Colyer v. Huff

• Decision Date: 06 May 1813
• Citation: 6 Ky. 34
• Parties: Colyer v. Huff.
• Court: Kentucky Court of Appeals

6 Ky. 34

Colyer v. Huff.

Court of Appeals of Kentucky.

May 6, 1813

OPINION

BOYLE, Chief Justice.

THIS was an action of slander. The defendant in the action demurred to the declaration; the demurrer was overruled, a writ of inquiry awarded and a verdict found for the plaintiff for one cent in damages. The Court, on the motion of the plaintiff, set aside the verdict and awarded a new writ of inquiry, on the ground of the smallness of the damages only. The jury on the next trial assessed the damages at fifty dollars for which the Court gave judgment; to reverse which this writ of error is prosecuted.

In actions of tort, smallness of damages is no ground for a new trial.

The only question which merits any consideration is, whether the Court below erred in setting aside the first verdict and awarding a new writ of inquiry.

It is an invariable rule never to grant a new trial for the smallness of the damages, in an action founded upon tort and sounding merely in the damages-- Hayward v. Newton, 2 Stra. 940-- Barker v. Dennie, ibid 1051--Sayer on Damages, 197, and the case there cited.

The same rule prevails with respect to awarding a new writ of inquiry--Tidd's Practice 523, Sayer on Damages 203.

This rule does not apply to actions upon contract; nor is it applicable to cases of tort, where the verdict has been the result of any contrivance by the defendant, or surprise on the plaintiff, or the partiality or misconduct of the jury. But in these cases the new trial is granted or the writ of inquiry awarded on account of the extrinsic cause which produced the smallness of the damages, and not on account of the smallness of the damages alone, as was done in the present case.

The arguments of the counsel for the defendant in error, which admit the existence of the rule but tend to prove its inexpediency or injustice, cannot be entitled to weight. We have no authority to change or alter the established rules of law. Our functions are judicial, not legislative. We set here to declare what the law is, and not what it ought to be.

We are therefore of opinion that the Court below erred in setting aside the first verdict and awarding a new writ of inquiry.

Judgment reversed, and cause remanded for judgment to be entered on the first verdict.