THE COLUMBUS COMPANY v. HURFORD.

be allowed the item of seventy-five or eighty dollars paid to Gutschalk.

The complainant should be charged with the actual value of all property and money received by them from the defendants, in consideration of the pretended release and settlement.

The defendants must be charged with the value of onehalf the ferry and franchise, together with the profits and proceeds thereof. It only remains to be determined how this shall be apportioned among the defendants.

There is no evidence showing that Thomas J. Hurford purchased his interest with notice as to the complainant's claims. As to him the bill must be dismissed with costs. Hays did have notice when he bought, and as he purchased from the principal defendant, O. Perry Hurford, he would have a remedy over against him.

The bill prays, among other things, that the right of the parties may be declared by the court in the decree. It will cause further litigation to settle the relations of the defendants as between themselves in the decree, and it will therefore provide that the amount to be paid be first made out of O. Perry Hurford, and then in event of his being unable to answer for the whole judgment, execution for due proportion should go against Hays. In order to determine the amount for which Hays may be liable, we must know the date of his purchase, which does not appear in the master's report. And in order to render a final decree, the account between the complainant and defendants must be stated upon the basis of this decree.

A reference must therefore be had touching these matters, and also the rents, profits, proceeds, business and expenses of the concern.

Cause remanded.

SHOFF v. WELLS.

Shoff v. Wells.

1. NEW TRIAL: Assault and battery. In an action for assault and battery, a new trial will not be granted on account of the smallness of damages awarded by the verdict.

2

: Error. If it be granted and another trial take place, at which larger damages are awarded by the jury, all proceedings after the first verdict will be set aside, and judgment be ordered on that verdict.

This was a petition in error to bring up a judgment ren dered by the District Court for Otoe county, for review. It was an action for damage for an assault and battery, committed by the defendant upon the plaintiff. The cause was tried at the December term, 1868, before the court and a jury. The testimony showed that the plaintiff paid a physician fifteen dollars for medical attendance, rendered necessary by the injuries inflicted upon him, and tended to show that for ten days he was unable to work, and that four dollars per day was what he could have earned. The jury rendered a verdict for seventeen dollars and fifty cents. The plaintiff moved for a new trial on the ground that the damages awarded were inadequate. The court granted the motion. The pleadings were amended and reformed by the parties, and another trial was had at the March term, 1869, before the court and jury, which resulted in a verdict for the plaintiff for thirty-seven dollars and ten cents. The defendant moved to arrest the judgment, which the court refused to do, and entered judgment for the amount of the verdict and costs.

I. N. Shambaugh, for plaintiff in error.

C. W. Seymour, for defendant in error.

CROUNSE, J.

SHOFF v. Wells.

In article six of the Code relating to new trials it is provided:

"SEC. 315. A new trial shall not be granted, on account of the smallness of damages, in an action for an injury to the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained."

The reading and interpretation contended for by the counsel for the defendant in error, is that in an action for damages for an injury to the person or reputation, as well as in all other actions, the damages must equal the actual pecuniary injury sustained.

This claim is opposed not only to the letter but to the obvious spirit of the section.

In cases of assault and battery, libel and slander, so many matters in aggravation or justification are disclosed upon the trial, that it is left for the jury to determine, in view of all the circumstances, what should be given as damages. With their findings, courts rarely interfere. Scarcely a case can be found where a new trial has been granted, because of the smallness of the damages assessed. This section, we think, is but declaratory of the practice which has so long obtained.

The case must be remanded with directions to reinstate the first verdict, and to set aside all proceedings subsequent thereto.

Cause remanded with directions.

JONES v. EDWARDS.

Jones v. Edwards.

1. VERDICT: It is not usual for courts to disturb the verdict of a jury, because it is against the weight of evidence, when there is any evidence to support it.

2. FRAUD IN SALE: It is fraud in a vendor of a horse not to acquaint a vendee, when negotiating for the purchase, of facts affecting the value of the ani mal, which, if known to him, would prevent the vendee from buying.

This was a petition in error to review a judgment rendered, upon a verdict, by the District Court for Otoe county. The facts sufficiently appear in the opinion of the

court.

I. N. Shambaugh, for plaintiff in error.

Calhoun and Croxton, for defendant in error.

CROUNSE, J.

It is not usual for courts to disturb the verdict of a jury because it is against the weight of evidence, where there is any evidence to support it. We see no occasion to do so in this case.

The action was brought in the District Court by Jones against Edwards, to recover damages, because of fraud practiced in the sale of a horse. The defendant, with the cunning not unfrequently introdued into this class of transactions, seems to have provided against much evidence being brought against him. Still, enough appears to warrant the verdict.

In the November previous to the sale, Edwards traded for the horse. He was then afflicted with sweany, stiffness of the neck, and other ailments. Edwards cut some cords about the nose and neck, and turned the horse out in the yard, relieved from work. In March, Jones came along

JONES v. EDWARDS.

wishing to purchase a team suitable for farm purposes. His business being known to Edwards, the latter represented that he had just the team. He hitched up the pair, the doctored horse being one, and in driving Jones about was careful not to trot them. He assured Jones that they were "sound as far as he knew;" "he would not warrant them sound-he never warranted the soundness of a horse, because he could not always know whether a horse was sound or not." Not a word appears to have been said, to acquaint Jones of the former ailment and treatment of the horse. Relying on Edwards' representations, Jones took the team. Upon trotting and working him, this horse disclosed a difficulty in breathing, and after working some three weeks to plough ten acres, he ceased breathing entirely. The jury on the trial below said there was fraud, and I think they were quite right. Fair dealing would have called upon Edwards to acquaint Jones of those facts which were calculated to affect the value of the horse, a knowledge of which would very likely have determined him not to purchase.

The judgment, although somewhat informal, is good, and must stand.

Judgment affirmed.