I concur in the views expressed in the leading opinion, except as to the point respecting the reduction of the amount of damages found by the jury. So far as I can judge from the record, the defendants had a perfectly fair trial. The instructions of the Court on the question of damages, given in the clear, and accurate language of defendants’ own counsel, are all they could reasonably ask. There is nothing in the record tending in the slightest degree to show any misconduct, or that the jury acted under the influence of passion or prejudice, unless it can be inferred from the amount of damages alone.
Seven thousand six hundred dollars, it is true, is a large sum; but from the amount alone, in connection with the evidence, can we say, in the language of .the statute, that “ excessive damages appear to have been given, under the influence of passion or prejudice?” If not, we are not authorized to disturb the verdict on that ground. There is no well defined, unmistakable, unerring standard by which damages can be exactly measured in such cases, and the Constitution and the law has devolved the duty of determining the amount upon a jury, as being the body best fitted to determine such questions. The amount found might well be reasonable in some cases of such wrongful prosecution, even when the direct, present, actual pecuniai’y loss does not amount to that sum, and, under the circumstances, the jury thought the amount reasonable in this case. The District Judge before whom the case was tried did not think himseli justified in vacating the verdict, and he and the jury had a much better opportunity of appreciatií g the force of the testimony as it was given before them by the witnesses in *483person, than we have upon the necessarily imperfect statement of it in the record. That the plaintiff was illegally and wrongfully harassed by a suit and attachment which, it was known to the parties promoting it, could not be maintained, and that there was malice in fact, clearly appears from their own evidence. It expressly appears from the declarations of one of them, that Weaver, Wooster & Co. not only “knew that they had no right to procure it, [the attachment,] and knew it would not hold, but they were determined not to be imposed on, and would follow Kinsey up, because they had been deceived; that they supposed the action last mentioned \_Wallace v. Kinsey] had already cost Kinsey five or six hundred dollars, and they would make it cost him more before they got through with him.” The assignment, then, of a part of a demand secured by mortgage, upon which, since the extension, an action had not accrued, and upon which an attachment could not, in any event, legally issue, and the active prosecution of the suit in the name of an irresponsible party, having, in fact, no real interest in the matter, but who seems to make this kind of business a specialty, and obstructing by an attachment the business and injuring the reputation of a country merchant, was not for the bona fide purpose of collecting the debt by due course of law, but the motive declared was to “follow Mr. Kinsey up, because they had been deceived.” They may have had grounds for complaint, and even disgust, but this proceeding, from the' motives indicated, was unlawful. If they had been deceived, this fact furnished no justification. The law recognizes no such mode of redress. The law, in such a case, justifies considerable latitude on the part of the jury in estimating the amount of damages. The mitigating, as well as the aggravating, circumstances, if any there were, were before the jury. They were carefully instructed by the Court to take all the circumstances into consideration, and it does not appear to me that we are authorized to say that they did not do so, especially as the District Judge does not appear to have been dissatisfied with the result; and we *484should not be authorized to set aside a verdict simply because we might differ from the jury. • A District Judge, who hears the evidence and is in a condition to duly appreciate the force of every item of testimony given before him, would be justified in exercising, and he ought to exercise, a wider discretion in granting new trials than an appellate Court would be justified in exercising in reversing his orders denying them.. I do not perceive any evidence, that the District Court did not, in this instance, properly deny a new trial, but, I take this occasion to observe, that there seems to be an impression to some extent prevailing among District Judges, that their discretion in granting new trials is limited by the same strict and somewhat rigid rules applicable to appellate Courts. If this is so, I think the impression erroneous. The position of nisi prius Judges enables them to fully comprehend and appreciate the merits of applications for new trials, and intelligently exercise that legal discretion committed to them, and when in their opinion, the Circumstances demand it, they should not hesitate to liberally exercise it to promote the administration of justice.
While I am not quite sure that the damages are not larger than they ought to be, it does not appear to me that there is such a glaring excess as would justify us in saying that the jury must necessarily have been influenced by passion and prejudice. The case, I think, falls within the well established rule stated and followed in the cases of Weaver v. Page, 6 Cal. 684; Aldrich v. Palmer, 24 Cal. 516, and cases cited. In Weaver v. Page, the Court refused to set aside a verdict “for fifteen thousand dollars, which was undoubtedly much more than the pecuniary damage proved,” (6 Cal. 682,) and in that case there does not appear to have been any evidence of malice in fact. So far as appears, there was but an honest effort to collect a debt by due course of law, after the bill of exchange sued on had been protested in Kew York, and the defendants had reason to suppose that it would not be paid. It turned out, however, that after the return of the second of exchange protested, *485the first was presented and paid, and the legal malice was inferred from attaching after payment of the first of exchange in New York. It must be admitted, however, I think, that this case goes to the very verge of the rule requiring verdicts to be sustained by appellate Courts, where the ground of appeal is excessive damages.
This case has no features in common with that of Sears v. Hathaway, 12 Cal. 279, and is entirely different from the other cases of Tarbell v. Central Pacific R. R. Co., Turner v. North Beach and Mission R. R. Co., and Pleasants v. North Beach and Mission P. P. Co., cited by appellants.
The judgment and order denying a new trial, under the established rule, should, in my opinion, be affirmed.