against every disturber of the patron in his right of presenting (f); therefore in quare impedit against the patron and incumbent, where the plaintiff has recovered the advowson after the lapse of six months, if the incumbent has counterpleaded the title of the plaintiff, the two years' value may be recovered against him as well as against the patron (g).

The words "six months" in the above statute are to be understood to be six calendar months, being clearly equivalent to the half year spoken of in the same clause (h). When judgment was given within six months, but, before the writ could be served upon the bishop, that period had expired, upon which he collated by lapse, it was held that only damages for the half year could be recovered (i).

But where upon the foundation of a chauntry the composition was, that if the patron present not within a month the ordinary shall collate; in a quare impedit, brought for this chauntry, if the month be past, the plaintiff shall recover damages for two years within the equity of the statute, because the patron in such a case loses the presentation, though six months have not elapsed (k).

"Six months,"

how construed.

When the plaintiff recovered in quare impedit, and there was Where no actual no other disturbance but the presentation of the king who loss. had revoked it, and no disturbance by the incumbent, the plaintiff was held not entitled to damages (7). But it was said by Newton, J., that a man shall recover damages in quare impedit where he was never disturbed; and Ashton, J., laid it. down, that if I present and my clerk is inducted, and J. N. brings quare impedit against me for this, and after is nonsuited, I shall have damages (m).

value may be

recovered.

When the plaintiff brought quare impedit against the bishop, When two years' and also against J. T. of the same church, and the bishop confessed the disturbance, and J. T. traversed the title of the plaintiff, which was found for the plaintiff; the plaintiff claimed a writ to the bishop, and two years' value, the six

Action of account.

months having expired. Thorp, J., said, you cannot have the value of two years and writ to the bishop; and because the ordinary cannot have the lapse where he confesses the disturbance, it was awarded that the plaintiff should have writ to the bishop, and damages of half a year (n).

4. No damages are recoverable in an action of account, where the defendant does not plead, but submits to have the account taken (0), for the plaintiff virtually obtains damages to the extent of the sum found by the auditors to be in arrear, when the account is taken before them (p). But where the defendant has pleaded to the issue, which is found against him, as for instance, where he denied having been the plaintiff's receiver, damages may be given against him on account of the delay (q); and accordingly it has been said to be clear law, that in an account a man shall recover damages on the second judgment (r). But where a receiver was ordered to account, and wilfully lay in prison for two or three years, this was held not to entitle the plaintiff to recover anything for profits during the time he so lay (s).

There are contradictory decisions as to whether a receiver, who has received goods to trade with, can be rendered liable for the profits which he might have made, but did not (†). On principle, however, it seems that such a source of damage would be too speculative and remote to be allowed for.

(n) Br. Qu. Imped. pl. 103. See the three last cases cited in 17 Vin. Abr. 465-467, ed. 1743.

(0) Br. Dam. pl. 136, 166; 1 Roll. Abr. 575, pl. 17, 18, 29.

(p) Fitz. Dam. pl. 19; Collet's Case, 3 Leon. 230.

(9) 1 Roll. Abr. 575, pl. 30; Brown v. Barwick, Noy, 134.
(r) March. 99, pl. 171.

(s) 1 Roll. Abr. 576, pl. 31.

(t) Collet's Case, 3 Leon. 330; 1 Roll. Abr. 575, pl. 27, 28.

1. Trover.

II. Detinue.

CHAPTER XIII.

III. Trespass to goods.

IV. Replerin.
V. Illegal Distress.

WE now pass from contracts and real actions to the wide region of torts. Here we are at once struck by the fact that damages are no longer an invariable matter of calculation, but in many cases are committed almost entirely to the discretion of the jury. Even here, however, as was remarked before (ante, p. 23), the jury are never left wholly to their own caprice. They are always to keep certain principles in view, while forming their estimate, and sometimes these principles can be applied with such accuracy as to make their verdict a mere matter of arithmetic.

Actions of tort comprise all injuries to property, person, or character. The first class are always capable of strict valuation; the second are so frequently, but not always; the third probably never. It will be most convenient to adopt the old rule of method, and proceed from that which is more certain to that which is less so; and as actions in respect of goods are more frequent than those in respect of land, we shall begin with the former.

I. One of the most ordinary actions for the recovery of goods is that of trover. The gist of this action is the wrongful conversion of the property to the defendant's own use, and not, as in trespass, the original wrongful taking (a); consequently the measure of damages is in general the value of the goods. The manner in which they were obtained is immaterial. The only point of difficulty is in ascertaining the value, where it has

(a) Bac. Ab. Trover, A.

Mode of calcu

lating value

where there has

varied at different times, or where any circumstances prevent precise proof.

Where the article has fluctuated in price, it is by no means settled in England whether it is to be estimated at its value been a change in at the time of conversion, or at any later time. The value of the price. a bill of exchange, for instance, is perpetually changing according as interest accumulates upon it. In one case, Lord Ellenborough directed that interest should only be allowed up to the time of conversion (b); but this decision was subsequently denied to be law by Abbott, C. J. (c). That was an action of trover for East India Company's warrants for cotton. Evidence was given that at the time of the conversion the cotton was worth 6d. per lb., but at the trial it was worth 104d. He ruled that the jury were not limited to the former value, saying, "The jury may give the value at the time of the conversion, or at any subsequent time, at their discretion, because the plaintiff might have had a good opportunity of selling the goods if they had not been detained." And this rule is fortified by the analogy of actions for not replacing stock, in which we have seen that the measure of damages, where there has been a rise in price, is not the value at the time it ought to have been delivered, but at the time of trial (d).

Rule in America.

In America there is as usual a conflict of law. The high authority of Kent J. ranks in support of the doctrine of Lord Tenterden. He said, in one case, "The value of the chattel at the time of the conversion is not in all cases the rule of damages in trover. If the thing be of a determinate and fixed value it may be the rule; but where there is an uncertainty or fluctuation attending the value of the chattel, and it afterwards rises in value, the plaintiff can only be indemnified by giving him the price of it at the time he calls upon the defendant to restore it; and one of the cases even carries down this value to the time of trial" (e). On the other hand Story J. laid it down, "that the true rule is the value of the property at the market price at the time of the conversion" (ƒ).

(b) Mercer v. Jones, 3 Camp. 477.

(c) Greening v. Wilkinson, 1 C. & P. 625.

(d) See ante, p. 123.

(e) Cortelyou v. Lansing, 2 Caines' Ca., 200; West v. Wentworth, 3 Cowen, 82. (f) Watt v. Potter, 2 Mason, 77.

And this is the doctrine acted upon in Massachusetts (g). Mr. Sedgwick takes the same view, "unless the plaintiff has been deprived of some particular use of his property, of which the other party was apprised, and which he may be thus said to have directly prevented" (h).

It is evident that the decisions in Mercer v. Jones and Greening v. Wilkinson, cited above, are not so completely the converse of each other, as that one must necessarily be right because the other is wrong. Whatever the rule may be in the case of goods, whose price has changed since the conversion, I conceive that damages in trover for a bill of exchange should always include interest up to the time of verdict, if the bill itself bore interest. There is no real analogy between the increase in value of a bill, from the accumulation of interest upon it, and the increase in value of goods, from a rise in their price. The former increase is merely a compensation for the loss undergone by delay in the payment of the debt which the bill represents. The latter increase is simply a gratuitous and accidental bonus, obtained by the holder of the goods; consequently, if, in trover for goods, damages were fixed at the time of their conversion, although their rightful owner might be deprived of a profit, still it would be a profit which he might never have acquired, and for which he gave no consideration; which was not, in fact, part of his contract in purchasing the goods. On the other hand, if the same rule were adopted in trover for a bill, the plaintiff would be deprived of all interest on his debt from the time of conversion up to the time of trial; he would be put in a worse position than he could possibly have been in, had the wrongful act never been committed; and his loss would be one against which he had expressly contracted when taking the bill, and which must have been contemplated by the party who appropriated it.

I am not aware of any case directly affirming or denying the authority of Greening v. Wilkinson (i). The question of damages in trover arose again in a modern case, under the following circumstances. The master of a ship, which was

(9) Kennedy v. Whitwell, 4 Pick. 466.

(h) Sedg. Dam. 505, [559, 4th ed.].

[(2) Maule, J., is reported to have spoken of it as "hardly consistent with the modern doctrine; Reid v. Fairbanks, 13 C. B. at p. 728.]