again; from the delay and inconvenience in obtaining vouchers to settle the accounts; and from the want of evidence at the department that the notes had been redeemed. (r) In New York it has been held, that where the property of a party is sold under illegal process, and the sum demanded is raised by a bid at the sale of the property, made by an agent of such party, who purchases for the benefit of his principal, and pays for the same with the money of the principal, the measure of damages, in an action of trespass against trustees of a school district, in such case, is the amount of the bid and the interest thereof, and not the value of the property sold. (8) The questions examined in this chapter may arise, as in the instances which we have been considering, in suits brought by the aggrieved party against the officer directly; or, otherwise, on the bond given by him for the faithful discharge of his duty; or, again, they may be brought against the sureties of the officer. In the case of the suit being brought on the bond, much depends on the form of the instrument and the statute under which it is given. So in Ohio, an action of debt being brought on a sheriff's bond for neglect to sell property levied on, the rule of damages was held to be the value of the property and not the amount of the judgment, and execution was only allowed to issue for the former sum, the language of the statute under which the bond was given being, that "execution might issue for such sum as it might be ascertained would be sufficient to indemnify the person so suing. (t) (1) Where the suit is brought against a surety, the measure of damages often presents very nice and complicated questions, (r) U. S. v. Morgan, 11 Howard, 154. (8) Baker v. Freeman, 9 Wend., 36. See to same point, Clark v. Hallock, 16 Wend., 607. (t) Ohio, use of Morgan, v. Myers et al., 14 Ohio, 538. (1) In an action of debt upon a sheriff's bond, at common law the whole penalty would be recoverable; but under statutory provisions adopted in Georgia, no greater recovery can be had than the actual damage done. Taylor v. The Governor, &c., 17 Ga., 521. In some of the States, judgment is rendered for the full amount but execution issues only for the plaintiff's damage proved. Nelson v. Gray, 2 Greene (Iowa), 397; see also, Cameron v. Boyle, Пb., 154. In a suit upon a bond given under a provision of a statutory enactment in Maine, for a breach of its condition, where a default was submitted to,-Held, that the damages were to be assessed by the court and not by the jury; and the amount was the actual damage sustained by such breach. Clifford v. Kimball, 39 Me., 413. growing out of the fact that the inquiry involves an investigation of the violation of duty of the principal, as well as breach of contract of the surety. In these cases it seems to be well settled, (u) that judgment against the principal is primâ facie evidence of negligence in the suit against the surety, at all events where he has had no notice of the suit being brought. [527] In a case in Massachusetts, brought against the sureties of a constable's bond, where the breach assigned was an illegal levy, and it appeared doubtful whether all the property in question was taken colore officii, a verdict being taken for the penalty of the bond, the court said, "If it appears that any of the property was taken by color of office, as it no doubt does here, that shows an official misfeasance, which is a breach of the bond, and entitles the plaintiff to judgment as for such breach. But when it comes to the assessment of damages, and it is open to question whether the trespass, for which judgment was recovered in the action of trespass, was done by color of office, it will no doubt be competent to the court or jury who assess the damages to ascertain what part of the property was so taken; for it is that part only which is in question in the suit." It was also held that the fact that the goods levied on had been mortgaged by a previous owner before the levy, and that they had been delivered by the constable to the mortgagee on his demand, was no defense to the action; but that upon a hearing in equity, this evidence would be admissible in reduction of damages. (v) (u) Ante, 325, and cases there cited. (v) City of Lowell v. Parker, 10 Met., 309. As to cases in other States, see State Treasurer v. Weeks, 4 Verm., 215. Governor v. Matlock, 1 Hawks., 425. Duncan v. Klinefelter, 5 Watts, 144. Hazard v. Israel, 1 Binn., 240. Shewell v. Fell, 3 Yeates, 17 S. C., 4 Yeates, 47. Eaton v. Ogier, 2 Greenleaf, 46. Riggs et al. v. Thatcher, 1 Greenleaf, 68. Gibson v. The Governor, 11 Leigh, 600. Brugh v. Shanks, 5 Leigh, 598. Rootes v. Stone, 2 Leigh, 650. Smith v. Hart, 2 Bay, 395. Patten v. Halsted, 1 Coxe, Perkins Cady v. Taylor v. Ackley v. CHAPTER XXII. THE MEASURE OF DAMAGES IN CASES OF TRESPASS TO PERSON OR TO PROPERTY. In every case of trespass, damages are recoverable whether, the act was intentional or accidental. But if no aggravation is shown, the rule of damages is generally a question of law-Case or Trespass for injuries to property-Decisions examined-Mitigation-Case or Trespass for injuries to person-Libel and SlanderSlander to title-Seduction-Criminal Conversation-Breach of Promise-Enticing Servants-Malicious Prosecution-Decisions examined-Mitigation-Case or Trespass where Fraud is averred-Fraud in sale of lands-Mitigation and Recoupment-General Principles. I PROCEED now to examine the measure of damages for those remaining wrongs, either to the person or personal property, which are redressed by the actions of case and trespass; proceedings which are so closely allied to each other, and the line which separates them so difficult to define, that for our present purpose it will be more convenient to treat them together. We have already had occasion to notice (w) that in all cases of trespass, although purely unintentional, unless caused by absolutely inevitable accident, the party in default must respond in damages; and that the intent is only material in aggravation or mitigation of damages. We have seen that in cases of contract the motive of the defendant is not inquired into to augment the remuneration to be made by him. On the other hand, in cases of trespass the absence of evil motive cannot be set up as an excuse so far as to bar the action. "I had learned," says Lord Kenyon, "from Lord Bacon's maxims, that there is a distinction (20) Chapter, XVIII., 475. between answering civiliter and criminaliter for acts injurious to others in the latter case the maxim applied is actus non facit reum nisi mens sit rea; but it is otherwise in civil actions, where the intent is immaterial if the act done be injurious to [529] another." (x) And so says Mr. Chitty, "Where the act occasioning an injury is unlawful, the intent of the wrongdoer is immaterial.” (y) (1) It follows, from what has been said, that in the cases of wrongs such as we now proceed to consider, the measure of relief does not depend on the form of the action; whether case or trespass be employed, if no aggravation be proved, the rule of damages is a question of law; and it is competent in either proceeding, to show those circumstances of evil motive which, as we have already seen, go to place the subject of relief largely within the control of the jury. In regard to this class of cases generally, it will be noticed that the object is to limit relief to compensation, as that term is legally understood; and we shall find, therefore, that while the power of the jury over the subject in cases of aggravation is fully recognized, still, even where such facts are presented, if evidence has been admitted or directions given at the trial, which, had the intention of the jury been to give compensatory and not vindictive damages, would have been incorrect, the court, assuming that such was the purpose of the jury, will exercise their control over the subject. "We consider the law," (x) Haycraft v. Creasy, 2 East, 90. (y) Chitty on Pleadings, vol. i., 147. (1) The distinction, as to the effect of mitigating circumstances on the actual and on the exemplary damages is, that where the excusing or the palliating circumstances involve no fault of the plaintiff, they may prevent exemplary damages and limit the recovery to the actual damages. And this is an expression of the principle that the faults of third persons shall not benefit or prejudice either of the parties in their right and duty of compensation. If, making due allowance for the infirmities of human temper, the defendant has a reasonable excuse for the violation of the public order, then there is no foundation for exemplary damages, and the plaintiff can claim only compensation. It is merely the corollary of this, that where there is a reasonable excuse for the defendant, arising from the provocation or fault of the plaintiff, but not sufficient entirely to justify the act done, there can be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages, If it were not so, the plaintiff would get full compensation for damages occasioned by himself. The rule ought to be, and is practically mutual. 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 measure. v. Rupert, 23 Penn. St., 524. Robinson says the Superior Court of New York, " as properly and wisely settled that the quantum of damages, with the exception of cases in which exemplary or vindictive damages may properly be given, is strictly a question of law; so that the jury are bound by the rule which the judge directs them to follow." (2) This will appear by the cases which we now proceed to examine. And a convenient division of the subject appears to be produced by grouping together, first, those actions where case or trespass is brought for injuries to personal property; secondly, those where redress is claimed for injuries to the person; and lastly, where actual fraud is complained of. It may not be improper to make some preliminary observations as to the right in which the action is brought, so far as it affects the question of damages. In all cases the absolute or general owner of personal property, whose rights are infringed, can maintain the action. So can the special owner. (1) And in this country the rights of another class of parties interested have been recognized. (2) So where a defendant fraud- [530] ulently removed buildings of a judgment debtor from certain premises on which the judgment was a lien, with intent to defeat the lien of the plaintiff's judgment, it was held that the plaintiff was entitled to recover. And so a mortgagee can recover against a party for wrongfully removing buildings from the mortgaged premises, or for any fraudulent injury to the value of the premises. But in cases of this description, the plaintiff must show that he necessarily suffered damage by the act complained of; in other words, that there was not property enough left to satisfy the execution or the mortgage. (a) (z) Suydam v. Jenkins, 3 Sandford, 628, per Duer, J. See, also, Baker v. Wheeler, 8 Wendell, 505. (a) Yates v. Joyce, 11 J. R., 136; Lane v. Hitchcock, 14 J. R., 213; Marsh v. White, 3 Barb. S. C. R., 518; Gardner v. Heartt, 3 Denio, 232; but not for mere negligent injury. In Barber v. Matthews, 1 Denio, 335; it was held that the principle allowing a recovery in cases of this kind must be limited to real property; and that for similar injury to personal property levied on, the suit must be brought in the name of the party making the levy. (1) The special owner in general recovers only the value of his interest. Brierly v. Kendall, 10 Eng. L. & E., 319; S. C., 17 Q. B., 987; 16 Jur., 449. (2) If a party intending to commit a trespass on public lands, through mistake cuts down trees on the land of another person, he is liable to the penalty for such trespass. Otherwise, if he intended to cut timber on his own lands, but by mistake should cut timber on the land of another. In such a case he would not be liable to the penalty, but only for the actual damage done. Perkins v. Hackleman, 26 Miss., 41. |