filing of the petition in bankruptcy, the power of the state court in that respect ceased; and its order fixing the compensation of the receiver and his counsel was a nullity because made without jurisdiction, such jurisdiction then having passed to the bankruptcy court. Gross v. Irving Trust Co., supra.

Since the order of the state court was the sole foundation for their claims and that was void, petitioners had no more right to the sums subtracted or to be subtracted from the estate than they had to the remainder of the estate. That estate, including such sums, was still in custodia legis-only the possession had passed automatically from the state court to the bankruptcy court. Thereafter, the estate in its entirety was held by the receiver as a mere repository for the bankruptcy court and, therefore, not adversely; and petitioners, in respect of that part of it erroneously awarded as compensation, were in no sense adverse claimants. Their claims were colorable only and subject to the summary power of the bankruptcy court. In re Watts, 190 U. S. 1, 27; In re Diamond's Estate, supra, at p. 74; Moore v. Scott, 55 F. (2d) 863; Bank of Andrews v. Gudger, 212 Fed. 49; In re Crosby Stores, Inc., 61 F. (2d) 812, 814.

Cases dealing with assignments, like Louisville Trust Co. v. Comingor, 184 U. S. 18, cited by petitioners, in no way militate against this conclusion. The situation presented in each of those cases substantially differs from that presented here. See May v. Henderson, 268 U. S. 111, 115-6; In re Louis Neuburger, Inc., 233 Fed. 701, aff'd 240 Fed. 947. Moreover, the status of a receiver and that of an assignee, as already sufficiently appears, is essentially different.

Judgment affirmed.

Syllabus.

DIMICK v. SCHIEDT.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

No. 78. Submitted November 9, 1934.-Decided January 7, 1935. 1. Under the Seventh Amendment, a federal court, finding a verdict inadequate, is without power to add to it by refusing to grant the plaintiff a new trial if the defendant will accept an increase which the court deems sufficient. So held in an action for personal injuries due to negligence.

2. In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. P. 476.

English cases examined on the power of the courts to increase damages, super visum vulneris, in actions for mayhem; and upon writ of inquiry, and in actions of debt.

3. Upon an examination of many English authorities, it is conIcluded that while there was some practice to the contrary in respect of decreasing damages, the established practice and the rule of the common law, as it existed in England at the time of the adoption of the Constitution, forbade the court to increase the amount of damages awarded by a jury in actions sounding in tort such as the present one. P. 482.

4. The authority exercised by federal courts of denying a motion for a new trial because of an excessive verdict if the plaintiff will remit the excess, is embedded in long practice, and has plausible support in the view that what remains of the recovery was found by the jury in the sense that it was included in the verdict along with the unlawful excess, the effect of the remittitur being merely to lop off an excrescence; but where the verdict is too small, an increase by the court is a bald addition of something never included in the verdict. The trial court cannot by assessing an additional amount of damages with the consent of the defendant only, bring the constitutional right of the plaintiff to an end in respect of a matter of fact which no jury has ever passed upon, either explicitly or by implication. P. 482.

5. In the discharge of its duty of construing and upholding the Constitution, the Court must ever be alert to prevent the subversion of

fundamental principles through the extension of doubtful precedents by analogy. P. 485.

6. Maintenance of the jury as a fact-finding body is of such importance, and occupies so firm a place in our history and jurisprudence, that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. P. 486.

7. The effect of the Seventh Amendment was to adopt the commonlaw rules of jury trial as they existed in 1791; and these, being in effect part of the Constitution, can not be altered now under pretense of adapting the common law to altered conditions. P. 487. 70 F. (2d) 558, affirmed.

CERTIORARI * to review the reversal of a judgment for damages in an action for personal injuries, entered on denial of the plaintiff's motion for a new trial, after the plaintiff had declined to accept an increase offered by the court and agreed to by the defendant.

Messrs. Leo. M. Harlow and David H. Fulton submitted for petitioner.

Mr. John G. Palfrey submitted for respondent.

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

This is an action brought by respondent (plaintiff) against petitioner (defendant) in the federal district court for the district of Massachusetts to recover damages for a personal injury resulting from the alleged negligent operation of an automobile on a public highway in Massachusetts. The jury returned a verdict in favor of respondent for the sum of $500. Respondent moved for a new trial on the grounds that the verdict was contrary to the weight of the evidence, that it was a compromise verdict, and that the damages allowed were inadequate. The trial court ordered a new trial upon the last named

* See Table of Cases Reported in this volume.

Opinion of the Court.

293 U.S.

ground, unless petitioner would consent to an increase of the damages to the sum of $1500. Respondent's consent. was neither required nor given. Petitioner, however, consented to the increase, and in accordance with the order of the court a denial of the motion for new trial automatically followed. Respondent appealed to the circuit court of appeals, where the judgment was reversed, the court holding that the conditional order violated the Seventh Amendment of the Federal Constitution in respect of the right of trial by jury. 70 F. (2d) 558. That court recognized the doctrine, frequently stated by this court, that in the case of an excessive verdict it is within the power of the trial court to grant defendant's motion. for a new trial unless plaintiff remit the amount deemed to be excessive, but held that the trial court was without power to condition the allowance of plaintiff's motion for a new trial upon the refusal of defendant to consent to an increase in the amount of damages.

The Seventh Amendment provides:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, 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."

Section 269 of the Judicial Code, as amended, U. S. C. Title 28, 391, confers upon all federal courts power to grant new trials "in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. . ."

In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. Thompson v. Utah, 170 U. S. 343, 350; Patton v. United States, 281 U. S. 276, 288. A careful examination of the English reports prior to that time fails to disclose any

authoritative decision sustaining the power of an English court to increase, either absolutely or conditionally, the amount fixed by the verdict of a jury in an action at law, with certain exceptions.

1. In actions for mayhem, there are numerous ancient cases to be found in the Year Books, and occasional cases at a somewhat later period, in which the right of the court to increase damages awarded plaintiff, super visum vulneris, is recognized. We deem it unnecessary to catalogue or review these cases. Many of them are referred to in 2 Bacon's Abridgment (7th ed.) 611, and Sayer's Law of Damages (1770), p. 173 et seq. The last case called to our attention or that we have been able to find that recognized the rule is that of Brown v. Seymour (1742), 1 Wils. 5, where the court, while conceding its power to increase damages upon view of the party maimed, refused to exercise it, holding the damages awarded were sufficient. We have found no case where the power was exercised affirmatively since Burton v. Baynes (1733), reported in Barnes Practice Cases, 153, where the court, upon view of the injury, increased the damages from £11, 14 s., to £50. The power of the trial court to increase damages in such cases was seldom exercised; and it seems quite clear, from an examination of the decisions and of the English Abridgments, that the generally approved practice confined its exercise to the court sitting en banc. Moreover, the application for the increase was made by the plaintiff, considered upon a view of his wound, and, when favorably acted upon, granted absolutely and not as a condition upon which to base a denial of a new trial. Indeed, the practice of granting new trials in such cases did not come into operation until a later date. In any event, the rule was obsolete in England at the time of the adoption of the Constitution; and we are unable to find that it ever was acted upon or accepted in the colonies, or by any of the federal or state courts since the adoption of the Constitu