form of action if the plaintiff claims by virtue of a lien, he recovers only to the extent of his lien, provided always that the action is not against a mere stranger.

In New York and Pennsylvania, it has been declared, that if the writ be sued out fraudulently, vexatiously, or mali[502] ciously, or the defendant's proceedings be of the same

character, the jury may give exemplary damages against either plaintiff or defendant, as in cases of willful trespass. (8)

And on the other hand, it is competent for the plaintiff to show in mitigation that shortly after the delivery of the property to him, the defendants repossessed themselves of the greater part of it; (t) the Supreme Court of New York saying, that the action being in many cases a substitute for trespass de bonis asportatis, the rule of mitigation in that action was strictly applicable.

And, so in Iowa and Maryland it has been decided that the plaintiff, though nonsuited, may still offer testimony to prove ownership of property in himself, upon inquiry into the right of the defendant's possession, in order to show that the defendant would have sustained no substantial damage as he was not the owner of the property. (u)

Thus much of the defendant. As to the damages recoverable by the plaintiff, they are for the detention of the property, of which interest on its value is ordinarily the measure. He is also entitled to compensation for any deterioration in value of the goods replevied while they were in the hands of the defendant; (v) but the plaintiff who retains the articles replevied till judgment in the suit, cannot, if he succeed, claim damages for the depreciation in their value; because he may always convert them into money. (w)

It has been held in the analogous action of case for taking personal property, that the plaintiff was entitled to recover for his time and expenses incurred in pursuit of the property, (x) and in

(s) Cabel v. Dankin, 20 Wend., 172. Donald v. Scaife, 11 Penn. R., 381. Brizsee v. Maybee, 21 Wend, 144.

(t) Dewitt v. Morris, 13 Wend., 496. (u) Harman v. Goodrich, 1 Iowa, 13. Bell v. Worthington, 3 Gill & Johnson, 247. In Indiana, when the replevin bond is forfeited, the statute authorizes the defendant (in replevin) to recover, in a suit on the bond, such sum as shall be just and equitable; and if the plaintiff recover, he shall in like manner recover

damages for the detention of the goods and chattels, An effort was made under this statute to obtain for the defendant in replevin, an allowance for his counsel fees and time lost in attendance on court in the replevin suit; but it was denied. Davis v. Crow, 7 Blackf., 129.

(v) Rowley v. Gibbs, 14 J. R., 385. (w) Gordon v. Jenney, 16 Mass., 465. (x) Bennett v. Lockwood, 20 Wend., 223. Morris on Replevin, 189.

Maryland for the hire of slaves. (y) In Texas, it has been said, "that where the suit is brought to recover the specific [503] property and damages for its detention, if the property sued for be a slave, damages for the hire should be computed from the time of the demand to the rendition of the judgment; if no special demand is proven, the service of the writ is the time from which the damages should be computed." (2) Where the plaintiff has but a life interest, as in slaves, the verdict cannot be for more than the value of such interest. (a)

It is the peculiarity of this action, that both parties may be actors, and so if it is found that a part of the property claimed is the plaintiff's and a part not, both plaintiff and defendant may recover damages against each other. (b)

As to mitigation of the plaintiff's damages, it has been held that in a suit on the replevin bond the defendant may show that the plaintiff had no title to the property, on the ground that the decision of the replevin suit might not be necessarily conclusive upon that question. (c) (1)

The subject of this chapter is, as I have said, very much under the control of special statutes; and where those statutes, or the decisions founded on them, do not apply, a reasonable rule may generally be deduced from the analogous cases decided upon the actions of trover, trespass de bonis asportatis, case for injury to personal property, and on sales of chattels. (d) (2)

(y) Dorsey v. Gassaway, 2 Har. & J.,

413.

(z) Robbins, Adm'r, v. Walters, 2 Texas R., 130.

(a) Lloyd v. Goodwin, 12 Smedes & M., 223.

(b) Powell v. Hinsdale, 5 Mass., 343. (e) Wallace v. Clark, 7 Blackf., 298.

(d) The sureties in a replevin bond are together liable only to the amount of the penalty in the bond, and the costs of the suit upon the bond. Hefferd v. Alger, 1 Taunt., 217.

In Kentucky, a plea in replevin alleging property in a stranger is good. Scott v. Hughes, 9 B. Monroe, 104.

(1) It has been held that where the goods have been delivered and accepted, pending the suit, only nominal damages can be given, unless, perhaps, plaintiff may sometimes have interest on the value. Conroy v. Flint, 5 Cal., 327.

(2) In an action of replevin, the value of the use of the property is the true measure of damages, and not the value of the property alone. Speculative or expected profits from its use, is not the proper criterion or measure of damages, but a reasonaable compensation for its use or rent. No particular injury is admissible, and no smart money, or vindictive damages, can be given. Butler v. Mehrling, 15 Ill., 488. In replevin, only compensatory damages can be given; and where no damages are alleged, the amount of the recovery cannot exceed the alleged value of the property. Hotchkiss v. Jones, 4 Ind. R., 260. And where there is no evidence as to the

In Louisiana, proceeding by sequestration is strongly analogous to the replevin or attachment of the common law, and the party plaintiff gives a bond with sureties, "to pay all damages that may accrue in case it shall appear the sequestration was wrongfully sued out." In a suit on such a bond it has been decided in that State that the judgment in the original sequestration proceeding is conclusive of the question of property against the sureties to the sequestration bond, and that the counsel [504] fees of the first suit can be recovered on such bond; nor is

it material to show that such fees have been actually paid: it is enough that the plaintiff has incurred a liability for them. (e)

(e) Jones v. Doles, 3 La. Ann. R., 588.

value of the property, only nominal damages can be awarded. Phenix v. Clark, 2 Gibbs (Mich.), 827.

In Texas, however, in an action for the recovery of specific property, or its value, a valuation by the jury higher than the evidence warranted, with a view of inducing a surrender of the property, was held not to be erroneous. Cochrane v. Winburn, 13 Tex., 143.

CHAPTER XXI.

THE MEASURE OF DAMAGES IN THE COMMON-LAW ACTIONSACTIONS OF CASE AND TRESPASS-SUITS AGAINST SHERIFFS AND OTHER PUBLIC OFFICERS; AND AGAINST THEIR SURETIES.

In actions of Case or Trespass, against Public Officers, the Rule of Damages is usually a question of law-The general Rule is the injury actually sustained by the plaintiff On whom does the proof of damage rest?-Cases examined-In America, the debt due the plaintiff is primâ facie the Measure of Damages-If aggravation is shown, the jury may give exemplary Damages-Mitigation-Suits against Collectors of Customs-Suits against Sureties of Public Officers.

HAVING disposed of the actions of trover and replevin, we now approach the great head of Case, of which assumpsit is only a branch, and some other subdivisions of which we have already considered. I shall, adhering to the line of demarkation already adopted, treat first of those applications of the action, where no circumstances of aggravation are relied on; reserving for our ultimate consideration those where the evil motive of the defendant forms a substantial ground of complaint. We have already (ƒ) had occasion to notice, that in actions against private agents the law affords two remedies; one, ex contractu, upon the contract, and the other, ex delicto, for the violation of duty; but that in both these cases, the measure of relief is a question under the entire control of the court, unless where the latter proceeding is adopted, and circumstances of aggravation are proved. We shall find the same general principle to hold good in regard to the actions which we are now about to consider.

(ƒ) Ante, 351.

We have also, when discussing the subject of remote and consequential damages, had occasion to notice the distinction between trespass and case; the former being originally [506] used where the injury was direct, the latter where consequential. But the line of division between case and trespass is often so faint and difficult of delineation, that it will be better for our present purpose to consider rather the object of the suit than the form of the action. (g) Before examining the subject of trespasses or wrongs generally, we will consider that class of cases which arise out of the acts of the public officers who are charged with the ministerial portion of the administration of justice.

It is well settled under the English system, that sheriffs and other ministerial officers, in case of neglect or violation of duty, are responsible to the party aggrieved in a civil action. The mode prescribed is usually one of the great class of actions on the case; but the proceeding often takes the form of trespass. To this general remedy, which flows from the principles of the common law, is frequently superadded some special statutory relief, enforced by some particular penalty; but the addition of such particular remedy does not interfere in any way with the right of the party to his compensation for the actual injury done in a suit of trespass, or on the case.

The ordinary cases in which the questions arise which we are now about to examine, are presented in suits against sheriffs, or other ministerial officers, either for negligence, as the escape of parties arrested on mesne or final process, for taking insufficient security, for neglect to seize or preserve property on execution; or omission to make a true return to the writ; or on the other hand, for an excess of their powers, as for levying upon property which they are not authorized to by the process, excessive distress &c. And in these cases we shall find the general principle to be although the form of the action be in tort, that the party aggrieved

(g) As a general principle, it is well settled in regard to all public officers, that although created by statute, and although liable to the infliction of penalties for violation of official duty, they are still equally responsible to the aggrieved party, in an action on the case. Where the law," says the Supreme Court of Maine, "has affixed forfeitures

for the infractions thereof, or for neglect in not conforming to its requirements, whereby individuals are injured, they are not in consequence thereof deprived of the remedy which would exist if no penalties were prescribed." Hayes v. Porter, 22 Maine R., 371; Beckford v. Hood, 7 T. R., 620; Farmers' Turnpike Co. v. Coventry, 10 Johns. R., 389.