a pure question of fact into which no legal considerations enter,—-and also "the situa tion of the parties, their methods of life and the conditions under which they lived "— all still pure questions of fact — and in con clusion to think that the jury on the same facts had what Artemus Ward termed " an excessive think." At the same November term the- same appellate court, according to similar report ing, heard an argument as to whether on an opposite swing of the jury pendulum a ver dict of six cents damages was inconsistent with the facts and ought to be set aside in favor of a new trial. In this latter case the surroundings of judicial discretion were peculiar. The nisi prius judge, when the jury orally gave such nominal verdict, im mediately told them he would not receive it for it belied the facts; for finding that the plaintiff( also a woman as in the first-mentioned case) had suffered damage there was evi dence of a damage measured by uncon tradicted testimony and unassailed; where fore he directed the jury to again retire and consider such evidence of measure. The facts showed an injury to the ankle of the plaintiff (who was a seamstress and operated the treadle of a sewing machine by the use of the ankle), and medical opinion determined that the injured limb lessened her capacity for work or earnings. So the jury having had this measure of damages emphatically and judicially brought to their discretionary consideration retired and on a second com ing into court found a verdict for one hun dred and fifty dollars. Thus by the action of the judge a verdict of nominal damage was set aside because inadequate. In the argument on appeal the appellate court gravely listened to a contention that the nisi prius judge had no right to retire the jury for a second consultation although it was admitted that no record had yet been made of the six-cent verdict. Now, here at one term, were presented two opposite horns of a dilemma involving
the maxim — so learnedly commented upon by Mr. Herbert Broom in his treatise which is as much enticing in style and treatment as it is exhaustive in learning — "Ad qucstiones facti non respondent judices: ad questionem legis non. respondentjuratores ." This negative instead of affirmative form of ex pressed prohibition is significantly strong, and admits not of exceptions. It is notable that neither during his own comments nor in his footnotes does this Q. C. make any mention of the possibility even of judges interfering with the decision of juries in dis cretionary consideration of facts. When Broom's text was first published no usurpa tion of the kind mentioned had been heard of, which explains his silence on the subject. This interference of the bench with the province of the jury is perhaps more fre quent in the State of New York and is really rampant in the appellate division sitting in the metropolis of that State. Naturally its provincial comrades follow its example; for that metropolitan appellate court contains accomplished jurisprudents. One of the most notable and apparently capricious in stances of this usurpation will be found in the recently reported case of Dinnihan v. the Lake Ontario Improvement Company reported in the 8th volume of " Hun's New York Reports," wherein tort damages were judicially reduced from four thousand dollars to twenty-five hundred; and few lawyers perusing the reported facts of the case but would agree with the finding of the jury. Many authorities collected under verbo "verdict," in the twenty-eighth volume of the Encyclopaedia, treat the discretionary exer cise of imposing new trials unless a plaintiff submits to a reduction of verdict, as an in vasion of jury trial, although the cited case of Corcoran v. Hatton, in 55 Wisconsin, ar gues favorably to such invasion in defiance of the maxim that an argument founded up on inconvenience makes dangerous law. Whenever a jury finds excessive damage in a case purely ex contractu there may be
