Opinion by
Mr. Justice Williams,I fully concur, in the disposition made of this case, and am satisfied that the opinion of the court just filed affords a complete vindication of the judgment. But we have rested our action on the authority conferred by the second section of the act of May 20, 1891. This is the first occasion on which we have availed ourselves of this provision. Its constitutionality has been gravely questioned. The hesitancy of this court about accepting the responsibility which the exercise of the power coii*504ferred by this statute necessarily involves, has naturally been regarded as indicating at least a doubt in the minds of the justices about its constitutionality. It seems eminently proper therefore, if not positively desirable, that the constitutional question shall be fully considered and the validity of the statutory provision vindicated, by the aid of any pertinent line of argument that may have presented itself to the mind of any member of the court.
The provision of the constitution thought to be infringed is found in sec. 7, of Art. 1, known as the Declaration of Rights, and is in these words, “ Trial by jury shall be as heretofore and the right thereof remain inviolate.” The provisions of the second section of the act of 1891 declare that, “ The Supreme Court shall have power in all cases to affirm, reverse, amend or modify a judgment, order or decree appealed from, and to enter-such judgment order or decree in the case as the Supreme Court may deem proper and just, without returning the record for amendment or modification to the court below, and may order a verdict and judgment set aside, and a new trial had.” No part of this section is new except that contained in the last sentence, and it is to that alone we understand the constitutional objection to be raised. It is true that at an early day it seems to have been supposed that the power of this court, in disposing of appeals, to enter such judgment order or decree as to it might seem proper and just, was limited to cases in which the plaintiff in the court below was also the plaintiff in error; while if the defendant in the court below brought up the case and succeeded in convicting the trial court of error he was thought to be entitled to a judgment of unconditional reversal, and to a new venire: Swearingen v. Pendleton, 4 S. &. R. 396. But when the same question came again before this court in Stephens v. Cowan, 6 W. 511, the earlier case was distinctly overruled and the true rule stated to be that the duty of the Supreme Court upon the reversal of a judgment rendered in the court below “ given either upon a case stated or a special or a general verdict, is to give such judgment as the court below ought to have given; and this whether the said writ of error was sued out by the ’ plaintiff or the defendant below.” This was followed by Mosher v. Small, 5 Pa. 221; Ullery v. Clark, 18 Pa. 148; *505Cochran v. Eldridge, 49 Pa. 365, and is no longer open to debate. The legislature entertained the same views about the duty of this court to modify the judgments, orders and decrees of subordinate courts at least as early as 1836, for by an act of that date it authorized and directed the Supreme Court “to examine and correct all, and all manner of, errors of the justices, magistrates and courts of the commonwealth in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and thereupon to reverse, modify or affirm such judgments and decrees or proceedings as the law doth or shall direct; and generally to minister justice to all persons, in all matters whatsoever as fully and amply as the said court has heretofore had power to do under the constitu tion and laws of the commonwealth.”
The power of this court to amend or modify a verdict and judgment in any case that comes before it ought now to be at rest. It has not been questioned since Stephens v. Cowan, supra, in any manner, legislative or judicial, a period of sixty years. The question thought to be an open one grows only out of the last sentence of the second section of the act of 1891. Can the legislature extend the power of review of this court so as to include the review of the refusal to set aside a verdict by the court in which it was rendered ? There can be no objection on general principles.
The motion to set aside a verdict may be said to be addressed to the discretionary powers of the trial court. So is the motion to open a judgment to set aside the service of a capias, or a summons, to continue a cause, and the like. But by successive legislative enactments an appeal lies from an order to open a judgment, and from a refusal to open it; from the refusal to enter a judgment for want of a sufficient affidavit of defense; from an order striking off a judgment, and from a refusal to strike off; from the granting of a preliminary injunction, and the refusal to grant it. This legislation as we said in Pennock v. Kennedy, 153 Pa. 579, extends the right of appeal to certain orders which had previously been regarded as within the discretion of the court below. Such extension does not take away the discretionary power of the trial court, but subjects it to rerdew and authorizes the Supreme Court to determine whether *506it has been properly exercised in the particular case under review: Kelber v. Plow Company, 146 Pa. 485. Without special direction by statute, but by virtue of our prerogative as a court of last resort, we have always extended a supervisory control over the exercise of discretionary powers by the subordinate courts whenever an abuse of these powers has been alleged. It appears to be now urged for the first time, so far as I am aware, that if the discretion of a judge is appealed to by a motion for a new trial, the exercise of his discretion becomes so bound up with the verdict that we cannot determine whether he exercised his discretion properly or not, without interfering with the constitutional right of trial by jury. We can review and in a proper case reverse his action in opening a judgment, striking it off or setting it aside, but it is contended that his action in regard to granting a new trial, no matter how obvious his mistake may be, is beyond correction by any human tribunal under the provision of the Declaration of Rights already quoted. This ought not to be the law, and it is perfectly clear that it is not, unless prior to the adoption of the Declaration of Rights it was so held at common law. The famous provision of the Magna Charta which established trial by jury in England is not decisive of this question., It simply protected Englishmen from the power of secret, irresponsible tribunals and conceded the jurisdiction of the legally established courts over all causes. It ran thus “No free man shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way brought to ruin: we will not go against any man or sgnd against any man save by legal judgment of his peers, or by the law of the land.”
The trial was to be in accordance with general laws and before the legally constituted courts. A jury was a constituent part of several of the English courts at this time. It was not the court in any case, but jurors were summoned by the courts to attend their sessions for the trial of issues of fact. When duly called and empanelled they sat with and under the legal advice and direction of a law judge who was the responsible head of the court. “ Trial by jury ” therefore meant, at the time of Magna Charta, the investigation and decision of an ■■issue of fact: between parties litigant by twelve men sitting as ■.jurors .under the advice and legal direction of a law judge. *507When the verdict is rendered by the jury, it is to the court of which they are a part. It is recorded upon the minutes of the court and becomes a part of the record of the trial, but it does not thereby become a judgment of the court unless the judge is satisfied with it and specially or by general order or rule so directs. He has a responsibility for the result no less than the jury, for it is his duty to see that right and justice are done, so far as this,may be practicable in the particular case. If he is not satisfied with the verdict it is his duty to set it aside and grant a new trial before another jury. This was the settled practice in England as early as 1665 : Forsyth on Trial by Jury, 164. Lord Holt states that the practice of granting new trials as a means of correcting the mistakes and relieving against the misconduct of juries was in use much earlier than 1665, but accounts for its exercise not appearing in the books for the reason that prior to that date the action of the courts upon motions was not reported. If we go back still earlier every student of Blackstone will remember that the remedy of a suitor injured by a false verdict was to proceed directly against the members of the jury to attaint them for their false verdict; but this as a remedy for the party irijured was circuitous, inadequate, and practically useless. Tins was superseded by a more summary proceeding by way of fine and imprisonment which may have been effective as a punishment, but did not relieve the injured suitor. The theory on which this proceeding rested was that the unjust verdict must have been reached by a neglect to follow, or a wilful disregard of, the instructions of the judge, and that such neglect and misconduct was a contempt of court which subjected them to punishment at once.
The next and most important advance made in the practice was to strike at once at the unjust or mistaken verdict by setting it aside and granting a new trial. This afforded the injured suitor relief from the verdict, and afforded him another opportunity to be heard by jurors freshly summoned. This method of dealing with false, corrupt, or mistaken verdicts rapidly took the place of the earlier methods, and had been in common use in England for more than one hundred years when the Declaration of Independence was adopted in 1776. The reasoning by which the new practice was supported was *508simple and forcible. As it had been- within the undoubted discretion of the judges to fine and imprison jurors for a. false verdict, a fortiori it was within their discretionary power to set the false verdict aside and so reheve against the injustice done by it.
In speaking of this change in the practice Forsyth says that “thereby an immense improvement was effected in the jury system inasmuch as the measure (setting aside the false verdict) is remedial, instead of being (like the attaint, and the fine and imprisonment) vindictive.” Punishing a jury for misconduct did not undo the wrong done the injured party by their verdict. Among the reasons for the exercise of this power the English courts included excessive damages. It made no difference whether the verdict came up with the roll from nisi prius, or was rendered at bar at Westminster. In either case, if the damages seemed to be excessive, the verdict was set aside and a- new trial granted.
The famous case cited by Blackstone as the first reported case in which a verdict was set aside, was one in which the reason for interference was that the damages were excessive: 3 Blk. Com. 387. The action of the court was justified upon the ground that “ notorious partiality in the jurors was a principal species of misbehavior ” that required the interposition of the judge in the interest of a proper administration of justice and for the protection of suitors. “ Next to doing right,” says Blackstone in his Commentaries, vol. 3, p. 391, “ the great object in the administration of public justice should be to give public satisfaction. If the verdict be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of bystanders, no party would go away satisfied unless he had a prospect of reviewing it; ” and he adds, that an injured suitor would come to “ abhor a tribunal which he imagined had done him an injury without a possibility of redress.” Wood v. Gunston, the first reported case in which a verdict was set aside for excessive damages is in Styles’ Reports, 466. It was, like the ease now before us, an action for slander. The jury rendered a verdict in favor of the plaintiff for a sum which the court regarded as excessive and the verdict was set aside for that reason. So early therefore as 1665 the courts at Westminster *509did precisely what we have done in this case, and for the same reason.
The right of trial by jury was not then supposed to give to a successful party the right to insist on an advantage due to the mistake or the wilful misconduct of the jury no matter how grossly unjust and oppressive the result might be, but the supervisory control of the court in banc, sitting as a court of review, was promptly exercised to relieve against the miscarriage of justice. The exercise of this power was then thought to be in aid of trial by jury. Lord Mansfield in Bright v. Eynon, 1 Burrows, 390, described the effect of thus granting a new trial as “ no more than having the cause more deliberately considered by another jury when there is reasonable doubt, or perhaps a certainty that justice has not been done.” The function of the jury was well defined by Chief Justice Holt in Ash v. Ash, nearly one hundred years before the Declaration of Independence: “The jury are to try the cause with-the assistance of the Judge.” They are not, and have never been, independent of the court of which they are a part, but their verdicts must meet the approval, or at least they must not offend the sense of justice, of the presiding judge who, as the late Justice Grier of the Supreme Court of the United States was fond of saying, is by virtue of his position “the thirteenth juror.” If the damages assessed by the jury are wholly inadequate, the effect is the same as where they are disproportionately large. Stephens in his work on Trials at Nisi Prius states the rule very clearly and in very few words thus : “ If a jury give damages to such an amount, either too small or too great as would satisfy any reasonable mind that they must have acted under the influence either of undue motives or some gross error or misconception, this will be ground for a new trial.” This was a common law rule in 1790 when our constitution was adopted, and it had been well settled at that time in England for at least one hundred and fifty years: 9 Bacon’s Abr. 582 to 629; 3 Bouvier’s Institutes, par. 3286; 7 Am. Com. Law, 132, 133; 3 Black.’s Com. ch. 24, pp. 387 to 393; Hilliard on New Trials. It is very clear therefore that the act of 1891 does not infringe in any manner upon the right of trial by jury as it stood at common law when our constitution was adopted. The erroneous *510verdict was set aside either by the trial judge, or by the courts at Westminster, whenever it was so excessively large or so excessively small as to justify the belief that the result was due to mistake or misconduct on the part of the jury. This practice with which the colonies were familiar has continued in the courts of the states, and of the United States, in some form, down to the present time; and is as indispensable to the proper administration of justice now as it was in the days of Lord Mansfield. The case of Kuhn v. North, 10 S. & R. 399, was tried at nisi prius in 1823. It was an action of trespass quare clausum fregit for the forcible entry of a dwelling by the sheriff in the execution of writs of fi. fa. and ca. sa. The jury rendered a verdict for the plaintiff giving heavy damages. This Court sitting in banc ordered a new trial because of the excessive character of the verdict. The opinion of this Court giving the reasons for setting aside the verdict concludes with these words:
“ The court do not say that in every question of this kind they would measure the damages which a jury might think proper to give, in a nice balance, but making very liberal allowances in that respect, they are still bound to see that the damages do not exceed all moderation; in other Avorcls that they are not intemperate. Such are the damages given in this case.” The Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 R. 9, was a proceeding in the court of common pleas of Lehigh county for the assessment of damages done by the construction of a bridge across the Lehigh river. Viewers had been appointed by and had made report to the common pleas. Before the trial it was removed to the circuit court of Lehigh county in which a verdict was rendered in favor of the plaintiff. An appeal was then taken to this Court, and the judgment was reversed and a new trial ordered. The opinion was by Chief Justice Gibson who placed the reversal on the single ground that the damages awarded by the jury were excessive.
The tendency in more recent times has been to decline to enter upon a review of the exercise of the discretional powers of the lower courts unless the abuse of that discretion was alleged by the appellant; but the right upon such an allegation, to review the action of any of the kwer courts has been consistently exercised and so far as we have ever heard without *511the slightest question. We have repeatedly said that upon an allegation of an abuse of discretionary power it was our plain duty to inquire into the facts, and if the complaint was, upon a fair consideration of all the circumstances sustained, to reverse the improper action and correct the wrong done. The cases on this subject are legion and the doctrine asserted in them is clear and unambiguous. We have given full effect to the presumption that all things are rightly done that are not reviewable on error, and the burden is on him Avho asserts the contrary to show, not simply a mistake in judgment, but an injustice, an abuse of discretion, before the review will be entered upon. As bills of exception do not lie to acts done in the exercise of discretionary powers, such acts are not reached by an appeal and an assignment of errors in the ordinary way. We have held therefore that as mistakes made in the use of a judge’s discretion cannot be assigned for error, they cannot be reached and corrected, unless an abuse of this power be alleged; but the idea that a judge can abuse, or misuse, any power with Avhich he is olothed by the law or Avliich is incident to his official position and not be subject to review, when the wrong done is made to appear, never had a foothold in this, nor as I believe in any other appellate court, on either side of the Atlantic. The question in this court has been one rather of form than of substance. As error can not be assigned to the exercise of a discretionary power unless an abuse of discretion is alleged, and as lawyers and suitors are ordinarily reluctant to make this allegation, it rarely happens that we are compelled to look into the manner in which these poAvers are used in the lorver courts. It does sometimes happen however, and so recently as Peterson v. The Atlantic City Ry. Co., 177 Pa. 335, this court reversed the common pleas No. 1 of Phila. for the refusal to continue a cause when it was reached for trial on the list. A clearer case of the exercise of a discretionary power could hardly be named than that of determining whether a cause regularly reached for trial should be tried or continued. It Avas alleged to be an abuse of discretion to order the trial to proceed under the circumstances surrounding this case, and a new trial Avas ordered. The opinion filed by our Brother Dean amply vindicates the judgment. The same order was made in Schimpton v. Bertolet, 155 Pa. 638, *512when a continuance had been improperly refused, and for the same reason, viz: that the refusal was unreasonable and in effect an abuse of the discretion of the lower court. The legislature of this state seems to have been of the opinion that the power of revising the exercise of discretion is not only constitutional but desirable. The act of April 8, 1826, restoring the circuit courts which had been abolished by the act of March 11, 1809, provided for an appeal in just such cases. It declared that any suitor dissatisfied with the judgment or decision of the said circuit courts on any demurrer, special verdict, case stated, points reserved for consideration on the trial, motion in arrest of judgment or for a new trial, or to set aside a judgment discontinuance or non pros., may appeal to the Supreme Court. This act as will be seen gave the right to appeal from the decision by the trial judge of motions for a new trial in all cases in which the unsuccessful party was dissatisfied, regardless of whether the action of the court amounted to an abuse or misuse of its discretion, or not.
The only controversy over the extent of the power of an appellate court in the premises seems to have been upon another question. In the Supreme Court of the United States the power of an appellate court to reverse and order a new trial for excessive damages is recognized. It is also said in Gilmer v. Kennon, 131 U. S. 22 that the appellate court may give the plaintiff the option to remit a named sum from the verdict or to have the verdict set aside and a new trial ordered, but that an appellate court cannot enter a judgment for a sum fixed upon by itself, either less or more than the verdict rendered, for this would be to assess the plaintiff’s damages which an appellate court is not authorized to do. The same rule was held in 124 U. S. 510 and in 130 U. S. 69. The provision in the constitution of the United States relating to this subject is as follows: “ the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.” The United States courts hold in' effect in the cases cited that setting a verdict aside for its excessive character is a reexamination of the facts that is in accordance with the rules of the common law and therefore no infringement of the right of trial by jury. So it was said in Albin v. Kinney, 96 Ill. 214 *513that “ the rule is uniform that when there is a motion for a new trial on the ground of excessive damages the plaintiff may if he chooses remit a portion of the verdict to obviate the objection.” This, if done, is his act. The court may give him the option, but cannot compel him to remit. He may refuse, and take his chances before another jury. The general rule undoubtedly is that an appellate court will not ordinarily reverse because the damages are excessive, but the cases in which it will do so are well stated in a note on page 588 of vol. 16 of the Am. and Eng. Encyclopedia of Law. “ If on the nature of the case, or on a proper return of all the evidence, the point can be raised in the appellate court, as under the practice in many of the states it can, and it then clearly appears that the damages found are excessive, the judgment will be reversed on that ground.” Numerous cases are cited in support of this rule from New York, Illinois, Minnesota, Rhode Island, Tennessee, Missouri, Wisconsin, Kansas, Louisanna and Kentucky. The application of the rule is modified to some extent in some of these states by statutes regulating the practice in the courts, but the general rule remains substantially as stated. The difficulty has been in many cases to get regularly before the appellate court all the evidence necessary to show that the verdict was'so excessive as to justify the belief that it was the result of partiality, mistake or positive misconduct on the part of the jury; but where the data were all before the appellate court, and the conclusion that the verdict was grossly excessive was clear, the courts, unless restrained by some positive statute, have been prompt to vindicate the administration of the law and the rights of suitors by setting aside the erroneous verdict. In this case the evidence is all regularly before us. From an examination of it we are satisfied that the verdict is excessive, so excessive as to justify the belief that its amount must have been determined by partiality, or prejudice, or by some misconception of the law or the evidence. It should have been set aside in the court below.
Whatever may have been said about the subject prior to the passage of the act of 1891, we have no doubt that under that act we have the power to set the verdict rendered in this case aside, nor that it is our duty to exercise it. This act is constitutional. It in no way interferes with the right of trial by jury. *514It merely gives us -general authority to do that in any proper case, which we should otherwise have done only upon a distinct allegation of an abuse of judicial discretion by the trial judge.
Jan. 4, 1897 :
Green, J., concurs in the treatment of the case expressed in the foregoing opinion.