict, aud he reported to the Court that in his opinion the damages were “very excessive,” and that he had accordingly advised an application for a new trial. The Court said that it had never been laid down that the Courts would not grant a new trial for excessive damages—that juries had not despotic power, but that in torts they had a greater latitude than in actions on contracts, and (notwithstanding the report of Perrot, B.) the rule was discharged. Reported in the same volume, page 1,327, is the remarkable case of Leith v. Pope, in which the Court refused to disturb a verdict for the enormous damages of LIO,OOO in an action for false imprisonment. The plaintiff was a Scotch baronet, wealthy, but in immediate want of money. He had borrowed 1,3,000 of the defendant, and had given a bill of sale of his furniture and effects; but it was stipulated that he should retain some of the property, and under that stipulation he removed some furniture to his country house, openly, in a waggon drawn by his own carriage horses. Pope stood by, without raising any objection, and saw the inventory of the removed goods, which had been drawn up by Lady

Leith. Afterwards, disputes arid litigation arose between the parties, when Pope charged Leith with horse-stealing. He was tried at the Old Bailey, and acquitted. He then brought an action for false imprisonment and malicious prosecution, and the jury gave the almost unprecedented sum of L 1.0,000 as damages. The Court (Gold, Blackstonc, and Naves, J.J.), in discharging the rule, said ; In cases of torts the Court will not interfere, on account of the largeness of the damages, unless they are so flagrantly excessive as to afford internal evidence of the prejudice and partiality of the jury ; that is, unless they are most outrageously disproportioned, either to the wrong received or to the circumstances of the plaintiff and defendant.” The Court then reviewed the facts proved. Idle charge was aimed at the life of the plaintiff ; the defendant had been advised by bis own attorney that there was no ground for the charge ; he had admitted on the trial of Leith that he had brought the charge in order to stop the plaintiff’s actions against himself. In such a case, continues the judgment—“ the Court cannot say that any sum assessed by the juey is too much, if the circumstances of the parties warrant it.” In Duboidcy v. Gunnery, 4, T. 11., 651, this question was much discussed, as the learned judge who presided at the trial was even more impressed with the excessive amount of the damages than Perrot, 8., was in Sharpe v. Brice. The action was for criminal conversion, and the jury gave L 5,000 damages. Lord Kenyon, who tried the cause, thought that nominal damages would have been sufficient, yet the rule for a new trial was discharged. In delivering judgment his Lordship said: “Ithink the damages were much larger than ought to have been given; but then I doubt what conclusions I ought to draw from all the premises, and my difficulty arises from my being unable to fix any standard by which I can ascertain the excess which, according to my view, the jury have run into. In many cases, where Courts have said that the damages were too great, they have had some grounds to proceed upon by which the excess might fairly be measured. But where there is no such standard, how arc the errors of the jury to be rectified ? What measures can we point out to them by which they ought to be guided ? . According to my judgment of this case, I think the damages are a great deal too much; nay, I should have been satisfied even if nominal damages only had been given; but as the jury have formed a different opinion on the evidence, I know not why my judgment should be preferred to theirs upon such a subject.” The rule was accordingly discharged. Buffer, J. din fentirntc. There are several cases which exhibit a very intelligible reason for the reluctance of the Courts to interfere on the ground under notice in the case of personal torts. Besides injury to the plaintiff, such cases have an element, of public scandal or public outrage which the law permits to bo met by what is commonly called vindictive damages. The, name is not very well chosen, as in modern acceptation is means revengeful, and some judges have preferred exemplary or punitory damages. There may be some anomaly in this rule, as it clearly looks beyond the parties to the action, It permits that portion of the damage which is justified by way of example to deter others, or by way of quasi--punishment of the party offending, to find its way, with the compensatory por tion of the damages, into the pocket of the plaintiff. Nevertheless, it is well recognised law, and the jury, in such cases, is always permitted and is sometimes encouraged and enjoined to give extra damages of a vindictive, exemplary, or punitory nature, Hackle v. Money, 2, Wils, 205, is a dsc in which the persistory element conspicuously appears throughout the language used by the Court. Tlie action was for false imprisonment, arising out of an illegal general warrant issued by the then Secretary of State, Lord Halifax Lord Camden intimated that the mere personal injury was trifling, and if the jury had been confined by their oaths to mere compensation, L2O would have been sufficient. _ “But,” continued his Lordship, “the small injury done to the plaintiff, or the inconsiderableness of his rank and position in life did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial. They saw a Magistrate over all the King’s subjects exercising arbitrary powers, violating Magna. Charta, and attempting to destroy the liberty of the kingdom by insisting on the legality of this general warrant before them ; they heard the King s counsel, and saw the solicitor of the Treasury endeavoring to support and maintain the legality of the warrant in a tyranical and severe manner. Thsse are the ideas which struck the jury at the trial, and I think they have clone right in giving exemplary damages.” This was one of the actions upon a general warrant to search for papers and persons (not named), concerned in printing and publishing John Wilkes’s North Briton,' No. 45, and Bathurst, J., who concun ed, said that this rule was to set aside fifteen verdicts. In Merrest v. Harvey, 5 1.R., 442, Gibbs G.J., puts the inadequacy of mere compensation very forcibly. Suppose a gentleman has a paved walk in his paddock before his windows, and that a man intrudes, and walks up and down before the windows, and looks in while the owner is at dinner, is the trespasser to be permitted to say, “ Here’s a half-penny for you, which is the full extent of the mischief I have done ?” and Heath J. expressly recognised the punitory element in such damages. “I remember a case,” he says, “ in which the jury gave LSO for merely knocking a man’s hat off, and the Court refused a hew trial. It goes to prevent the practice of duelling if juries are permitted to punish insults by exemplary damages. Happily society lias got rid of duelling ; but there are other breaches of the peace which are still in need of repression. In the case now before mo, I think the damages greater than the nature of the injury demanded. In some similar cases I have thought the damages as much too low as I think these too high. But Ifind myself bound to say, as Lord Kenyon said in Duberloy v. Gunnery, I know not why my judgment should be preferred to that fif the jury; nay, I will go one step further, I do know that my judgment ought hot to be preferred to that of the jury. If it were possible to analyse or decompose the amount, and ascertain that they included the special damage claimed, there might be some standard to measure the excess ; but even that is doubtful, as there was evidence both ways. But I told the jury that I did not see what ground there was for special damage, as the tenant Hutchison had remained in possession until the last, a discretion or rather an intimation of opinion which was in the defendant's favor. For the foregoing reasons, I am of opinion that this rule must bo discharged, with costs.