This is an action of ejectment. The plaintiff claimed to be seized in fee and entitled to the possession of the whole of the premises described in the complaint, and to be entitled to damages for withholding the possession since the second day of April, 1859. The Court, before whom the case was tried without a jury, found that the plaintiff was entitled to the possession of the premises, and that the damages for the withholding were $1,566, and gave judgment that the plaintiff recover possession of the premises, and also recover the amount of the damages so found. It appears from the evidence, however, that the plaintiff was only seized and entitled to the possession of an undivided half part of the premises, as a tenant in common with some other person not a party to this action; and, on a motion made for the purpose, the Court set aside the judgment and ordered a new trial. From this order the plaintiff appeals.
The plaintiff, though conceding that the judgment for the damages should only have been for one-half the sum awarded, claims that the Court should have given him the option to remit the excess of the damages, and allowed the judgment to stand upon his so do*198ing, and that this Court may now order that to he done. We think we cannot do this. The order of the Court granting a new trial was strictly correct; and, although the Court might have made an order allowing the judgment to stand upon the excess of damages being remitted, yet it was a pure matter of discretion. Not to have done so, cannot be considered an error which this Court can correct on appeal.
If the finding of the Court had been that the plaintiff was entitled to the possession of only an undivided half part of the premises, as a tenant in common with a person not a party to the action, then we might have corrected the judgment as to damages, and ordered it to be made to conform with the finding. But as it is, the judgment is in harmony with the finding and with the plaintiff’s claim in his complaint, and this Court cannot correct the finding of fact.
Order granting a new trial affirmed, and cause remanded for further proceedings.