The conclusion reached is not only consis- | dict in his favor and before judgment, moves tent with, but is supported by, previous ju- that said verdict be set aside and a new trial dicial constructions of the statute. See Mar- granted, for the following reasons: tin v. Portland, 81 Me. 293, 297, 17 Atl. 72; New Limerick v. Watson, 98 Me. 379, 383, 57 Atl. 79; Creamer v. Bremen, 91 Me. 508, 513, 40 Atl. 555; Ellsworth v. Brown, 53 Me. 519, 521, 523.

In accordance with the agreement of the parties there must be:

Judgment for defendant.

(105 Me. 50)

LEAVITT v. DOW.

(Supreme Judicial Court of Maine. Dec. 30, 1908.)

1. NEW TRIAL (§ 75*)-GROUNDS-INADEQUACY OF DAMAGES.

By the general common-law rule new trials were not granted upon the ground of inadequate damages in actions of trespass, but this rule has been relaxed, and it is now held in England and the United States that no reason can be given for setting aside verdicts because of excessive damages which does not apply to cases of inadequate damages.

[Ed. Note. For other cases, see New Trial, Cent. Dig. 8 151, 152; Dec. Dig. § 75.*]

"(1) Because it is against law and the charge of the justice.

"(2) Because it is against evidence. "(3) Because it is manifestly against the weight of evidence in the case.

"(4) Because the damages assessed at one cent are manifestly and grossly inadequate.” Argued before EMERY, C. J., and WHITE HOUSE, PEABODY, CORNISH, and KING, JJ.

William Lyons, for plaintiff. Frank P. Pride, for defendant.

PEABODY, J. This was a civil action of trespass to the person to recover damages for assault and battery.

The verdict was for the plaintiff for a nominal sum of one cent damages.

The case comes before the law court on

the plaintiff's motion for a new trial on the ground that the damages assessed by the jury are manifestly and grossly inadequate. There were two meetings of the parties 2. NEW TRIAL (§ 75*)-GrOUNDS-INADEQUA- on the day of the alleged trespass. A techCY OF DAMAGES. It is the duty of the court in case of in-nical assault and battery seems to be admitadequate damages for a plaintiff to set aside ted by the defendant's attorney, although de the verdict when the jury in rendering the ver- nied by the defendant in his own testimony, dict either disregarded the testimony or acted from passion or prejudice, or when the smallness who also justifies his acts on the ground of the verdict shows that the jury made such a that they were done in self-defense, and compromise as was equivalent to a verdict for claims that there was no actual injury inthe defendant. flicted on the plaintiff by him.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 151, 152; Dec. Dig. § 75.*] 3. Assault and Battery (§ 40*)-DAMAGES

INADEQUACY.

Where the plaintiff brought an action to recover damages for assault and battery, and the verdict was for the plaintiff with damages assessed at one cent, held, that there was an evident failure of justice to the plaintiff, and that the damages awarded him where clearly inadequate.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. § 40.*] (Official.)

On Motion from Supreme Judicial Court, Cumberland County.

It is shown by the testimony of the plain1906, he was sitting on a box in front of the tiff and his witnesses that on August 16, window in his dry goods store on Main street, in the city of Westbrook, Me., talking with another man, when the defendant came along the street, stopped, and, making an insulting remark, took off the plaintiff's cap, caught hold of his vest, tearing off a button, and gave him two or three slaps on the head; that in a minute or two he went away, but soon came back, got hold of the plaintiff by the coat, and started shaking him saying, "Now, you Jew, you can say to my face what you said behind my back," and struck him in the face, and pulled him

Action by Hyman Leavitt against Joseph L. Dow. There was a verdict for plaintiff, which he moves to set aside. Motion sus-off the box on which he had remained sittained, and new trial granted.

ting; that the plaintiff then got hold of the Action of trespass to recover damages for defendant around his body, and pushed him an alleged assault and battery made by the over in front of Lemontagne's store, which defendant upon the plaintiff, brought in the was next to his own, during which time he superior court, Cumberland county. Plea, was struck by the defendant and received a the general issue, with brief statement al- black eye; and that the assailants were leging that "the injury, if any, to the plain- separated by those present. The plaintiff imtiff, was inflicted by the defendant in self-mediately afterward felt a bad pain, was dizdefense from the assault of the plaintiff." | zy, and dropped on the floor in his store. He The jury returned a verdict for the plaintiff, first noticed Dr. Horr sitting by him, who assessing the damages in the sum of one gave him some medicine. That evening he cent. The plaintiff then filed the following felt the same pain coming over him, and was motion: attended by Dr. Woodman, who administer

"And now said Hyman Leavitt, after ver-ed morphine. These pains returned, and Dr.

It is the duty of the court in case of both excessive and inadequate damages to set aside the verdicts if the jury in rendering them either disregarded the testimony or act

Woodman was again called. Later he was | 242, 47 L. R. A. 33; Welsh v. McAllister. suffering, and, as Dr. Woodman could not 13 Mo. App. 89. come, Dr. Hall was called to attend him, and he was taken to the hospital, where he remained one night. He still occasionally, before the coming of bad weather, feels the same pain. Previous to the alleged assaulted from passion or prejudice. McDonald v. he had learned from his physician that he had a weak heart. He has paid $30 for expenses incurred in consequence of the trouble with the defendant.

These facts are not controverted except by the defendant's denial of an assault in the first instance; but in this he is opposed by several witnesses who were present called by the plaintiff and also by one called by himself, who was at the time on the opposite side of the street, and testified: "I saw him [the defendant] just as any fellow would go along and tap him [the plaintiff] on the head and brush his cap off on the sidewalk."

As to the part taken by the plaintiff in the second instance the evidence is somewhat conflicting, but the testimony of the defendant and his witnesses tends to prove that the violence used was largely due to the desperate resistance of the plaintiff in his efforts to push away his assailant, using unnecessary force and such unjustifiable means as biting him in the breast and holding him in his grasp until the parties were separated by the bystanders.

The jury were perhaps warranted in finding that the injuries to the person of the plaintiff not directly due to his own defensive acts were trivial, but it is clearly shown by the whole evidence that two separate unprovoked assaults accompanied by grossly insulting language were publicly made by the defendant upon the plaintiff.

Walter, 40 N. Y. 551; Richards v. Sanford, 2 E. D. Smith (N. Y.) 349; Paul v. Leyenberger, 17 Ill. App. 167; Cayford v. Wilbur, 86 Me. 415, 29 Atl. 1117.

When the smallness of a verdict shows that the jury may have made a compromise, a new trial will be granted. 47 L. R. A. 41, supra, and cases cited; Whitney v. Milwaukee, 65 Wis. 409, 27 N. W. 39.

There is an evident failure of justice to the plaintiff. The damages awarded him are clearly inadequate. We are convinced that the jury were influenced by prejudice or that their verdict was a compromise, which is essentially equivalent to a verdict for the defendant.

Motion sustained.
New trial granted.

(105 Me. 23)

KALLOCH v. NEWBERT. (Supreme Judicial Court of Maine. Dec. 22, 1908.)

1. SHERIFFS AND CONSTABLES (§ 98*)-LIABILITY-PROCESS FAIR ON ITS FACE.

It is a well-established rule of law that an officer in the service of a writ or warrant is protected in the performance of his duty, if there the face of the writ or warrant under which he is no defect or want of jurisdiction apparent on acts.

[Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. § 143; Dec. Dig. § 98.*] 2. SHERIFFS AND CONSTABLES (§ 98*)-LIABILITY-PROCESS FAIR ON ITS FACE.

Under the circumstances of the case, we An officer is not bound to look beyond his think there must be in addition to some actuprocess. He is not to exercise his judgment al injuries to the person of the plaintiff ma- touching the validity of the process in point of terial damages for injury to his feelings law; but, if it is in due form, and is issued by from the humiliation to which he was pub-diction of the case, he is to obey its commands. a court or magistrate apparently having jurislicly subjected by the defendant.

The

[Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. § 143; Dec. Dig. § 98.*] 3. COMMERCE (§ 60*)—INTERSTATE INTOXICAT

ING LIQUORS-SEIZURE.

There is nothing in the interstate commerce from seizure, and the court is not aware of any law that renders intoxicating liquors immune decision that so holds. But after seizure of such liquors and upon libel and hearing, if it is shown that they were articles of interstate commerce, then the carrier is entitled to a return of such liquors.

The law gives a plaintiff in case of personal trespass, compensation for both physical and mental suffering, directly resulting from the wrongful acts of the defendant. anger and excitement of the plaintiff upon the second assault indicates that he was keenly conscious of the indignity he had received. By the general common-law rule new trials were not granted upon the ground of inadequate damages in actions of trespass and perhaps in all actions of tort (Hackett v. Pratt, 52 Ill. App. 346); but this rule has been relaxed, and it is now held both in England and in courts of the United States that no reason can be given for setting aside verdicts because of excessive damages which does not apply to setting them aside for inadequacy of damages. Phillips v. Southwest-quired to adjudicate whether the liquors deern R. Company (1879) L. R. 4 Q. B. Div. 406; Benton v. Collins, 125 N. C. 83, 34 S. E.

[Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 91-95; Dec. Dig. § 60.*] 4. INTOXICATING LIQUORS (§ 249*)-SEIZURE.

Whether intoxicating liquors are commodities within the protection of the interstate commerce law is a judicial question to be settled by the court, and not one to be determined by the officer as a condition precedent to the exThe officer is not reecution of his warrant.

scribed in his warrant are seizable or not.
[Ed. Note. For other cases, see Intoxicating
Liquors, Cent. Dig. § 383; Dec. Dig. § 249.*]

5. INTOXICATING LIQUORS (§ 249*)-SEIZURE- | can of gin; 25 cases of whisky; one keg conOFFICERS AUTHORIZED TO SEIZE. taining twenty gallons of gin; one keg containing twenty gallons of wine; one keg containing ten gallons of wine; one keg containing five gallons of brandy; and seven hundred and twenty pint bottles of whisky then and there being found, and being of great value, to wit, of the value of five hundred dollars, and then and there converted the same to the use of the said defendant, against the peace of the state.

"In a plea of trespass, for that the said A. H. Newbert at Rockland aforesaid on the thirtieth day of July, A. D. 1906, with force and arms broke and entered the plaintiff's schooner and vessel called the 'Hastings,' of which said schooner and vessel the plaintiff was then the captain and commander, said schooner and vessel being then and there engaged in lawful interstate commerce, and then and there had on board said vessel a valuable cargo of freight and merchandise for transportation, and said defendant, after breaking and entering as aforesaid, then and there took and carried away the goods and chattels of the plaintiff, viz., two barrels each containing twenty-six gallons of whisky; one ten-gallon keg of rum; one ten-gallon For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

the state of Maine, duly appointed and tified his acts in making the search and qualified; that whatever he did in the prem-seizure as a duly qualified officer acting unises he did by virtue and in accordance with the commands of a warrant duly signed and issued by the judge of the police court of the city of Rockland under the seal of said court and to him directed as one of said deputy enforcement commissioners, and of the libel filed therein to forfeit said liquors, the said judge and said court having jurisdiction in the premises, which said warrant was by him duly served and returned, and on which proper legal proceedings were therefore had; and that he did no more in the premises than was necessary in the performance of his duty under said warrant and libel.

der a legal warrant issued from a court of competent jurisdiction. The justice presiding ruled that, if properly executed, such a warrant was a legal justification. The plaintiff objected to this ruling, and denied that the warrant if fair upon its face and legally sound afforded justification for three reasons: First. Because the vessel was engaged in interstate commerce. Second. By the provisions of Pub. Laws 1905, p. 94, c. 92, § 2, the defendant had no power to act in the enforcement of the prohibitory law with respect to the keeping of intoxicating liquors. Third. To afford a complete justi

"That said liquors have since been return-fication under the warrant, it was the duty ed to and accepted by said Kalloch, and he, said Kalloch, has not suffered any legal loss of damage on account thereof, and this the defendant is ready to verify."

Tried at the January term, 1908, Supreme Judicial Court, Knox county. Verdict for defendant. The plaintiff excepted to certain rulings made by the presiding justice during

the trial.

The case is stated in the opinion.
Argued before EMERY, C. J., and WHITE-
HOUSE, PEABODY, SPEAR, CORNISH,
and BIRD, JJ.

David N. Mortland and Rodney I. Thompson, for plaintiff. Arthur S. Littlefield, for defendant.

of the defendant to seize all the liquors he found on board the vessel. Nothing appeared upon the face of the warrant in any way indicating that the liquors described therein were commodities of interstate commerce.

Upon the facts here presented the plaintiff's first ground of complaint is without merit. There is nothing in the interstate commerce law that renders intoxicating liquors immune from seizure, and we are aware of no decision that so holds. But after seizure and upon libel and hearing, if it is shown that they were articles of interstate commerce, then the carrier is entitled to a return of the goods. Whether liquors are commodities within the protection of the interstate commerce law is a judicial question to be settled by the court, and not one to be determined by the officer, as a condition precedent to the execution of his warrant. We think this is precisely the rule laid down in B. & M. Railroad v. Small, 85 Me. 462, 27 Atl. 349, 35 Am. St. Rep. 379. The court say: "It is urged that it may at times work a great hardship upon an innocent owner if an officer must in every case seize whatever intoxicating liquors he finds under a search warrant, however evident it is they are not intended for unlawful sale. The policy of the law is that every owner or keeper of intoxicating liquors shall be prepared to defend them, before the courts and not before the officer against the accusation, that they are intended for unlawful sale." In other words, the officer is not required to adjudicate whether the liquors described in his warrant are seizable or not.

SPEAR, J. This is an action of trespass, and comes up on exceptions. The plaintiff was the master of a vessel which was engaged in interstate commerce and lying at a wharf in the city of Rockland. The defendant was a deputy enforcement commissioner duly appointed and qualified under chapter 92, p. 94, Pub. Laws 1905. By virtue of a complaint and warrant properly issued from the police court of the city of Rockland, which was placed in his hands for execution, the defendant was directed to search the plaintiff's vessel for intoxicating liquors, and seize them if found. No controversy is made that the warrant was an ordinary search and seizure warrant in due form and without apparent defect. The defendant served the warrant, and found and seized about 500 gallons of intoxicating liquor. The liquor was duly libeled, and upon hearing, being adjudged to be within the It is also a rule of law too well establishprotection of the interstate commerce clause ed to now require discussion that for reaof the Constitution, was ordered returned, sons founded on public policy, and in order and this order was properly executed. to secure a prompt and effective service of While making the search, the defendant | legal process, the law protects its officers in went into the cabin of the vessel with the the performance of their duties, if there is plaintiff, and found a small package of liq- no defect or want of jurisdiction apparent uor containing about two quarts which the on the face of the writ or warrant under plaintiff said "a friend of his sent by him which they act. The officer is not bound to to Boston to get." Upon this statement the look beyond his warrant. He is not to exdefendant did not take the package. The ercise his judgment touching the validity of case was submitted to the jury with a ver- the process in point of law; but if it is