barker versus sir Woolston dixie bart ante SC stram but not so full andr in  marge action for malicious prosecute the plaintiff for felony for which she be  try at the old Bailey and acquit and upon not guilty plead the jury give a  verdict for the plaintiff and S in damage and now strange in behalf of the  plaintiff move for a new trial because the damage be too small for as the jury  have by their verdict find that there be no probable cause for prosecute the  plaintiff they shall at least have find the expense which the plaintiff prove  at the trial she have be at in the prosecution and therefore he will infer  that it be a verdict against evidence and he cite a case of Woodford eades  Pasc geo I stram where a wager be lie and be as appear by the contract for  pound which be deposit in the band of a three person and a action be bring  against the stakeholder the jury find for plaintiff and give but one penny  damage whereupon the court grant a new trial because the damage be too small  and that determination be upon the case in salk he cite also the case of par  purbeck Nesbet Michaelmas geo I Mod which be a action of covenant for  nonpayment of rend reserve upon a lease for year and after judgement by  default upon a writ of inquiry the plaintiff prove pound due for rend and yet  the jury give but one shilling damage whereupon the court set aside the  inquiry there be the same reason for do case tempt Hardwicke it in this case  as for excessive damage and the first case where a new trial be for excessive  damage be after a trial at bar in style report sergeant chapel for the  defendant observe that in the case in salk the court allow the rule to be that  no new trial or new writ of inquiry shall be for too small damage and grant a  new inquiry in that case because there have be a fraud he cite the case of  Lord Gower heath Trin in c b bar cook r bring Reg S c where in a action for  temptation to sin great man the jury give but a penny damage and the court be  unanimous that a new trial can not be grant for too small damage sergeant  Skinner with he that in I Mod and Mod the court refuse a new trial even for  excessive damage because the jury be judge of the damage Abney with he that a  new trial be never grant where upon the evidence give there be a ground for  give a verdict for the other party nor where the action be upon a tort and the  demand not ascertain between the party that in the case of Lord townsend and  Hugh as in Mod Scroggs I say that if the jury have give a scandalous verdict  for plaintiff as a penny damage he can not have a new trial to increase they  Lord Hardwicke c I at the trial there be considerable evidence give on both  side as to the probable cause of prosecute and if the verdict have be find for  case tempt Hardwicke er p the defendant I can not have say it be a verdict  against evidence there have be no case cite where a new trial have be grant  for smallness of damage in a action of this kind but it have be say that upon  the reason of new trial for excessive damage the court ought to go a step far  but I believe every one know that it have be take to be a establish  distinction that a new trial may be grant for excessive damage but may not for  small damage and there be this reason for the difference because the penalty  upon juror in a attaint be so high that in a attaint it be difficult to  succeed and for that reason the proceed by a new trial be introduce now a  attaint will lie for excessive damage but not for small damage for the verdict  in that case be give in favour of the party the law will not suffer he to  complain of it it be true that in the case of Woodford and eades and of part  and Nibblet Mod part purbeck S c the court do in some measure depart from this  distinction but that I think be right enough because the action in those case  be upon plain contract of which the court can judge and the find less damage  than appear due upon the contract must case tempt Hardwicke have be a mistake  of the jury but the present action be mere for a tort and sound mere in damage  and if we shoulddo it in this case I do not see where we can stop it be not  for the court to put themselves in the stead of the jury by way of appeal in  tort the damage be uncertain always and the language of the law be that the  jury be judge of damage as to the damage which be prove at the trial I do not  see they will warrant the court to depart from the rule there be the same sort  of proof in most case as in action of battery there be proof of money pay to  the surgeon suppose the jury shall be equal divide six for the plaintiff and  six for the defendant and find neither side can bring the other over they  shall compromise the matter and those for the defendant shall offer to the  other if you will give but small damage we will agree to find for the  plaintiff if this application shall prevail in every such case the verdict  must be set aside and possible the jury may have no other way of compromise  the damage and that may be the case here that case of Lord Gower and heath be  a very strong case in point so I think there shall be no new trial page I  there be a case of clark and Bobbit in the common plea it be present after the  revolution a grant be from the crown of the sole navigation of the river t  which the plaintiff demise to the defendant at pound per and but there be no  express covenant to pay the rend and in a action of covenant the breach be  assign in nonpayment of two year rend and the court hold the word yield and  pay make no covenant see Mod but the jury give a verdict for the plaintiff  with only one shilling damage yet upon a motion for a new trial the whole  court be of opinion that a new trial can not be grant because they say better  a mischief than a inconvenience lee I in the yearbook of Edward IV fol it be  determine that a attaint will not lie because the damage be small as to grant  new trial the court have make a difference sometime between plaintiff and  defendant as in hard action if the defendant have a verdict the court will  hear no reason for a new trial contra if a verdict have be for plaintiff there  be no instance of a new trial grant in a tort after a actual trial have there  be the case of Hayward and Newton Michaelmas geo stram Barnard b r where in a  action for word a new trial be move for because of small damage but the court  refuse it and Lord Raymond say he have know it refuse by Lord holt as to the  damage prove that will be a reason to grant a new trial whenever the jury find  a less sum than be give in evidence but in all matter sound in wrong only the  jury be to take every circumstance of the whole evidence case tempt Hardwicke  into consideration in settle the damage what I find myself upon be upon the  rule the court have observe and the reason of the law in proceed in attain and  I be of opinion no new trial shall be grant court unanimous not to grant a new  trial but see bar in which latter case it be say that where a demand be  certain as on a promissory note the court will set aside a verdict for too  small damage but not where the damage be uncertain and it be observable that  the case refer to in Str the present case the same be of this latter  description see Tid and see t r case tempt Hardwicke er p