carriage has been thereby occasioned in the Trial of the Action.” 72

The Motion for a New Trial in America is generally no longer passed upon by the Court En Eanc, but by the Trial Judge. This change in the Common-Law Practice resulted from a decentralization of the Trial Courts, and the development of Review of Errors by separate Appellate Courts.

At Common Law a Verdict was indivisible, hence a New Trial involved a Retrial of All Issues, and this was true although the Mo- tivating Error was not applicable to All Is- sues, and the Same Parties were also involved in the New Trial. One of the earliest rec- ognitions of the Doctrine of Severability of Issues and Parties came in Massachusetts in 1831 in the case of Winn v. Columbian Insur- ance Co.,73 and since then has come to prevail in Other States.

Related to this problem is that of whether a Court may condition its refusal of a New Trial on the plaintiff’s remission of an appro- priate amount for that of the Verdict. In Wood v. Gunstone 74 decided in 1655, a New Trial was granted because the Damages were Excessive, and this practice has continued.75 Nor does the Court’s Action in this respect violate the Constitutional Right to Trial by Jury.’76 A more difficult question arose when the Amount of Damages given in the Verdict appeared Inadequate, and there has been some doubt expressed as to the Constitution- ality of Statutes in Some States prohibiting

Civil Procedure of the Trial Court in Historical Per- spective, c. XIX, Trial by Jury, § 7, The Motion for New Trial, 339 (New York, 1952).

Law, c. IV, Excessive and Inadequate Damages, 110 n. 4 (New York 1922).

‘76. Smith v. Times Pub. Co., 178 Pa. 481, 30 A. 296 (1896).

New Trials because of the Smallness of the Damages Awarded.77 The narrow English doctrine as to the Severability of Issues re- ceived a check in the decision of Chief Jus- tice Doe of New Hampshire in the case of Lisbon v. Lyman,78 in which he took the position that a Party had a right to have a Prejudicial Error in a Trial corrected, but not a right to a New Trial if the error could be otherwise corrected, and that in making such correction it was necessary to destroy only what was erroneous when the latter could be severed from the former. This Rul ing was followed in Other States, New Jersey making it the subject of a Provision of the New Jersey Practice Act of 1912.79 And in Dimick v. Schiedt,80 the problem dealt with the Issue in a negative manner, the Supreme Court holding that, regardless of Earlier Rulings, the Common Law at the time of the adoption of the Constitution “forbade the Courts to increase the Amount of Damages awarded by a Jury in Actions such as that here under consideration,”—that the practice of Increasing Damages, where the Damages given by the Verdict were Inadequate, was no part of recognized practice—and hence was to be regarded as in violation of the Sev- enth Amendment. Mr. Justice Stone, in a dis- senting opinion, viewed this conclusion as un- tenable, and it has been urged that there appears to be no convincing reason why the Additur should not be governed by the same considerations as the Remittitur.81

79. See Rule 73, which provided: “When a New Trial is Ordered because the Damages are excessive or inadequate and for no other reason, the Verdict shall be set aside only in respect of Damages, and shall stand good in all other respects.” See, also, Gaff- ney v. Illingsworth, 90 N.J.L. 490, 101 A. 243 (1917).

torical Perspective, c. XIX, Trial by Jury, § 7, The Motion for New Trial, 345 (New York, 1952).