The opinion
Per Curiam.
If this had been an action quare clausum •fregit, in which the right to the freehold came in the ques *241 iion, there might be some reason for granting a new trial. But for an assault by which the party has sustained little or no injury, there seems to be no suEcient ground for the court to interfere. It has frequently been decided in this court, that in cases where the damages are trifling, a new trial will not be granted after a verdict for the defendant, merely to give the plaintiff an opportunity to recover nominal damages, and when no end of justice is to be attained by it, though there may have been a misdirection of the judge. * The principle stated by the judge in this case was incorrect, but the action is of too little importance grant a new trial merely for that reason. The plaintiff may discontinue without paying costs, provided no other suit be brought for the same cause.
Rule refused. (a)
Goodrich v. Walker, January term, 1800. Brantingham v. Fay, April term, 1800. Malin v. Brown, January term, 1803.
See 2 Tidd, K. B. Prac. (2d ed. 812.) In Wilson v. Rastall, (4 Term, 753.) Lord Kenyon said, “ There is not a single instance where a new 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 are 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 grants new trial.”