Brantingham v. Fay — 1 Johns. Cas. 255

Majority

p. 307

Brantingham against Fay.

Headnote

Where in an action of debt, for a penalty in a special agreement, though the court were of opinion, that the plaintiff was entitled to a verdict, but no damages were shown, nor any rule by which the jury could ascertain the damages, they refused to set aside a nonsuit and grant a new trial, merely to give the plaintiff an opportunity to recover nominal damages.

This was an action of debí, for 4000¿. being, the penalty of a certain agreement, made between the plaintiff and defendant, bearing date the 23d May, 1795. The agreement, as set forth in the declaration, was as follows : “ Whereas the said Joseph Fay had received from the said Thomas H. Brantingham a deed, executed unto Oliver Phelps, Esq. of Súfíield, by the said Thomas H. Brantingham and Hannah his wife, for 26,814 acres of land, in the townships of New Huntingdon, Bolton and Sterling, in the state of Vermont, bearing date the samé day and year; the said Joseph did covenant and agree to forward *the same to the [*256] proper officers, and cause the same to be recorded, and returned to the said Thomas H. Brantingham, in New York, together with the proper certificates necessary to show that the titles of the said lands were legally vested in the said

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Thomas H. Brantingham, aiid that they were free and clear from all incumbrances, if on examination they should be found to be so; and that when such titles should be fully and satisfactorily ascertained, the said land, or so much of it as should appear to have a good title, as set forth in the said deed of conveyance, should be paid for at the- rate of three shillings per 'acre., New York- currency, in notes, bonds,' or other just demands against the said Thomas H. Brantingham, including 15137 3s. 9c?. which the said Thomas H. Brantingham had already received and acknowledged, on- a contract for.the'afdresaidláñds ;. and that the said Joseph Fay Would pay a judgment, obtained against the said Thomas H. Brantingham, at the suit of one Comfort Sands, for the sum of 12007 and also two notes of hand, made by the said Thomas H. Brantingham,. to. James.Roosevelt; .amounting to 4597 and other demands against the said Thomas H. Brantingham, and then due from him, sufficient to pay the amount of the said lands at the rate aforesaid, allowing for. such bonds, notes, and' other demands, twenty shillings ■ in the pound, including principal and interest, and for which the said Joseph Fay was to receive an allowance or deduction of five per cent, to be deducted from the sum which should appear due from the said lands, the said agreement to be carried into- execution without delay; and for the:faithful performance of the said covenants and agreements, the said Joseph Fay -did bind himself to the said Thomas Hi Brantingham, his heirs, executors, administrators and assigns, in the sum of 40007 current money of the state of New- York.”

The plaintiff averred, that Fay received the deed or conveyance, so executed by Thomas H. Brantingham[*257] *and Hannah his wife, to the said Oliver Phelps ; and assigned the following breaches: '

“ That the said Joseph Fay had not forwarded the said deed to the proper officers, and caused the same to bé recorded, and had not returned the said deed to the said Thomas H. Brántingham, without any unnecessary delay, nor caused the same to be returned; but that the said Joseph Fay had

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wholly neglected and refused to return the said deed of conveyance to the said Thomas H. Brantingham.”.

The plaintiff farther averred,-that although the..title for the said lands;was legally vested in him, and though the same were free and clear from all incumbrances. Nevertheless, the defendant did not, without unnecessary delay, return proper certificates necessary to show that the said title was legally vested in the plaintiff, and that the said land was free and clear from all incumbrances, but had wholly neglected and refused to return the said certificates ; And the plaintiff farther averred, that although the. title for the said 26,814 acres of land was, at the time of the execution and delivery of the said deed of conveyance to the defendant, for the said Oliver Phelps, lawfully vested in the plaintiff, and though the same was free and clear of all incumbrances: Nevertheless the defendant had not without unnecessary delay, paid for the same at the rate of three shillings per acre, New York currency, in the plaintiff’s notes, bonds, or other just demands, against the plaintiff, over and above the said sum of 15131 3s. 9d. which at the time of making the said covenant, was paid, by .the defendant to the plaintiff; but to pay for the same had wholly refused and neglected; And the plaintiff farther averred, that the said defendant did not without unnecessary delay, pay to the said Comfort Sands, a judgment obtained by him against the plaintiff, amounting to 12001 but wholly neglected and refused to pay the same: And the plaintiff farther averred, that the defendant did not pay, ’’without unnecessary delay, to the said James [*258] I. Roosevelt, the said sum of 4591 in discharge of two notes from, the said Thomas H, Brantingham to the said James I. Roosevelt, and then due, but .wholly neglected and refused to-pay the same to the said- James I. Roosevelt, by reason of which, <fcc. ... :

The defendant pleaded non est factum, and gave notice under that plea, pursuant to the statute, that he would give in evidence that “ the .title of the said lands was not .legally vested in the plaintiff free and clear from all incumbrances, as in the said declaration was alleged, and that he the defen

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dant had well and faithfully performed all and singular the covenants in the said writing contained, on the part and behalf of the defendant to be performed,” &c.

The cause was tried before Mr. Justice Benson, at the last July circuit in the city of New York. It was proved on the part of the plaintiff, that the agreement was executed and delivered by the defendant to the plaintiff; that the defendant caused the deed mentioned in it, and which contained the usual covenants and a general warranty, to be recorded in the township of Bolton, on the 18th June, 1795, in the township of New Huntingdon, on the 11th June, 1795,- and in the county of Chittenden, on the 12th of the same month ; and that on the 16th August following, he delivered the same to Oliver Phelps, who was the grantee named in it, and to whom he the defendant had previously sold the land at 3s. Ad. per acre; that the defendant informed Phelps, that he had examined and believed the title to the greater part of the lands to be good, but expressed some doubts as to the title of a part, consisting of somewhat more than 4000 acres, and which Phelps thereupon ré-conveyed to the defendant by a quit-claim deed; that the defendant also gave him a bond conditioned to save him harmless, in case the title to the whole or any part of the said lands should fail, and' [*259] *the plaintiff be unable to respond the damages; that some time in May, 1796, the lands in Bolton, and Stirling were sold for taxes, and in December, 1796, the defendant informed Phelps that he did not wish him to pay the taxes, as he had employed a person to bid off the lands at vendue, and in the summer following, the defem dant told him that he believed it necessary, in order to secure the title to the lands, to have them sold at auction for taxes, and hold them under such sale, and that he had enu ployed and authorized a person to purchase them at auction accordingly, ■ .

The town clerks of Bolton and New Huntingdon, and the clerk of the county of Chittenden testified, that they understood, that by the laws of Vermont, a title for land is mot valid or complete, unless the deed from the original proprie

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tor be recorded in the town where the lands lie, if the town be organized, and if not, then in the county where the lands lie, except that a vendue deed (as it is called) is good without being recorded; that the town of Stirling is not organized ; and that, by the laws of Vermont it is necessary, in order to perfect the validity of titles to land, that all the deeds conveying the same, shoiild be entered on record in the clerk’s office of the town where the lands lie.

It also appeared, by a certificate of the clerk of the town of Bolton, which was admitted to be read, that the names of Stephen Jackson, Daniel Jackson, William Sandford, Joel Smith, Nathaniel Wilkinson, William Fitch and- John Neilsoti, were not entered as grantees in the original grant, or as it is, commonly called, the charter of that town, and that there were no conveyances from the original proprietors on record, to show that the plaintiff had any right to convey the lands of those persons whose names appear in the charter; and the town clerk oWNew Huntingdon testified, that the names of John Tolson, Thomas Fowler, Cornelius Davis, Oliver Bissery, jun. and Peter Hungerford,..did. not appear as grantees in the original ^charter-of the [*260] town; and also, that 1500 .acres of Isaac Oakley’s right, 150 acres of Joshua Autune’s right, and the whole right of Caleb Griffiths and Samuel Averill were sold at vendue in August, 1794, for taxes, and that about 4000 acres of the land were mortgaged.by the plaintiff to one Fitch, in 1794, to secure such sum as Fitch should recover against the plaintiff in an action therein mentioned and intended to be brought against him; but no evidence was offered of any such action having been brought.

It further appeared, that there were deeds from different persons to the plaintiff for about 19,000 acres of the lands conveyed by him to Phelps, on record in Vermont, but the previous conveyances, to compose the chain of. title from the original proprietors, were not on record.

The plaintiff also offered to prove, that the defendant had declared that he had caused the lands to be sold for taxes, and bought them himself to secure the titles, and not to de

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feat the. plaintiff’s right, which evidence was overruled by the judge.' ■ .

The statute of Vermont relative to the recording of deeds,, was then produced and read, as follows ... s

“ That, all deeds or conveyances of any houses, or lands within this state, signed, sealed and delivered by the parties, granting the same, having a,good, and lawful authority, attested by two or more Witnesses, and acknowledged by, sucff grantor or grantors, before á justice of the peace, and recorded at length in the town clerk’s records, where such houses or lands lie, shall be valid to pass the same without any other act dr ceremony in the. law whatever, want of livery: of seisin,- or attornment of the possessors, notwithstanding. And that no bargain, sale, mortgage,, or. other, conveyances of houses o.r lands, made and executed within this-state, op attachment served thereon, shall be valid in law to hold such houses or lands against anv other person or per-' sons, but the grantor or grantors am -defendant and their ■ heirs only,, unless the deed or, conveyance thereof be [*261] duly;acknowledged and recorded,'in.“manner as is before expressed, or unless minutes be made of such mortgages in the town records, which minutes shall respec-: tively contain the description .and boundaries of the land mortgaged, the names of the. mortgagors and mortgagees,., the dates of the mortgages, the mortgage money, the times when payable, and when registered, -or; unless an attested copy of such attachments, and the officer’s-return thereof, be filed in the said town clerk’s office.” - .

, It was further proved, that conveyances for landslip Vermont, are good against the grantors, without being recorded; . but, the plaintiff did not show any conveyance of the lands in question tó himself, and' there were no mesne conveyances, from theloriginal grantees or proprietors on record. Phelps also testified, that he had sold the lands conveyed to him as above mentioned, and that he had:since discovered, from the' persons to whom he had sold the lands, that the title of. the plaintiff, to a considerable part' of said' lands was - defective,

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and that he (Phelps) had been called on to make good such defective titles.

Upon this evidence, the defendant moved for a nonsuit, and the judge being of opinion, that the plaintiff was not entitled to recover, directed a nonsuit accordingly.

Pendleton, for the plaintiff,

at a former term, moved to set aside the nonsuit, and for a new trial on the ground, that if the plaintiff’s title to the lands in question was not good, still the defendant had broken his covenant in delivering the deed to Phelps, which he had agreed-, in that case, to return to the plaintiff; that, by the delivery of the deed to Phelps, the plaintiff was divested, of whatever title he previously had, and ought, therefore, to- recover the consideration money for which the lands were sold, and he would remain liable for any defect of title on the covenants and warranty contained in the deed to Phelps.

He also argued that the conduct of the defendant was improper, in permitting the sale of the lands for-taxes, *and that he thereby treated them as his own, and [*262] ought tobe liable for their value.

Evertson, for the defendant,

contended, that by the spirit of the contract between the parties, the defendant was liable to pay the consideration money only, iñ case the plaintiff’s title on examination, should appear to be valid, and from the evidence, it clearly appeared not to be valid; that the delivery of the deed to Phelps, although not strictly correct, was not a material fact, and could no way prejudice the plaintiff who had no title ; that for this cause, the plaintiff could, at the most, be entitled to receive nominal damages only, and the court would not, for that reason, set aside the nonsuit, and send back the cause for a new trial; neither could the sale of the lands for taxes, which was permitted by the defendant, in order to obtain a title, give any right to the plaintiff to recover at law, which he would not otherwise have by virtue of this contract.

The deed or instrument on which this action is brought, is obscurely and inartificially expressed ; but the intent of the parties, and the scope of their contract,

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I consider to have been, that the defendant should pay for the lands in case the plaintiff appeared to have a good title, and not otherwise. The defendant, or Phelps, who was his „ principal, and whom he must be deemed to represent, did not choose to rely on the covenants or warranty contained in the plaintiff’s deed, and for that reason, stipulated to pay the consideration money only in case the title should be clearly ascertained to be valid. By the laws of Vermont, it appears that no title can be valid or secure, unless the deeds which are the evidence of such title, be regularly recorded in the town where the lands lie. Aware of this, the parties regulated their contract accordingly, and referred to the records of the several towns,: and to certificates to be there obtained, as the evidence by which its validity should be ascertained.. When so ascertained, the defendant agreed to pay the plaintiff for the land.

[*263] Tt appeared in evidence, that there were no mesne , conveyances from the original proprietors of the lands in question on record, and of course, there did not exist that evidence of title which the parties contemplated, and the laws of Vermont required. There is proof that the defendant told Phelps that he had examined, and believed the title to be good, except as to about 4000 acres ; but this information was not true in fact, and being founded in mistake, I think that it ought not to conclude him. It is also true, that the defendant- delivered the deed to Phelps, which, by the agreement with the plaintiff he was bound to return to him. This act was unauthorized, and strictly in violation of his contract with the plaintiff, but I do not think that it ought to subject him to the rigorous consequence of paying the whole value of the lands. The plaintiff still can be no further damnified than it appears he had title to those lands : to that extent he ought to recover and no more. As between the plaintiff and the defendant the possession of the deed by the former could be of no use if he had no title, and if he had a title, it could be of no other use than to enable him to retain it until his money was paid. The delivery to Phelps might deprive him of that security, and also render him li

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able, in case of a defect of title, on the covenants and warranty contained in it. But in whatever manner he may be affected in the event by these covenants and the warranty, he has not shown that he has in fact sustained any damages, and it would be too uncertain to allow him to prevail in this action, on the expectation merely of a future recovery by Phelps. No rule of actual damages can be given, in the present situation of things, nor Until recovery be had; and I therefore think, that the claim of the -plaintiff and the responsibility of the defendant must still, under the existing circumstances, be substantially founded on the sufficiency of the plaintiff’s • title. No actual damages being shown, the plaintiff could be entitled to recover a nominal sum . oilly, and although this may be. strictly his *right, I - [*264] do not think that we ought to direct a new trial for the sake of nominal damages merely.

On the trial, the plaintiff offered to prove that the defendant declared that he had caused the lands to be sold for taxes, and bought them himself to secure the title, but not to defeat the plaintiff’s right, which evidence was overruled. It has been insisted that this- evidence ought to have been admitted, and that the plaintiff was entitled to recover the value of the lands so purchased, after deducting the moneys paid by the defendant. Allowing the purchase to have been made in affirmance of the'plaintiff’s title, the defendant may be considered as his trustee, but I think he can have no remedy against him at law, on the foundation of this contract. The purchase must be considered as a separate transaction, and dehors the contract. The contract was for a perfect and existing, not an imperfect or future title. A title subsequently acquired, cannot be within it, and, therefore, cannot be a basis for the present action, and if the plaintiff be entitled to a remedy on this ground, he must seek it in another mode.'

I am, therefore, of opinion, that this evidence was properly refused, and that we ought not to award a new trial, for the purpose of nominal damages merely.

Kent, J. and Benson, J. were of the same opinion.'

A motion has been made to set aside the nonsuit granted in this cause.

To determine on it, the terms of the contract, and the transactions in consequence of it, must be particularly considered.

The contract states in substance,

1. That the defendant had received a deed executed by the plaintiff and his wife to Oliver Phelps, for 26,814 acres of land in the state of Vermont.

2. The defendant agreed that he would have it recorded, and return it to the plaintiff with the proper certificates, necessary to show that the title to the land was legally [*365] vested in the plaintiff, and that it was clear of Encumbrances, if on examination it should be found to be so.

3. That when such title was fully and satisfactorily ascertained, the said lands, or so much of them as the plaintiff should appear to have a good title to, should be paid for at the rate of three shillings per acre, by discharging certain demands which existed against the plaintiff, including 1513Z. 3s. 9d. which the plaintiff had' already received and acknowledged, on a contract for the same lands.

4. That the defendant was to be allowed five per cent, for transacting the business,

This contract obviously formed only a part of the engagements subsisting between the parties named in it. The other part is not brought into view, but sufficient appears to enable us to infer, that the' plaintiff and Phelps were the principals in it, and that the defendant was merely introduced as agent for one or both of the parties; and this receives some corroboration, from the circumstance of his being entitled to receive a commission for the service in which he was to be employed'. ■

The deed was executed by the plaintiff to Phelps, and I think this affords strong ground to infer, that he was the person who made the. payment of part of the consideration money, though the vague and indefinite terms in which the payment is mentioned, does not positively ascertain it.

It is however certain, that the plaintiff conveyed the land

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in question to Phelps, and that he received a sum of money on account; and I can discover no circumstances in the case which will establish the fact,- or even the presumption- that the defendant made this advance. If no such fact exists, the defendant was merely entrusted with the deed to have it recorded, and to ascertain whether the title was clear and exempt from incumbrances. These objects being attained, he was to return it to the plaintiff] with certain certificates of public officers, evidencing those facts, and *then - [*266] the plaintiff was to receive at the rate of three shillings per acre, in the mode stipulated, for the land for which a good title appeared.

The défendant examined the records, had the deed recorded, and possessed himself of the certificate; he expressed some doubt as to the title to 4000 acres, but supposed the title of the residue to be good, and thereupon receivéd a deed from Phelps for the 4000 acres, and delivered the deed ex-cuted by the plaintiff, which he had expressly stipulated to return to him, to Phelps, to whom he had previously sold the land described in it, at the rate of 3s. 4d. per acre. He gave Phelps a bond conditioned to save him harmless, in case the title to the Whole or any part of the land should fail, and the plaintiff be unable to respond for the damages; and from the evidence offered and overruled at the trial, which it is proper to consider as forming part of the plaintiff’s case, the defendant confessed that he had caused part of the land to be sold for taxes, and became the purchaser himself

From this state of things it appears to me totally irrelevant to the issue between the parties, to inquire whether the title to the land was valid, or otherwise : this wás to have been settled between the plaintiff and Phelps. It is sufficient to entitle the plaintiff to recover, to show that the contract entered into between him and the defendant was not complied with.

It appears to me to have been grossly violated, and that the subsequent transaction between the defendant and Phelps was mala fide.

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The defendant had agreed to return .the deed to the plaintiff: instead of this, he delivered it to Phelps. ■ • "

If was stipulated that the plaintiff should receive ■ three shillings per acre. Instead of this-‘the defendant makes a new sale to Phelps, at 3s. id. receives a title for 4000 acres to himself, and, for aught that appears, pockets not only the additional id. per acre, but the balance of the -consideration money, which was to be paid to the plaintiff. • [*267] *The transaction appears mysterious; but as far as the inducements of the parties can be traced, it' may in-some measure-be accounted for. Phelps, probably diffident of'the responsibility of the plaintiff, was induceii to give an additional sum for the "defendant’s indemnification and the acceptance of the deed for the 4000 acres, and the receipt of the 4cü. per acre, explains the. motive by which the defendant was actuated. •

If the defendant afterwards purchased the lairds- in question for the taxes, it must have been , in affirmance of the plaintiff’s title ; or if not so intended, his procuring them to be sold under that pretence, was. fraudulent, and ought not to avail him. Besides, if the defendant acquired a good title by the sale for taxes, it must, from the situation in which he had placed himself with Phelps, operate in affirmance of the title, of Phelps ; for the defendant had engaged to indemnify him, and it could answer none of his- purposes to assert his title in consequence of his purchases, if he was subject -to respond in damages on his contract. The. defendant appears in this court in an unfavorable view. He undertakes to investigate the title for a reward; he asserts contrary to his better judgment, if the evidence is to be relied on, in its extent, that the title is good for 19,000 acres ; avails himself of the knowledge he has acquired, át the expense of his confiding employers,- to take the money from the one," and the" land from the other, if it be true that his last purchase was ñót for the benefit of Phelps.

.It was insisted that the plaintiff, to sustain this " action, ought to show that his title to the lands was good; but it appears to me, that even- as between the parties in this suit;

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supposing the defendant to be a principal, the manner in which the business was conducted would conclude the defendant.-

After detailing the particular mode in which the defendant was to conduct his researches, and to procure the certificates necessary to show that the title of the lands was in the jilaintiff, and that they were free from incum brances, *the contract proceeds, and “ when such [*268] titles are fully and satisfactorily ascertainedthen the amount of the said lands, or so much of them as it shall appear the plaintiff has title to, shall be paid for. If after the word ascertained, the words in manner aforesaid had been added, it would have removed every doubt of the construction ; and yet the words are so placed in relation to those preceding, as strongly to convey the same sense, and to confine it to the manner of ascertaining it, before detailed, as if it were precisely limited by an express specification.

The title was to be fully and satisfactprily ascertained by the defendant, and when he was satisfied, he was to return the deed, with' the certificates, to the plaintiff, upon which the defendant was to receive the consideration money. A different construction, that the proof of title was to be satisfactorily made in a court of justice, would suppose the singular case, of a deliberate contract for a litigation.

It was, however, said, that even admitting the plaintiff’s general right to recover, the contract furnished no measure of damages. That the consideration money was to be paid in the discharge of debts due from the plaintiff can offer no insurmountable difficulty ; for as to him, they were worth their nominal value, as it extinguished so much of his debts. The loss the plaintiff has sustained is susceptible of being reduced to certainty by calculation, for it appears to me, his damages ought to be measured by the amount of the sum for which the plaintiff sold the land, with interest, deducting the 15131. 3s. 9d. already paid.

The objection that there is a variance between the contract set forth in the declaration, and the one produced in evidence, I think cannot be supported. The description in the decía

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ration of the evidences of the debts to be received in payment for the land, are such as the contract w'arrants. The contract mentions that the land is to be paid for “ in Bran-[*■269] tingham’s notes, bonds, or other ^demands against him,” and then proceeds, “including the 1513 Z. 3s. 9d. which the said Brantingham has already, received, (fee. a judgment in favor of Comfort Sands,”’and then enumerates the other sécurities to be received"; then follows. the clause which is supposed to support the objection as to, the variance, “ and other demands which are now due, sufficient to pay the amount of the said, lands,” <fcc. The declaration states the sum of 15I3Z.- 3s. 9c?. as to be included in the payment; and adds, “ and that the said Joseph Fay would-pay a judgment obtained against the said Thomas H. Brantingham, at the suit of one ,Comfort Sands,” and describes the othersecurities correspondent with the description in the contract ¡ after which we find the words, “ and other demands against the said Thomas H. Brantingham, and then due from him; sufficient to pay the amount of the said land.” ■ ■ .

It is barely1 necessary to state" the connection • of the dif- ■ ferent expressions, to show that the supposed variation is merely in the terms, employed ; that the description of the contract in the declaration is substantially .and strictly, true, and that the construction" that a double payment was imposed on the defendant by the terms contained in-the declaration, is totally unfounded.

I am, therefore, of opinion, that the nonsuit ought to be set-aside. ..■•■'■

Lewis, J. declared himself to be of the same opinion.

Rule refused.^[1]

(a) (a) It is a general rule, that where the cause of action is trifling, and the plaintiff can recover no inore than nominal damages, a new trial will be refused. Ex parte Bailey, 2 Cowen, 479, 483, and references in note (a). Thus, in an action of assault and battery, where the injury was trifling, and the jury founds a verdict for the defendant, a new trial was refused,' notwithstanding the misdirection of the judge. Hyatt v. Wood, 3 Johns. R. 239; but see infra. And in an action of libel, where the jury find -a verdict for the defendant', the court will not grant a new trial, although the verdict be against the weight of evidence, where the proof is such as would have warranted a ver *321 diet for the plaintiff for nominal damages only. Rundell v. Butler, 10 Wend. 119 . See Feeter v. Whipple, sheriff, &c. 8 Johns. R. 369. So, where in an action of .trespass, quar.e clausum fregit, the plaintiff recovered $5 damages ; the court, though the verdict was against law, refused to grant a new trial, as the title did not come in question, and the defendant would be entitled to full costs against the plaintiff. Hunt v. Burrel et al. 5 id. 137 . And in an action of debt, where the jury found for the plaintiff, nominal damages only, the court refused to grant a new trial, merely to give the defendant an opportunity to get rid of the suit, as he would be entitled to costs as the verdict stood. Van Slyck v. Hogeboom, 6 id. 270. And where a jury gave a sum in damages too small to carry full costs, but expressed in their verdict that the plaintiff should have full costs, a motion for a new trial for the smallness of the damages, in order that at a future trial, sufficient damages might be obtained to carry costs, was refused. Lincoln v. Hapgood, 11 Mass. R. 350 . In England, where the sum to be recovered is under 20Z., the action is considered as trifling, so as to deter the court from granting a new trial after verdict for the plaintiff; 4 Chit. Gen. Pr., 73 ; but, where the damages amount to the exact sum of 20Z., a new trial will be granted. Dyball v. Duffield, 1 Chit. 266, a. After a verdict for less than this amount, though such verdict be against evidence, the court will not grant a new trial, as it would only be granted on the payment of costs. As when a tender of 12Z. 10s. was pleaded and found for the defendant, with a verdict for 19Z. 10s. for the plaintiff on non assumpsit, pleaded to the rest of the demand, the court refused to hear a motion for a new trial as against evidence. Bryan v. Phillips, 3 Tyrwh. 181. S. C., 1 Cr. & M. Bevan v. Jones, 2 Y. & Jer. 264. So, where the verdict was clearly wrong; Armstrong v. Free, 2 Hodg. 197; but, if the jury find a perverse verdict contrary to the direction of the judge, a new trial will be granted. Freeman v. Price, 1 Y. & J. 402. Sed vide, Armstrong v. Free, ut supra. The general rule is equally applicable to cases where the Verdict is for the defendant, as where it is for the plaintiff. See Green v. Speakman, 8 Moore, 339. Scott v. Watkinson, 4 M. & P. 237. Young v. Harris, 2 C. & J. 14; S. C. 1 Price, P. C. 136; 2 Tyrwh. 167, Haine v. Davey, 6 Nev. & Man. 356; S.C. 2 Harr. & W. 30. Woods v. Pope, 1 Bing. N. C. 467; 4 Chit. Gen. Prac. 73. But it is not correct to say that a new trial will never be granted, where the jury find only nominal damages. Shenk v. Munday, 2 Dali. 118; S. C., 1 Yeates, 155 . If the action involves the trial of a permanent right, the general rule does not apply as in trespass for cutting trees on a boundary fence, though the damages were under 20Z. Turner v. Lewis, I Chit. 265. And see Swinnerton v. Stafford, 3 Taunt. 91. But a misdirection of the judge or the receipt or rejection of improper evidence renders the case a proper one for a new trial, notwithstanding the smallness of the damages, for, in this case the application can be granted without costs. Bryan v. Phillips, ut supra. There is also a difference in the application of the ruler whether applied to a motion for a new trial or a writ of error. “ It is said by Ashhurst, J. in Edmonson v. Machell, (2 T. R. 4,) that * an application for a new trial, is an application to the discretion of the court, who exercise that discretion in such a manner as will best answer the ends of justice.’ But *322 where a record is brought into- this court for revision, and error is found in-it, is it a matter of discretion.in us, whether wé will correct that error or not? I have always supposed that the party who has been affected by an-error; be the extent of that injury ever so small, can require of us, ex deVito justitice to correct it.” Per Marcy, J. in Herrick v. Stover, 5 Wend. 581 , 587. Iri Wilson v. Rastall, 4 T. R. 753, Lord Kenyon said, “ There is not a single instance where anew trial has been refused in a case where the verdict has proceeded on the mistake of the judge; Where,"indeed, the jury have formed an opinion upon the whole case, no new trial in a penal action has been granted,’ though the jury have drawn a wrong conclusion : So, too, in ordinary, where the damages áre small, and the question too inconsiderable to be re-tried# the court have frequently refused to send the case back to another jury. But wherever a mistake of the judge has crept in, and swayed the opinion of the jury, I do not recollect a single case in which the court have ever refused to grant a new trial.” The principle stated by Marcy, J., appears “ to be applicable, where the motion is founded on a bill of exceptions taken at the circuit; for, although ■ by the practice, it is brought to argument b.er fore this court, in the same manner as a case made, yet the judgment of this court upon.it may be reviewed on error, in which case , the appellate court would, of course, for the reasons above suggested,-disregard the nature or extent of the plaintiff’s demand. Where, however, it comes up on a case"# as no writ of error can be brought, and the application is addressed- entirely to the discretion of the court, they will, of course grant or refuse, a new trial, as the justice of the cáse may seem to require.” 2 Gra. Prac. 2d. ed» 634; Sée Graham on New Trials, 448, 461. .