A question analogous to those which we have been considering is presented in the case of conflicting claims for freight, and for damages resulting from bad stowage or other negligence of the carrier. In England the rule is, that the consignee who has received the goods must pay the freight without deduction, and resort to his cross-action for the damage. (y) But the inclination of judicial opinion in this country seems to be to allow the injury done by the negligence of the carrier to be set off as an answer, pro tanto, to his claim for compensation. It has been so decided in Illinois and in Pennsylvania. (2) So, also, the consignee of property a part of which is not delivered, may recoup the damage so sustained in an action against him for the freight. (a) The same principle has been applied to the case of an agreement to load a vessel with a stipulated freight, where the defendant failed to comply with his contract, but third persons offered to make up the deficiency. Here it was held that the master was bound to accept the offer of such third persons, and that the defendant was entitled to recoup the freight moneys that they would have paid. (b) (1)

Nor is the doctrine of recoupment confined exclusively to

(y) Davidson v. Gwynne, 12 East, 381; Sheels v. Davies, 4 Camp., 19; and S. C., 6 Taunt., 65. And see Abbott on Shipping, Part IV., chap. ix., 428.

(z) Edwards v. Todd, 1 Scammon, 463; Leech v. Baldwin, 5 Watts, 446; Humphrey v. Reed, 6 Wharton, 435.

(a) Hinsdale v. Weed, 5 Denio, 172.

(b) Hecksher v. M'Crea, 24 Wend., 304; ante, 379, and also 451. And see, to same point, Costigan v. Mohawk & H. R. R., 2 Denio, 610.

(1) In an action brought by a warehouseman who has received goods from a common carrier in store for the owner, and has advanced to the carrier his charges for transportation, to recover the amount of his advances from the owner, the defendant cannot recoup damages for injuries received by the goods while in the carrier's hands, if such injuries were not apparent nor known to the warehouseman. The owner must look to the carrier for such damages. Sage v. Gittner, 11 Barb. (N. Y.), 120.

But in an action by a carrier for his freight, damages for injury to the goods, for which the carrier is liable, may be recouped. Boggs v. Martin, 13 B. Monr. (Ky.), 239.

A claim originating in contract, may be set up, by way of recoupment, against one founded in tort, if the counter-claims arise out of the same subject-matter, and are susceptible of adjustment in one action. But the defendant cannot, as in set-off, recover any excess in his favor. His claim is used in mitigation of damages only. Stow v. Yarwood, 14 Ill., 424.

In Missouri, a set-off is not admissible, where the claim on either side is for mitigated damages. Johnson v. Jones, 16 Mo., 494; Mahan v. Ross, 18 Ib., 121; Pratt v. Menkins, Ib., 158; Brake v. Corning, 19 Mo., 125.

cases of contract. It is often applied in cases of tort. Thus, it has been held applicable, in New York, to a lien for freight, where the goods were sued for in trover. (c)

A question very analogous to this is, how far evidence [452] of payments when not pleaded, or when made after the

commencement of the suit, is admissible in the reduction of damages; (1) and the more reasonable rule in the latter case would seem to be, that in such case proof of the payment is admissible to show that the plaintiff has not sustained the entire injury for which he claims compensation. (d)

It is well settled, however, that after an action is brought and costs incurred, the defendant cannot bar the plaintiff's suit by paying the debt merely, without also paying the costs. And where such payment is made, the plaintiff will generally be entitled, if the costs are not paid, to take judgment for nominal damages and his costs. (e) But if the payment is made in satisfaction of the debt, damages, and costs, then the verdict will be for the defendant. (ƒ) A plea of payment into court in full satisfaction of all the causes of action in the declaration contained is good, being an answer to the damages as well as the debt. (g) But a plea of payment into court in debt, stating that the defendant never was indebted to the plaintiff to a greater amount than the sum paid into court, is bad, as not answering the damage for the detention of the debt. (h)

I cannot omit here to say, that the doctrine of recoupment as generally adopted in the United States, appears to me settled on just and philosophical principles, while at the same time there is no doubt that it works a serious innovation in the ancient rules which seek to produce singleness of issues. Those rules are, however, so far modified by the practice of double pleading, set-off, and, lastly, of recoupment, that it becomes a grave question whether they are now of any very considerable practical value; and it is at least quite doubtful whether the forms of action are of any great utility, so far as they are supposed, or were originally intended, to produce a single issue.

(1) In an action on a note, a payment made on the note after suit brought, may be given in evidence to reduce the damages. Bishop v. Lucas, 6 Ind. R. 28.

CHAPTER XVIII.

THE RULE OF DAMAGES IN ACTIONS FOR TORTS GENERALLY.

Forms of Action prescribed for wrongs-Trover-Case-Trespass-Replevin-Unless Aggravation is proved, the Measure of Damages in actions of Tort is matter of Law-Where Aggravation is shown, the Jury have a discretion to give Exemplary or Vindictive Damages beyond compensation for actual Loss-All the attendant circumstances may be proved-Rule where both plaintiff and defendant are in fault-In Collision-In Cases of Felony.

HAVING thus disposed of the subject of contracts, we proceed now to the consideration of wrongs. The technical forms prescribed by the English law for the redress of wrongs, or as they are termed, actions ex delicto, are trover, case, trespass, replevin, and detinue. (2) (1)

The divisions of our system in this respect are arbitrary; for, as we have already had occasion to notice, (j) there are many actions nominally in tort, which, in respect to the measure of relief, are treated as virtually actions ex contractu; and in these cases a fixed rule of damages is adhered to. (2) So in an action

(i) The old action of detinue is of comparatively rare occurrence, and in New York is abolished by statute.

Grotius thus begins his chapter De Damno. Supra diximus ejus quod nobis debetur fontes esse tres; pactionem maleficium-legem. De pactionibus satis tractatum. Veniamus ad id quod ex

maleficio naturaliter debetur.-Lib. II., Cap. 17, § 1, De Jure Belli et Pacis. Grotius treats only of Damnum, under this head of Maleficium. De Jur. Bell. et Pac., Lib. II., Cap. 17; vide, also, ante, 10.

(j) Ante, 351 and 371.

(1) As to the damages which may be awarded to a party injured by an act committed in contempt of court, in proceedings to punish for the contempt, see The People v. Compton, 1 Duer (N. Y.), 512.

(2) In actions of tort where there has been no willful injury, the plaintiff can

of trespass without any circumstances of aggravation, the Supreme Court of the United States said that, the case not being one which called for vindictive or exemplary damages, the plaintiff was only entitled to recover for his actual injury. (k) So, there are many cases of tort where no question of fraud, malice, or oppression intervenes; and in those cases the [454] measure of compensation is matter of law. So the

Supreme Court of New Jersey says, in an action of trespass quare clausum fregit, "In actions of trespass, where the plaintiff complains of no injury to his person or feelings; where no malice is shown; where no right is involved beyond a mere question of property; where there is a clear standard for the measure of damages, and no difficulty in applying it, the measure of damages is a question of law, and is necessarily under the control of the court. () And so again in North Carolina, in an action of trespass for destroying a building by fire, the jury at nisi prius were directed that the measure of damages was not the value of the building, but the amount it would have taken to rebuild it if destroyed. But this, on review, was held wrong; and the court said, "The proper measure in actions of this kind is the real value of the property destroyed, unless the trespass is committed wantonly or maliciously, when the jury may, if they think proper, give vindictive damages. But whether they should have been given or not was a question which ought to have been submitted with proper instructions to the jury." (m) (1) But, on the other hand, where circumstances of aggravation are made apparent, where the motive of the defendant is grossly fraudulent,

(k) Conard v. The Pacific Ins. Co., 6 Peters, 262, 282. See also Bell v. Cunningham, 3 Peters, 69; Tracy v. Swartwout, 10 Peters, 80, 95.

(1) Berry v. Vreeland, 1 Zabriskie's N. J. R., 183.

(m) Wylie v. Smitherman, 8 Iredell, 236.

only recover the damages necessarily resulting from the act complained of, and he cannot conduct in such a manner as to make the damages unnecessarily burdensome. Walrath v. Redfield, 11 Barb. (N. Y.), 368; Moody v. McDonald, 4 Cal., 297.

In an action upon a statutory provision in Maine, by which every master of a vessel, who shall knowingly transport out of the State any person under the age of twenty-one years, without the consent of his parent, master or guardian is punishable by a fine, and liable to such parent, &c., for all damages sustained,-Held, that no vindictive damages were intended to be given to the father by this enactment; and that the measure of damages in such action is compensation for the pecuniary injury or loss resulting from such transportation, Nickerson v. Harriman, 88 Maine, 277. (1) Compare Carroll v. Municipality No. 2, 7 La. Ann. 632.

malicious, or oppressive, the amount of relief is left largely to the discretion of the jury.

In regard to these latter cases, we have already observed the general disregard of the principle of compensation by which they are marked. (n) And I have stated the rule to be, that where gross fraud, malice, or oppression appears, the jury are not bound to adhere to the strict line of compensation, but may, by a severer verdict, at once impose a punishment on the defendant and hold up an example to the community. (2) I proceed now

(n) Ante, 35. In addition to the cases cited in the text, others will be found bearing on the subject. Leland v. Stone, 10 Mass., 459; Weld v. Bartlett, 10 Mass., 470, 473; Stone v. Codman, 15 Pick., 297; Larned v. Buffington, 3 Mass., 546; Richards v. Farnham, 13 Pick., 451. And the doctrine of our law is supported by writers of more than mere judicial authority. Thus says

(2) The doctrine of exemplary damages has been very extensively discussed since the publication of the last edition of this work; the discussion turning chiefly upon the qualifications or limits with which the assertion of the power to award damages by way of punishment is to be taken, rather than upon any denial of the power. The general principle that in cases of willful wrong committed by the defendant the jury have a large discretion to award damages by way of punishment, has been asserted in a number of the cases. See Hawkins v. Riley, 17 B. Monr. (Ky.), 101; Fleet v. Hollenkemp, 13 Ib., 219; Kountz v. Brown, 16 b., 577; Hair v. Little, 28 Ala., 236; Roberts v. Heim, 27 Ib., 678; Porter v. Seiler, 23 Penn. St., 424; Robinson v. Rupert, lb., 523; Grant v. McDonogh, 7 La. Ann., 447; Cook v. Garza, 9 Tex., 358; Graham v. Roder, 5 Tex., 141; Cole v. Tucker, 6 Ib., 266; Murphy v. Crain, 12 lb., 297; Birchard v. Booth, 4 Wis., 67; McCoy v. Danley, 20 Penn. St., 85; Clark v. Bales, 15 Barb. (Ark.), 452; McWilliams v. Bragg, 3 Wis., 424; Hill v. The New Orleans Opelousas & Great Western Railroad Company, 11 La. Ann., 292; Sherman v. Dutch, 16 Ill., 283; Wolff v. Cohen, 8 Rich. (S. C.) L., 144; Milburn v. Beach, 14 Mo., 104; Sutton v. Mandeville, 1 Cr. C. C. R., 187; Bradley v. Morris, Busbee's (N. C.), 395; Bell v. Brownson, 27 Miss., 68; Smith v. Eakin, 2 Sneed's (Tenn.), 456; Walker v. Borland, 21 Mo., 289; Phelim v. Kenderline, 20 Penn. St., 354; McAfee v. Crofford, 13 How., 447; Day v. Woodworth, Ib., 363; Seymour v. McCormick, 16 lb., 480. In the case of Day v. Woodworth, (13 How. 363) in the Supreme Court of the United States, Mr. Justice Grier, in delivering the opinion of the court, made use of the following remarks in support of the doctrine: "It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received