does not lose his remedy for an injury caused by the culpable negligence of others."* And the same principle has been recently declared in England, where it has been said that the defendant is not excused merely because the plaintiff knew that some danger existed, and voluntarily incurred such danger, provided the defendant's negligence was the cause of the damage, the whole matter being for the consideration of the jury.t

So, also, it has been said in New York, that the plaintiff's negligence does not excuse injuries inflicted by design. "A wrongdoer is not necessarily an outlaw, but may justly complain of wanton and malicious mischief."

In England, it has been declared to be the general rule, that a party has no right to sue for damages in a civil action for any act which amounts to felony, until the felon is prosecuted and acquitted or convicted; and the reason assigned is a desire to prevent the criminal justice of the kingdom from being defeated, as well as the fundamental principles of the feudal system. By that system, the commission of a felony worked a forfeiture of the feudatory's grant and the forfeiture extending to the whole property of the felon, and the crime being capital and punished by death, nothing remained to satisfy a private demand, and no person against whom the action could be brought. But it seems that such is not the law in this country.

The subject of remote and consequential damages in cases of tort, we have already considered elsewhere. And we have also had occasion to call attention to cases bearing on this point, in which it has been held, that the fact of the plaintiff being indemnified by charity or otherwise, cannot be set up by a wrongdoer in diminution of the amount which he is liable to pay.**

In closing this branch of our subject, it ought to be observed, that while, where circumstances of aggravation are

* Cook vs. Champlain Transport'n Co., 1 Denio, 91.

+ Clayard vs. Dethick et al., 12 Q. B., 487.

Tonawanda R. R. Co. vs. Munger, 5 Denio, 255.

Crosby vs. Leng, 12 East, 409.

| Boardman vs. Gore, 15 Mass., 336. Ocean Co. vs. Fields, 2 Story, 59. Plummer c. Webb, Ware Rep., 78.

Supra, 57, et seq. See, too, on this subject, Molinæus, De eo quod Int., § 177. ** Vide ante, 89.

proved, the jury are the necessary as well as the rightful judges of the amount of relief, on the other hand, where no such facts are presented, too much care cannot be taken to apply settled rules to the subject of compensation. It can make no difference whether the action be one nominally ex contractu or ex delicto, whether for the breach of a contract or the violation of a right; in either case, if no evil motive be imputed, the amount of compensation is as much a matter of law as the right itself, and can, with no greater safety, be submitted to the vague and fluctuating discretion of a jury.*

We shall, in discussing the cases which arise under the present branch of our subject, first consider those where, though the proceeding be nominally in tort, no circumstance of aggravation is proved, and where the law undertakes to apply a fixed measure of compensation.

* Vide post, Ch. XXII.

In an action on the case for fraud in the sale of personal property, it is said to be the well settled doctrine in Kentucky, that vindictive damages cannot be given. Singleton's Adm'r vs. Kennedy & Co., 9 Ben Monroe, 222. And the court considered that they could not be given in like cases in Louisiana. But they may be given in Kentucky, where a trespass is committed willfully and in a high handed manner. Jennings vs. Maddox, 8 B. Monroe, 480.

The precise demarkation of the cases in which exemplary or vindictive damages are allowed, has not yet been made in any distinct manner. In all actions of tort accompanied by violence, malice, or oppression, they are undoubtedly recoverable; but how far in cases of tort, mere fraud will found a claim for them is not yet determined. In many cases of fraud the courts have declared a fixed and uniform rule, which, of course, excludes all idea of vindictive or exemplary damages. But there are many other cases where fraud, though unattended by violence, is accompanied by gross malice and manifest design to injure; and in these it would seem that they should be allowed.

CHAPTER XIX.

THE RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE MISAPPROPRIATION OR CONVERSION OF PERSONAL PROPERTY-TROVER.

The General Rule is the value of the Property converted-Special Damages, whether recoverable-Value, whether estimated at time of conversion or at time of trialWhere Plaintiff claims a special property, or by virtue of a lien-Where the defendant has bestowed labor on the property-In regard to Choses in ActionInterest-Mitigation of Damages.

IN treating of the subject of torts we shall first discuss those cases, which, being unattended by any circumstances of aggravation, are regarded entirely as under the control of the court, and in which a fixed rule of damages is maintained as matter of law. These cases are treated, for our present purpose, as contracts, and compensation is awarded on fixed legal principles. Where, on the other hand, the amount of relief is submitted to the discretion of the jury, few questions present themselves as to the measure of damages.

Trover is the form of action adopted where damages are demanded for specific personal property which has been wrongfully appropriated, or in more technical language, converted to the use of any other than its rightful owner. It is often brought in cases where assumpsit, and in others where trespass or replevin, would lie.*

The consequences flowing from the election of assumpsit are well stated in the language of Lord C. J. Ellenborough. "In bringing an action for money had and received, instead of trover, the plaintiff does no more than waive any complaint with a view to damages for the tortious act by which the goods were converted into money, and takes to the net proceeds of the sale as the value of the goods, subject of course to all the con

* Barker vs. Cory, 15 Ohio, 9.

sequences of considering the demand in question as a debt, and amongst others, to that of the defendants having a right of setoff if they should happen to have any counter demand against the plaintiff."*

But where trover is adopted, the general proposition may be laid down, that the value of the property converted is the measure of damages. This, however, is subject to many qualifications.

It is proper, perhaps, before entering on the general discussion, to take notice of an exception to which is applied the term of pretium affectionis. It has been intimated in many cases, though perhaps never as yet directly decided, that where the property in question had for some particular reason a peculiar value to its owner, as a picture to a relative, a manuscript to a defendant, and so in many other cases that may be supposed, it would be proper for the jury instead of confining themselves to the rigid estimate of value, of which, perhaps, there might be no criterion, to give an enhanced remuneration for the peculiar estimate in which the true owner held the article in question, as a pretium affectionis. It is very difficult to reduce remuneration of this kind to principle or settled rule. In cases of intentional wrong the rule of vindictive damages covers the case. But when such is not the case, how far should a plaintiff be remunerated, for what is in truth an injury to his feelings? As a general rule, injuries to the feelings of the plaintiff are not subjects of legal recompense, except when the wrong is malicious. To authorize such a recovery, it would seem to be essential at least that the defendant should have been apprised of the peculiar value set upon the property by the owner, and that he should have disregarded his feelings. And then again, to what extent shall the jury go in their endeavor to appreciate the various motives that may enter into the plaintiff's estimate of the article? There would seem to be great intrinsic difficulty in permitting recovery on these grounds. In Mississippi the difficulty has been partially got over in regard to slaves, by permitting the owner to seek equitable relief, and to claim a specific return of the property,

* Hunter vs. Prinsep, 10 East, 878, 391. Greenleaf on Evidence, Vol. II., 218. Vide Ante, 41, in notes.

where at common law he would have been limited to an action for damages.*

In one of the earliest cases on the subject of damages in trover, where the action was brought for a jewel, several of the trade being examined to prove what a jewel of the first water, of the size in question, would be worth, the Chief Justice of the King's Bench directed the jury, that unless the defendant produced the jewel and showed it not to be of the first water, "they should presume the strongest against him, and make the value of the best jewels the measure of their damages,” which they did.

"The general rule in trover," said Patterson, J., "is that the damages are measured by the value of the thing taken. I never knew of any attempt to reduce the damages by showing the manner in which the goods were seized." And in this case, it being specially pleaded that the defendant did not convert the goods claimed, a horse and cart, evidence was refused to show that they did not belong to the plaintiff.§

It has, however, been intimated that special damages may be recovered in this action for the detention of the property, over and above its value. It was suggested by Parke, B., at nisi prius, that the plaintiff could recover special damages if laid in the declaration; as in trover for the conversion of a horse, that the plaintiff could recover for money paid for the hire of other horses. And it has been so since decided by the Queen's Bench, in trover brought by a carpenter for his tools; the declaration containing an allegation, that by reason of the conversion the plaintiff was prevented from working at his trade. In this country, however, it seems doubtful; the doubt resulting from the technical form of the action, as well

* Butler vs. Hicks, 11 Sm. & Marsh., 78. Hull vs. Clark, 14 Sm. & Marsh., 187. + Amory vs. Delamirie, 1 Strange, 505.

Finch vs. Blount, 7 Car. & Payne, 478.

"The value of the goods which have not been returned," said Patterson, J., in Cook vs. Hartle, 8 Car. & Payne, 568, "is the proper measure of damages."

Davis vs. Oswell, 7 Car. & Payne, 804.

¶ Bodley vs. Reynolds, 21 April, 1846, 8 Q. B., 779. See, also, Moon vs. Raphael, 2 Bing., N. C., 310, an action of trover, in which Tindal, C. J., said, "The injury of which the plaintiffs complain not being a damage necessarily consequent on the wrongful conversion of the goods, if it could in any shape fall within the remedy of an action of trover, ought at least to have formed the subject of a special allegation."