does not at all affect the question as to the extent of the injury done, which is the only question to be determined. The jury are to inquire, not what the defendant can pay, but what the plaintiff ought to receive. But so far as the defendant's rank and influence in society, and therefore the extent of the injury, are increased by his wealth, evidence of the fact is pertinent to the issue:" 2 Greenl. Ev., sec. 269. This is a correct statement of the rule obtaining in our second class of cases. But it is incomplete, inasmuch as the defendant's ability to pay is considered in awarding exemplary damages. In this second class of cases, however, such as slander, libel, seduction, or breach of promise, where the injury inflicted is increased by the social power and position of the defendant and his rank in the community, his pecuniary circumstances, as an element that goes to make up this rank and influence in society, may be introduced in a case where only compensatory damages may be awarded. The rule is thus stated by Hosmer, C. J., in Bennett v. Hyde, 6 Conn. 27: "Great wealth is generally attended with correspondent influence; and little influence is the usual concomitant of little property. The declarations of a man of fortune concerning the character of another, like a weapon thrown by a vigorous hand, will not fail to inflict a deeper wound than the same declarations made by a man of small estate, and, as a consequence not uncommon, of small influence." And in Johnson v. Smith, 64 Me. 555, it is said: "So far as the cause of action rests upon an injury to the character or an insult to the person, compensatory damages may be increased by proof of the wealth of the defendant. This is upon the ground that wealth is an element which goes to make up his rank and influence in society, and thereby renders the injury or insult resulting from his wrongful acts the greater." For further authorities on this head, see infra, "Slander and Libel," "Seduction," "Breach of Promise."

In such cases as these, it has been held that the defendant's pecuniary circunstances should be proved by general reputation rather than by particular facts, for it is the defendant's position in society that gives his slanderous statements character and weight, and it is his reputation for wealth rather than its actual possession that confers this position generally: Stanwood v. Whitmore, 63 Me. 209 (slander); Johnson v. Smith, 64 Id. 555; Kniffen v. McConnell, 30 N. Y. 285, 289 (breach of promise); see White v. Murtland, 71 Ill. 250 (seduction). But in cases for exemplary damages the evidence should be particular: Sloan v. Edwards, 61 Md. 101.

Defendant's Proof in Rebuttal.-The defendant may prove in rebuttal that part of his property has been sold without his consent, after the suit was commenced, to satisfy a prior debt: Sprague v. Craig, 51 Ill. 288 (breach of promise). In cases where it is competent for the plaintiff to prove the wealth of the defendant to increase the damages, it is equally competent for the defendant to show a want of it to diminish them. Nor can he be deprived of this right by the omission of the plaintiff to offer any proof on that point or make any claim for damages on that ground: Johnson v. Smith, 64 Me. 553 (assault); see also Karney v. Paisley, 13 Iowa, 89, 92 (doubted in Guengerech v. Smith, 34 Id. 348, on the point of admitting evidence of pecuniary circumstances at all).

Cases against Two or More Defendants.-In an action against two or more to recover for an injury to the plaintiff, in which the plaintiff is entitled to exemplary damages by reason of the conduct of the defendants which occasioned the injury being willful, wanton, or malicious, the pecuniary ability of one defendant should not be considered by the jury in determining the damnages which a co-defendant shall have assessed against him: Railroad Co. v.

Smith, 54 Ill. 517. An instruction that the jury might take into consideration the pecuniary ability of each of three defendants to pay damages was held erroneous, though exemplary damages were allowable, because, as they were liable jointly, and their wealth varied greatly, the verdict would be harder on some than on others. And it was held that the jury ought to consider what the plaintiff ought to receive, the defendants' wealth being a mere aggravation of the injury: Smith v. Wunderlich, 70 Id. 426, 437. But in Bell v. Morrison, 27 Miss. 68, it is held that in a case of joint tort, where the defendants join in their pleas, the jury must assess damages against the defendants jointly, according to the amount which in their judgment the most culpable of them ought to pay, and evidence of the wealth of one of the defendants was received, Fisher, J., dissenting.

ASSAULT AND BATTERY.-We now proceed to classify, according to the nature of the action, the cases in which evidence of the defendant's wealth has been admitted. In an action for assault and battery, where the circumstances of the case are such as to render the recovery of exemplary damages permissible, the pecuniary circumstances of the defendant are admissible in evidence for the reasons above stated: See supra, "Admissible in Awarding Exemplary Damages;" Brown v. Evans, 8 Saw. 488; S. C., 17 Fed. Rep. 912; McNamara v. King, 2 Gilm. 437; Jones v. Jones, 71 Ill. 562; Johnson v. Smith, 64 Me. 553; Gaither v. Blowers, 11 Md. 536; Sloan v. Edwards, 61 Id. 89; Bell v. Morrison, 27 Miss. 68, 85, 86; Harris v. Marco, 16 S. C. 575 (citing and following the principal case); Birchard v. Booth, 4 Wis. 67; Barnes v. Martin, 15 Id. 240; Brown v. Swineford, 44 Id. 282, 291-294. The action in Harris v. Marco, supra, was for assault and battery and false imprisonment, as was also the case in McConnell v. Hampton, 12 Johns. 236, 237, in which the wealth of the defendant was considered, but the damages were, notwithstanding this, held to be excessive. In an action against an innkeeper, who, after a guest had engaged and paid for a night's lodging, refused to let him have it, and turned him out of the house with abusive and insulting language, exemplary damages were recoverable and the pecuniary circumstances of the defendant were admissible: McCarthy v. Niskern, 22 Minn. 90.

In some states exemplary damages are not recoverable in an action for assault and battery, on the ground that it is punishable criminally. And in such states as only compensatory damages may be given, the wealth of the defendant cannot be considered: Taber v. Hutson, 5 Ind. 322; S. C., 61 Am. Dec. 96. In Iowa, though punitive damages may be awarded in assault and battery, the wealth of the defendant cannot be considered, the court deviating from the weight of authority: Guengerech v. Smith, 34 Iowa, 348, overruling Karney v. Paisley, 13 Id. 89, Beck, C. J., dissenting.

BREACH OF PROMISE OF MARRIAGE.-Pecuniary circumstances of the defendant may be considered by the jury in estimating the damages in an action for breach of promise of marriage: Note to Burnham v. Cornwell, 63 Am. Dec. 546; James v. Biddington, 6 Car. & P. 590. The defendant's poverty ought not to decrease the damages in an action of breach of promise: Coryell v. Colbaugh, 1 Am. Dec. 192.

MALICIOUS PROSECUTION.-As exemplary damages may be awarded in actions for malicious prosecution, the pecuniary circumstances of the defendant may be considered in determining the amount of the damages: Bull. N. P. 13; Whitfield v. Westbrook, 40 Miss. 311; Winn v. Peckham, 42 Wis. 493.

SEDUCTION-CRIM. CON.-ADULTERY.-Evidence of the pecuniary circumstances of the defendant in an action for seduction is admissible: Note to

Weaver v. Bachert, 44 Am. Dec. 175. In Applegate v. Ruble, 2 A. K. Marsh. 128, the court refused to set aside damages given in a suit for seduction when they amounted to one tenth of the defendant's estate. In White v. Murtland, 71 Ill. 250, this evidence was held to be admissible in aggravation of damages, and "perhaps" for the purpose of fixing a standard for exemplary damages, but not to show the defendant's ability to pay. Where a woman sues for damages for her own seduction, as she may do in Indiana, evidence of the pecuniary circumstances of the defendant is admissible on the question of compensatory damages: Wilson v. Shepler, 86 Ind. 275. Evidence of the defendant's pecuniary circumstances may be admitted in actions for seduction, on the ground that exemplary damages may be awarded: Grable v. Margrave, 3 Scam. 372; S. C., 38 Am. Dec. 88, and note 90; McAulay v. Birkhead, 13 Ired. L. 28; S. C., 55 Am. Dec. 427; Lavery v. Crooke, 52 Wis. 612; S. C., 38 Am. Rep. 768. In an action by a husband for criminal conversation with his wife, as punitory damages may be awarded, the wealth of the defendant may be considered in estimating the damages: Rea v. Tucker, 51 Ill. 112; Peters v. Lake, 66 Id. 208. It was held not to be admissible in such an action in James v. Biddington, 6 Car. & P. 590. In an action for adultery, such evidence is not admissible unless the defendant used his wealth as a means of seduction: Cowing v. Cowing, 33 L. J. P. M. & A. 149; Forster v. Forster, 33 Id. 150, note.

SLANDER AND LIBEL.-In actions for slander and libel, the pecuniary circumstances of the defendant are admitted in evidence upon both of the grounds stated at the beginning of this note. Where exemplary damages inay be awarded, the defendant's pecuniary ability to pay a judgment may be considered, because if he is wealthy, a larger verdict must be given in order to punish him: Hayner v. Cowden, 27 Ohio St. 292; McAlmont v. McClelland, 14 Serg. & R. 362, 363; Fry v. Bennett, 4 Duer, 247, 262; Buckley v. Knapp, 48 Mo. 152; Burckhalter v. Coward, 16 S. C. 435, citing and following the principal case. But see Palmer v. Haskins, 28 Barb. 90. On the other hand, even when compensatory damages only are to be awarded, the pecuniary circumstances of the defendant may be introduced in evidence as an element which goes to make up his rank and influence in society, for his social position and influence in the community will affect the amount of injury done by the libel or slander. If he occupies a high and influential position, his words will have a much more serious effect than if he were of little importance in the community. Therefore in such cases the pecuniary circumstances of the defendant will be admissible as going to show his influence, and the consequent injury accruing from his utterances: See supra, "Admissible when Injury Increased by Wealth of Defendant;" Bennett v. Hyde, 6 Conn. 24, 27; Hosley v. Brooks, 20 Ill. 115; Karney v. Paisley, 13 iowa, 89, 92, overruled in Guengerech v. Smith, 34 Id. 348; Humphries v. Parker, 52 Me. 507; Stanwood v. Whitmore, 63 Id. 209; Shute v. Barrett, 7 Pick. 82, 86; Lewis v. Chapman, 19 Barb. 252. See Schmisseur v. Kreilich, 92 Ill. 347. But the jury must be cautioned against allowing such evidence too much weight, or in itself to swell the amount of damages: Brown v. Barnes, 39 Mich. 211; S. C., 33 Am. Rep. 375, citing Threadgool v. Litogot, 22 Id. 271. And it is said that where such evidence is admitted for the purpose of showing the influence of the defendant in the community, the evidence should be confined to the general reputation of the defendant for wealth: Stanwood v. Whitmore, 63 Me. 209; see supra, “Admissible when Injury Increased by Wealth of Defendant." There are a few authorities that hold that the defendant's wealth is inadmissible in an action of slander to

show that his slanders were more damaging: Ware v. Cartledge, 24 Ala. 622; S. C., 60 Am. Dec. 489; Morris v. Barker, 4 Harr. (Del.) 520; Holmes v. Holmes, 64 Ill. 294; Palmer v. Haskins, 28 Barb. 90; see Case v. Marks, 20 Conn. 248. In Palmer v. Haskins, 28 Barb. 90, it was said that the general standing of the defendant in society might be shown, but the decision seems to be that the wealth of the defendant cannot be shown for the purpose of having the jury infer the social position from this alone: See also Ware v. Cartledge, 24 Ala. 622; S. C., 60 Am. Dec. 489, 492.

TRESPASS FOR NEGLIGENCE, NUISANCE, ETC.-Where the action is for a tort in which exemplary damages are recoverable, the pecuniary circumstances of the defendant may enhance such damages: McBride v. McLaugh lin, 5 Watts, 375, which was a case for the willful and malicious abuse of process, and sale of the plaintiff's property; Meibus v. Dodge, 38 Wis. 300, which was an action for negligence in allowing a ferocious dog to run at large. But where the defendant's negligence is not of the sort for which exemplary damages are allowed, evidence of the defendant's wealth will not be admissi ble: City of Chicago v. O'Brennan, 65 Ill. 164; Dush v. Fitzhugh, 2 La. 307; Barbour County v. Horn, 48 Ala. 566. As under the statute damages for causing a person's death can only be the pecuniary loss, the defendant's wealth cannot be taken into consideration: Conant v. Griffin, 48 Ill. 410. And even if exemplary damages were recoverable by the statute, the evidence would not be admissible where there were no such aggravating circumstances as would justify the awarding of exemplary damages: Morgan v. Durfee, 69 Mo. 469. Evidence that defendant was a man of wealth is not admissible in an action for damages resulting from a nuisance erected and maintained by him, since actual damages only are recoverable: Meyers v. Malcolm, 6 Hill, 292; S. C., 41 Am. Dec. 744.

EVIDENCE-HOW PECUNIARY CIRCUMSTANCES OF DEFENDANT MAY BE PROVED: See supra, "Admissible when Injury Increased by Wealth of Defendant;" "Defendant's Proof in Rebuttal;" note on seduction, Weaver v. Bachert, 44 Am. Dec. 175. In an action for assault and battery, the testimony of a witness as to the pecuniary condition of the defendant should not be allowed to go to the jury when it does not appear that he spoke from personal knowledge, or that his information was derived from any proper or competent source; nor when the answer of the witness conveys no definite idea of the extent of the defendant's means: Sloan v. Edwards, 61 Md. 89. In an action for assault and battery, where exemplary damages were allow able, an affidavit made by the defendant for a change of venue in the case, which showed, among other things, that he owned a large amount of property, was admissible on the trial for the purpose of showing his wealth. The court, however, if requested, should have limited the reading of the affidavit to such parts as related to that subject: Barnes v. Martin, 15 Wis. 240. Where, however, no evidence of the defendant's wealth has been introduced, it is not a legitimate subject of argument by counsel: Brown v. Swineford, 44 Wis. 282, 291-294. Evidence of the pecuniary condition of the defendant's father is not admissible in a breach of promise suit: Miller v. Rosier, 31 Mich. 375.

PECUNIARY CIRCUMSTANCES OF PLAINTIFF.-The pecuniary circumstances of the plaintiff are admitted in evidence much less often than those of the defendant. And though such evidence has been held admissible, on the ground that the case was one for exemplary damages: Heneky v. Smith, 10 Or. 349; S. C., 45 Am. Rep. 143 (assault and battery); Gaither v. Blowers, 11 Md. 536 (assault and battery); and it is elsewhere intimated that this evidence is

admissible where exemplary damages are recoverable: Clements v. Mahoney, 55 Mo. 352 (seduction); Chicago v. O'Brennan, 65 Ill. 160, 164 (negligence); Pennsylvania Co. v. Roy, 102 U. S. 451 (negligence); yet it is usually admitted, if at all, on the ground that the pecuniary circumstances of the plaintiff are directly involved in estimating the damages caused by the tortious act, the poverty of the plaintiff making the injury the greater. In Reed v. Davis, 4 Pick. 215, 219, which was an action of trespass quare clausum fregit, the damages were held to be not excessive, taking into consideration the character of the act and the poverty of the plaintiff.

ASSAULT AND BATTERY.-In an action for assault and battery, the pecuniary circumstances of the plaintiff and the dependent condition of his family may be given in evidence to increase the damages: Sloan v. Edwards, 61 Md. 89; especially where the case is one for exemplary damages: Gaither v. Blowers, 11 I. 536; Heneky v. Smith, 10 Or. 349; S. C., 45 Am. Rep. 143. And this evidence is also admissible on the ground that the poverty of the plaintiff makes the injury inflicted by the tort the greater. Thus where the husband and wife sued for an assault upon the wife, it was said that the pain and suffering may be much greater where from the husband's pecuniary condition he is unable to furnish medical aid, remedies, apartments, and nursing, such as ample means would afford, and therefore evidence of the pecuniary condition of the husband tended to show the extent of the injury: Cochran v. Amon, 16 Ill. 316. And in McNamara v. King, 2 Gilm. 432, it was said: "The consequences of a severe personal injury would be more disastrous to a person destitute of pecuniary resources, and dependent wholly upon his manual exertions for the support of himself and family, than to an individual differently situated in life."

BREACH OF PROMISE. In an action for breach of promise, the plaintiff may show that she has no independent means, her injury being by this fact rendered the greater: Vanderpool v. Richardson, 17 N. W. Rep. 936 (Mich.), per Cooley, J., cited in note on breach of promise, Burnham v. Cornwell, 63 Am. Dec. 547.

MALICIOUS PROSECUTION.—In an action for malicious prosecution, the damages were held not to be excessive, considering the wealth of the defendant and poverty of the plaintiff: Bump v. Betts, 23 Wend. 85.

NEGLIGENCE.—In an action for personal injuries, the plaintiff's wealth or poverty is an immaterial issue, although he may show the nature of his business and the value of his services in conducting it: Missouri Pacific R. R. Co. v. Lyde, 57 Tex. 505; Dreiss v. Friedrich, 57 Id. 70; Pennsylvania Co. v. Roy, 102 U. S. 451; Barbour County v. Horn, 48 Ala. 566. In an action by a servant of a railroad company against the company for personal injuries received through the company's negligence, it is error to admit evidence that the plaintiff had a family and was unable to support them by his labor since the injury. To admit such evidence is virtually to impose upon the company the duty of supporting the plaintiff's family, which the law does not require: Railway Co. v. Powers, 74 Ill. 343. In an action against a city to recover damages for a personal injury received from negligence, it was error to allow the plaintiff to testify that he had a wife, seven young daughters, and two sons, whom he was supporting at the time of the accident, since it was not a case for exemplary damages: Chicago v. O’Brennan, 65 Ill. 160. NEGLIGENCE CAUSING DEATH.-Actions for injuries causing death are purely statutory, and the damages to be recovered therein are usually confined to the actual pecuniary loss. In such actions the pecuniary circum