The strongest case in favor of giving damages to the plaintiff beyond what he has sustained, is that of McBride v. McLaughlin (5 Watts, 375); which was trespass against a judgment creditor for a willful and malicious. abuse of process, in the levy of his execution against two joint debtors, "under circumstances of peculiar injustice and oppression." It appeared that the oppression was in fact meditated not against the present plaintiff, but against the other debtor, to whom the property taken was supposed to belong; and that the present plaintiff had been joined in the judgment by mistake, and it was set aside as to him. The question was, whether the defendant's malice and misconduct in the transaction could be taken into the estimation of damages, inasmuch as it was not intended against the plaintiff. The judge ruled that it might; and his ruling was sustained by the court in bank. There was no discovery of error or mistake by the creditor, and consequent apology, during the oppressive transaction; but the whole was carried out to its final consummation, in the most insolent and cruel manner. The case, therefore, falls within our rule, that the jury may consider all the circumstances affecting the plaintiff, either in mind, body, or estate, and award him damages to the extent of the injury done to him in either of those respects. Surely, if A spits in B's face on 'change, it does not diminish the disgrace, nor, of course, the extent of the injury, for him afterwards to say that he mistook B for C. The crowd that saw the indignity may never come to the knowledge of this fact, nor does it lessen the pain inflicted upon his feelings at the time. In both cases, as in all others, the evidence is confined to the principal fact, with all its attending circumstances, stamping its character, and affecting the party injured. In the case we have just cited, however, the learned judge does seem to place the decision of the court on the ground that in certain offenses against morals, which would otherwise pass without reprehension, "the providence of the courts" permits the private remedy to become an instrument of public correction. We say seems to place it; for he also uses expressions which equally indicate a reliance upon the rule which confines the jury to the evidence affecting the plaintiff alone. Such, for example, is the concluding sentence of his judgment: "The defendant was guilty of willful oppression, and he is properly punished for it." Oppression of whom? Clearly the plaintiff, and no other. Our limits will not permit an extended examination of all that fell from the court on this occasion; but with the profound respect we sincerely entertain for that learned bench, we may be allowed to question the accuracy of the assertion, that in an action for seduction of a daughter, the loss of services is the only legal ground of damages to the plaintiff. It is true, it was stated by Lord Ellenborough in 1809, to be difficult to perceive the legal propriety of extending the rule beyond that; yet he confessed the practice of so extending it had become inveterate; and accordingly he instructed the jury also to consider

the injury to the plaintiff's parental feelings; and the rule has for many years been well settled, that in this, as in other wrongs, the wounded feelings, the loss of comfort, and the dishonor of the plaintiff, resulting from the act of the defendant, form a legal ground of damages, as part of the transaction complained of. The grounds of the action for seduction were recently examined in England, in Grinnell v. Wells (7 M. & G., 1033), and the damages explicitly admitted to be given as compensation; not limited, however, to the actual expenditure of the plaintiff's money, but given according to all the circumstances of aggravation in the particular case. These are consequences of the defendant's wrongful act, done to the plaintiff, to his injury; and it is for these, and not for the outrage to the public, that damages are given. See 2 Greenleaf on Evidence, and cases there cited. Andrews v. Askey (8 C. & P., 7). The case of Benson v. Frederick (3 Burr., 1845), cited in McBride v. McLaughlin, was not a case of damages given for the sake of example. It was an against a colonel, for ordering a private to be whipped, out of spite to his major, who had given the man a furlough. The jury gave him £150; and the court refused to set aside the verdict for excessiveness of damages, because the man, "though not much hurt, indeed, was scandalized and disgraced by such a punishment."

In conclusion, it is worthy of remark, that afterwards, in Wynn v. Allard (5 Watts & Serg., 524), which was trespass for a collision of vehicles on the road, the same learned court of Pennsylvania very properly held that the drunkenness of the defendant was admissible in evidence to determine the question of negligence, where the proof was doubtful; but "not to inflame the damages." Why not, if it was "an offense against morals"? For it certainly must have been deemed such an offense. And in Rose v. Story (1 Barr R., 190, 197), in trespass de bonis asportatis, where the jury had been allowed, in addition to the value of the property, to give such further damages as "under all the circumstances of the case, as argued by the counsel, they might think the plaintiff entitled to demand;" the same court held the instruction wrong, as giving the jury "discretionary power, without stint or limit, highly dangerous to the rights of the defendant," and "leaving them without any rule whatever." It is against this discretionary and unlimited power, so liable to abuse, and so dangerous to the rights and liberties of the citizen, that we contend; though it is not for us, but for the judiciary, to declare what is the law.

G.

NO, II.

FROM THE LAW REPORTER FOR JUNE, 1847.

THE RULE OF DAMAGES IN ACTIONS EX DELICTO.

THE April number of the Law Reporter contains an able and elaborate article by Mr. Professor Greenleaf, re-asserting and defending the position originally adopted by Mr. Metcalf, the learned reporter of the Supreme Court of Massachusetts, in an article in the American Jurist (vol. iii., p. 387), that damages even in actions of tort must always be strictly limited to compensation; and this doctrine is also supported by the Journal, in the editorial notice of Mr. Sedgwick's work on the Measure of Damages. To endeavor to maintain ground enfiladed by a cross-fire so formidable as this, may seem a rash undertaking; but disregarding the disparity of strength and numbers, let us address ourselves to the contest-a contest on which we enter with great diffidence as to our own powers, but an unwavering confidence in the strength of our position.

We will first examine the subject on authority, and after ascertaining how it stands in this respect, then look into the matter on principle. But for the purpose of better comprehending the precise nature of the question, let us see exactly what the conflicting propositions are. The doctrine of compensatory damages is thus briefly stated by Professor Greenleaf in his extremely valuable work on Evidence: "The plaintiff is not entitled to receive compensation beyond the extent of his injury; nor ought the defendant to pay to the plaintiff more than the plaintiff is entitled to receive." (Greenleaf on Evidence, vol. ii., p. 209.)

This latter clause is ambiguous, and in one sense imports a mere truism; for it is very certain that the defendant never does in fact, pay more than the plaintiff receives, and no more than he is entitled by law to receive. But the meaning of the phrase, as amplified and insisted upon in Mr. Greenleaf's recent article, is, that the plaintiff's recovery in all cases is limited

strictly to compensation; not of course to mere compensation for mere pecuniary injury, but "for every circumstance of the act complained of which injuriously affects the plaintiff, in his person, his peace of mind, his quiet and sense of security in the enjoyment of his rights; in short, his happiness. (a) The damages must be compensation and nothing more. The counter-doctrine is thus stated: "Whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law, instead of adhering to the system or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interest of society and the aggrieved individual, and gives damages not only to recompense the sufferer but to punish the offender." (b) Of this doctrine, Mr. Greenleaf in the article already referred to, says that though it may seem justified by the general language of some judges, and by "remarks gratuitously made in delivering judgment on other questions, it is not supported by any express decision ;" and that "though judges have spoken of exemplary or vindictive damages, they have never instructed the jury in terms that they were at liberty to increase the damages merely for the sake of punishing the defendant, and beyond the amount of injury which the plaintiff had sustained." And it is perhaps worthy of notice, that so completely unauthorized does Mr. Greenleaf seem to consider this doctrine, that it is not alluded to in the chapter in his work on Evidence devoted to the subject of damages, nor would the idea even appear to have occurred to his

mind.

We propose in the first place, without further preface, to see how far the above statement of the result of the adjudged cases is correct. The origin of the rule dates back to the time of Lord Camden, and the great controversy about general warrants. In Wilkes' case that great judge said, "As to the damages, I continue of the opinion that the jury are not limited by the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, and as proof of the detestation in which the wrongful act is held by the jury." (c) In New York the doctrine is as old as the case of Cheetham v. Tillotson (3 J. R., 56). There the charge of the chief justice was, that "the case demanded exemplary damages, as well on account of the nature of the offense charged against the plaintiff, as for the protection of his character as a public officer, which he stated as a strong circumstance for the increase of damages, and that he did not accede to the doctrine that the jury ought not to punish the defendant in a civil suit for the pernicious effect which a publication of this kind was calculated to produce in society." And to this

(a) Greenleaf on Evidence, vol. ii., 219. Law Reporter for April, 1847, 530. (b) Sedgwick on Damages. [Chap. I. p. 36; ed. 1858.]

(c) Lord Campbell's Chancellors, vol. v., 249.

precise point the defendant's exceptions were addressed. "The charge of the judge," they say, "was incorrect in stating that the plaintiff was entitled to exemplary damages, on account of the injurious tendency of said publication to the country. In a private action the party can recover only for the private wrong: he has no concern as to the public offense; for which the defendant must atone by an indictment." This, it will be noticed, is precisely the doctrine of Mr. Metcalf and Professor Greenleaf. Now, what did the court say? Kent, C. J., re-affirmed the doctrine of his charge, and Spencer, J., said, "In vindictive actions, such as for libels, defamation, assault and battery, false imprisonment, and a variety of others, it is always in charge to the jury that they are to inflict damages for example sake, and by way of punishing the defendant." How is it possible to call this language, as Mr. Greenleaf does, "extra-judicial?" How can it be termed " a remark gratuitously made in delivering judgment on other questions?" In view of this case can it be safely said that "no jury has ever been told to give damages to punish the defendant?"

So, again, in the same State in a very recent case, Cook v. Ellis (6 Hill, 465), of which Mr. Greenleaf takes no notice, where the defendant, having been punished criminally for assault and battery, it was insisted in an action brought for the same offense, that the fact of the conviction and punishment should be received in evidence to mitigate damages. The discussion, it will be perceived, turns on the very same principle; and what said the Supreme Court in excluding the evidence? "We concede that smart-money, allowed by a jury, and fines imposed at the suits of the people, depend on the same principle. Both are penal, and intended to deter others from the commission of the like crime. The former, however, become incidentally compensatory for damages, and at the same time answer the purpose of punishment." Of this decision the learned author of the article in the Law Reporter takes no notice; and it certainly could not be very well called "a remark gratuitously made in delivering judgment on other questions."

How is it in Pennsylvania? In an action of trespass, Bride v. M'Laughlin (5 Watts' R., 375), for selling under an execution under circumstances of peculiar injustice and oppression, Grier, President, who is now on the bench of the Supreme Court of the United States, said, "If the jury believe that the defendants acted in a deceitful, hard, cruel, or oppressive manner, they may give not only compensatory, but exemplary and vindictive damages." In error, this was denied to be law, and the counsel for the plaintiff in error cited 3 Am. Jur., 287 (the original article of Mr. Metcalf), in support of the doctrine now insisted on. But the court said, "Whatever be the speculative notions of fanciful writers, the authorities teach that damages may be given in peculiar cases not only to compensate but to punish. There are offenses against morals to which the law has annexed no penalty as public wrongs, and which would pass without repre