#### MILTON BROWN *vs.*GIDEON F. MORRIS.

Dec. 1839

The Supeiior Courts may grant anew trial, on 'the ground of excessive damages, but that is a matter exclusively within their jurisdiction, and cannot be revised on an appeal. '

A refusal of the'Judge to give a more specific instruction ashed by a party, and to which he is entitled, may constitute error, but a *mere*omission to do so, when not asked, does not.

■The cases of *Hairston*vs. *Yvunp,*3 Dev. Rep. *55*— Simpson vs. *Blount,*Ibid 34, and *Torrence vs. Graham,*1 Dev. &Bat. Rep. 284, approved.

This was an action of Assumpsit, in which the plaintiff declared that in consideration of the sum of one hundred dollars, paid by hitn to the defendant, the latter undertook and promised to put him in possession of a certain plantation with the improvements, then occupied by one Dobbs, a Cherokee Indian, who was about to emigrate to the west, and to procure for him a certificate from Benjamin F. Curry, the United States’agent for superintending the emigration of the Cherokee Indians; and alleged as a breach that the defendant had failed to procure this certificate. *Plea*— the *general issue.*

Upon the trial at Macon, on the last circuit, before his honor Judge Pearson, after the plaintiff bad proved the cotitractj the defendant proved that when Dobbs left the country, he, the defendant, purchased from him his improvement or “ good will,” as it was called; that, some few weeks afterwards he applied to the Indian Agent for a certificate; but the agent declined giving it to him, observing that “ he. had in a manner quit giving certificates; and that as the Indian was gone, it was unnecessary;” that he notified the plaintiff of this fact, and offered to put him into possession; but the plaintiff declined taking possession without a certificate, saying that if he was disposed to run the risk, he might take possession of any other Indian improvement without paying for it; but that he would not do so; and as the certificate could not be procured, he insisted on having his money back. The defendant proved also that Dobbs’s improvement had continued vacant and unoccupied until the State of North Carolina took possession of the country. The plaintiff then introduced evidence to shew the nature and advan-*430of the certificates which the Tedian Agent, both before m:i^ a^ter transaction, was in the habit of giving; though it did not appear that there was any act of Congress}or regu-iation jn ai1y 0f the departments of the government of the United States in relation to them.

His Honor charged thejury “ that if the evidence satisfied them that the defendant had undertaken to procure the certificate, and had failed to do so, the plaintiff was entitled to a verdict; that the amount of damages was a question for them; that the law implied that some damage was sustained by the breach of any contract; but unless the evidence satisfied them that the plaintiff had sustained real damage, it was their duty to find merely nominal damages; that the burthen of proof lay upon the plaintiff, and it was for him to show the amount of damage to the,satisfaction of the jury; otherwise they should, in such cases, find but a penny.” The jury found a verdict for the plaintiff, and assessed his damages to fifty dollars. The defendant thereupon moved for a new trial, because the jury had found damages to the amount of $50, when the evidence only justified.a verdict for nominal damages. This motion was overruled; and the defendant then submitted another motion for a new trial, because the. Court had not instructed the jury that there was no evidence to justify a verdict for more than nominal damages. This motion being also overruled and judgment pronounced, the defendant appealed.

No counsel appeared for the defendant in this Court.

*Clingman*for the plaintiff.

Gaston, Judge.

On examination of the record in this case, we perceive no ground for reversing the judgment rendered below.

It is not in our power to revise *the*verdict of the jury on the question of damages. The Superior Court may grant a new trial on the ground of excessive damages, but that is a matter exclusively within their jurisdiction. *Young*v. *Hairston,*3 Dev. 55

If we were to concede to the defendant, that upon the evidence the plaintiff had a right to nominal damages only, there is no error in the charge of the Judge; for certainly as *431far as it goes it is as favorable as the defendant could have asked. If he had required a more specific instruction to which in law he was entitled, and the court had declined to give it, he might then have assigned the refusal as error.— A refusal may constitute error, but *mere*omission does not. *Simpson v. Blount, 3 Dev.*34. *Torrence*v. *Graham, 1*Dev. & Bat. 284. The judgment is affirmed with costs.

Per Curiam. Judgment affirmed.