In the first trial of this action — an action for damages growing out of an assault and battery committed by defendant Ruffin Collins upon the plaintiff — ■ all of the issues were found for the plaintiff. In response to the issue as to the amount of damages which the plaintiff was entitled to recover, the jury answered $350, and his Honor set aside that part of the verdict on the ground that the damages assessed were inadequate, and let the others stand. On appeal from that ruling this Court declared the appeal premature; and upon a second trial the defendant Ruffin Collins renewed his exception to the order on the first trial setting-aside that part of the verdict as to damages and the granting of a new trial on that issue alone. The two issues which were eliminated from the second trial, and which were found by the jury for the plaintiff on the first trial, to-wit, the first and third issues,were in these words: (1) “Did the defendant R. V. Collins wrongfully damage the plaintiff as alleged in the complaint?” (3) “Was the deed of trust executed by R. V. Collins and -wife to S.' E. Eure with the fraudulent intent to hinder and delay and defraud said R. V. Collins’s creditors ?”
Upon the second trial, the jury, in response to the single issue as to damages, answered $600. His Honor gave judgment for the plaintiff and against the defendant R. Y. Collins for that amount, and after reciting that the conveyance by the defendant R. Y. Collins and his wife of his lands lying-in Nash and Franklin counties had been conveyed in fraud *90of bis creditors, ordered that, subject to tbe homestead exemption of defendant R. V. Collins, tbe lands so fraudulently conveyed be sold to satisfy tlie plaintiff's judgment, and tbe Clerk was instructed to appoint three commissioners to appraise and allot to tbe defendant'R. V. Collins bis homestead therein, who should report their proceedings to tbe next term of Eranklin Superior Court; and it was further ordered that tbe excess over tbe homestead should be sold by a commissioner then named by the Court, and that his report should be returned to the next term of that court.
The case is before us on two exceptions, one to the ruling of his Honor in the first trial setting aside the verdict for inadequacy of damages, and the ordering of a new trial on that one issue alone; and the other to the judgment as to its form and substance as to the allotment of the homestead and the sale of the excess.
Both points raised on the appeal are important as matters of court practice and procedure, and as matter affecting the substantial property rights of the defendants.
On the question as to the power of the Superior Courts to grant new trials on one or more of several issues, and to let the others stand, and the practice of this Court to order new trials on particular or restricted issues, the authorities are numerous, and cover a long series of years. The following are some of them: Strother v. Railroad, 123 N. C., 191; Mining Co., v. Smelting Co., 122 N. C., 542; Rittenhouse v. Railroad, 120 N. C., 544; Nathan v. Railway, 118 N. C., 1066 ;Pickett v. Railroad, 117 N. C., 616; Blackburn v. Insurance Co., 116 N. C., 821; Tillett v. Railroad, 115 N. C., 662; Jones v. Swepson, 94 N. C., 700; Bowen v. Railroad, 91 N. C., 199; Price v. Deal, 90 N. C., 290; Jones v. Mial, 89 N. C., 89; Lindley v. Railroad, 88 N. C., 547 ;Crawford v. Manufacturing Co., Ibid, 554; Roberts v. Railroad, Ibid, *91560; Allen v. Baker, 86 N. C., 91; Burton v. Railroad, 84 N. C., 192; Meroney v. McIntyre, 82 N. C., 103; Holmes v. Godwin, 71 N. C., 306; Key v. Allen, 7 N. C., 523; Barnes v. Brown, 69 N. C., 439.
Before such partial new trials, however, are granted, it should clearly appear that the matter involved is entirely distinct and separable from the matters involved in the other issues, and that the new trial can be had without danger of complications with other matters. Such partial trials are not of strict legal right, but of sound legal discretion. There was no violation of the limitation in such matters in the case before us. The issues were clearly separable, and each one could have been answered without dependence or complication upon the others.
The contention of the defendant is that on the second trial various matters favorable to the defendant on the issue as to the amount of damages might have been cut off, which would have been relevant and competent on the first trial under the first issue, and that therefore the defendant might have suffered by the manner in which the case was tried on the second trial. The argument of the defendants’ counsel is that upon the first issue as submitted in the first trial, “Did the defendant R. V. Collins wrongfully damage the plaintiff as alleged in the complaint ?” all the circumstances attending the assault are drawn out. If there be anything to repel malice to mitigate the damages, any conduct on the part of the plaintiff provoking the assault, foul language, insulting words, it comes out in the investigation of the evidence on the first issue, and the same jury hears the evidence as to the extent of the wound, the loss of time, pain, permanence and effect of injury, and that the jury which hears the whole could judge mor*e impartially all of the issues than another jury could, hearing only the testimony on the issue as to damages. The *92answer to that argument is, that whatever evidence could have been introduced on the first trial upon the first issue in mitigation of damages — such matters as the defendants’ counsel urged in his argument — could be, as a matter of law, gone into on the second trial upon the issue as to damages. If no attempt was made by the plaintiff in the second trial to show malice in the defendant in making the battery upon the plaintiff, then tire damages could have been only actual damages. If malice or aggravation was attempted to be proved to recover punitive damages, then it was permissible for the defendant to show the conduct of the plaintiff as to provocation in mitigation of damages. “The general rule is, that anything which is a complete answer to the action must be pleaded either in bar-or in justification; but it is also well settled in many cases that matters which go to the quantum of damages merely to palliate the character of the offense, or to mitigate the amount which the jury may award, may be given in evidence under the general issue.” Sedgwick on Measure of Damages, 641. In Frazier v. Berkley, 1 Car. & Payne, Lord Abinger said: “In actions for personal wrongs and injuries, at nisi prius, a defendant who does not deny that the verdict must pass against him may give evidence to show that the plaintiff in some degree brought tire thing upon himself.” That is the rule applicable to the case before us. Tf this were not the rule, the plaintiff in actions like the one before us might get full compensation for damages which he might have partly caused by his own conduct. “Malice and provocation in' the defendant are punished by inflicting damages exceeding the measure of compensation, and in the plaintiff by giving him less than that mentioned.” Robinson v. Rupert, 23 Pa. St., 554.
As to the matter of setting aside of the verdict by his Honor because of inadequacy of damages, this is so far as we *93can find the first case in tbe bistory of judicial proceedings in the State. And it may be further said that it has been generally thought that our courts could not set aside a verdict for inadequacy of damage. Nevertheless, it may be said to be true that it is generally considered that there is no reason which can be advanced in favor of setting aside verdicts because of excessive damages, which does not apply to setting them aside for inadequacy of damages. It seems to be settled upon examination of numerous authorities, that at common law the courts claimed and had the power to set aside verdicts for inadequacy of damage; but it further appears from the earlier cases that it was most seldom done. And, too, in the cases where such verdicts were set aside, they wei'e extreme cases — cases where the jury had been palpably influenced by caprice, or gross partiality, or some other unworthy motive, and where the damages did not amount in point of fact to damages at all, but were mere attempts to evade substantial damages. The English Judges, however, as we have said, did not doubt their power to set aside such verdicts but declared in many cases that they would not do it because they had no rule to go by. This was especially the case in actions of tort for damages for personal injuries. In a recent English case, Philips v. Railway Co., Queen’s Bench Div. Law Beports, 18Y8-N9, Vol. 4, p. 406, the common-law rule was relaxed. The action was for damages for personal injuries sustained through the defendant’s negligence, and there was a motion for a new trial on the ground of inadequacy of damages. It appeared upon the facts proved that the jury must have omitted to take into consideration some of the matters involved in the plaintiff’s claim for damages. The counsel for the defendant in that action contended that a new trial could not be granted on account of the damages being too small, because the action was for unliquidated *94damages, unless there had been some misdirection on the part of the Judge, or some misconduct on the part of the jury. The Court said: “We think the rule contended for has no application in a case of personal injury, and that it is perfectly competent to us if we think the damages unreasonably small to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the Court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insufficient to meet the justice of the case. The rule must therefore be made absolute for a new trial.”
' There are conflicting decisions on this question in the courts of several of the States, but we believe that the conclusion arrived at by the English Court, in the case quoted from, is the correct conclusion, and we will adopt it as the conclusion of this Court. Holding then, as we do, that the Superior Courts of this State have the power to set aside verdicts for inadequacy of damages, we logically conclude that such power is discretionary with them, and that it is not reviewable by us. The power to correct prejudiced and grossly unfair verdicts must be vested somewhere, and, in our judgment, it is best that such power be' confided to the Judges who preside over the trials. They are presumed to be learned in the law, impartial in their judgments and upright in their conduct, and, with most rare exceptions, they have measured up to the standard of that presumption.
As to the order contained in the judgment in reference to the allotment of the homestead to the defendant R. V. Collins, and the sale of the excess by a commissioner, we see no error. The deed of conveyance from the defendants R. V. Collins and wife to Eure, was found to be fraudulent, and all the parties thereto, including the beneficiaries, were before *95the court. The court, as a court of equity, got control of the lands conveyed in the deed, and it had the power to order their sale after the defendant’s hometsead had been allotted him, and the disposition of the proceeds to satisfy the claim of the plaintiff under his judgment. The objection raised by defendant’s counsel to the manner in which the Court ordered the allotment of the homestead to be made is without force. It is true that the law has declared two ways of allot-ing a homestead, one by petition, and the other under execution. But there are other methods besides those. In Littlejohn v. Egerton, 77 N. C., 379, the Superior Court of Franklin County was instructed by this Court to appoint three commissioners to lay off the homestead of the plaintiff with instructions to give notice at the time to the defendants, and “in all particulars to observe, as near as may be, the requirements of the Constitution and of the Homestead Act.” That the Clerk was instructed by his Honor to appoint the three commissioners is not objectionable, for the Clerk is but the hand of the court in this matter. Neither is it objectionable that the lands are situated in two counties. The Court has the power to make the order, and a report is to be made to the next term of the Superior Court of Franklin County, after the allotment of the homestead and the sale of the excess, by the commissioners in each matter. Hines v. Moye, 125 N. C. The last clause of the judgment to which exception is made by the defendants, if erroneous, is harmless, for the reason that none but parties to the action are bound by the judgment in the cause, unless notice of lis pendens has been properly filed, and of that we are not informed. There was no error in the proceedings below.