A treatise on the law of damages : embracing an elementary exposition of the law and also its application to particular subjects of contract and tort

OlorttfU Haul ^riyonl Slibrata

,,„ .. _ Cornell University Library
KF 446.S96
V.3
A treatise on the law of damages lembrac

3 1924 018 793 608

Entered according to Act of Congress, in the year eighteen hundred and eighty-three.

By CALLAGHAN & COMPANY,

in the office of the Librarieui of Congress, at Washington, D. 0.

Kf

DAVID ATWOOD,

PRINTER AND STEREOTYPEB,

HAOr&ON, WIS.

TABLE OF CONTENTS.

PAET II.— THE LAW OF DAMAGES AS APPLIED TO
VAKIOUS COE^TEACTS A^J) WKOl^GS.

CHAPTER VIII.— AGENCY.

Pages.

Section 1. — Pkincipal against agent. — General statement of the
legal relation between, and the reciprocal obligations of principal
and agent — The particular dutiQp and the measure of an. agent's
liability to his principal — For neglect of the duty to procure in-
surance — For disregarding orders for the purchase and shipment
of goods — Miscellaneous illustrations of an agent's liability for
violations of duty — For defaults in regard to commercial paper —
Same principles applied to factors — To brokers — Responsibility
for acting without or beyond authority, - - 1

Section 2. — Agent against peincipai. — An agent is entitled to re-
imbursement of moneys paid for his principal — His right, as a
factor, to make sales for this purpose — When he is entitled to
charge for exchange — How the right to reimbursement affected
by agent's mode of doing the business — An agent's right to indem-
nity — Not entitled against the consequences of known and inten-
tional wrong, - - - - - 46

Section 3. — Third peesons against agent. — Under what circum-
stances an agent may render himself liable to third persons —
Measure of damages in their favor where he acts without or beyond
his authority — His liability on his implied warranty of authority —
When money may be recovei-ed back from an agent, - - 53

CHAPTER EX.— INSURANCE.
Growth and importance of insurance contracts, - - 61

Section 1. — Marine insurance.— The cause of damage must be
proximate — Extent of injury; manner of ascertainment — Inter-
pretation of contract — Valued policies — Methods provided by the
contract for ascertaining damages; when invalid — When proofs of
loss a condition precedent — Manner and time of making proofs —
Preliminary proof s intended for information only — Pleadings —
Rule of damages on open policies — In cases of partial loss — Losses
are adjusted on the principle of indemnity — General average, 63

VI TABLE OF CONTENTS.

Pages.
Section 2.— Fikb insueance.— Rule of indemnity the same as in
marine insurance; rules of construction the same; contract may
be by parol; examples — General rule of damages; insurer bound
for the whole loss within the amount of the policy — What the
jury may consider; illustrations — Damage to be proved by legal
evidence as in other cases — General average in fire insurance;
example — Insurer's liability on contracts to pay all losses, not ex-
ceeding a fixed proportion of stock insured ; instances; exceptions —
Damages in special oases — Insurance on commissioned goods —
Rule in case of loss where mortgagee insured; where he insures
for his own benefit; contradictory decisions; Massachusetts rule
commended — Contracts to replace or i-ebuild — No defense that a
subsequent law or ordinance forbids the erection; insurer may put
the insured in as good condition by repairs and renewals; particu-
lar instances — Adjustment and replacements where there are
several policies; damages for failure of insurer to fulfil buUding
contracts, . ^ . 85

Section 3.— Life and accident insurance.— Definition of life in-
surance—Character of the contract of life insurance — Not a
contract of indemnity — Wlien such insurance is held as security —
When it is not a collateral security — Accident policies; when
available only for indemnity) how damages estimated; recovery
may be had for the actual loss, not exceeding amount of the con-
tract; consequential damages not considered — Difference between
English and American rule as to scope of recovery — Rule of dam-
ages stated, - - - 96

CHAPTER X.— LANDLORD AND TENANT.

Section 1. — Landlobd against tenant-. — Action for use and occu-
pation— Action for rent — No apportionment or abatement of rent
on account of the bad condition or partial destruction of the de-
mised property — Entire destruction of demised premises ends
liability for rent — Same, when entire premises taken for public
use — Covenants for repairs — Liability of assignee for repairs —
Damages for repairs or non-repair in special cases — Covenants
not to sub-let or assign — Covenants to insure, - - 106

Section 3.— Tenant against landlokd.— Breach of landlord's obli-
gation for tenant's quiet enjoyment — Special and consequential
damages — Lessor's covenant to repair, rebuild and improve —
Recoupment, - - ... i4g

CHAPTER XL— CARRIERS.

Section 1. — Actions by careiers. — For breach of contract to fur-
nish goods for shipment — Measure of damages on charter-parties —
Same, on charters to load with enumerated articles — Carrier's

TABLE OF CONTENTS.

VU

Pages.

action for freight and other charges — Discriminations unlawful

'^<^'$^y

Corneii University

^M Library

taining delivery of the property in consequence of such delay —
Expense of further transpoi'tation for sale — Damages for delay in
respect to a known special use of the property — Damages for in-
jury to or loss of the property intrusted to a carrier — Interest on
damages — Owner entitled to compensation for his proper acti to
prevent damages — Oircumstances may reduce damages below the
value at the place of destination — Qualification of carrier's liability
by ootice-T-Ebr what losses |tlM«ajmer ngsnonsible-— jDestination
for the putJ3§ W'AUJiE^ Vllef4'l§eil39fl'ae4&al']uccessive

carriers -tp.goJi35Y^I I Universltv Library. ■

Section 3.— Caerieks of passbngees.— Damages for refusal to re-
ceive, and for breaches of duty or contract to carry passengers, and

206

_P to carry them safely. — Mitigations of damages — Exemplary dam- .
I E^^r©I^£?y tc *vh:e, cSld'or b^^fxA'-^-WtiBre!'tae'iTlj^y'QS3& III

;ee,ssivB
I ICQ

sT^mro^lifl &

349.

CHAPTER XIL— TELEGRAPH COMPANIES.

Nature of the duty of these companies — They may adopt reasonable
regulations — Measure of damages — What messages and accom-
panying explanations bring substantial damages within contempla-
tion of the parties — Action may be brought on contract or for -
tort, - - 295-

CHAPTER Xm.— BREACH OF MARRIAGE PROMISE.

Nature of the action for this cause — Seduction is an aggravation — Ib?-^
jury to feelings, and other elements of damage — Damages for loss
of marriage — What will excuse a breach of the contract — What
may be proved in mitigation, .... gig

CHAPTER XrV.— EJECTMENT.
Remedy foe damages in this country geneeally statutory,

339

Section 1. — Mesne peofits. — The remedy for — What may, ba- al-
lowed as damages — Remedy for, under the code, - - 343

http://www.archive.org/details/cu31924018793608

VUl TABLE OF CONTENTS.

Section 3. — Dower. — The right of — It is assignable on valuation —
Damages for detention — Extinguishment by widow's death — Re-
prisals — Dower limited to husband's equitable interest — Dower
right in land subject to paramount incumbrance, - - 353

CHAPTER XV.— INJURIES TO REAL PROPERTY.

Section 1. — Trespass to real property. — The gist of the action —
Trespass deiined, and the scope of the remedy stated — Measure of
damages — Aggravations and special damages, ... 363

Section 3.— Injury to inheritance. — Injury to the rights of parties
not in possession, - - - - - - - 393

Section 3. — Nuisance. — What is a nuisance — At least nominal dam-
ages recoverable therefor — Usually a continuous wrong requiring
a succession of actions — What recoverable in the first action —
Continuing liability of the erector — Damages may include ex-
penditures not yet made — When -nuisance not a continuing
wrong — Measure of damages — For removal of lateral support to
land — Where nuisance interrupts or destroys an established busi-
ness— Private remedy for public nuisance — As to joint and sev-
eral liability — Pleading, ...... 394

CHAPTER XVI.— TAKING PROPERTY FOR PUBLIC USE.

The power of eminent domain — What is just compensation — The
measure of it — What facts may be taken into consideration —
The recovery will be limited by the owner's title and the nature of
the interest condemned — With reference to what time are the
value and damages to be assessed — Deduction for benefits — Proof
of value and damages — The effect of judgment for just compen-
sation— Interest, ..-.-.. 430

CHAPTER XVII.— TRESPASS TO PERSONAL PROPERTY.

When damages for, may exceed compensation — What they may in-
clude — Measure of damages for taking or destroying property —
Special and consequential damages — Expenses to recover or restore
property — Mitigation of damages — Where the property is applied
under legal process to the owner's benefit — Damages against tres-
passer from the beginning, . . - . . 459

CHAPTER XVni.— CONVERSION.

The actionof trover — The general rule of damages — Proof of value —
Interest — When the property converted had to be sold — Where
the property has no market value — Property of fluctuating value —
Where the value of the converted property has been increased by
the defendant — Special and consequential damages — Exemplary

TABLE OF CONTEITTS. IX

Pages.
damages may be recovered — For conversion of money securities,
stocks, deeds and other documents — How damages aflEected by the
nature of the plaintiff's interest — Mitigation of damages, - 487

CHAPTER XIX.— REPLEVIN.

Section 1.— Plaintiff's case.— Definitions — Measure of damages —
Exemplary damages may be recovered — Special and consequential
damages — Recovery where the property has not been obtained on
the writ — Intermediate injmy and depreciation — Where the
value of the property has been increased by the wrongdoer, - 538

Section 2. — Defendant's case. — Successful defendant's common law
and statutory rights — A plaintiff obtaining possession by replevin
and failing in his suit, a wrongdoer — Measure of damages —
Special and consequential damages — Mitigation of damages —
How recovery affected by special interest of the prevailing party —
Recoupment — Recoveries when part of property found for each
party, --------- 556

CHAPTER XX.— FRAUD.

Scope of the natural and proximate consequences — False representa-
tions— Measure of damages — Exemplary damages, - 574

CHAPTER XXI.— INFRINGEMENT OF PATENT RIGHTS.

Statutory provisions regulating remedies for — Damages recoverable in
actions at law — Compensation for infringement obtainable in
equity, - - - - . - _ 599

CHAPTER XXII.— INFRINGEMENT OP COPYRIGHT.

Copjrright is statutory — Compensatory and penal recoveries for in-
fringement of copyright, - - - . - 633

CHAPTER XXIII.— INFRINGEMENT OF TRADE MARKS.

Nature of the right to trade marks, and of the wrong of infringe-
ment — The measm-e of damages, - - - . 628

CHAPTER XXIV.— SLANDER AND LIBEL.

Section 1. — Plaintiff's case. — Nature of the wrong — Damages;
general damages need not be proved — Special damages — Exem-
plary damages may be recovered — Special damages from publica-
tion of words not actionable in themselves — Slander of title, - 638

Section 2. — The defense. — Effect of pleading and not establishing
justification — Evidence in mitigation; bad chai-acter of the plaint-
iff — Same; admissibility of rumors and common reports that the
plaintiff was guilty of the imputed charge — Proof tending to
show that the words were true not admissible in mitigation — Evi-
dence in mitigation generally, ----- 575

TABLE OF CONTENTS.

CHAPTER XXV.— MALICIOTJS PROSECUTION.

The nature of the wrong — Elements of damage — Evidence in miti-
gation, ... - - - - 699

CHAPTER XXVI.— PERSONAL INJURY.

Physical and mental pain — Loss of time, injury to business, dimin-
ished working capacity — Expenses for surgical and medical aid
and nursing — The entire damages to be recovered in one action, —
prospective damages — A husband's and a parent's action — Exem-
plary damages — Evidence in mitigation — Province of the jury,
and instructions to them — False imprisonment, - . - 711

CHAPTER XXVII.— SEDUCTION.

The technical not the real gist of the action — Who may maintain it —
Evidence for plaintiff, and damages recoverable — Evidence for
defendant, and what may be considered in mitigation — Criminal
conversation, .... . . 735

TABLE OF CASES CITED.

Pages.

Aaron v. Second Ave. R. R. Co., 261

Aborn v. Mason, 516

Abbott V. Abbott, 363

V. Mills, - - 423

V. Shepherd, - - 108

Abraham v. Kidney, 741

Abrahams v. Cooper, - 733

Abrams v. Smith, ■ 689, 697

Ackenburg v. McCool, - 3

Aokerson v. Erie E'y Co., 379

Ackley v. Kellogg, - - - 345

Adair v. Boyle, 151, 153, 164

Adams v. Barry, - 438

V. Blankinsten, - - 344

V. Blodgett, 364, 376, 513

V. HaU, - - - 435

V. Hastings, etc. R. E. Co., 369,

403, 414

V. O'Connor, - - - 474

Adams Express Co. v. Stettaress, 314

Adamson v. Jarvis, 51

V. Rose, - - 151

Adcock Y. Marsh, - - 654

Adden v. Wliite Mts. N. H. R.

R., - 436, 443, 453, 455

Addington v< Allen, - 589

Adkins v. Williams, 647

Adler v. Penton, - ' 597

Adrean v. Hawkins, - 110

.^tna Ins. Co. v. Church, - 3

V. Johnson, - - 74

V. Sabine, - 45

V. Stanton, - - - 78

V. Stevens, - - - - 73

V. Tyler, - 71

Agate V. Lowenbien, - - 393

Agnew V. Johnson, - - 488

Ahrens v. Adler, - - 590

Aiken v. Benedict, 395

V. Telegraph Co., - 395

Aikin v. Buck, - - 473

Ainslie v. Mayor, etc. of N. Y., 345

Ainsworth v. Ritt, - 137

Alabama, etc. R. E. Co. v. Bur-

kett, - - - 448

Alchinson v. Baker, - - 316

Alden v. Pearson, - - 336

Alderman v. French, - 675, 688
Aldrich v. Boston, etc. R. R. Co., 377
Alexander V. Baltimore, 483

V. Bradley, - - - 358

Pages.

Alexander v. Herr, - - 347, 707

V. Kerr, ... 397

Allaire v. Ouland, - - - 51

V. Whitney, - - 174, 587

Allen V. Addington, - - 588

V. Brown, - - 13, 15

V. Charlestown, - - - 454

V. Cullver, - - - 133

V. Darby, - - - 558

v. Dykers, - - - - 488

V. Fox, - - 539, 542, 560

V. Hillman, - - - 640

V. Manson, - - - 18

V. McCoy, ... 353

V. Smith, - - -348

V. Suydam, - 17, 18, 19, 46

V. Thayer, - - .363

V. Wortley, - - - 398

Alley V. Neeley, - - 647

AUgor V. Stillwell, - - 700

Ailing V. Boston, etc. R. R. Co., 392

Allison V. Chandler, 154, 157, 163,

385, 388, 470

V. Taylor's Heirs, - - 350

Allred v. Bray, - 389, 476

Allsop V. AJlsop, - - - 665

AUyn V. Providence R. R. Co., 448

Alpin V. Morton, - 647

Alt V. Weidenburg, - 474

Alton*, etc. R. R. Co. v. Carpenter, 433

American Contract Co. v. Cross, 393

American Q-rocer v. Grocer Pub.

Co., - - - - 630

American Ins. Co. v. Griswold, 74
American Life and Health Ins.

Co. V. Robertshaw, 97, 103

American Exp. Co. v. Lesem, - 345

V. Parsons, - - - - 581

V. Sands, - - - - 314

V. Second Nat. Bank, - 336

Ames V. Hilton, . - 389

V. Palmer, . - - 488, 524

V. Schuesler, - 108

Amory v. Hamilton, - - 5, 38

V. McGregor, - - 339

Amoskeag Manuf. Co. v. Garner, 631

V. Spear, - ' 638

Andenried v. Woodward, 114

Anderson v. Chicago, etc. Ins.

Co., - - 119

V. Fisk, - 349

Xll

TABLE OF OASES CITED.

Pages.

Anderson v. Reynolds, - 177

V. Ryan, - - 740
Anderson, etc. R. R. Co. y. Ker-

nodle, 370, 373. 398, 400

T. Buokton, - - 384

Andrews v. Durant, - 240, 488, 537

V. Jones, - 168

V. Vanduzer, - - 657, 680

Angell V. Hartford Ins. Co., - 63

Anstell V. Crawford, 31

Anthony v. Stephens, - - 683

Archer v. Williams, - 498

Arden v. PuUen, - 137

Armory v. Delamirie, - 474, 490

Armroyd v. Union Ins. Co., - 197

Armstrong; v. Wheeler, - 123

Armytage v. Haley, - - 291

Arnold v. Covington Bridge, 450

V. m. Cent. R R. Co., - 214

V. Kelly, - - ■ - - 488
Arrington v. Wilmington, etc.

R. R. Co., - 345
Arrott V. Brown, - - 39, 40

Arthur t. Ship Cassius, - - 337

Ash V. Marlow, - - - 707

Ashbumer v. Baloher, - - 181

Ashford v. Choate, - ■ - 674
Ashland Mut. Ins. Co. v. Hous-

inger, ----- 89

Ashley v. Harrison, - - - 668

V. Root, - - - 3

V. Warner, - - - 150, 160

Ashmore v. Penn. S. T. Co., - 214

Aslin V. Parkin, - ■ 343, 345
Aspinwall v. Chicago, etc. R.

R. Co., - 450, 451

V. Torrance, - - - 54

Astor V. Miller, - 131, 125

Atchison v. King, - 716

V. Steamboat, - - ■ 478
Atchison, etc. R. R. Co. v.

Blackshire, -. 434

V. Washburn, - . - 314

Atherton v. Fowler, - 559

Atkin V. Merrill, - - - 354

Atkins V. ChUson, - - - 134

V. Yeomans, - - 357

Atkinson v. Beall, - - - 135

V. Burton, - - - - 30

V. Stewart, - - - - 359

Atkisson v. S. B. Castle Garden, 237
Atlanta, etc. R. R. Co. v. Hod-

nett, - - - - 593

Atlantic Ins. Co. v. Manning, - 78
Atlantic, etc. R. R. Co. v.

Campbell, ... 464

Y. Dunn, - - - - 271

Y. Robbins, - - 372, 400, 414

Y. Roblentz, - - 467

Attack V. Bramwell, - 483, 533

AttersoUv. Stevens, - - 366

Pages.
Attix & Co. Y. Pelan, - - 165
Attorney General v. Steward, - 394
v. Tomline, - 367

Atwell v. MiUer, - - 204

Atwill v. Mackintosh, - 642

Atwood Y. Union Mut. F. Ins.

Co., - - - 76, 89

Aubery v. Fiske, - - 4

Auburn, etc. R. R. Co. v. Doug-
lass, - - - 638
Auchmuty y. Ham, - - 245
Auditor v. Crise, - - - 448
Augusta V. Marks, - - - 456
Aultman v. Lee, - - 29
Aurora F. & M. Ins. Co. v. Kxa-

nick, - - - - 73

Austin T. Barrows, - - - 597

v. Debnam, - . - 700

Y. Field, - - - - 127

Y. Hanchet, - - - 697

v. Jones, - . . . 553

Avent v. Hard, - 344, 345

Averett v. Brady, - 346, 347, 349

Avery v. Brown, - - - 174

v. Halsey, - - - - 51

v. Ray, - - - 715, 727

Ayer y. Bartlett, - - 393, 492

Y. Spring, - - - - . 353

Ayre y. Craven, ... 640

Ayres v. CoviUe, ... 679

v^ French, - - - . 487

Y. Hartford Ins. Co., - - 71

B v. I , - -

.

656,

657

Babb Y. Talcott,

.

573

Babcock v. Gill,

_

509

Babonneau v. Farrell,

.

_

657

Backenstoss v. Stabler,

.

_

560

Backus v. Gould,

.

_

637

Y. Richardson, -

.

,

640

Bacon v. Bronson, -

.

575

V. Frisbie, -

-

-

585

v. Towne, - - '

707,

708,

709

Badeley v. Mortlock,

335

v. Vigurs, -

-

-

140

Badgeley v. Decker, 735,

, 736, 738

,739

Bailey v. Damon,

-

182,

193

Y. Dean,

.

_

674

Y. Godfrey, -

.

-

535

v. Hyde,

.

680,

686

Y. Kalamazoo Pub.

Co.

_

696

v. Mayor of N. Y.,

_

464

Y. Shaw,

-

338.

247

Bailiff of Ipswick v. Martin,

123

Bain v. Browu, -

.

2,3

v. Clarke, -

.

.

'4

Baird v. Hall, -

.

_

15

Baker v. Boston,

.

.

434

Y. Brinson, -

-

-

337

V. Cartwright, -

-

-

316

V. Drake,

3, 36, 45, 473, 501

TABLE OF CASES CITED.

XUl

Pages.

Baker v. lYeeman, - - 481, 536

V. Wheeler, 376, 490, 491, 509,

567

Baldwin v. Liverpool, etc. Co., 191

V. Porter, - - 536, 537

V. Soule, - - - 647, 648

V. U. S. Tel. Co., 331, 295, 297,

299, 808

V. Western E. B. Co., 717, 720

Baldy v. Stratton, - - 319

Ball V. Bruce, - - . 789

V. Holtpzafifell, - - - 107

V. Lenig, - . - - 530

V. Liney, ... 488

V. Boot, - - - .108

T. Wyette, ■ - - - 132

Ballard v. Bussell, - . - 725

Ballingalls v. Gloster, . - 18

Ballou V. Farnum, - 264, 717, 719

Baltimore Marine Ins. Co. v.

Dalrymple, - - - 489, 536
Baltimore, etc. E. E. Co. v.

Blooher, - 358, 360, 371

V. Bi^enig, ... 258

V. Lansing, - - . 443

V. Eathbone, - - - 314
V. Beaney, - - - 418

V. Skeels, - - - 214

V. Wightman, - • . 284

Baltimore Steam Packet Co. v.

Smith, - - - - 293

Baltzen v. Nicolay, . - 54

Bamfield v. Massey, - - 657, 743
Bancroft v. Peters, - - . 303
V. Wardwell,_^ - - .107
Bandy v. Cartwright, - 146

Banker v. Caldwell, - - - 634
Bangor, etc. B. E. Co. v. Mc-

Gomb, 433, 434, 43S, 437, 444, 467
Bankhead v. AUoway, 587

Bank of Commerce v. Owens, 861
Bank of Kentucky v. Adams

Exp. Co., - - - 214

Bank of Montgomery v. Eeese, 489,

506
Bank of Orange v. Brown, 3

Bank of Orleans v. Smith, - 17
Bank of Bochester v. Gray, - 18
Bank of Scotland v. Hamilton, 33
Bank of U. S. v. Bank of

Washington, - - - 59
Bank of Upper Canada v Wid-

mer, - - ■ - 523

Bank of Washington v. Trip-

lett, - - 17

Bank of Woodland v. Hiatt, 586, 588
Banks v. Hatton, 498

V. Judah, - - - 2

Barber v. Barber, ... 654
Barbour County v. Horn, 722

Baxfilay v. Pickles, - - - 128
Vol. Ill-fe

Pages.
Barclay E. E. etc. Co. v. Ing-
ham, - - - - 438
Bare v. Hoffman, - 398, 400, 414
Bares v. Steamship Co., - 318
Barham v. Massey, - 573
Barker v. Braham, ... 733
V. Hodgson, ... 93
V. Phenix Ins. Co., - . 76
Barkhans v. SaHford, - - 700
Barlow v. Brands, - - 647
Barmon v. Lithauer, - 596
Barnard v. Poor, ... 478
Barnes v. Bartlett, - - 551, 559
V. Gay, - - 359
v.'Hurd, - - - - 724
V. Marshal], - - 193
V. Martin. ... 724
V. Prudlin, - . . 666
V. Strudd, - - - - 670
Barnet y. Barnet, . 354
Barnett v. Beed, - 700
Barney v. Douglass, - 540
T. Frowner, - 353
Bamsley Canal Co. v. Tui-bill, 442
Barnum v. Van Dusen, 884
Barr v. Hack, 650
Barrante v. Garratt, - - 504
Barrelett v. Bengard, 480, 483, 518
Barrett v. Button, - - 305
V. White. 484
Barrill v. Phillips, - - 47
Barron v. Abeel, - 346
V. Arnaud, - - - 518
V. Mason, - - 707, 709
Barrows v. Arnaud, ... 478,
Barry v. Bennett, - - 488
V. Pike, - ... 54
Bartlett v. Brickett, - - 539
V. Carnley, - - - 1-93
V. Hamilton, 39^
V. Hoyt, - - 524
T. Western Union Tel. Co., 295, .

298
Bartlette V. Crittenden, - - 624
Bartley v. Eichtmyer, 735, 73T, 738, .

789

Barton Coal Co. v. Cox, - 881

Barton v. March, - 679

V. Steamship Co., - - 289

Bartram v. Stone, - - 737, 738

Barwell v. Adkins, - - 648

Basoh V. Humboldt Ins. Cb., 73

Bass V. Chicago, etc. E. E. Co., 371,

378, 291, 731

Bassett v. Elmore, - - ■ 665

Bastable v. Denegre, - 46, 50

Bastard v. Bastard, - 189 •

Bateman v. Goodyear, - - 389

Bates V. Clark, - - - - 481

V. Courtwright, - 482, 536

V. Murphy, - - - 538

XIV

TABLE OF CASES CITED.

Pagex.
Bates T. Stansell, ... 496
V. Stanton, - - - - 525
Batson v. Donovan, - 191, 343

Battin's Lessee v. Bigelow, - 314
Battisliill V. Reed, - 369, 414

Baugher v. Wilkins, 146, 147

Baugiiman v. Gould, - - 5S7
Baylis v. Lintott, - 391

Bayliss v. Fisher, - 470

Bayly v. Lawrence, - - - 13S
Baxendale v. Eastern, etc. R'y

Co., - - - 189

V. London, etc. R. R. Co., 48

Baxter v. Massasoit Ins. Co., 63

V. Ryerss, 151

V. Taylor, - - 393

V. Wynoskie Turnpike Co. , 434

Beach v. Bay State S. B. Co., - 284

V. Berdell, 535

V. Crane, - - - 134

V. Ranney, - 663, 664, 665. 673

V. Raritan, etc. R. R. Co., 530

Beadle v. Whitlock, 480, 482

Beal V. Robeson, - - 708

V. Sanders, 133

Beall V. January, - - 45

Beals V. Home Ins. Co., - 79

Bean v. Drew, - 45

V. Wells, 590, 594

Beard v. Murphy, - 418

Beardslee v. Richardson, 5, 34

Beardsley v. Bridgman, 647, 648,

' 683, G85

V. Davis, - 9, 10, 145

V. Swann, - - - 712, 731

Beasley v. Meigs, - 675, 678'

Beatty v. Ebury, - 587

Beaty v. Gibbons, ■ - 473

Beaupri v. Pacific, etc. Tel. Co., 299,

308, 312

Beavan V. Delahay, - 133

Beavers v. Smith, 354

V. Trimmer, - - 395

Becher v. Grand Eastern R'y

Co., - 292

Beckman v. Shouse, - 5, 24

Beokwith v. Griswold, 398

V. N. Y. C. R. R. Co., 722

V. Sibley, - - 47

Bedell v. Powell, - 66.J

V. Shaw, - - - 349

Bedingfleld v. Onslow, 365

Beebe v. Knapp, - - 587

BeiUnger v. Gervais, - 39

Belcher v. Costello, - - - 584

V. M'Intosh, - 133, 133

Belden v. Perkins, - 535

Belfast, etc. R'y Co. v. Keys, 293

Belfeur v. Weston, - 137

Belger v. Dinsmore, - - 343

Belknap v. Boston, etc. R. R. Co., 469

Pages.

Bell V. Bartlett. - - - 560

V. Cunningham, - 13, 86

V. Farnsworth, - - 679, 680

V. Howard, . . - 661

V. Mayor of N. Y., - - 360

V. Palmer, - - - - 33

V. Pearoy, - - - - 708

V. Pullen, - - - - 188

V. Smith, - - - - 84

Bell's Heirs v. Barnett, - 350

Bellamy v. Burch, - - - 640

Belun V. Western Union Tel.

Co., - - - 299

Bench v. Merrick, 335, 336, 337

V. Sheldon, - - 583

Bengass v. Alliance Ins. Co., - 90

Benjamin v. Benjamin, - 382, 513

Benkard v. Babcock, 173, 174

Benner v. Evans, - - 354

Bennett v. Beam, - - 735

V. Bennett, - 697, 698

V. Bittle, - - 115. 147

V. Bi-yam, - 300, 313

V. Hyde, - 654, 656 ■

V. Judson, - 587

V. Lockwood, - - 480

V. Matthews, 657, 679, 689

V. Terrell, ■ - - 574

V. Thompson, 365, 381, 513

Bensley v. Mountain L. W. Co., 449

Benson v. Matsdorf, 343, 344

V. N. J. R'y & T. Co., 337, 353

Bentley v. Sill, - - - - 115

Benton v. Pratt, 584, 589, 597

Beran v. CuUen, - - 4

Bercich v. Marye, 539, 543, 569

Berger v. Jacobs, - - 734

Berghoflf v. Heckwolf, 558, 559

Bernhard v. Maury, - - 16

Berrian v. Olmstead, - - 166

Berry v. Adamson, - - 700

V. Bakeman, - 325

V. Cooper, - - 237

V. Hoeffner, - - 551

V. Vantries, - 520, 560

V. Vreeland, 334, 473

Berthold v. Fox, - 543, 560

Bessent v. Harris, - 14

Bessou V. Southard, - - 700

Best V. Allen, - - 390

Bethea v. McLennon, - 553

Betteley v. Stainby, - 10, 145

Betts V. Cliurch, - - 488

V. Gibbins, - - 51

v. Lee, - - 509

V. Williamsburgli, - 433

Beveridge v. Welch, - 547, 559

Bevin v. Conn. Mut. Ins. Co., 97, 99

Biddle v. Hussman, 131, 129, 447

Bidwell V. Madison, - 17

Bierbauer v. N. Y. etc. R. R. Co., 291

TABLE OF CASES CITED.

XV

Pages.

Bigelow V. CoUamore, - - 133

V. Doolittle, 538, 539, 541

V. Rising, - - 365

V. Walker, - - - 30

V. West Wis. R. R. Co., 434, 436

Bigelow Carpet Co. v. Dobson, 604

Bignell v. Buzzard, - 666

BiUs V. N.. Y. C. R. R. Co., 245

Binns v. McCorkle, ■ 697*

Binssee v. Wood, ^ 130

Birch V. Wright, - - - 107

Birchfield v. Russell, - 657

Bird V. Kleiner, - - 587

Birdsall v. Coolidge, 599, 601, 606,

607, 6S1
Birney v. N. Y. etc. Tel. Co., 295,

Birnie v. Main,
Bize V. Dickason,
Bisbey v. Shaw,
Bishop V. Baker,

V. Williamson,
.Bissell V. Hopkins,
Black V. Balleras,
V. Baxendale,
V. Camden, etc.

R,

396, 297
359

- 38
677, 686, 689

388
478

- 493
204
228

R. Co., 319,
237

V. Carrolton R. R. Co., 261

V. Munson, 614

Blackburn v. Mann, 330

Blackman v. Thomas, - - 47

Blackstock v. N. Y. & E. R. R.

Co., 213

Blackwell v. Acton, - - 541

Blagge V. Ilsley, - 739, 740, 741

Blair v. Olaxton, - 115, 173

Blake v. Burnham, - 151

V. Exchange Mut. Ins. Co., 90

v.- Midland R'y Co., 259, 282, 713

V. Robertson, ... 604

Blanchard v. Ely, - 156, 173

• V. Hill, - - - 629

V. Ilsley, - - - 737

V. Page, - - - - 343

Bland v. Hixenbaugh, - 448, 453

Blesohv. Chicago, etc. R. R. Co., 369,

414
Bliss V. ColUns, - - 133

V. Hall, - - 394

Blizzard v. Hays, - • 709

Blofield V. Payne, - 639, 630

Bloodgood V. Mohawk, etc. R.

R. Co., - - 430

Bloomington v. Miller, - - 434
Blossom V. Lycoming F. Ins. Co., 73
Blot V. Boiceau, - 31, 504

Blount V. Gareii, - 343

Blumenthal v. Brainerd, - 338

Blunt V. Aiken, - - 403

V. McCormick, - - 898

Bly V. United States, - 509

Pages.
Blyth V. Smith, - 188, 150

Blythe v. Tompkins, - 733

Board v. Head, - , • - 536

Boardman v. Goldsmith, - - 389
Bodenham v. Bennett, - - 314
Bodley v. Reynolds, - - - 495
Bodwell V. Osgood, - 651, 654, 658
V. Swan, - 648, 653, 683, 685
Bogardus v. Parker, - 174, 355
Bohanaon v. Lewis, - - 133

Bohn V. Cleaver, - - 207

Bolton V. BaUard. - 360

Bomar v. Maxwell, - - 393

Bonapart v. Camden, etc. R. R.

Co., - - - 430

Bond V. Mitchell, - - 534

Bondurant v. Crawford, - 586

Bonner v. Coleman, - - - 558

V. Peterson, - - ,358, 363

V, Welborn, - - 419

Bonnin v. Elliott, - - 661

Bononi v. Backhouse, - 418

Bonsall v. McKay, • 390

Bonesteel v. Bonesteel, 733

Bonsteel v. Vanderbilt, 251

Booth V. Powers, - - 523

V. Sherwood, - - 363, 364

V. Spuyten DuyvilR. M. Co., 2'39,

333
Boothby v. Androscoggin, etc.

R. R. Co., 48

Bopp V. Fox, 361

Borlander v. Geatry, 485

Bornman v. Tooke, - 203

Bostiok V. Rutherford, 709

Boston Carpet Co. v. Journeav, 4
Boston, etc. R. R. Co. v. Old

Colony R. R. Corp., - 453

Boston & Maine R. R. Co. v.

Montgomery, 440

Boston Water Power Co. v. Bos-
ton, etc. R. R. Co., - 430
Botelar v. Bell, - 693
BottarfE v. Wise, - 351
Boucicault v. Wood, 634, 637
Bourland v. Eidson, 686, 693
Bourne v. Ashley, 488, 491
Boutelle v. Warne, - - 537
Bowas V. Pioneer Tow Line, - 714
Bowen v. Hall, - - 680, 683, 684
V. Lake Erie Tel. Co., 801
V. Morris, - - - ,56
V. N. Y. Cent. R. R. Co., 258
Bower v. Derideker, - 688
V. Dew, - - 485
V. Fenn, - - 585, 587
V. Howe, - - - 24
Bowie V. Berry, - 353
Bowman v. Teal, . - - 213
Bowyer v. Cook, - - 396, 403
Boyd V. Browne, - - 587

XVI

TABLE OF CASES CITED.

Boyd V. Byrd, - - - - 737
V. Negley, - - - - 465
V. Watt, - - - 435

Boyd's Lessee v. Cowan, - - 344
Boyer v. Boyer, - - - 361
Boylan v. Huguet, - 488, 496, 518
Boylston's Ins. Co. v. Davis, 509, 553
Boynton v. Chase, - - 172

V. Kellogg, - - 325, 336, 328
Bovee v. Danville, - - - 713
Bracegirdle v. Orford, 389, 471, 472
Bracken v. Neill, - - 479

Bracket v MoNair, - 210, 217

Bracy v. Kibbe, - 729, 789, 741
Bradburn v. Great Western E'y

Co., - - - - 369

Braden v. Walker, - - - 678
Bradford v. Pox, . - 24, 27

Bradhurst v. Columbian Ins.

Co., - - - 194, 197

Bradley v. Amis, - - 399

V. Davenport, . - - 107

V. Denton, - - 181, 184

V. Gamelle. . - - 540

V. Gardner, - - - 693

V. Rea, .- - - 583

V. Richardson, - - - 38

Bradshaw v. Buohannan, - 389

V. Rogers, i- - - 430

Bradstreet v. Baldwin, - 194

Bradt v. Towsley, - 665

Brady v. Northwestei'n Ins.

Co., - - 94

V. Weeks, - - - - 394

v. Whitney, - - 538, 539

Brainei-d v. Arnold, - - 113, 113

V. Boston, etc. R. R. Co., 464

Brannin v. Johnson, - 473

Brashear v. Chandler, - 132

Brass v. Worth, - - - 504

Brauer v. The Almoner, - - 336

Bray v. Gunn, - 45

Bredow v. Mutual Sav. Inst., - 530

Breed v. Eastern R. R. Co., - 447

Breese v. U. S. Tel. Co., - - 396

Bresbine v. St. Paul, etc. R. R.

Co., - - - 448

Brewer v. Beokwith, - 344

V. Dew, - - - - 471

V. Palmer, - - - 107

Brewster v. De Fremery, - 166

V. Silliman, , - 543, 555

V. Sussex R. R. Co., 414

Brichta v. New York Ins. Co., 91

Bridgman v. Hopkins, 680, 681

V. Steamboat Emily, - 209

Brierly v. Kendall, - 475

Briggs V. Boston, etc. R. R. Co., 525,

526
V. Bi-ushaber, - - 590

V. Evans, - - - 736, 738

Briggs v. Hall, - - - 115, 116
V. New York Cent. R. R.
Co., - - - - 214, 337
Bright V. Boyd, - - 349

Brightman v. Reeves, 521

BrinckerhofiE v. Wample, - 448
Bringard v. Stellwagen, - - 533
Brink v. Dolsen, - - 41

( V. Hanover F. Ins. Co., 72

Brinkley v. Walcott, - - 108
Brinley v. National Ins. Co., - 87
Brinsmead v. Harrison, - - 488
Briscoe v. McBlween, - 473, 488
Bristol, etc. Co. v. Gridley, 427, 717
BriLtam v. Barnaby, - - 193
Brizsee v. Maybee, 538, 540, 551, 560,

561

Broadwell v. Paradice, - - 558

Brock V. Gale, - - - 335

Brodie v. Ophir S. M. Co., 602, 607

Brolaskey v. Loth, - 111

Bromley v. Wallace, - 745

Brooke v. Louisiana Ins. Co., - 80

Brooker v. Coffin, - 639

Bi'ooks V. Cunningham, - 114

V. Schwerin, 730, 734

Bi-ower v. Merrill, - 431

Brown V. Adams, - - - 114

V. AUen, 389, 473, 475, 491

V. Arrott, - 4, 5, 7, 24, 39

V. Barnes, - 654

V. Barrington, - 166

V. Brown, - - .353

V. Chadsey, 733, 738

V. Chapman, - - . 700

V. Chicago, etc. E. R. Co., 251,

357, 359, 714

V. C. M. & St. PaulR. R. Co., 254,

' ■ 255

V. Clayton, - - 46, 50

V. Corey, - 468

V. Gray, - - 583

V. Hannibal, etc. R. R. Co., 269

V. Haynes, - - 536

V. niius, - - - 395

V. Lake, - - 388, 389

V. Manter, - . - 364

V. McCloud, - - - 345

V. McGraw, - - 30, 33 .

V. Montgomery, - . . 522

V. Nickerson, 659

V. Orvis, - - - 689

V. Quinoy Mnt. F. Ins. Co., 78

V. R. R. Co., - - - 252

V. Ralston, - - - 193, 197

V. Royal Ins. Co., - - 94

V. Sax, - - 376, 509

V. Smith, - - . 573, 707

V. Stanford, - - 556

V. Stapyleton, - - 83

V. Thomas, - - j. - - 473

TABLE OV CASES CITED.

xvu

Browii V. Ware,
V. Watson, -
V. Windsor,
V. Woods, -
V. Worcester,

Pages.

- 474
' - 424

- 418
590, 593

447

Brown's Lessee v. Galloway, - 346
BrowneU v. McEwen, - - 741

V. Etch, - ■ 258, 277

Browning v. Shellman, - 474

Bruce v. Davenport, - - 2

V. Soule, - - - - 639
Bruen v. Ogden, - - 544

Brunson v. Lynde, - - 657

Brunswick v. Harmer, - 648

Brunswick, etc. R. R. Co. v.

McLaren, - - 463

Brushaber v. Stegemann, - 732
Bryant v. Am. Tel. Co., 234, 297, 306
Buchan v. Sumner, - - 361

Buck V. Her,mance, - - 604, 606

V. Hersey, 658

V. Pike, - - - 134

V. Eemeen, ... 535

V. Rodgers, - - 169, 172

Buckland v. Hall, - 122

Buckley v. Artcher, - - - 585

V. Buckley, 543, 545, 553, 563

V. Knapp, ■ - 654, 679, 680
Bucklin v. Beals, - 531

Buckmaster v. Grundy, - 131

V. Smith, - - 526

Bucknan v. Nash, - 419

Budd V. Crea, - - 326, 327

V. Walker, ... 345

Buddington v. Shearer, - - 425
Buerk v. Imhaueser, 605, 607, 614,

631
Buffalo, etc. R. R. Co. v. Brain-

ard, - - 430, 456

Baford v. Caldwell. - - 587

Bulkley v. United States, 183

BuU V. Gould, - - - 728

V. Griswold, - 381, 383

Bullard v. Bowers, 359, 360

BuUer v. Harrison, - - 59

Bullock V. Cloyes, - - 652

V. Dommitt, - - - 132
Bunnell V. Greathead, 745

Bunsteadv. Div. Mut. Ins. Co., 72
Bunyon v. Bordiue, - 434

Burdett v. Withers, - - 133, 133
BuTgess V. Gann, - - 193

Burgett Y. Burgett, - - 708

Burke v. Miller, - - - 657

V. Savage, - - - 474

Burkhart v. Jennings, - 700

Burkle v. EUs, - - - - 236
Burmster v. Hodgson, - - 305
Burnv. Morris, - - - 483

Burnett v. Simpkns, 336, 337

V. Wells, - - - - 658

Burnhara v. Best, - 106, 107, 130

Burpee v. Sparhawk, - - 590

Burr v. Stenton, - - 146

v. Woodrow, - - - 351

Burrell v. N. Y. etc. Co., - - 437

Burrill v. Clegman, - - - 300

V. Phillips, ... 38

V. Stephens, ... 58S

Burt V. Bowles, . - - 585

V. Dutcher, - - - 504

V. McBain, - - - 646, 690

, V. Merchants' Ins. Co., 139, 447

V. Wigglesworth, 129, 441, 447

Burtch V. Nickerson, 639, 658

Burton v. Hughes, - 474

V. Tannehill, - - - 488

Bush V. Prosser, - 685, 687, 689, 690

Bussey v. Excelsior M. Co., 601

Butcher v. Porter, - 558

Butler V. Bangor, - - 730

v. CoUins, - 476, 491

V. Eschleman, - 327

V. Mehriing, - - - 539

V. Wildman, - - 82

Butman v. Hussey, - . - 397

Button V. McCauley, - - 337

Butts V. Edwards, ... 532

Byne v. Moore, - - 700

Byram v. MoGuire, - - 598

Byrket v. Monohan, - - 656, 677

Byrne v. Schiller, - - - 203

V. Sohwing, - 37

V. Weeks, - - - - 203

Cable V. Dakin, - - 540, 561
Cabot V. Christie, - 587

Cadle V. Muscatine, etc. R. R.

Co., - . - 409

Caflfe V. Bertrand, - - 490

CafErey v. Darby, - - 8, 84, 29

Cage V. Phillips, - 174

Cagger v. Lansing, - - . 351

CahiU V. Eastman, - - 395

V. London, etc. R'y Co., - 293

Calcraft v. Harborough, - 745

Caldwell v. Bank, - - 449

V. Brown, - 282

V. Bi'u|-german, - - 543

V. Cowan, 488

V. Fenwick, . - . 548

V. Murphy, - 261, 263, 268, 716

V. N. J. Steamboat C6., 258, 270

Caledonia R. R. Co. v. Colt, 242

Cal. P. R. R. Co. V. Armstrong, 451

Callander v. Oerlichs, - - 9, 10

Calloway v. Middleton, - - 681

Camden, etc. R. R. Co. v. Bal-

dauff, - - - 214, 398

Cameron v. Rich, - - 237

Cammidge v. Allenby, - - 25
Camp V. Martin, . - - 639

XVIU

TABLE OF CASES CITED.

Camp V. State, - - - 739

V. Western Union Tel. Co., 395
Campbell v. Arnold, - - - 363
V. Brown, - - 349

V. Butts, - - - 649, 650
V. CampbeU, 860, 656, 679

V. Head, - - 558

V. HiUman,- - - 590

V. Seaman, - . - - 396 '
V. Shields, - - 174

V. Thompson, - - 303

V. White, - - 666

V. Woodworth, - - - 473
Candee v. Western Union Tel.

Co,, - - 296, 397, 299, 311
Canning v. WUliamstown, 259, 713,

715
Canton v. Smith, - 531

Capp V. Topham, - - 47

Capper v. Forster, 188, 300

Cardival v. Smith, - 700

Carew v. Boston Elastic F. Co., 607,

631

V. Otis, - 59

Carey v. Sheets, - 733

Carl V. Ayers, - - - 707, 708

V. Sheboygan, etc. R. R. Co., 869,

414

Carll V. Batman, - 859

Carlyon v. Lannan, - 488

Carpenter v. Easton, etc. R. R.

Co., ... - 465

V. Jennings, - 456

V. Landaflf, - - - 708

V. Shields, - - - - 708
V. Stevens, - - 550, 551

vf People, - 739

V. Providence, etc. Ins. Co., 74,

93

V. Wall, - 739

Carr v. Moore, - 590, 592

Carrell v. Early, 548

Carroll v. Pathkiller. ■ 539

V. Staten Island R. R. Co., 358

V. White, - - 640

Carslake v. Mapledoran, - 639

Carson v. Applegarth, - 548

v. Coleman, - - 430

V. Edgworth, - - 707

v. Godley, - - -, - 146

V. Marine Ins. Co., - 74, 75

V. Prater, - - 474

Cartanos v. Ritter, 735

Carter v. Bailey, - - - 634

V. Baker, - 603, 605, 631, 633

V. BuiT, - 117

V. CoUar, - - - 108

V. Glass, - - 588

V. Parker, - - - 358, 354

V. St. Paul, etc. R. R. Co., 441

Cai-tweU V. AUard, - 39

Pages.

Cartwright v. Greene,

- 38

Cary v. Allei.\,

- 643

V. Gruman,

- 580, 593

v. Whiting,

137

Casabeer v Mowiy, -

897

Case v. Babbett,

- 571

V. Hall,

594

v. Hart,

- 525

V. Marks, 654, 679, 680

Cassia v. Marshall, - 476

Castello V. Landwehr, 382

Caswell V. Wendell, - - - 149

Gates V. MoKinney, - 319

Cathbert v. Kuhn, - 136

Catlin V. Ware, - 353

Caulfield v. Whitworth, - - 675

Cavanagh v. Austin, 647, 677

Cawkwell v. Russell, 395

Cawthorn v. Trickett, 204

Gaze v. Baltimore Ins. Co., 197

Center v. Davis, - 170
Central Bridge Corporation v.

Lowell, - 447

Central P. R. R. Co. v. Pearson, 468

Chaddock v. Briggs, 689, 659

Chadwick v. Lamb, - - 535

Chalmers v. Shackell, - - 687

Charles v. Altin, 8, 145

Charless v. Rankin, - 418

Charlestown Ins. Co. v. Neve, - 71

Chamberlain v. Chandler, 258

V. CoUinson, r 880

V. Greenfield, 889

V. N. H. Ins. Co., - - 69

V. Shaw, - 470, 475, 537

V. Western T. Co., - 291

Chamberlin v. Vance, 647, 688

Chambers v. Porter, - 727

V. Ross, - - 107, 108

Champion v. Vincent, 390

Chandler v. Allison, - - 166

V. Com. Fire Ins. Co., 73

V. Jamaica P. Aqueduct, - 448

Chapman v. Chicago & N. W.

R. R. Co., - 237, 239

V. Ferry, - ■ 626

V. Kerby, - - 154, 159
V. Oshkosh, etc. R. R. Co., 456,

461

V. Pickersgill, 700

V. Thornburg, 674

Chappel V. Comfort, - 204

Chase v. Alliance Ins. Co., 208

V. N. Y. Cent. R. R. Co., 870,

372, 415, 416, 430

V. Worcester, - 445

Chatfield v. Wilson, - - - 397

Chatterton v. Fox, 115, 148, 149, 172,

173

Chauncey v. Yeaton, - 493

Chenango Bridge Co. v. Lewis, 417

TABLE OF CASES CITED.

XIX

Chesley v. Chesley, - - '319

Chesterfield, Earl of, v. Duke of

Bolton, - - - - 133
Chesterfield Manuf. Co. v. De-

hon, 48

Chestwood v. Mayo, - - - 686

Chevalier v. Brush, - - 697

C!hicago V. AUcock, - - 883

V. Elzeman, - - - 720

V. Huenerbein, 383, 414, 415

V. Jones, - 730, 781

V. Kelley, - - -731

V. Langlass, 713, 730, 731, 731

V. O'Brennan, - - 368, 731

V. Scholten, - 283

V. Smith, - - 730

Chicago Building Society v. Cro-

well, - - - 146, 523

Chicago & A. R. R. Co. v. Shan-
non. - - - 383
V. Stein, . - - 441
Cliicago, B. & Q. R. R. Co. v.

Harwood, - - - 283

Chicago, eto.R. R. Co. v. Baker, 373,

413, 414

V. Bayfield, - 383

V. Bovce, 293

V. Dunn, - - 734

V. Eviokson, - - - 219

V. Fahey, - - - 391

V. Flagg, - - 259

V. Francis, - 434

V. Hale, - 343

V. Hoag, - 426

V. Hughes, - - 291

V. McKittrick, - 731

V. Melville, - - 430

V. Morris, - - 283

V. Stanbro, - - - 237

V. Parks; 191

V. Payzant, - ■ - 291

V. Springfield, etc. R. R.

Co.. - 444, 445, 465

Child V. Homer, 691, 693

Chinnery v. Viallt, 484

Chipman v. Palmer, 425

Chirac v. Reinecker, 344

Chismon v. Carney, - - ' '^^^

Choate v. Crowninshield, - 236

Christopher v. Austin, - 115, 116

Christy v. Row, - 197

Chubb V. Gsell, - - - - 65o

Church V. Bridgman, - 697

V. Sterling, - - 3

Churchill V. Siggers, - 700,705

v. Watson, - - - - 480

V. Welsh, - - - - 531

Cilley V. Hawkins, - - 149, 153

Cincinnati Chronicle Co. v.

White Line T. Co., - 230

Cincinnati, etc. R. R. Co. v. Cole, 370

Cincinnati, etc. R. R. Co. v,

Marcus, - - 343

V. Zinn, - - 443

Citizens' Bank v. Nantucket S.

B. Co., ■ - 189

Clare v. Maynard, - - - 590

Clarion Bank v. Jones, 490, 493

Clark V. Baboock, - - - 166

V. Baird, - - 590

V. Barlow, - - 129

V. Barnwell, - - 337

V. Bates, - - - 493, 531

V.Brown, - - 679,680

V. Clark, - - - 638

V. Fitch, - - 736, 738, 741

V. Foster, - - - 54

V. Keith, - 573

V. Martin, - 539

T. Munroe, - - - 359

V. Munsell, - - 683

V. Nicholson, - - 493

V. N. E. Ins. Co., - 71, 73

V. Peckham, - - 433

V. Pinney, - - 496, 504

V. Reese, - ■ - 320

V. St. Clair, etc. Co., - 367, 368,

388

V. St. Louis, etc. R. R. Co., 337

V. United F. & M. Ins. Co., 77

V. Van Northwick, 37

V. Whitaker, 489

V. Wilson, - - - 74

Clarke v. Bank of Wheeling, - 7

V. Holford, 471, 493, 513

V. Miller, - 5, 347

V. Moody, - - 3, 8, 30, 39

V. Potstan, - - - 700

Clapp V. Hudson R. R. Co., 391

V.Noble, - - 109

V. Thomas, - - 473, 480

V. Walter, ■- - - 539

Clayton v. O'Connor, - 590, 593

Cleghorn v. New York, etc. R.

R. Co., - 271, 278

Clem v. Holmes, - 743

Clements v. Glass, - 539

Clemson v. Davidson, - 193

Clendaniel v. Tuckerman, 95, 193,

304
Cleveland v. Citizpns' G. L. Co., 394
Cleveland, etc. R. R. Co. v. Ball, 437,

456

V. Perkins, - - - 315

V. Rowan, - - - 383

V. Speer, ■ - - - 433

V. Sutherland, - - - 719

Cleves V. WiUoughby, - 117, 136

CUfEord V. Dain, - 717

V. Watts, - - - 114

Closson V. Staples, - 700, 701, 705

Clough V. Tenney, - 735

XX

TABLE OF CASES CITED.

Clough V. Unity, - - 465

Clow V. Brogden, . - - 139

Clowes V. Hawley, - 523

Coagan v. Parker, - - - 138

Coates V. Gheever, - - 359, 360

Coats V. Holbrook, 639

Cobbv. Boston, - - 464

V. 111. Cent. E. E., 308

V. Smith, - 438

Coburn v. Ames, - 434

Cochrane v. Winbume, 545

Cockayne v. Hodgkisson, - 653

Cookburn v. Alexander, - 188, 301

V. Ashland Lumber Co., 491

Cockrill V. Armstrong, 360

Cod man v. Freeman, 473

Codrington v. Uoyd, 783

Coe V. Clay, - - 147

Coffeen v. Brunton, - 630

Coffin V. Field, - - 480

V. Newbury port M. Ins. Co. , 77

V. Storer, - - 199

Cohen v. Dry Dock, etc. Co., 377

V. Dupont, - 117

Coil V. "Wallace, - 317, 331

Colborn V. Merrill, 115,116

Colbum V. Simons, - - 636

Coloough V. Nashville, etc. E.

E. Co., 444, 447, 464

Cole V. Buckle, - - - 134, 168

v. Goodwin, - - 344

V. Holliday, - - - 337

V. Patterson, 131, 133

V. Eoss, - - - 488

V. Sproul, - 398, 434

Coleman v. Bunce, - 173

V. N. Y. etc. E. E. Co., 714

V. Southwick, - 730

Coles V. Coles, 359

Collamer v. Page, - - - 558

Collardv. S. E. E'y Co., 218, 333, 324,

236, 714

CoUen V. Wright, 54, 55

CoUey V. Streeton, - 159

Collins V. Albany, etc. E. E. Co., 391

V. Council Bluffs, - 368

V. Hayte, - - - 699

V. Hough, - - 558

V. Mack, - 323

V. Stephenson, - - 683

Colloday v. Baird, - 628

Colman v. Crump, - 630

Colombian Ins. Co. v. Lij,wrence, 70

Columbia, etc. Bridge Co. v.

Geisse, - - 431

Columbian Ins. Co. v. Ashby, - 84
Columbus Gas Co. v. Freeland, 396,

397

ColvUl V. St. Paul, etc. E. E. Co., 434,

436, 438, 441, 464

Colvin V. Jones, - - - 214

Comer v. Knowles, ■ 732, 733

Commercial Bank v. Jones, - 489
Commercial Ins. Co. v. Sinnott, 74,

94

V. Union Ins. Co., 63

Commissioners v. Johnston, 454

V. O'SuUivan, - - 456

Commonwealth v. Boston, etc.

E. E. Co., - 439, 445, 466

V. Hide & L. Ins. Co., 76

V. Norfolk, - - 433

V. Session of Coombs, 433

V. Session of Middlesex, - 433
V Todd, - 172, 175

V. York, - 646

Commonwealth Ins. Co. v. Sin-
nott, - - - 74, 75, 87
Compton V. Allen, - 133
V. Martin, - 535
Comstock V. Hier, 523
Conard V. Pacific Ins. Co., - 473
Concord Mut. Ins. Co. v. Wood- .

bury, - 93

Concord E. E. Co. v. Greeley, - 467
Conger v. Hudson E. E. E. Co., 313
Congregational Society v. Walk-
er, - - - 346
Congress Spring Co. v. High

Eock Spring Co., - - 639
Gouhocton, etc. Co. v. Buffalo,

etc. E. E. Co., - 395

Conn V. Wilson, 317

Connecticut Mut. L. Ins. Co. v.

Scaefer, - - 98, 99

Connecticut Eiver, etc. E. E. Co.

V. Clapp, - - 467

Conrad V. UhrigB. Co., - 638

Conroe t. Conroe, - - 680

Consolidated Oil Well Packer

Co. V. Eaton, - - 60G

Converse v. Burrows, - 233

Conway v. Nicol, - - 745

Cooch V. Gen-y, - - - 347

Cook V. Barkley, - 681, 697

V. Cook, ' - - 663

V. Hartle, 483

V. Jennings, - - . 197

V. Loomis, 482, 488, 537, 538, 531

V. Soule, 139, 168, 173, 173

V. South Park Com., 449, 467

V. Webb, - 345

Cooke V. England, - - 134

V. Wildes, - - 653

V. Wise, - - - 131

Cooley V. Betts, - - - 41

Coolidge V. Choate, 473, 475

Coombe v. Sansome, - - 583

Coon V. Moffitt, - 735, 738, 739

Cooper V. Barber, - . - 688

V. Chitty, - - - 487

V. Hall, - - - 394, 397

TABLE OF CASES CITED.

XXI

Cooper V. Newman, - 483, '528

V. Randall, - - . 403

V. Young, - - - 230

Copeland v. Mercantile Ins. Co., 2
Copper V. Powell, - 27

Corbett v. Gilbert, 588

Corcoran v. Corcoran, - - 666
Corliss V. Cumniing, - - 47
Cornell v. Le Roy, - - - 71
Corning v. Corning, - 727

Cornish v Cleife, - - 132, 133
Corporation of N. Y. v. Ransom, 604
Cort V. Planer, 110

Corteh-ou v. Lansing, 520

Cortsingliam v. Phillip, - 118

Coryoll V. Colbaugh, - - 321

Cotln-an v. Hanover Nat. Bank, 522
Cott'ji-oU V. Jones, 702

Cot/.h;niscn v. Simon, - - 587
Cougluiiii V. King, 140

CourciLT V. Ritter, 30

Consiiis V. Merrill, - 674

Covull V. Hill, ... 528

Covoinr^- A'. Barton, 51

.Covington V. Roberts, - - 83
Cowden v. Wright, - 279. 281, 735
Cowing V. Rumsey, 603, 603, 604
Cowley V. Davidson, 210, 213, 218,

238

v.'Dunlop, - - - - 24

Cox V. Fenwick, - - 140

V. Glue. - 364

v. Jagger, - - 352

V. Prentice, - - - 59

V. Taylor, - - - - 700

V. Vunderklad, - 260

Coxe V. England, 380

Craig V. Brown, - 639

• V. Kline, - - - - 540

V. McHenry, - 520

V. Parkis, - 73

V. Ward, - - 588

Craige v. Morris, - - 359

Grain v. Petrie, - - 308

Craker v. Chi. & N. W. R. R.

Co., - 258, 259, 260, 278, 713, 713

Cram V. Dresser, - 117,118,174

Cramer v. Am. etc. Exp. Co., 216

V. Noonan, - 624, 661

Crane v. Aiken, - - 82, 83

V. Douglass, - - - 698

V. Hardman, 114, 118, 129, 172,

173

V. Onderdonk, - 60

V. Palme, - - - 860

Cranston v. Marshall, - 251, 254

Crater v. Binuinger, 579, 585, 589

Cravens v. Gant, - - 587

Crawford v. Jones, - 107

V. Maxwell, - - - 383

V. Williams, - 193, 197, 199

Pages.
Crecy v. Pearce, - 360

Creevy v. Carr, . . - 694

Criner v. Pike, - - 474, 485

Crise v. Auditor, - - 448

Croade v. Ingraham, - 353

Crockett v. Lashbrook, - 344

Crommelin v. Coxe, - - - 423
V. Thiess, . - - 110

Cropsey v. Murphy, - - 394

Crosby v. Loop, ... 121
Crosland V.Hall, - - 585,590
Cross V. Sackett, . - - 589
V. Tome', - - 112, 113

Crosse v. Bilson, - 539, 557

Crossenv. Hutchinson, 24

Crouch V. Briles. - 108

V. Great N. R'y Co., 307

Crowe V. Aiken, - 634

Crowell V. Hospital of St. Bar-
nabas, - - - 361
Crozierv. People, - - 739
Cruger v. McLaury, - - - 121
Crumb v. Oaks, - 489
Culing V. Long, 193
Culver V. Ex'r of Harper, 359
Cumberland, etc. Coi-p. v.

Hitchiugs, 396, 398, 399, 401, 404
Cumberland, etc. Co. v. Sher-
man, - - . - 3
Cumberland Valley Mut. Prot.

Co. V. Schell, 86

Cuninierford v. McAvoy, 697

Cummings v. Williamsport, 434

Cummins v. Crawford, - 391

Curd v. Wunder, - 488, 524

Curlewis v. Laurie, - 388

Curry V. Pringle, - 733

V. Wilson, - - 490

Curtis V. Curtis, - - 357

V. Groat, - - 509

V. St. Paul, etc. R. R. Co., 434,

436, 464

V. Ward, - 483, 536, 567

Curtiss V. Rochester, etc. R. R.

Co., - 259. 261, 263, 712, 723

Gushing v. Longfellow, - 513

V. Well?, Fargo & Co., 238, 239

Cushman v. N. W. Ins. Co., 68, 78

Cushwa V. Cushwa, - - 343

Cuthbert v. Kuhn, - 133

Cutler v. Bell, - - 14

V. Smith, - - - - 389

Cutting V. Cbx, - - 363

V. Grand Trunk R'y Co., • 218.

319, 320, 332, 337

Daffe V. Hayes, - - 184

Dailey v. Crowley, - - 483, 538

V. Grimes, 121

V. Houston, - - - 727

Dain v. Wycoff, 737, 788, 739, 743

XXI]

TABLE OF CASES CITED.

PctOQS

Dakin v. Oxley, - 193, 194

Dalby v. India & London Life

Assurance Co., - - 97

Dale V. Smithsou, 630

Dalton -R. Gerrish, - - 126

V. Laudahn, - 107, 118, 532
Daly V. Byrne, - - 649, 651

Dalzell V. Davenport, 464

^ Damainville v. Mann, - 133

Dame v. Kenney, ■ - 6S3

Damon v. Moore, - 737, 739

Damron v. Roach, - 364, 383

Dana v. Fiedler, - - 239

Dauforth v. Smith, - 360

Daniel r. Holland, - - - 489
Daniels v. Chicago, etc. R. R.

Co., - - . - 449

V. C. Q. & N. R. Co., 450, 451
Dansefch v. Bank of the U. S., 852, 353
D'Arcy v. Lvle, - 46, 50

Darling v. Tegler, - 560

D'Armuud v. PuUen, 48

Darnall v. Hill, - - 354

Dariy v. People, ... 644
Darwin v. Potter, - - 168, 173
Dathie v. Hilton, - - 193

Davenport v. Ledger, - 476, 477
V. Peoria Ins. Co., - - 63
David V. Southwestern R. R.

Co., . . - 283

Davidson v. B. & M. R. R. Co., 433

V. Ernest, - - - 107

V. Goodall, - 736, 737, 739, 741

V. Graliam, - 336, 287

V. Gunsally, 475, 525

V. Gwynne, - 208

Davies v. Underwood, - - 136

Davis V. Brown, - 639, 640, 642

V. Cayuga, etc. E. R. Co., 393

V. Central, etc. R. R. Co., 391

V. Charles River Bridge, - 464

V. Cincinnati, etc. R. R.

Co., 236

V. Davis, - 539

V. Doe, - - - - 344
V. Easley, - - - 374, 509
v. Elliott, ■ - - - 590
V. Fairclough, - -■ 489

V. Gardiner, - - 666

e. GaiTett, - - 7, 13, 34, 63

f. Griffith, - 693
V. Kendall, 630
V. Lambertson, - 890
V. Lewis, - - - 696
V. Patterson. - - 303
f. Ruflf, - - . 658
V. Western Union Tel. Co., 307

awson V. Donati, - 119

V. McGill, - - 341. 845

V. Wetherbee, - - - 560

' iiy V, Watson, - - - 114

Day V. Woodworth, 530, 601, 606
Daylight Burner Co. v. Odlin, 37
Dayton v. Monx-oe, - - 587

V. Trull, - - 27

Dealy v. Lance, - - 493

Dean v. Mason, - - - - 610

V. Ritter, - - - 181, 188

V. Roesler, - - 149

V. Vaccaro, - - - - 338
Dearborn v. Boston, etc. R. R.

Co., - - 434,438

Dearlove v. Herrington, 389

Decatur v. Fisher, - - - 731
De Caudra v. Swann, - 303

Decker v. Matthews, - - 521
De Clerg v. Mungin, - - - 508
De Coster v. Mass. Min. Co., 373
De Crespigny v. Wellesley, - 698
Deota v. Manly, - - 149

Dedekam v. Rose, - 303

Dedham v. Natick, - - . 737
De Forest v. Fulon F. Ins. Co., 91

V. Leete, - - 427

Defries v. Davis, - 648

De Laney v. Blizzard, - - 424
Delano v. Curtis, - - 483, 53t

v. Montagu, - - 109

Delany v. Hill, - - - 533

V. Stoddart, - - 30

De Lasardi v. Hewitt, - 37

Delaware, etc. Canal Co. v.

Clark, - - 630

V. Lee, - 464

V. Wright, - - - - 398
D. L. & W. R. R. Co. V. Burson, 400,
450, 465, 468
De La Zerda v. Kem, 149, 158

Delegal v. Naylor, - - - 523
Delegall v. Highley, . 647, 67,1
Delvee v. Boardman, - 74)

De Medina v. Grove, - - 700

V. Poison, - - - 107

Deming v. Railroad Co., - 318, 330,
' 236, 337, 333, 334
Den V. McShane, ^ - 344

Denham v. Kirkpatrick, - - 597
Deun V. Chubb, - - 345

Dennick v. Central R. R. Co., - 288
Dennis v. Barber, - - 488, 530

V. Clark, - 279, 735

V. Dennis, - - - . 356
Dennison v. Hyde, - 470, 481

V. Loe, - - - - 129
Denslow v. Van Horn, 330, 333, 336,

337
Denston v. Perkins, - - - 3 48
Denton v. G. N. R'y Co., - 251, 354

V. Nanny, - - ■ 303

Denver, etc. R. R. Co. v. Wood-

_ ""^ard, 383

Depau v. Ocean Ins. Co., - 83

TABLE OF CASES CITED.

XXUl

Pages.
Derringer v. Plate, - - - 639
De Rutte v. N. Y. etc. Tel. Co., 235,

301
Deshler v. Beers, - - 38

Detworth v. McKelvey, - - 572
De Tasset v. Cronsillat, 9

Detmold v. Drake, - - - 466
Detroit Daily Post v. MoArthur, 379,
651, 663, 694
Devaughn v. Heath, - 389

Devereaux v. Buckley, - 218, 220
Devery v. Grand Canal Co., 414
Devlin v. Pike, 490

Dewey v. Gray, - - 115

V. Osborn, - - - 346

De Winte v. Wiltse, - - 153

Dewit V. Greenfield, 678, 679, 680,
685, 686, 688
De Witt V. Morris, - - - 571
Dexter v. Manley, 147, 149, 153, 175
V. Spear, - - 651

V. Syracuse, etc. R. R. Co., 292
Dial V. Holter, - - - 639

Dibble v. Augur, - - 608

V. Brown, - - - 393

V. Morris, - - 479, 520

Diblin v. Murphy, - 291

Dioken v. Shepherd, - - 660
Dickenson v. Fitchburg, - 433, 434,
441, 449, 451, 463
Dickinson v. Baltimore, - 393

V. Boyle, 370, 383

V. Woland, - - 558

Dickson V. Renter Tel. Co., - 314
Digby V. Atkinson, t - 133, 140
Diehl V. Adams Co. Mut. Ins. Co. , 73
Dillenback v. Jerome, 473, 488, 493
Dillor V. Roberts, 108

Dingle v. Hare, 593

Dinsman v. Wilke, - - 733

Distin V. Rose, 678, 685, 689

Dixon V. Caldwell, - 488

Dixon Crucible Co. v. Guggen-
heim, - 639
Dobbin V. Thornton, - - 201
Dobbins v. Duquid, 149. 153, 154,
158, 160i 166
Dobell V. Stevens, 585, 587
Dobson V. Land, - 93
Dod V. Monger, - 485
Dodd V. Morris, - - 743
V. Wakeman, - - 2
Dodge V. Barton, - 83
V. Chandler, - - 572
V. County Commissioners, 464
V. Perkins, - - 8, 30
V. Tilston, 49
Doe V. Davis, - - 3+5
V. Filliter, - - 345, 389
V. Gwinnell, - - . 353
V. Hare, - - 845, 349

Pages.

Doe V. Huddart, - - - 343

V. Perkins, - - 345, 346

V. Roe, - - - - 349

Doherty v. Dolan, - - - 149

V. MunsoD, ... 733

Dole V. Lyon, - - - - 672

Dolevin v. Wilder, - - 689

Donaldson v. Mississippi R. R.

Co., - - - 261

V. M. & M. R. R. Co., ■ 283

Donaldsons v. Beckel, -* 623

Donnell v. Jones, - 699

Donnes v. Back, - . 497

]!)oolittle V. McCullough, - 482

Dorchester v. Coventry, - 333

Dormer v. Portesque, - 357

Dorrill v. Stepliens, . 129

Dorsey v. Gassawav, - 539

V. Manlove, " - . 473, 473

Doss V. Doss, - - 470

V. Jones, - - 675

V. Missouri, etc. R. R. Co., 270

Dothage v. Stuart, 349

Dottarer v. Bushey, - 639

Doty V. Burdick, ■ - 364

Dougherty v. Stepp, - - 384

Douglass V. Craft, - 488, 501

V. Gausman, - - 333

V. Murphy, 10, 144, 145

V. Tousy, - - 661

Doupe V. Genin, - - 166

V. Gennen, - 137

Dow V. Adams, 131

Dowd V. Fawcett, - - 349

Downer v. Madison Bank Co. , 39

Downie v. Potter, - - 156

Downing v. Palmateer, 129

Downinan v. Jones, 53

Dows V. Congdon, - - . 447

V. Faneuil Hall Ins. Co., 75

V. National Bank, - 489

Doyle V. Eccles. - 521

V. Jessup, 735, 743

V. Kiser, - 292, 393

Doyley v. Roberts, - . - 658

Drain v. Dagget, - - 29

Drake v. Cockroft, - 118, 174

Dresser Manuf. Co. v. Water-

ston, ' - 516

Drew V. Beall, - - - 592

V. Red L. T. Co., - 236

V. Sixth Ave. R. R. Co., - 261

Drexel v. Mann, - ^ 344, 346

Driggs V. Dwight, 149, 151

Di'inkwater v. Dinsmore, 105, 720,

731, 722

Driskell v. Hanks, - - 359

Driver v. Western Union R. R.

Co., - ' 440, 450, 461

Drown v. Allen, - 680

Drummond v. Humphries, - 50

XXIV

TABLE OF CASES CITED.

Pages.

Duberley v. Gunning, - 744, 745

Du Bost V. Beresford, - 477

Dhokworth v. Johnson, - - 883

Dudley v. Kennedy, 424

Dufl' V. Williams, 588

Buffyv. Byrne, - - 598
V. Chicago, etc. R. R. Co., 290

V. Thompson, - - - 392
Du Laurans v. St. Paul, etc. R.

R. Co., - - - 370
Du Laurens v. First Div. etc. R.

R. Co., - - - 258

Duncan v. Hayes, 394

V. Hill, - - 51

V. Markley, - 393

V. Thwaites, - - 043

V. Topham, - - - 73

Dunlap V. Internl St. B. Co., 393

Dunn V. Large, - 347

V. White, - 588

Dunnahoe v. Williams, - - 539

Dunne v. Thorpe, - 531, 596

Dunnell v. Mason, - 39

Durden v. Barnett, - 735

Durell V. Carver, - - 291

V. Hale, - - - 585

Dusar v. Murgatroyd, 343

Dusenbury v. Ellis, ■ - 56

Dutro V. Wilson, - 393

Dutton V. Gerrish, - 117

V. Wilner, 3

Duvall V. Waters, 393

Dwight V. Chase, 585

V. Cutler, - - . 106

V. Enos, - . - - 543

V. Hampden, 441. 452, 462

Dyer v. R. R. Co., - - 203

Dyett V. Pendleton, 115, 116, 117

Eagan v. Gault, 686

Eagle V. Swaae, 170

Eames v. Prentice, 388

Earl V. Spooner, - 533

V. Tupper, - 478, 479

Earle v. Holderness, - 531

Earl of Chesterfield v. Duke of

Bolton, - - 132

Earl of Leicestei; v. Walter, 656
Earnest v. Express Co., 243

Easdale v. Sowberry, 24

East V. Chapman, - 709

V. Pace, - - - 533

East Brandywine, etc. R. R.

Co. V. Rauck, - - 434

Easterbrool v. Erie R'y Co., 372
Eastern, etc. R'y Co. v. Brown, 274
Easterwood v. Quin, - 697

Eastman v. Harris, - - 509

East Penn. R. R. Co. v. Heister, 463
East Tennessee & C. Ca v.

Nelson, - - 313, 315

Easton v. Woods, - - 538

Eaton V. B. C. & M. R. R. Co., 431

V. Caldwell, - - 560

V. Welton, ■ - - 4

Eaton, etc. Co. v. Avery, 585, 589

V. Winnie, - - - - 587

Eby V. Schumacker, - 12, 36

Eckstein v. Baldwin, - 55

Edelsten v. Edelsten, 630, 631

Eden V. Lexington, etc. R. R.

Co., - - 724, 725

V. Luyster, - - - 714

Edgar v. NewaU, - - 681, 693

Edge v. Strafiford, - - - 110

Edgerly v. Farmers' Ins. Co., - 70

Edgerton v. Page, 118, 174

Edmoudson v. Baxter, - 303

V. Kite, - - - 107

V. MacheU, - - - - 739

V. Nuttall, - 483, 533

V. Welsh, - - - 359

Edmunds v. Boston, 129, 442. 447

Edsall V. Brooks, - - 653

Edson V. Weston, - ■ 525

Edwards v. Baltimore Ins. Co., 70, 72

V. Beach, - 473

V. Beebe, - - - 478

V. Hoddings, - 59

V. Howell, - 680

V. Todd, - - - 203

Egbert v. Greenwalt, - 744

Ege V. Kille, - - 348

Egler V. Marsden, 107

Eichar v. Kistler. - - 743

Ela V. French, - - 76

Elder v. True, - - 149

Eldred v. Leahy, 118, 173, 175

Elizabeth v. Pavement Co., 610

Elizabethtown, etc. R. R. Co. v.

Combs, - 410, 411, 414

V. Helm's Heirs, - 457, 459

Elkhart v. Ritter, 712, 723

Elkin V. Moore, - - 129

Elkins V. Empire T. Co., 243

Ellery v. Cunningham, 43

ElUcott V. Lamborne, 427

Ellington v. Ellington, - 73 i

Elliot V. Hughes, 498, 499

Elliott V. Aiken, - 114

V. Boyles, - - - - 647

V. Fitchburg R. R. Co., - 397

V. Swartout, - - 59

V. Van Buren, 662, 712, 713

V. Walker, 4, 39, 40, 46, 51

EUiottson V. Feethan, - - 395

Ellis V. Albany Ins. Co., - 86

V. American Tel. Co., 296, 301

V. Kansas City, etc. R. R.

Co., - - 417

V. Leryner, - 543

V. Lindley, - - 647, 648

TABLE OF OASES CITED.

XXV

Pages.
Ellis V. "Willard, - - - 194
V. "Wire, - 376, 489, 509, 513
Ellmaker v. Franklin Ins. Co., 95
EUsworth V. Cent. R. E. Co., - 414
V. Potter, - - - - 389
Elmore v. Brooks, - - - 60
Elsam V. Faucett, - . - 745
Elsee V. Smith, - - - 700, 702
Elwood V. Western Union Tel.

Co., - - - - 814

Ely V. Mumford, - - 587

Embree v. Ellis, - - - 354
Emerson v. Western Union R.

R. Co., - - - 451

Emery v. Dunbar, - - - 208
v.Gowen, - - - 785

V. Lowell, - 414, 416, 431

V. PiscataqTia F. & M. Ins.

Co. 69

Empire T. Co. v. Wamsutta O.

R. & M. Co., - - 214. 236
English V. Key, - - 121

Enslpy V. Nashville, - - 374, 880
Eppes' Ex'rs v. Cole, - 106

Equitable Life Ins. Co. v. Pat-
terson, ... 99
Ereohsen v. Barkworth, - 2(i5
Erie R. R. Co. v. Lockwood, 237, 239
V. Wilcox, - - - 214
Ernest v. Stoller, - - 88
Erwin v. Davenport, - - 60
Escopenicke V. Stewart, - 197
Espy V. Jones, - - - - 828
Esseltyne v. Elmore, - 204, 205
Estep V. Estep, - . - - 166
Esty V. Baker, - - - 896, 402 •
Etheridge V. Osbom, - - - 118
Etna Ins. Co. v. Tyler, - 76, 77 '
Eton V. Luyster, - - 154
Evans v. Harlow, ... 674
V. Harries, , 665, 663
V. Kymer, - - 531
V. Murphy, - - - 116
V. Potter, .... 80
V. Root, - - - 30
Evartson v. Tappen, - - 360
Evelyn v. Raddish, ... 185
Evening News Asso. v. Tryon, 678,

691, 694
Everett v. Southern Exp. Co., 343
Evertston v. Sawyer, - - 108
Ewart V. Kerr, - - 203, 508

V. Street, - - - - 386
Ewbank v. Nutting, - - - 491
Ewen V. Chicago, etc. E. R.

Co., 383

Ewing V. Blount, 483, 489, 496, 529,

530, 537

V. Hanley, - - - 349

Ewins V. Calhoun, ... 584

Eyre v. Dunsford, - - . 583

Fabens y. Mercantile Bank, - 17

Faget V. Brayton, - 539

Fail V. Presley, - - - 493

Fairbank v. Phelps, - - 488, 534

Fairbanks v. Williams, - - 504

v. Witter, - - - - 478

Fairchildv. California Stage Co., 259,

260, 713

Fairfax v. N. Y. C. E. R. Co., - 394

Fairman v. Flack, - 172, 177, 573

Falk V. Fletcher, - - - 488

v. Waterman, - - 478, 479

Fallon V. Manning, - - 560, 573

Fall River Works v. Fall River, 464

Faris v. Lewis, - - 582

Farley v. Craig, - 132, 136

v. Danks, - - 700

v. Rauok, - - - 652

Farmers' Bank v. McKee, 537

Farmers' Ins. Co. v. Curry, - 69

V. Trick, - - - 73

Farnham v. Camden, etc. R. R.

Co., ... 214

Farnum v. Foule, - - 24

Farr v. Rasco, - 686

Farrand v. Marshall, - - 418

FarreU v. ColweU, - - 483, 530

Farris v. Ware, - - 594

Farwell v. Davis, ... 227/

V. Price, - 12, 237, 491

V. Thomas, - - 305

V. Warren, . - 389

Faucitt V. Booth, - - 675

Faulkner v. Brown, ... 474

V. South Pacific E. R. Co., 313,

318

Favor V. Philbriok, - - - 334

Fay V. Halloran, - 131

V. Prentice, - 895

V. Swan, - - - 713

Fayman v. Knox, - - 704, 705

Featherston v. Wilkinson, 199, 211

Feaver v. Montreal Tel. Co., 314

Feeter v. Heath, - - 56

Feise v. Linder, ... 639

Felkner v. Scarlet, - - 789

Fell V. McHenry, - - - 533

Fellerman v. Dolan, - . - 692

Fellows V. Goodman, - - 783

Fenelon v. Butts, - 713, 733, 733

Fenn v. Curtis, ... 579

V. Harrison, - - - 57

v. Western R. R. Corp., - 242

Fenvrick v. Robinson, - 81

Ferber v. American Mut. L. Ins.

Co., V- - - 98

Ferguson V- Davis Co., - - 713
Fernander v. Dunn, - - - 151
Fernsler v. Moyer, - - 739

Fero V. Rusooe, ... 686

Ferrin v. Symonds, - - - 864

XXVI

TABLE OF CASES CITED.

Pages.
Ferris v. Bramble, - - 430

V. Comstook, ... 590
V. Paris, - - - - 41
Fidler v. McKinley, - 317, 737

Field V. Farringtoil, - - - 83
V. Columbet, - 345_

V. Post, - 544'

Filber v. Dautermann, - - 689
Filer v. N Y. Cent. R. R. Co., 261,
720, 724
Filey v. Meyers, - ■ - 118
Fillebrown v. Grand Trunk R'y, 214
V. Hoar, - 116, 153, 725

Filley v. Fassett, - - - 630
Final v. Backus, 488, 489, 509

Fink V, Scliroyer, - - 261

Finley v. Hersliey, - - 408, 414
Finnerly v. Tipper, - 650

Firestone v. Firestone, - - 360
Firmin v. Firmin, - 881, 513

First Baptist Church v. Brook-
lyn Ins. Co., • ■ - 85
V. Schenectadv. etc. R. R.
Co., - "■- 394, 398, 424

First National Bank v. Crowley, 572
V. Marietta, etc. R. R. Co., 293
V. Western Union Tel. Co., 308
First Parish v. Middlesex, 442, 447
First Parish of Shrewsbury v.

Smith, 366

Fish V. Chapman, - 214, 344

V. Dodge, - 394, 395, 396

Fishback v. Miller, - 586

Fisher v. Brown, - 496, 531

V. Mellen, - - 588

V. Morgan, - - 353, 855

V. Patterson, 679, 683, 694

V. Prince, 530, 581

V. WhoUery, - 543, 544

Fisk V. Hicks, - 590, 593

Fiske V. Chesterfield, - 466, 468

Fitchburg, etc. Corp. v. Melren, 110

Fitchburg R. R. Co. v. B. & M.

Co., - 433

Fitzgerald v. Stewart, - 685

Fitzgibbon v. Brown, - 707, 709

Fitzhugh V. Wiman, 542

Flagg V. Dow, - 153

Fleet V. Lockwood, - 557

Fleming v. Chicago, etc. R. Co., 444

Fletcher v. Burrows, - 681

V. Cole, - - - 474

V. Great Western R. R. Co., 443

V. Peck, - - 430

Flint V. Clark, - - - 645

V. Norwich, etc. T. Co., ■ 258

Floyd V. Bovard, - 4, 525

Flureau v, ThornhiU, - 147, 150

Flynn V. Nash, - - - 169

Fogg V. Hill, - 111, 113

Foley V. Wyeth, 418

Pages.
Follett V. Jewett, - - - 689
Folsome v. Apple River, etc. Co. , 383,

415

V. Underbill, - - 721

Foot V. Tracy, - - - 681

Foote V. Cincinnati, - - - 128

V. Clifton, - - - 397

V. Merrill, 374, 376, 489, 513

Forbes v. Aspinwall, - 68, 80

V. Daclet, - - 336

V. Loftm, - - 721, 723

Ford V. Cliicago, etc. R. R. Co., 370,

414

V. Jones, - 713, 713, 728, 743

V. Monroe, - - 279, 281

V. Williams, - - - 536

Forrest v. Elwes, - - - 5;t8

FoiTestier v. Bordman, 4, 15, 37, 39,

345
Forsyth v. WeUs, 379, 513, 516, 517,

530

Fort V. Orndoff, - 168, 170

Fortman v. Rottier, - - - 700

Fort Plain Bridge Co. v. Smith, 433

Forward v. Adams, - - 640

Foshay v. Ferguson, - 707, 708

Foster v. Equit. Mut. Ins. Co., 93

V. Fletcher, - - - 363

V. Kennedy, - - 590

V. Peyser, ... 117

V. Preston, - - - - 43

V. Scofield, - - - - 741

V. Waller, - . 1 . 88

Fouldes V. Willoughby, - 533

Foulger v. Newcomb, 657, 664

Foulkes V. Sellway, - 325, 337

Fountain v. Boodle, - 653

V. West, - - - 657

Fountaine v. Boatman's Sav.

Inst., - - - 359

Fowle V. New Haven, etc. Co., 399,

409, 413, 414, 481

Fowler v. Abrams, - ' 588

V. Bott, - 127

V. Bowen, - . 658

V. Gilman, - - 525

V. Merrill, - . . 488

Fox V. Brodei'ick, - - 651

V. Stevens, - 739, 741

Fradenheit v. Edmundson, 388

Fragin v. Pearson, - 549

Fralick v. Presley, - - 589

Fraloflf V. N. Y. C. R. R. Co., 393,

294
Fi-ance v. Gaudet, - 491, 494, 518
Francis v. Schoellkopf, 414, 417, 433,

423

v. Somerville Ins. Co., 73

V. St. Louis Transfer Co., 104,

254

Frank v. Maguire, - - - 123

TABLE OF OASES CITED.

XXVU

Pages.
Pi-anklin F. Ins. Co. v. Chicago

Ice Co., ... 73

V. Hamill, .... 95

Frazer v. Worms, - - - 8ii

Frazier v. Fi-edericks, 641, 544

V. McClosIvey. - - 649

Fredenstein. v. Bfiene, - 397, 398

Freeborn v. Noroross, - 539

Freedel v. N. C. R. R. Co., - 453

Freeman v. Clute, ... 158

V. Venner, . . 531, 594

Freer v. Oowles, - - 496, 530

Fi-ei V. Vogel, - - 578

Freidenheit v. Edmundson, - 476

French y. Buffalo, etc. R. R.

Co., - ... 336

V. Fuller, - - . - 363

Freshwater v. Nichols, - 534

Frey v. Drahos, - - 493, 553

Fried v. Royal Ins. Co., . 76

Friend v. Duniis, - 663

Frierson v. Hewitt, - - 700

Frith V. Barlter, - - 193

Fritz V. Tudor, - . . - 353

Frost V. Insurance Co., - - 71

Frothingliam v. Everton, 5

V. Prince, - - 76

Fry V. Bennett, - 648, 650, 651

Frye v. Lockwood, - - - 59

V. Maine Central, - 181

Fryer v. Kennersley, 653

Fulkerson v. George, 645

V. White, - - - - 43

FuUenwider v. Mc Williams, 700, 706

Fuller V. Bowker, - - 717

V. Dean, - 679, 681

V. Edings, - - 443

V. Ellis, - - - 13, 50

V. Fenner. ... - 665

V. NaugatuckR. R. Co., - 724

V. Ruby, - - 117, 118

Fulsome v. Concord, - - 733

Furnam v. Van Sise, - 787, 738

Furniss v. Hudson River R. R.

Co., 430, 465

Gadesell v. Bolders, -
GafiEord v. Rensley, ■
Gains v. Western R. R.
Gainsford v. Carroll,
Gaither v. Blowers, -
Galbreath v. Gray, -
Gale V. N. Y. etc. R. R.
GaU V. Comber,
Gallager v. Brunei, -
GaUaway v. Burr, -
Galler v. Felt,
Galloway v. Courtney,
Gallwey v. Marshall,
Gait V. Archer, -
Gammon v. Freeman,

Co.,

97, 100

13

291

498

737

- 354
Co., 730, 730

S8

- 585, 674

708

348

- 681
. 640

- 193

- 359

Pages.
Gandet v. Brown, - - 300

Ganter v. Atkinson, - - - 366
Gardner V. Field, - - 475,491
V. Keteltas, - 146, 147

Garland v. Salem Bank, 24

Garr v. Selden, - - 640

Garretson v. Brown, - 473

Garvey V. Way son, - 699

Gaston v. Bates, ... 354.
V. Bristol & E. R'y Co., 189

Gates V. Green, - - 137

Gathman v. Cattleberry, - 173, 173
Gaudet v. Fi-ance, - 475

Gaulden v. Shehee, - 590

Gay V. Gardner, - 467

Gayford v. NichoUs, - 418

Gee V. L. & Y. R'y Co., 230, 231
Geiseltnan v. Scott, 715, 730

Gentry v. Burnett, 548

George v. Fisk, - 365

V. HaverhiU, 719

V. Skivington, - 593

V. Van Horn. - 738

Gerhard v. Neese, - 228

Germania Fire Ins. Co. v. Cur-
ran, - - - - 70
Gerrish v. New Market M. Co. , 432
Gerzebeok v. Lord, - . - 168
Getes V. Comstock, 115, 118, 119
Getty V. Devlin, - 576
Getzandoflfer v. Caylor, - 131
Gheen v. Johnson, 30
Ghegan v. Young, - - 123
Giaccomini v. Bulkeley, 383
Gibbon v. Paynton, . - 248
Gibbs V. Gildersleeve, - 228
v. Grey, - 199
Giblin v. Mclntyre, - - 712
Gibson v. Gibson, - - 724
V. Humphrey, - - 519, 531
V. Perry, ... 137
V. Sturge, - - 193
Gijddings v. Sears, - 49
Giesy v. Cincinnati, etc. R. R.

Co., - - - - 430, 456

Gifford V. Woodgate, - 701

Gilion V. Stanton, - 47

Gilbert v. Chauviteau, - - 38

V. Kennedy, 365, 366, 385, 420,

470
Gile V. Stevens, - - 414, 433
Giles V. Dugi-o, ... 116

V. O'Toole, 149, 151, 156, 158, 163
Gilhooley V. Washington, 111, 117
Gillard v. Brittan, - 484, 533, 535
Gillespie V. Thomas, 139

Gillett V. Mead, - 741

V. Western R. R. Co., - 478
Gillham v. Madison Co. R. R. Co., 431
Gilliam v. Moore, - - 359

GiUies v. WoflEord, - - 538

XXVIU

TABLE OF CASES CITED.

Gillingham v. Dempsey, - - 237
Oilman v. Lowell, 675, 684, 686

Gilmer v. Evibank, - 651

Gilmore v. Borders, - 678

V. DriscoU, - 373

Gilreath v. Allen, - 661

Gilson V. Wood, - - - 473
Givens v. Studdiford, 414, 419, 430,

435
Glanders v. Graff, - 650

Glass V. Garber, - - 164

Gleason v. Gary, - , - 430
V. Moen, - - - 174

Glendell v. Thomas, - - 303

Glover v. Wilson, - - - 139
Goddard v. Grand Trunk E'y

Co., - 257, 370, 371, 713

V. Mallory, - - 245

Goggin T. Kansas, etc. R. R.

Co., - 214

Gold V. Bissell, - - ' - 733

Goldey v. Peun. R. R. Co.,. - 314
Goller V. Fett, - 381, 512

Good V. Mylin, - 847, 478, 706

Goodall V. Thurman, 317, 323

Goodbread v. Ledbetter, 680, 691
Goodenow v. Tappan, 639

Goodman v. Floyd, - - - 545
Goodno V. Oshkosh, 391, 717, 733,

731

Goodrich v. Thompson, - 13, 14

Goodtitle v. Tombs, 345, 346, 347

Goodwin v. Francis, - - 55

V. Mass. Mut. L. Ins. Co., - 99

Gordon v. Anthony, - - 606

V. Buchanan, - - 56

V. George, ... 140

V. Jenney, - - 547, 553

V. Jones, - - 389

Gore V. Brazier, - 149, 3.53

Gorman v. Sutton, 675

V. Wheeler, - 38

Gottbehuet v. Hubaohek, 658

Gough V. FaiT, - - 333

Gould V. Barnard, - - 557

V. Cayuga Co. Nat. Bank, 587

V. MoKenna, 730

V. Oliver, ■ - 83

V. Scannell, - - 558

V. Thompson, - - 106

V. Weed, - - 693, 696

Gould's Mauuf . Co. v. Cowing, 614,

615, 618

Goulet V. Asseler, - - 475

Gourdlier v. Cormaok, - 36.')

Gove V. Blothem, 640

Grable v. Margrave, - 743

Oracle v. N. Y. Ins. Co., - - 77

Grafton Bank v. Flanders, - 56

Graham v. Connersville, etc. R.

R. Co., , ... 451

Pages.

Graham v. Davis, . . - 231'

V. Maitland, . - - 30

v. Pacific R. R. Co., - 270, 371,
279

V. Plate, - - - 629, 635
V. Smith, - - - - 743
V. Stone, - - - 689, 690
Grainger v. Hill, - - - 700
Grand v. Pendergast, - - 207 '
Grand Rapids B. Co. v. Jarvis, 431
Grand Rapids, etc. R. R. Co. v.

Horn, • - - - 463

Granger v. Collins, - 146

Grant v. Breoklyn, - - - 716
V. Green, - - - - 723
V. Hardy, .... 575
V. King, - - - 488, 489
V. Ludlow, - - - 38

V. Smith, - - - 376, 510
V. WiUey, - - - 320

Graves v. Berdan, - 127, 128, 146
V. Joice, ... 344

V. Porter, - - 123, 135

V. Waller, - - 694

Gray v. Bass, - - - 30

V. Crocheron, ... 530
V. Durland, 736, 787, 739

V. Mo. E. R. Co., 237

V. Mobile Trade Co., - 337

V. Murray, - - 9, 13

V. Stevens, - . - . 473
V. Wain, ... 197

V. Waterman, - - 382

Great Northei'n R'y Co. v. Shep-
herd, ----- 293
Great Western Ins. Co. v. Sta-

den, - . - . 72

Great Western R'y Co. v. Miller, 279

Greeley v. Bartlett, - 34, 46

V. Hunt, . 24

V. Stillson, 518

Green v. Biddle, - - 349

V. Boston, etc. R. R. Co., - 249,

476, 494

V. Button, .... 672

V. Bales, - - 133, 134, 139

V. Fall River, - 453

V. Hall, . . 517

V. Hallenback, - - 586

V. Hudson R. R. Co., . 725

V. Nunnemacher, 394, 428, 425

V. Spencer, - 317

V. SpeiTy, - - - 530

V. Tennant, - . . 353

V. Williams, 148, 149, 150, 151,

157, 166

Greenbaum v. Austrian, - - 359

Greenfield Bank v. Leavitt, 478, 480,

S87
Greening v. Wilkinson, - 473, 498
Greonleaf v. MeCoIley, - 319, 322

TABLE OF CASES CITED.

/

xxix

Greenleaf v. Moody, - - 15

Greentree v. Eosenstook, - - 3, 41
Greenville & Columbia R. R.

Co. V. Partlow, 390, 433, 448, 459
Greenwood v. Greenwood, 735, 737
Greer v. Mayor, etc. of N. Y., 378
Gregory v. Cotterell, - - 471

T. Derby, - - -

■V. Williams,
Gresham v. Taylor, -
Grey v. Mobile T. Co., -
Grider v. Dent,

Gries v. Zeck;
GriflSn v. Colver,

V. Creppin,

V. Knisely,
Griggs V. Austin,

V. Smith,
Grigsby v,

Co.,

700
646
383
336
743

- 731
13, 163, 173, 318,

398

- 364
- 108, 109

- 308

- 359
Clear Lake Water

- 433

Grindle v. Eastern Exp. Co., - 334
GrinneU v. Western Union Tel.

Co., - - 396, 398

Griswold v. New York Ins. Co., 193,

197
Groton v. Dallheim, - - 34

Grotonkemper v. Harris, - 388

Grove v. Dubois, - - 38

Gruman v. Smith, 501, 534, 535
Guernsey v. Shellman, - 479

Guerry v. Kerton, - - . 496
Guest V. Reynolds, - - - 418
Guilford v. McKinley, - - 537
Guilhon v. Lindo, - - - 680
Guthercole v. MiaU, - - 648

Gutheredge v. Munyard, - - 133
Guthman v. Castleberry, - 673

Guy v. Oakley, - - 30

Guyon v. Serrell, - - - 635

Hackett v. B. C. & M. R., - 318

V. Brown, - - - - 693

V. Railroad, ... 315

V. Richards, - - 113

Hadley v. Baxendale, 104, 314, 318.

330, 331, 333, 898

V. Clarke, - - - 194

V. N. H. F. Ins. Co., - 74

Hagan v. Providence, etc. R. R.

Co., 378

Hagedom v. St. Louis Ins. Co., 204

Haines v. Welling, 689, 697

Hair v. Little, - - - 493

Hairston v. Midley, - - 38

Hale V. James, - - 852

V. Muim, - - . 359

V. Philbriok, - - - 586

V, Wall, - - - 29

Hales V. London & N. W. R'y

Co., 315

Vol. Ill— o

Haley v. Dorchester Ins. Co., - 77

Halford v. Adams, - - - 189

Hall v. Burgess, - . - 114

V. Delaplaine, - - - 73

v. Fond du Lac, - - - 720

V. Hollander, - - 279, 735

V. Laudei'dale, - - 54

V. N. J. S. N. Co., - - 286

V. Suydam, - - 708

V. Westarn Transp. Co., - lip

V. Wiles, - - 604

V. Wright, - 94, 337, 328

Hallam v. Todhunter, - - 592

Hallett V. Novion, - - 483, 491

V. Wylie, - - - - 137

Halligan v. Wade, - - 115, 117

Hallock V. Commercial Ins. Co. , 86

V. MiUer, - - - 663, 667

Halverson v. Cole, - 193

Hamden, Town of, v. Rice, - 365

Hamer v. Hathaway, - 493, 501

v. McFarlin, - - - 679

Hamilton v. Billingsley, - 587, 590

v. Cunningham, - - - 17

V. Lomax, - - 737

V. MoPherson, - - 168, 240

V. Third Ave. R. R. Co., 360.^

361, 270, 371, 377, 389, 719

Hatalin v. Great Northern R'y

Co., ■ - - 351, 354

V. Spaulding, - - 733

Hammat v. Russ, - 368; 384

Hammersley v. New York, ^ 465,

Hammon v. Cattle, - - -^29,

Hanmiond v. Christie, - - 3

v. Mukwa, - - - 291, 720

Hampton v. Brown, - - - 524

V. Speoknagle, - - - 54

Hancock v. Gtomez, - - - 18

Hand v. Baynes, - - - 14

v. Burnes, - - - - 238

V. Winton, - - - - 642,

Hankesworth v. Thompson, - 895

Hanmer v. WUsey, - - 480

Hannan v. Ewalt, - 123,, 123

Hannibal B. Go. v. Sehonbaoher, 437,

445, 461

Hannibal, etc. R. R. Ca v.

Swift, - - - - 291, 292
Hanover v. Bartels, ■ - 589

Hanover Water Ca v. Ashland

Iron Co., - - 372

Hansacker v. Stnrges, - 3

Hansard v. Robinson, - 531

Hanson v. Edgerly, - 574

V. Herrick, - - 485

Hansbrough v. Stinnett, - - 649
Hanson v. Fowle, - - . 713
Hapgood V. Batcheller, - - 41
Harcourt v. Harrison, 661

Hardacre v. Stewart, - 59

XXX

TABLE OF CASES CITED,

Pact&s
Harder v. Harder, - 374, 393, 394
Hardin v. Kennedy, - - 383

Harding v. Brooks, - ■ 656

V. Carter, - 4, 533

V. Larkin, - . - 151

Hardman v. Willcock, - - 4
Hardrop v. Gallagher, - 365

Hardy v. Nelson, - 149, 151

Hargrave v. Le Breton, - 667

Hargreaves v. Hutchinson, - 490
Harker v. Dement, - 365, 474, 485
Harkruder v. Moore, 707

Harmon v. Harmon, 648

Harmony v. Bingham, 313

Harpham y. Whitney, - - 707
Harries v. Edmonds, 184, 18.3

Harriman v. Queen's Ins. Co., 73
Harrington v. St. P. & S. C. R.

R., - - - 370, 414

Harris v. Eagle Ins. Co., - 68, 78
V. Eldred, 478

V. Goslin, - 183

V. Jones, ■ - 133

V. Pack wood. - - - 189
V. Panama R. R. Co., 337, 347
V. Rand, - 193, 197, 198

V. Soaramanger, 83

V. Smith, - 534

T. Tumbridge, - 501

Harrison v. Cage, 316

V. Glover, - - - - 38
V. Harrison, - 497, 507, 50b
V. Iowa, etc. R. R. Co., 434

V. Smith, - 310

V. Sterett, 434

V. Swift, 333

V. Taylor, - - 631

V. Wood, - - - 353

Hart V. Skinner, - - 530, 531
V. Spalding, - 838

V. Western R. R. Co., - 714
V. Windsor, 115, 117, 136, 187, 133
Hartgraves v. Duval, - - 558
Hartley v. Herring, 639, 634, 666, 667.

668
Hartranf t v. Hesser, 653

Hartshorn v. Worcester, - 446

Harts V. St. Paul, etc. R. R. Co., 398,

414
Harvey v. Conn. & Passumpsic

R. R. Co., - 311

V. Pocock, - - 485, 533

V. Terra Haute, etc. R. R.

Co., - - 344

V. Turner, 5, 40, 41

Harwood V. Keech, 651,653

V. Lowell, - 735

Haskell v. Hunter, - - 491

Haskins v. Lumsden, - - 656

Haslam v. Galena, etc. R. R.

Co., - - 434, 441

Pagen.

Hass V. Presoott, - - - 573

Hastings v. Palmer, - - - 671

V. Pepper, . - - 345

V. Stetson, - - - - 696

Hatch V. Cincinnati, etc. R. R.

Co., . - - - 436,443

V. Dwight, - - - 414

V. Fuller, - - - 739

V. Hart, - - - - 478

V. Vt. etc. R. R. Co., - 434

Hatcher v. Briggs, - - - 349

V. Pilham; - - - 489, 496

-Hatfield v. Cent. R. R. Co., - 414

V. FuUerton, - - 177, 573

V. Lasher, - 685, 690, 693

Haun V. Wilson, - 657

Haven v. Wakefield, - - 173

Haviland v, Parker, - - 481, 558

Hawkes v. Carter, - - 697

V. Knowles, - - 877

Hawkins v. Great W. R. R. Co., 314

V. Hoffman, 393

Hawley v. Bradford, - - 361

Hay V. Cohoes Co., - 418, 483

Haycraft v. Creasy, - - 583

Ilayden v. Albee, - - 403, 416

V. Bradley, - - - 168

V. Shed, - - - 700

Hayes v. Ottawa, etc. R. R. Co., 438,

456

V. Wells, Fargo & Co., - 843

Hayner v. Cowden, - - - 639

V,. Smith, 115,117,734

Haynes v. Leland, 689, 697

V, Sinclair, - - - - 748

Hays V. Miller, - - - - 830

V. Moynihan, - - 139, 141

V. Riddle, - - - 585

V. Stone, - - 43, 51

Hayward v. Seaward, - - 531

Haywood v. Foster, ■ - 686, 688

Hazard v. Irwin, - - 584, 587

Head v. Providence Ins. Co., 86

Heald v. Sargent, - 485

Healy v. McManus, - - 119

Heaney v. Heauey, - - - 430

Heard v. James, 513, 517, 518, 540,

544
Hearsay v. Pruyn, - - - 59
Heartt v. Rhodes, - - 87

Heath v. Franklin Ins. Co., - 73
V. Heape, - - - - 707
Heaton v. Wright, - - . 689
Hecklin v. Ess, - - - 543

Heckscher v. McCrea, - - 184
Hedgepeth v. Robertson, - - 390
Heeg V. Licht, - - - 395

Hegeman v. McArthur, 115, 116

V. Western R. R. Co., 891

Heilbroner v. Haneock, - 181

Heinemann v. Heard, - - 13

TABLE OF CASES CITED.

XXXI

Helbam v. Mofford, -
Heman v. Earle,
Hemphill v. Flyn, -
Hemstead v. Colbum,
Hen back v. Rather, -
Henderson v. Jackson,

V. Maid of Orleans, -

V. Western M. & F. Ins. Co., 88
Henderson, etc. B. R. Co. v,

Dickerson,
Hendricks v. Decker,

Hening v. U. S. Ins. Co., - - 63

Hennies v. Vogel, - - 734
Henry v. Dubuque, etc. R. R.

Co., - - - 449

V. Norwood, - 679

Hensdell v. Weed, - - - 303

Henshaw v. Marine Ins. Co., - 76

Henson v. Veatch, - - - 681

Hentle v. Franklin Ins. Co., 71

Henwood v. Cheeseman, - - 107

Hepburn v. SeweU, 483, 488, 538

Herbert v. Hallett, 197

V. Lege, - - - 366

Herdic v. Young, 380, 516, 554, 567

Herman v. Brookerho3, - 699

Herrick v. Lapham, - - 647, 663

Herring v.- Jester, 786, 739, 741, 743

Harsh v. Eingwalt, 663, 697

Hertzog v. Hertzog, - - 149

Heslop V. Chapman, - - - 708

Hess Y. Buffalo, etc. R. R. Co., 435

.Hesseltine v. Stockwell, 517

Hewit V. Mason, - - 667

V. Prime, - 736, 737, 740

Hext V. Gfll, - - - 418
Hexter v. Knox, 139, 153, 154, 167,

, 169

Hey V. Wyche, ... 144

Heyer v. Carr, - 537

Heylyn v. Adamson, - - 34

Heyne v. Blau-, - 707, 708

Heys V. Tindall, - 48

Heyward v. Cuthbert, - - 854

Hibbard v. Foster, - - 365

V. N. Y. & E. R'y Co., 374
Hibemia Mut. Fire Ins. Co. v.

Meyer, - - - 73

V. O'Conner, - 73

Hicks V. Emporia Fire Ins. Co., 73

T. Foster, - - 707

V. Shield, - - 303

Hidden T. Waldo, - - 47

Hiern v. McCoughan, - - 351

Higgins V. HaUigan, - - 109

V. WatervUet F. Co., 377

Y. Whitney, - - - 488

Hilbourne v. Suffolk, 453, 454, 461

Hildreth v. Jones, - 360

V. Thompson, - - - 353

Hill V. Barclay, - - - - 134

Pages.

Pages.

- 137

Hill V. Bloomer,

557

- 819

T. Hunt,

. - 30

- 108

V. Idle,

305

- 561

V. Leadbetter, -

- - 203

- 89

V. Maupin, -

317

- 699

V. Ward, - . -

- 674

- 387

V. Wilson,

- 740

Co., 88

V. Winsor, -

- 714,717

V.

Hillman t. HaUiday,

393

- 458

Hills V. Bannister, -

- - 59

- 474

Hinchman v. Stiles, -

- - 359

Hinckley v. Beekwith, - 170, 171

V. N. Y. C. R. R. Co., - 345

Hinde v. Smith, - - 30, 31

Hiner v. Richter, - 590, 593

Hines v. Sinclair, ... 741

Hinkle v. Davenport, 647, 648, 681

Hinsdale v. White, - - 118

Hintze v. Thomas, - - 133, 140

Hirsch v. Feeney, . . - 708

Hitchcock V. Harrington, 354, 357

V. Watson, - - - - 3

V. Worth, ... 708

Hitchman v. Whitney, - 708

Hite V. Long, . - - 470

Hoag T. Hatch, ... 639

Hoard v. Garner, - - 34, 38

Hobbs V. Harney, - - - 353

Y. London, etc. R'y Co., 351, 354,

255, 359

Hoeser v. Kraeka, . - - 545

Hoff V. Baum, - - - 108, 109

Hotfman v. ^tna Ins. Co., - 87

V. Delihanty, - - 110

V. Kermerer, - - 743

T. Western Ins. Co., - - 87

Hogan V. Cregau, 729, 740, 743

Hogg V. Donah, - - 639, 658

Hoggsett V. Ellis, - - 106

Holbrook v. Finney, - - - 859

V. Young, - - 115, 174

Holden t. Crafts, - - - 41

Holland y. Turner, - - - 34

HoUey y. Burgess, - . - 657

V. Parker, - 735, 788

HolUday v. Sterling, 700

HoUingsworth y. Shaw, - - 639

HoUifterv. Nowlen, 189, 191, 343, 893

HoUoway y. Griffith, 316, 338, 334

338

Holmes v. 'Davis, 348, 350, 351

Y. Guier, - 115

Y. Holmes, etc. Co., - 630

Y. Seely, - - 368

V. Wilson, - 896, 403, 403

Holt Y. Van Eps, - - 531

Holyoke y. Grand Trunk R. R., 361

Home Ins. Co. y. Bait. W. Co., 73

V. Lindsay, - - 73

Home Life Ins. Co. y. Sherman, 114,

117

xxxu

TABLE OF OASES CITED.

Homer v. Hathaway, - - 488

V. Perkins, - - - - 584

Honore v. Muri-ay, - - - 129

Honsee v. Hammond, - 366, 373

Hood V. Breman, - - - 558

T. Finch, - - - - 448

V. Mather, - - - - 107

Hooker t. Hammill, - - 558, 559

Hooks V. Smith, - - 530

Hoopes V. Meyer, - - 116

Hopewell v. Price, - - - 556

Hopkins v. Atlantic, etc. R. E.

Co., 371, 280

V. Burney, - - - 557

V. Ladd, - - - - 560

V. Westoott, - - 293

V. Western Pacific R. R. Co., 398

Hopper V. Hopper, - 854, 357

Hopple V. Higbee, - - 470, 536

Hornby v. Lacy, - 38

Home V. Midland R'y Co., 333

Horner v. Lawrence, - 59

Hornketh v. Barr, - 739

Horns by v. Fielding, ■ - 30

Hornstein t. Atlantic, etc. R.

K. Co., - 450, 453

Horsford v. Wright, - 149

Hoslier v. Kansas City, etc. R.

R. Co., 450, 453, 464

Hosley v. Brooks, ... 653
Hostetter v. Vowinkle, - - 631
Hotchkiss V. Auburn, etc. R. R.

Co., - - 345

V. Lathrop, ... 693

V. Oliphant, - 691, 697, 698
Houston, etc. R. R. Co. v. Wil-

he, . - - 723

Hove V. Mason, - 197

Hover V. Penn. etc. R. R. Co., 285

How V. How, - - - - 358

V.Perry, . - - 690

Howard v. Keech, - - 653

V, Lamar Ins. Co., - - 93

V. Sexton, - 649, 650

Howcott V. Collins, - - - 130

Howe V. Buffalo, etc. R. R.

Co., - - - 50, 51

V. Farrar, - - - - 473
V. Handley, . - - 561
V. Perry, - - - - 653
V. Ray, - - - - 434
V. Sutherland, - - - 38
V. Wade, - - - - 49
Howe Machine Co. v. Bryson, 105
HoweUv. Cheatham, - - 649
V. Goodrich, - - - 722
V. Howell, - - - - 690
V. Morlan, - - - - 14
V. Richards, ... 146
V. Scroggins, - - 478, 479
V. Young, .... 8

Howes V. Ashfleld, - - 717, 720

V. Martin, - - - 150

Hoyt V. Gilsten, . - 474, 486

V. Macon, - - - 700

V. New York Ins. Co., - 99

Hubbard v. Briggs, 584, 589, 591

V. Hai-nden Exp. Co., - 236

v. Russell, ■ - - - 395

Huokins v. People's Mut. F. Ins.

Co., - - - - 89, 90

Hudson V. Ede, - - 205

Huftalin v. Misner, - 389

Hugg V. Augusta Iijs. Co, 193

Huggins V. Clark, ... 350

Huggleford v. Ford, - 550, 560

Hughes v. McDonough, - - 714

V. Quenten, - - 478, 518

V. Vinland F. Ins. Co., 69

Hume V. Arrasmith, - - 645

V. Tufts, - - - - 473

Humphrey v. Phinney, - 353, 353

Humphries v. Brogden, - - 418

V. Parker, - - 654, 707

Hungerford v. Redford, 380, 513, 567

Hunt V. Cope, 115, 116

v.'HaskeU, - - - .197

V. Wadleigh, - . - 34

Hunter v. Fi-y, ... 181

V. Ogden, ... 724

V. Prinseps, ... 196

V. Stewart, - . .268

Huntingdon, etc. Coal Co. v.

English, - - - .507
Huntley v. Bacon, ... 475
V. Russell, - - . - 398
Hurd V. Gallagher, . 559, 560

V. Hubbell, . . - 488

Hurlbut V. Green, 481, 536, 537

Hursh V. St. Paul, etc. R. R. Co., 451
Hurt V. Southern E. iB. Co.,
Hurtiu V. Union Ins. Co.,
Huson V. Dale, -
Huston V. Wickersham, . 347

Hutohings v. Ladd, - 13

Hutchins v. Buokner, 560

V. Kimmell, - 744

Hutchinson v. Wheeler, - - 686
Huthinsv. Western, etc. R.R. Co., 291

261
197
677, 688

Huttonv. Mansel,
Huzzey v. Field,
Hyatt V. Adams,
Hyde v. Cooksen,

V. Middlesex,

V. Stone,

318

374

- 734, 725

- 538, 567
445
493

Hynds v. Schenectady Ins. Co., 71

111. etc. Coal Co. v. Cobb, 363

HI. Cent. R. E. Co. v. Barron, 259,

360, 283

V. Copeland, . . 398, 394

V. Cobb, - - 218, 339, 3G6

TABLE 01' CASES CITED.

XXXlll

Pages.

lU. Cent. E. E. Co. v. GrabiU, 399,

413, 414, 420

V. Hammer, - - 371

V. MoClellan, - - - 216

V. Owens, - - - 319

V. Parks, - - - - 391

m. Ins. Co. V. Marseilles Manuf .

Co., - - - - 85

ni. etc. E. E. Coal Co. v. Ogle, 381
Indiana Cent. E. E. Co. v. Hun-
ter, - - - - 433
v. Moore, - - - - 168
Indianapolis v. Gaston, 105, 362, 266,
269, 712, 717, 720, 731, 733
Indianapolis, etc. E. E. Co. v.

Bimey, 355, 731

V. Stables, - - - 713, 715

' Ingalls V. Lord, - 21, 24, 530, 522

Ingels V. Mast, - - - - 614

Ingersoll v. Jones, - - 789, 744

V. Musgrove, - - 605, 622

V. Sergeant, ... 121

V. Starkweather, - 3

Ingerson v. Miller, - - - 737

Ingledfiw V. Northern E. E. Co., 218,

219, 237, 237

Ingram v. Lawson, 646, 674, 717

V. Eankin, - - 473

Inman v. Foster, - 680, 683, 697

V. West, - - 73

Insurance Co. v. Boon, 86

V. Morse, - - - 69

V. Transportation Co., 63, 74

lonides v. Universal Ins. Co., 63, 64,

673

Irish T. Cloyes, - - 539

Irons V. Field, - - - - 639-

Irving V. Greenwood, - 325, 336

Irwin V. Brandwood, - 659

V. Dearman, ... 739

V. Sprigg, ... - 431

Ispey V. Jones, - - - 317

Isi-ael V. Brooks, ... 709

Ives V. Carter, - - - 590, 598

V. Ives, - - . 364

V. Jones, - - 51

Izon V. Gorton, - - . . 137

Jacks V. Dyer, -

350

Jackson v. Aspel,

- 353

V. Baker, -

13, 14

V. Collins, ■

598

V. Davenport,

- - 344

V. Isaac,

203

V. Loomis, -

- - 349

V. Pesked, -

393

V. Richards,

- - 94

V. Sacramento, etc. E. E.

Co., - - 236

V. Stetson, - - 675

V. Todd, - - - - 365

Pages.
Jackson v. Wood, - - 345, 348
Jacob V. Louisville, - - 458

Jacobs V. Bangor, - - - 780
Jacobus V. St. Paul, etc. E. E.

Co., - - - - 214

Jacoby v. Lansatt, - - 488, 520
Jacques v. Bridgeport Horse E.

E. Co., - - - 717, 719
James v. Phelps, . . - 7O8
James Eiver Co. v. Turner, 441, 453
Jamison v. Hendricks, - 530

Jamoaco v. Simpson, - - 536
Janson v. Effey, - . - 56O
Jarvis v. Johnson, - - 317, 338
V. Eogers, - . . 525

Jasper v. Burnell, - 389

Jauoh V. Jauchj . . 691

Jay V. Almy, .... 733
Jeflcoat V. Knotts, - - - 423
Jeffersonville, etc. E. E., Co. v.

Esterle, - 399, 412, 413, 433

Jeflfras v. McKiUop, - 689, 690

Jeffrey v. Bigelow, 583

Jef ts V. York, - ... 54

Jegon V. Vivian, ... 378

Jellingham v. N. Y. Ins. Co., - 349

Jellison v. Goodwin, - - 709

Jenkins v. McConico, 489, 496

V. McCoy, - - 364, 383

Jennings v. Florence, - 700

V. Johnson, ... 573

Jennisonv. Hapgood, - - 360

V. Parker, - - - 37

Jervis v. Tomkinson, - - 114

Jesser v. Gififord, - - 865, 393

Jesson V. Sally, - - 304

Joch V. Dankwardt, - - 363, 713

Johannesson v. Borsohsenius, - 483

Johnson v. Blasdale, - - 56

V. Brown, ... 647

V. Camp, ... - 473

V. Caulkins, - 336, 327, 780

V. Hannahan, - - . 389

V. Jenkins, - - 331, 823, 323

V. Lewis, - - - 395

V. Marshall, - - 496, 549

V. Monell, - - - - 585

V. N. Y. C. E. E. Co., 18, 14,345

V. Oppenheim, - 116, 118, 137

V. Pensacola, etc. E. E. Co., 189

V. Porter, . - . 413

V. Shields, - - - - 353

V. Smith, - - - 336, 654

V. Stear, ... 536

V. Sumner, . - - - 488

V. Totten, ... 38

V. Wade, ... - 80

V. Wallomer, - - 583, 593

V. Wells, - - 713

V. Wells, Fargo & Co., - 259

V. Winona, etc. R. B. Co., 258

XXXIV

TABLE OF CASES CITED.

Pages.

Jolinston V. Cal. Ins. Co., 71

V. Cleveland, etc. R. R. Co., 283

V. Courts, - - 478

V. Disbrow, - - 744

V. Lance, - - 697

V. Whittemore, - 527

JoUy V. Single, - - 172

Jones V. AUen, - - 488

V. Chapman, . - - 697

V. Chicago, etc. R. R. Co., 433

434, 436, 437, 443

V. Clark, 593

V. Diver, - - 639

V. Gooday, - 373, 373

V. Hannovan, - - 397

V. Littler, - - - - 658

V. McNeil, - 474, 480

V. Mich. Ins. Co., - 78

V. Morehead, - 614

V. Reynolds, - 110

V. Stevens, - 679, 680

V. Voorhees, - - 214, 293

Jordan v. Bo wen, - 720

V. Thomas, - - 564

V. Warren Ins. Co., 194

Josey V. Wilm. etc. R. R. Co., 473

Josselyn v. McAllister, 733, 733

Journey v. Brackley, - - 123

Judson V. Western R. R. Corp., 244

Justice V. Kirlin, - - 653

V. Nesquehoning P. R. Co., 451

Jutte V. Hughes, 414, 415, 419, 439

Kahn v. Prey tag, - 741, 743

V. Love, - - 166

Kaley v. Shed, - 480, 586

Kancher v. Blinn, - - 689 .

Kansas P. R. R. Co. v. Nichols, 219
V. Painter, - 719, 737

V. Reynolds, - 318

Karney v. Paisley, - 654

Karns v. Tanner, 357

Karr v. Barstow, - . - 544
V. Parks, - 369, 281, 735, 736
Karst V. St. Paul, etc. R. R. Co., 378
Kaskaskia Bridge Co. v. Shan-
non, - - 203
Kavanaugh v. Janesville, 734
Kean v. McLaughlin, - 649
Keeler v. Niagara Fire Ins. Co., 71
V. Wood, - 151
Keen v. Priest, - - - 485
Keenan v. Cavanaugh, 389, 714
Keene v. Dilke, - - 480, 537
Keenholts v. Becker, 649, 668, 664,

671
Kehoe v. Rounds, 544

KeightUnger v. Egan, - 731

Keith V. Trapier, - 861

Keithsbury, etc. R. R. Co. v.
Henry, - - - 436, 464

Pages.

Keller v. Donnelly, - - 786, 737

Kelley v. Archer, - - - 533

V. Dillon, - - - - 697

Kellogg V. Chicago & N. W. R.

r: Co., - - - 338, 714

Kelly V. Dutch Church, 147

V. Partington, - - - 664

V. Riley, - - - - 317

V. Rogers, - - - - 478

V. Sherlock, - - - 693

V. Smith, - - - 30

Kemp V. Thompson, - 5 4

Kemper v. City of Louisville, - 388,

413, 417

KendaU v. Fitts, - 560

V. Honey, - - 354

V. Stone, - - 661, 674

V. Wilson, - - - - 590

Kendrick v. McCrary, - 787, 739

Kennedy v. Dodge, - - - 308

V. Gregory, - 681, 697

V. Holburn, - - 677, 689

V. Shea, - 736, 787

V. Strong, - - - 489

V. Whitwell, - 478, 489

Kenney v. McLaughlin, 683

Kent V. Ginter, - - 496

V. Hudson R. R. R. Co., 318

Kentucky, etc. R. R. Co. v.

Dills, - - - - 270

Kenyon v. Woodruff, - 594

Kepler v. Hyer, - - 718

Kemochan v. N. Y. Bowery Ins.

Co., - - - 71, 93

Kerr v. Cotton, - 43

V. Merchants' Exch. Co., - 137
V. Shaw, - - 117

Kesler v. Smith, - - 383

Kessler v. McConachy, - 115, 118
Ketchum v. Am. etc. Exp. Co., 314
Keyes v. Western Vt. State Co., 139,

168
Keys V. Westford, - 50

Kid V. MitcheU, - 496

KiddaU V. Trimble, - 355

Kidder v. Oxford, - - 467

Kidney v. Stoddard, 590

Kierv. Peterson, - - 513

Kieman v. Manhattan Q. T. Co., 634
Kilbourne v. Suffolk, 433

Kill V. Hollister, - - 69

Kille V. Ege, - - 344, 346, 348
Killips V. Putnam Fire Ins. Co., 73
Kip V. Berdan, - - - 741

V. Brigham, ... 51
Kimball v. Bath, - - - 730
V. Howard Ins. Co., - - 73
Kimber v. Barber, . 3

Kimmans v. Chandler, 595

Kindred v. Stitts, - - 733

Kinley v, Chicago, etc. R. R. Co., 730

TABLE OF CASES CITED.

XXXV

Bang V. Colvin, - . . 710
V. Ham, - - 4S9, 520, 522
V. Richards, - - - 525
V. Root, - - 643, 661, 687
V. Shepherd, - - - 240
V. State Mut. F. Ins. Ck)., 93, 103
V. Stetson, - - 359

V. Whiteley, - - - 361
V. Woodbridge, - - 318

Kingdon v. Nottle, - 134

Kinghome v. Montreal TeL Co., 312,

313

Kingsland v. Clark, - - 139

Kingston v. Wilson, - - 13

Kinley v. Chicago, etc. R. R. Co., 730

Kinney v. Crocker, 362, 366, 268

V. Hosea, - - 661

V. Watts, - - . 148

Kinshan v. Bolton, - - . 630

Kinyon v. Palmer, - 689

Kittridge v. Peaslee, - - 107

Klein v. Jewitt, - 259, 361, 279

V. Thompson, - - 721

Klinck V. Colby, - - 661, 678

Klopferv. Bromme, - 742

Klumph V. Dunn, - - 653

Knapp T. U. S. & C. Exp. Co., 234,

236, 522

Knickerbocker Ins. Co. v. Gould, 73

Kniflfen t. McConneU, 317, 320, 654

Knight T. Gibbs, 666, 671

T. WUcox, 739, 740

KnobeU v. Fuller, - 687

Knowlton v. Fitch, - - 30, 44

Knox V. Great Western Q. M.

Co., - - 613, 614

Kohl V. United States, 139

Kohne v. Insurance Co., - 523

■ Kolb V. Bankhead, 364, 873, 389
Krugv. Ward, - - - 700, 706
Krumm v. Beach, 587

Kimkel v. Markell, - 654

Kuter V. Mich. Cent. R. R. Co., 293
Kyle V. Laurens R. R. Co., 338

Laoey v. Mitchell, - - 707

Lacour v. Mayor, etc., 154, 156

La Farge v. Kneeland, - - 59

V. Mansfield, - 118

La Fayette, etc. R. R. Co. r.

Winslow, - - - 440, 443
Laflferty v. Jelley, 2

Laine v. WeUs, - - 686

Laing t. Colder, 359, 264, 368

Laird V. Taylor, - - 708

Lakeman v. Grinnell, ■ - 339
Lake Superior, etc. R. R. Co. v.

Greve, - - 438, 448

Lamb v. Camden, etc. R. R. Co., 336

T. Day, - - 535

V. GuUand, - - . 708

Pages.

Lamb v. Stone,

597

V. Walker, -

373

Lambert v. Craig, -

- 390

V. McFarland, -

- 543

V. Pharis,

657, 680, 681

Lames v. Snell, -

- 657, 679

365

598

Lancashire & Yorkshire R'y Co.

V. Gidlow, - 211

Lander v. Castro, - - 54

Landis v. Shanklin, - - 677

Landsberger v. Magnetic TeL

Co., - - 309

lane v. Atlantic Works, - 714

V. Montreal TeL Co., - - 315

V. Thompson,

V. Wilcox,

Langdon v. Sherrod, - 582

Langley v. Warner, - - - 59

Langton v. Hagerty, - 642

Lanquest v. Ten Eyck, - 350

Lansing v. Carpenter, 640

V. Smith, - - - 434

V. Van Alstyne, - - 117, 174

LarMn v. Noonan, - - 643

Tarkins v. Tartar, - - - 697

Lamed v. Buffington, 653, 656, 676,

689

V. Hudson, - 351

La Roe v. Roeser, - - 733

La Salle v. Thomdike, - 727

Latham v. Brown, - 520, 532

Laugerenne v. Dougherty, - 108

Laurent v. Vaughn, - - 327, 237

Lavender v. Hudgens, - 699

Laverty v. Snethen, - - 13

Law V. Davy, 197

V. London, etc. Assurance

Co., - - - 97

Lawler v. Earle, - - 685

Lawrence v. Boston, - 447, 462

V. Cooke, - 320, 323, 325

V. French, - 116, 117

V. Great Northern R'y Co.. 464

V. Hagerman, - - 699, 706

V. Housatonic R. R. Co., 259, 660,

712

V. Maxwell, ... 504

V. New York, etc. R. R. Co., 237

V. Van Hoirne, - - 76

Lawrence, etc. R. R. Co. v. Cobb. 383

Lawson v. Morton, 353

V. Worms, - - 203

Lawyer v. Loomis, - 700, 707

Layton v. Butler, - 354

Lea V. Henderson, - - 743

V. Robertson, ... 675

Leadbeater v. Roth, - J15, 117, 175

Leather Cloth Co. v. Hirschfleld, 632

Leavenworth v. Croney, - - 359

Leavitt v. Cutler, 319, 320, 322

V. Fletcher, - - 133, 134

SXXVl

TABLE OF CASES CITED.

Pages.
Leavitt v. Lamprey, - - 359

Le Blanche v. London & N. W.

E'yCo., 308, 351, 354

Le Cheminant v. Pearson, 81

Leokle v. Sears, - - 193

Ledoux V. Anderson, - - 4

V. Cooper, - - - 4

Lee V. Bereda, ... 203

V. Grand Trunk R'y Co., - 393

V. GrinneU, - - 77

V. Haley, - - 638

v. Hefley, - - 741

V. Hodges, - - 738

V. Mathews, - - 488

V. Payne, - - • 140

V. Ealeigh, etc. R. R. Co., 314

V. Tebo R. E. Co., - - 453

V. Woolsey, ■ - 728

Leech v. Baldwin, - - - 503

Leeds v. Cheetham, - - - 140

LeffingAvell v. EUiott, - - 150

Leggett V. Steel, - - - 353

Le Guena v. Gouvemeur, - 13

Lehigh, etc. R. R. Co. v. Lazarus, 436

Lehmicke v. St. Paul, etc. R. R.

Co., - ■ - - 464

Leicester v. Walter, - - 680, 687
Lioishman v. White, - - 115, 116
Lekang v. Nash, ... 133
Leland v. Tousey, - - 344

Lemont v. Lord, - - 199

Lenox v. United Ins. Co., 83, 83
Leonard v. Allen, - - 657, 659
V. N. Y. etc. Tel. Co., 295, 304
V. Pope, - - - 647, 649
Leonard, Adm'r, v. Columbia

Steam Nav. Co., - 390

Leopold V. Judson, . - - 115

Leostzky t. Canning, - 118

Leppard v. R. R. Co., - - 313

Le Roy v. United Ins. Co., - 75

Leucker v. Steileu, - - 740

Leverick v. Meigs, - 13, 30, 39

Levitsky v. Canning, - 147, 151

Levois V. Gale, - - 191

Levy V. Brannan, - - 707

V. Peabody Ins. Co., 73

V. Walker, - 628

Lewis V. Brehme, - - - 38

V. Chapman, - - 644, 654

V. Hawley, - - 639, 658

T. James, - - 359

V. Mobley, - - 488

V. Payn, - 115, 116

V. Peake, - - 137, 150

V. Phoenix Mut. L. Ins. Co., 99

V. Euckpr, 68

V. Ship Success, - - 337

Y. Steam B. Buckeye, - 247

V. Walter, - 689, 697, 698

Libbey v. Tolford, - - 117

Pages.
Liddard v. Lopes, - - 193, 197
Liddle v. Menket F. Ins. Co., 90

Lienow v. Ritchie, 363

Like V. McKinstry, - - 674

Lillard v. Whittaker, - 473, 489
Lincoln v. Chrissman, - 648

V. Saratoga, etc. E. R. Co., 259,

261, 717, 719

Linden v. Graham, - . - 674

Lindley v. Horton, - . - 643

V. Miller, - 172, 177, 573

Lindsay v. Larned, - 700

V. Mulgueen, - - 588

Lindsey v. DanviUe, 734

V. Smith, - - 640

Line v. Stephenson, - - 146

Linn v. N. J. S. B. Co., - 336

Linsley v. Bushnell, 359, 473

V. Carpenter, - 80

Linton v. Hart, - 121

Linville v. Black, - 489

Lipe V. Eisenlard, ... 739
Lippett V. KeUy, 341, 346, 347

Lirie v. Janane, - 81

Liscom V. Boston F. Ins. Co., 86
Lister v. Berryman, - - 708

V. Wright. - - 692

Litchfield v. Hutchinson, 585, 587.

588

Little V. Boston, etc. R. R. Co., 191,

314, 238, 248, 714

V. HaU, 624

V. Martin, - 110

V. Palister, 363

V. Phoenix Bank, - - 27
Littlefield v. Perry, 606, 608, 614, 632
Littlejohn v. Greeley, - 645, 651
Little SohuylkUl, etc. Co. v.

Richard's Adm'r, 435

Livermore v. Jamaica, - 433

Livingstone v. Burroughs, 66 i

V. Jones, - 601

V. Miller, - - 180

V. Tanner, - - 851

V. Woodworth, 608

Lloyd V. Sadlier, - 533

LlynviCo. v. Brogden, 378

Loader v. Kemp, 166

LobdeU v. Baker, - 583

V. Stowell, - - 504

Loche V. Furze, - 148

Locke V. Garrett, - 539

Lockenour v. Sides, - - 700

Lockridge v. Foster, - - . 587
Loder v. Kekule, ... 593
Logan V. Lewis, - - 107

V. Murray, - - - 738

Lombard v. Chicago, etc. E. E.

Co., - 291, 730

Long V. Morrison, - 725

V. Wordman, - - 585

TABLE OF CASES CITED.

2XXV11

LongfeUow v. Quimby, 374, 377, 383
Loomis V. Eagle Ins. Co., 99

Loosemore v. Radford, - 523

Loraine v. Cartwright, - 30

Lord V. Dall, - - - 99

T. Neptune Ins. Co. , 193

Lorillard t. Palmer, - - - 193
Lorrowe v. Beam, - - 353

Loud V. Campbell, - - 181

Louis -v.. S. B. Buckeye, - - 337
Louisville, etc. Ins. Co. v. Bland, 76,

83
LouisviUe, etc. R. E. Co. v.

Glazebrook, - 443, 458

V. Hodges, ... 314

V. Thompson, - - 458

Lounsberry v. Snyder, 118

Love V. Masoner, - . 743

V. Shartra, - - - 345, 350
Low V. Purdy, - - - ■ 348
Lowenburg v. Jones, - - 303
Lowery v. Western Union Tel.

Co., ... 308

Loweth V. Smith, - - - 396
Lowry v. Ininan, - - - 388
Lucas V. Flinn, . - - 713

V. Groning, . . - . 39

V. Trumbull, - 483, 539

Luck V. Eipon, - - 717, 719

Luckey v. Frantzkee, - 118, 174
Ludwig v. Meyre, - - 338

Luke V. Lyde, ■ - 197

Lukin V. Goodsall, 393

LuU V. Fox & W. Improvement

Co., - - 435

Lumley v. Gye, - - 674

Lummv. Fort Deposit, eto» Asso., 587
Lunn V. Gage, - - 118

Lupe V. Atlantic, etc. R. R. Co., 314
Luse V. Jones, - 474, 476, 477

Lush V. Druse,. - - . - 130

Luther v. Winnisimmet Co., 431
Luxmore v. Robson, - 134

Lycoming Ins. Co. v. Jackson 88

V. MitcheU, - - - 68

V. Scholenberger, - 70

Lyford v. Toothaker, - 363

Lyle V. Barker, - - - - 434

V. Murray, - - - 4, 39

Lynch v. Baldwin, - - . 115

V. Knight, - 663, 666, 670

Lyon V. Gormly, 488, 513, 516

V. Green Bay, etc. R. R.
Co., - - 444,451

V. Miller, . - - 113

V. Yates, - - - - 483

M. & F. Bank v. F. & M. Nat.

Bank. ... 36

M. & M. E. R. Co. V. Finney, 378
MacCubbin v. Cromwell, - - 858

Pages.
MacDonneU v. Harding, - 29

MacDougal v. Maguire, - - 693
Maohamv. Fitohburg R. E. Co., 433
Maohette v. Wanless, - 539

Mack V. Burt, - - - - 109

V. Patchin, 147, 148, 149, 173, 175
Mackellar v. Sigler, 114

Macky v. DiUinger, - 573

Madan Doss v. Gokul Doss, - 470
Magee v. Holland, - - 735

Maghee v. Camden, etc. R. E.

Co., - - - 345

Magnin v. Dinsmore, 6, 36, 191, 314,
339, 341, 243
Magninay v. Saudek, 735, 739, 740
Mahler v. Norwich, etc. Co., 284
Mahon v. N. Y. Cent. E. E. Co., 398
Mainwaring v. Brandon, - 46, 150
Major V. PuUian, . 389

Maiachy v. Soper, - - 674

MalMay v. Maokie, - - 131

Mallough V. Barber, . - - 9, 10
Malloy V. Backer, - 197

Mangum v. Ball, - - - 16
Mann v. Grove, - - 541

Manning v. Albee, - - . 584

V. Laboree, - - 353, 359

Mantz V. Buchanan, - 359

V. Goring, - 132, 133

Manvell v. Thompson, - - 739
Manville v. Westei-n Union Tel.

Co., 396, 397, SOD, 303, 305, 311,

419
Mapes V. Weeks, 677, 683, 697

Marble v. Lewis, " - - . 353
Mai'ch V. Portsmouth, etc. E. E.

Co., - ■ 444

Maroy v. Fries, - 431

Marfield v. Douglass, - - 33

V. Goodhue, - - 33

Marine Bank v. Fulton Bank, . 39
Marine Ins. Co. v. United Ins.

Co., - - - - 197

Markel v. Moody, - - 585, 590
Marker v. Miller, - 738

V. Pennington, ... 173
Markham v. Jaudon, 45, 501, 504

V. Merrett, ... 353

V. EusseU, . 645, 647, 690

Marquart v. La Farge, - 156

Marquette, etc. E. E. Co. v.

Langton, - - 337

Marquis of Bute v. Thompson, 114
Marr v. Barrett, - - - 14
Marsden v. Cambridge, - . 441
Marsh v. Billings, - 630, 635

V. Butterworth, ... 115

V. Seymour, ... 631

V. Smith, - - - 733

V. Tealker, - - - .588

V. Webber, . - - 583, 593

XXXVIU

TABLE OF OASES CITED.

Marshall v. Anderson,

■ - 354

V. Bitner,

- 479

V. Buchanan,

- 597

V. Cohen,

. - 394

V. Dupev, -

- 344

V. Mosefy, - 130, 121, 138

V. N, Y. Cent. E. R. Co., 337, 247

V. Piukham, - - - 639

Martin v. Hill, - - - - 170

V. Martin, - - - - 358

V. Payne, - - 736, 737, 738

V. Porter, - - 378, 381, 513

Marvin v. Pardee, ... 368

Mashiter v, BuUer, - - - 204

Mason v. Citizens' F. & M. Ins.

Co., 73

V. Franklin, - - - 18

V. Graham, - - 611, 614, 618

V. Inliabitants of Ellsworth, 713

V. Kennebec, etc. E. E. Co., 464

V. Mason, • - 651

V. Mayers, .... 173

V. Eaplee, - - - 584, 590

Mass. etc. Ins. Co. v. Carpenter, 39

Masten v. Warren, - - 359

Mastex-s v. Warren, - - 713

Masterson v. Hagan, . 333, 346, 347

Masterton v. The Mayor, - 13, 173

V. Mt. Vernon, - 716

Mathew v. Sherwell, - - 533

Matson v. Buck, - 683, 684, 686

Matteson v. N. Y. C. E. E. Co.. 361,

733, 734

Matthews v. Coe, - 36, 496, 505

V. Cribbitt,-- - - - 317

V. Cross, - - - 666

V. Durgee, - - - - 361

V. Huntly, - - - - 657

Matthewson v. Perry, - - 737

Mattoon v. Pearce, ... 550

Maule V. Ashmead, ... 146

Maunder v. Venn, ... 730

Maverick v. Lewis, . - . 115

Maxwell v. Kennedy, - - 656

May V. Brown, - - - 691, 693

V. Diaz, - - - - 118

V. Jameson, - - 571

V. Eice, - - - - 116

Mayberry v. Cliffe, - 540, 545, 551

Maye v. Tappan, - 348, 380, 513

Mayer v. Walter, - - - 700

Maynard v. Beardsley, 657, 691, 693

V. Pease, - - - - 81

Mayor of Atlanta v. Central R.

E. Co., - - - - 456
Mayor, etc. v. Maylaie, 146, 147, 173,
173 175
McAffee v, Crofford, - 478,' 480
MoAleer v. Horsey, - - 585

MoAlexander v. Harris, - 657

McAllister v, Kunn, - . 487

McAlmont v. McClelland, 647, 648,

654

McAlpin V. Woodruff, - 148, 151

McArthur v. Franklin, 360, 361, 863

v. Howitt, - - 571

V. Lane, ... 560

V. Seaforth, - - 497, 508

McAuley v. Birkhead, - 742, 743

•McBride v. Marine Ins. Co., - 76

McCabe v. Morehead, 551, 559, 500,

561

McCall v. Birch, - - 639, 65!)

V. McDowell, - - - 733

V. Union P. B. W., - - 713

V. Western Union Tel. Co., 308

MoCalla v. Clark, - - - 525

McCampbell v. Thornburg, 686, 693

McCanbie v. Da vies, . - - 486

McCarthy v. 0. E. I. etc. E. E.

Co., - - - 387, 390

V. Wiskern, - . - 469

McCarty v. Ely, . - 108

V. Quimby, .... 5.'j9
McClannahau v. Porter, . 354

McClowry v. Cloghan, - - 148
McClue V. Hill, - - - - 474
MoClurg V. Price, - - 11.5,116
McCombs V. State, - - 729

McConnellv. Hampton, - - 4.-9
McCormick v, Kansas City, etc.

E. E. Co., - - - 464
V. Penn. etc. E. R. Co., 280, 292.

492
McCoy v. Cornell, - - 538

MoCrubb v. Bray, - 345, 350

McCuen v. Ludlum, - - 639

McCuUough ^-. Grishobber, 700

McDaflee v. Portland E. E. Co., 191
McDonald v. Chicago, etc. R. R.

Co., - - .733

V. North, - - 537, 538

V. Soaife, - - . 538, 540

V. Woodruff, - - - 651

McDonough v. Gilman, - 395

McEldery v. Flannagan, . 132, 133

McElrov V. Goble, - - .397

V. Nashua, etc. R. E. Co., . 358

V. Wathen, - - - 354

McEweu V. Western Ins. Co. , - 93

McFadeu V. Eippey, - 118, 174

McGannagle v. Thornton, - 110

McGarrity v. Byington, - 349

McGavock v. Chamberlain, . 539

McGaw V. Ocean Iqs. Co., 193, 194,

197, 193

McGlasher v. Tallmadge, - 117, 137

McGlernery v. Keeler, - ■ - 647

McGowen v. Young, 525, 538

McGregor v. Kilgore, - . 337

V. Thwaites, ... 597

McGrew v. Stone, - - - 714

TABLE OF OASES CITED.

XXXIX

Pages,
McGuire v. Grant, - 370, 373, 418
McHenry v. Man-, - - 170

McHoy V. Eyan, - - - 118
Mclnroy v. Dyer, - 472, 483, 536
Molntire v. State, - - - 433

V. Young, - - - - 648
Molntyre v. N. Y. C. E. E. Co., 283,

716
McKeen v. See, - - 394

McKellar V. Couch, - w - 699
McKenna v. Fisk, - - - 288
McKenney v. Haines, - - 496
McKenzie v. Allen, - - 727, 728

V. Fai-rell, - - 174

V. Scott, - . - 39

McKeon v. Citizens' E. E. Co., 270

V. Wliitney, - 118, 122

MoKibbin v. Peck, - 192, 199, 200
McKinley v. Chicago, etc. E. E.

Co., 359, 260, 361, 268, 712

V. Irvine, - - - 2

McKinuey v. Western Stage

Co., - - - 724

McBanster v. Bank of Utica, 17
McKoun V. Furgason, - - 588
McKyring v. Bull, 688, 689

McLaren v. Thompson, - - 573
McLaughlin v. Corry, 712, 720, 722

V. Cowley, - - - 679, 685

V. McLaughlin, 357, 358, 359

V. Piattis, - 538

McLaughton v. Corry, - 263

McLean v. Fleming, 638, 630

McLean Coal Co. v. Long, 381, 513
McLenahan v. McLenahan, 360

McMahan t. Bowe, - 348

McMalion v. Kimball, - - 359

V. Northern C. E. E. Co., 712, 719
McManus v. Crickett, - - 374
McMartin v. Ins. Co. of N. A., 72
McMasters v. Commonwealth, 433
McMillan v. Solomon, - - 127
McMorris v. Simpson, 13

McMurphy v. Minot, 140

McNair v. Compton, - - 149
McNamee v. Minke, - - 700

McNutt V. Young, - - - 680
MoPeters v. Phillips, - 520, 523
McPherson v. Daniels, 672, 697, 698
McTavish v. CarroU, 383, 384

McQueen v. Fulghan, - 665

McQuesney v. Hiester, - - 139
McVaughten v. Elder, - - 564
McWiUiams v. Hoban, 704, 705, 707

V. Morgan, - - - 366

Meacham v. Fitchburg E. E.

Co., - 453, 461

Mead v. Mali, - - 589

Meader v. Stone, - - 364

Meagher v. Driscoll, - - - 259
Mea£er v. Pomeroy, - - 108

Mechanics', etc. Bank v. Farm-
ers', etc. Bank, - 501, 525
Mechanics' Fire Ins. Co. v.

Nichols, - - - 73

Medaugh v. Wright, - 650

Medburv v. N. Y. & E. E. E., 218
V. Watson. 579, 581), 584, 585, 597
Meech v. Smith, - - - 56
Meehan v. Forrester, - - 490
Meeks v. Bowernian, - - 174
Meigs V. Lister,- - - - 394
Melcher v. Merryman, - 364

Meller v. Butler, - 673

Mellor V. Pilgrim, . . - 414
Metz v; Eagle Ins. Co., 99

Melvin v. Winslow, - 551

Memphis v. Bolton, - - 456

Memphis, etc. E. E. Co. v. Hicks, 434
y. Whitfield, - 358, 361

Mendelsohn V. Anaheim L. Co., 278
Menkens v. Menkens, 530

Menot V. Cumberland Co., - 448
Mercer v. Jones, - - 498, 530
V. Walmsley, 389, 735

Merceron v. Dowson, - 131

Merchants' Bank v. Eawls, 39

Merchants', etc. Ins. Co. v. But-
ler, - - 194
Merchants' Shipping Co. v. Arm-

itage, - - 193

Merist v. Harvey, - 339

Merrell v. Tice, - - 636

Merrick v. Gordon, - 303

V. Webster, 245

Merrill v. Frame, 140

V. GrinneU, - - - 291

V. Minot, 359

V. Nightingale, - 587

Merritt v. Closson, - - 119

Mers Le Blanch v. Wilson, 46

Messenger v. Penn. E. E. Co., 190

Messer v. Bailey, - - 560

Metallic, etc. Co. v. Fitchburg,

etc. E. E. Co., - - 478, 714
Metier v. Eastern, etc. E. E. Co., 466
Mewhister v. Hatten, 724

Meyer v. Bohlfing, - - 647

V. Camden,- - - 588

Meyers v. Malcolm, 696

Michigan, etc. E. E. Co. v. Cas-
ter, 237
V. Coleman, 724
V. Heaton, - - 314
V. Ocher, 393
Mickles v. Miles, ... 484
MiddlekaufiE v. Smith, - - 170
Middleton v. Bryan, 550, 560
Mikesill v. Chaney, - - 553
Milburn v. Beach" - - - 476
Miles V. Harrington, - 647
V. Van Horn, - - - 657

xl

TABLE OF CASES CITED.

MUlar V. Taylor, - - 633

V. Thompson, - - 738

Millard v. Mo. Kan. & T. E. R.

Co., - 298

Miller v. Aris, - 59

V. Barber, - - - 587, .590

V. Easton, etc. E. B. Co., - 450

V. Fulton, 863

V. Garling, ... 541

V. Hayes, - - 327

V. Henry, - - . - 845

V. Humphries, - - - 509

■V. Kerr, - - - 697

V. Letherington, - 83

, V. Mariners' Church, - - 168

• V. Mayor of Newark, - 447

V. Melcher, - 343

V. Milligan, - - 708

V. Parish, - - - 639

V. Rosier, 319, 330, 335, 327

V. Whit son, 559, 560

V. Wilson, - 8

Milliken v. Thorndike, - 587, 588

Mills V. East London Union, 135

V. Hall, - - 434

T. VauVoorhees, - 359

Milward v. Hibbert, - - 83

Milwaukee, etc. E'y Co. v.

Arms, - - 370, 271

V. Eble, 443, 450, 455

Miner v. Tagert, - 9

Minesinger v. Kerr, - - - 685
Minick v. Troy, - - 720, 724

Minnesota, etc. R. E. Co. v.

Doran, 443, 463

Minor v. Sharon, - 174

Minter v. iPacific E. E. Co., - 293

Minturn v. Cal. Ins. Co., - 77

Mirick v. Hoppin, - 115

Miss. B. Co. V. Eing, 441, 452

Miss. Mut. Ins. Co. v. Ingram, 87

Missouri, etc. R. R. Co. v. Haines, 438

V. Owen, - 448

Y. Weaver, - - 721

Mitchell V. Burch, - - 541

V. Freedley, - 345

V. Mitchell, - - 345

V. Thornton, - 453, 456

V. Union L. Ins. Co., - 99

V. U. S. Exp. Co., - 236

Mixv. LaFayette, etc. R. R. Co., 434,

461
Mixoo V. CoflCulo, - 131

Moale V. Baltimore, 449

Moberly v. Alexander, - - 174
T. Preston, - - 683

Moffatt V. Fisher, - - - 706
V. Strong, ■ - 116, 117

Mohry V. Hoffman, - 737

Mohurin v. Bickford, - 466

Monell V. Colden, - - - 590

Monk V. Cooper, - - 137

V. Packard, - 397

Montclair E. E. Co. v. Benson, 450
Montgomery v. Deeley, - - 639
V. Ives, ■ - 47

V. Wilson, - - - 4S3

Montgomery County Bank v. Al-
bany City Bank, - 17
Montgomery Eoad v. Rock, 443
Moody V. Barber, - - 673
V. Osgood, - - 722, 737
V. Whitney, 381, 512, 517, 518,

5G7
Moon V. Eaphael, - - 518, 519

Moore, v., - - - 680

Moore v. Aldrich, - - - 488

V. Crose, - - 389

V. Drinkwater, - - 471

V. Fitchburg R. R. Co., 377

V. Harvey, - - - 113

V. Kopner, - 559

V. Mandlebaum, - - - 3

V. Meagher, - 663, 666, 667

V. Moore, - 3

V. New York, - 253

V. Remington, - 47

V. Schaltz, - 469

V. Wood, ■ - 493

Moorson v. Bell, ... 205

Moran v. Dawes, 597

Morgan v. Insurance Co., - 200

V. Lingen, . - _ 058

V. Powell, - - 378, 381, 513

V. Eeyuolds, - - 538, 539

V. Smith, - - 173, 175

V. Varick, - - 343, 345

V. Yarborough, - - 836

Morley v. Gaisford, - 374

Morrell v. Irving Fire Ins. Co., 96

v. Trenton F. & L. Ins. Co., 99

Morrill v. Blackman, 585

V. Irving F. Ins. Co., - - 96

Morris v. Barker, - 571, 654, 681

V. C. B. & Q. R. R. Co., 105

V. Chicago, etc. R. R. Co., 713,

717, 720

V. Cleasby, ... 38

V. Duane, . 697

V. Robinson, . 488

V. Sammerl, - . 9, 20

V. Tillson, - - - - 117

Morris Canal, etc. Co. v. Ryer-

son, - . 395

Morrison v. Cole, - - 38

V. Crawford, . . 536

V. Robinson, ... 349

V. Salmon, - - 639

V. The Ogdenburgh, 2

V. Thompson, - - 2

Morse v. Auburn, etc. E. E. Co., 359,

717, 731

TABLE or CASES CITED.

xli

Morse v. Goddard, - 115, 116, 117

V. Hutchins, - - 590, 593

V. Pesant, - - - - 204

V. Shaw, - - - - 585

■ Marss v. Stone, - - - - 572

Mortimer v. Brunner, - - 118

Moses V. Boston, etc. E. R. Co., 314.

344
Mosher v. Mosher, - . - 353
Moss V. Smith, - - - - 80
Mostyn v. Fabrigas, - - 288

Mote V. Chicago, etc. R. K. Co., 338,

293
Mouldowney v. III. etc. R. R. Co., 712
Mouran v. Warner, - - 2

Mowatt V; McClelan, - - 59
Mowry v. Cheney, - - . 734
V. "Whipple, - - - 707
V. Whitnejr, 606, 610, 614, 616,

623

V. Wood, - - 520, 524

Moyer v. Moyer, 656, 657, 659

Mudgett V. Day, - • - 29

Mueller v. St. Louis, etc. R. R.

Co., - 373

Muggridge v. Evileth, - 473

Muldowney v. 111. Cent. R. R.

Co., - - - 359

Mulford V. Hirds, - - - 357

V. Pearce, - - - - 618

Mullen V. Enshey, - 530

V. Old Colony R. R. Co., • 587

Muller V. Bohlens, - - 38, 89

V. Eno, . - - 592

Mullett V. Mason, - - 683

Mulligan V. Elias, ■ - - 394

MulvehaU v. Mill ward, - 737, 739

Munger v. Baker, - - 387

Munroe v. Pritchett, - 587

Murphy v. Fond du Lac, - - 364

V. Larson, r - - 708

Murray V. .ffitna Ins. Co., - 194

V. BurUng, - 480, 481, 638

V. Governeur, . - - 349

V. Hudson R. R. Co., - 291, 733

V. Judah, - - 34

Murrell v. Whiting, - - - 184

,, Murrettv. Whiting, - - - 188

Musgrave v. Beokendorfl, - 506

Musselman v. Gallagher, - - 734

Myers v. Brown, ... 170

V. Burns, 139, 149, 166, 167, 169,

173, 173

V. Curry, - - 679

V. Malcolm, - - 433, 654

V. San Francisco, - - 781

Mynard t. Syracuse, etc. R. R.

Co., ... - 315

Nagles V. IngersoU, - - . 139
Nash Y. Benedict, - - - 696

PciCIGS

Nashville Ins. & T. Co. v. Alex-
ander, - - - 543
Nashville, etc. R. R. Co. v.

Jackson, - - 313

v. Smith, - - 291, 730, 781
Nave V. Berry, - - - - 133
Neal V. Knox, etc. R. R. Co., - 449
Nealev. Wyllie, - 137, 138

Nebraska City v. Campbell, 366, 716
Needham v. Grand Trunk R'y

Co., - - - 287

Neely v. McCormiok, 473

NeflE V. Clute, - - - 590

V. Pennoyer, - - 351

Negley v. Morgan, ... 125

Neiler v. Kelley, 43, 487, 507, 530

Nelson v. Danielson, - - 700

V. Evans, - - 681

V. Leichtenmeyer, - 573

V. Plimpton Fire P. E. Co., 207

V. Staff, - 666

V. Stephenson, - 193, 194

V. Woodruff, - 193

Nesbit V. Helser, - 45

Nesbitt V. St. Paul Lumber Co., 509,

510

Nettles V. Harrison, - - 391

V. Railroad Co., - 315

Nevins v. Bay State S. B. Co., 293,

293
V. Peoria, - - - 431

Newbrough v. Walker, • 149, 163
New Brunswick St. Nav. Co. v.

Tiers, - . 236

Newby v. Platte Co., - 456

New Castle R. R. Co. v. Bram-

back - - - 456

Newell V. Roake, - 345, 346

V. Smith, - - 218

New England Express Co. v.

Maine C. R. R. Co., 191

Newfield v. Copperman, - 700

New Haven, etc. Co. v. Hayden, 150
New Jersey Express Co. v. Nich-
ols, - - 361, 717, 719
Newman v. Alvord, - 639
V. Jackson, - - 564
V. Kane, - - - 489
New Orleans v. Gaines, - 346
New Orleans, etc. R. R. Co. v.

Allbritton, 258, 379, 479

V. BaUey, - - - 371

V. Hurst, - 353, 370, 371

V. Moore, - 293

V. Statham, - - 370

V. Tyson, - - 318, 336

Newton v. Locfflin, - - 783

V. Sly, - - - 360

v. Wilson, ... 131

New York Academy of Music v.
Hackett, 115, 118, 154, 167, 170

xlii

TABLE OF OASES OITED.

Pages.
New York Guaranty Co. v.

Flyun, - - - 488, 538

New York Cent. E. R. Co. v. Fra-

lotf, - 393, 393

V. Young, . - - 436

New York, etc. Tel. Co. v. Diy-

burg, 395, 297, 301, 814, 315

Niblo V. North Am. Ins. Co., 86, 87

Nichols V. Bridgeport, 433

V. Bronson, - - 473

V. Brunswick, - - 720

V. Dusenbury, - 172, 177, 573

■V. Guy, - - 639

V. Primer, . - - 585

V. Tremlett, - - - 203

Nicholson v. Gouthit, - 34

V. N. Y. etc. R. R. Co., - 433

V. Munigle, - - 168

Nickerson v. Cal. Stage Co., - 561

Nickleson v. Stryker, 737, 738

Nicldey v. Thomas, 583

Nick] in v. Williams, - 373

Nioolet V. Insurance Co., - - 90

Nicoll V. Miller, - - 359

V. Ogden, - - . . 359

V. Todd, - - 359

Nieto V. Clark, - - - 258

Night V. "Wilcox, - - - 741

Nightingale v. Scannell, 476, 491

Nims V. City of Troy, 865, 368

Nixon V. Denham, - - 135

V. Porter, - 350

Noble V. Kelly, - 475

Noice V. Brown, - - - 788

Noland v. Johnson, - - 537

Nolte V. Reichelm, - - - 586

Nones v. Northouse, - 360, 716

Norfleet v. Cromwell, - 168

Norman t. Cunningham, - 490

V. Manciette, - 733

V. Rogers, - - 529

Norris v. EUiott, - - 648

V. Hero, - - . gg

V. Morrison, ... 361

V. Philadelphia, - 465, 468

Norristown Turnp.' Co. v. Burket, 448

North V. Phillips, - 507

Northern T. Co. v. McCleary, 238

V. SeUick, - 492

North E. R. R. Co. v. Smeath, 443

North M. R. R. Co. v. Akers, - 240

North Peun. R. R. Co. v. Kirk, 383

Northrup v. McGill, 522

Norton V. Renssalaer Ins. Co., 71

T. Soholefield, - - 395

V. Warner, - 745

Nossaman v. Rickerts, - 712

Nonrse v. Snow, - - 337

Nowlan v. Cain, - 586, 587

Nowlin V. Snow, . . - 535

Noyes v. Anderson, - - 128, 148

Nunnemacher v. Lanier, -
Nurse v. Barns,
Nye V. Merriam,

Pages.

- 16

- 157

- 598

Oakley v. Crenshaw, - - 41
Oakley Mills, etc. v. Neese, - 397
Overlander v. Spiers, - - 588
O'Brien v. Com. Ins. Co., - 72
V. Phoenix Fire Ins. Co., 73

O'Conner v. Hartford Fire Ins.

Co., - 73

O'Connor v. Forster, - - 210

V. O'Connor, - - - 688

Odell V. Hole, - 589, 540, .545

V. Stephens, - - 741

O'Donnell v. O'Donnell, 358

O'Donoghue v. Corby, - 521

O'Ferrall v. Simplott, - 354

O'Flaherty v. Sutton, - - 356

Ogden V. General Ins. Co., 193

V. Lucas, ■ - 470

V. Marshall, - - 307

V. Raymond, - 54

V. Sanderson, - - 119

Ogilvie V. Hull, - - 174

Ogle V. Atkinson, - - 525

O'Hanlan v. Great Western R'y

Co., - - - 317, 348

Ohio, etc. R. R. Co. v. Dicker-
son, - - 259. 269
V. Tindall, 382
Old Colony, etc. R. R. Co. v.

Plymouth, - - - 446

Oldham v. Bentley, - - 585

Oleson V. Brown, - 478

Olivant v. Perineau, - 530

Oliver v. Chapman, - - 598

V. La Valle, - - - 715

V. Mutual Com. Ins. Co., - 67

V. North Pacific Transp. Co., 712

V. Oliver, - 624

V. Pate, - 709

Olmstead v. Burke, - - 158

Olmsted v. Brown, 665, 670, 671

V. Miller, - - 664

O'Meara v. North Am. M. Co., 488,

489, 497, 543, 569

O'Neil V. Buffalo Fire Ins. Co., 71

Opdike V. Bartles, - - 359

Oppenhcimer v. XJ. S. Exp. Co., 234

Oram v. Franklin, - - - 640

Orange Co. Bank v. Brown, 191, 243,

291 393

O'Riley v. McChesuey, 405, 414^ 431

Ormsby v. Davis, - - - 560

V. Vermont Copper M. Co., 36,

488,. 501

Orr V. Skofield, - - 640

Osbourn v. Osbourn, - 344

Osgood V. Carver, - - - 485

v. Dewey, - - - 107, 108

TABLE or CASES CITED.

xliii

Pages.

Osgood V. Nichols, -

- - 4

Osterhout v. Roberts,

- - 488

Otis V. Jones, ■

483

Ottumwa V. Parks, -

- 150

Outcalt V. Darling,

- 474

Overseers of the Poor

V. Bank

of Va.,

3

Oviatt V. Pond,

- 476, 538

Owen V. Brooksmith,

731

•V. McKean,

- 691

V. Bouth,

497, 508

Owings V. Gibson, -

363

V. Ulrey,

- 389

Pacifip Ins. Co. v. Conard, 469, 473,

473, 481
Pacific R. R. Co.\-. Chrystal, 453
Packard v. Lienow, - - 46

Packet Co. v. Sickles, 601, 603, 608,

610

Paddock V. Salisbury, 680

V. Strowbridge, - - 583

Page V. Bent, ■ 587, 588

V. Burnstine, - - - 108

V. Chicago, etc. R. R. Co., 434,

461

V. Fowler, - 488, 496, 501, 559

V. Parker, - 590, 593

V. Wells, 590

Paige V. Banks, - - 634

Paine v. Chicago, etc. R. R. Co., 270

V. Sherwood, - 333

Y. Woods, - 453, 453

Painter v. Ives, - - - 733, 733

Pallet V. Sargent, - 677, 683, 685

Palmer v. Andrews, - - - 837

V. Blackburn, - - 8

V. Cohi-an, - - 86

V. Dewitt, - - 624

V. Grand Junction R'y, - 191

V. Haskins, - - 654, 696

V. Holland, - - - 37

V. Lorillard, - 194

V. Stephens, - 56

V. Taylor, - - - - 70

Palmer Co. v. St. Paul F. & M.

Ins. Co., ... 73

■ V. Terrill, - 433, 453

Pancoat v. Bumell, - 734

Panton v. Holland, - 418

v. Isham, - - 392

Paradine v. Jane, 95, 126, 133

Pardee v. Drew, 343, 293

Parham v. McMurray, - 481

V. Randolph, - - 588

Parish v. Wheeler, - - 475, 536

Park V. C. & S. W. R. R. Co., 154,

419, 433

V. Hammond, - 819

V. McDaniels, . - - 478

Parke v. Blaokistone, 677, 688

Pages.
Parker v. Eagle Ins. Co., - - 95
V. Elliott, - - 743

V. Great Western R'y Co., - 191
V. Griswold, - - 364

V. HoUis, - - 107, 108

V. Hulme, - - - - 634
V. James, - - - - 7
V. Lowell, - - - 438

V. McQueen, - - 697

V. Meek, - - - - 755
V. Melor, - . - - 558
V. Montieth, - - 741, 743
V. Nickerson, - - 3

V. Shackelford, - - 389

V. Simonds, 551, 553, 560

V. Walker, - - 590

Parkhurst v. Gloucester Mutual

Fishing Ins. Co., - - 67
V. Ketchum, - 657, 679, 685
V. Mastellar, - - 704, 707 ,
Parkins v. Scott, - 663

Parkist v. Alexander, - - 3
Parks V. Booth, - ■ 606, 623

V. General Interest Assur-
ance Co., - - - 91
V. Wisconsin, etc. R. R. Co., 463
Parmer v. Anderson, 647, 648
Pamell v. Hampton, - 556
Parrott v. Barney, - - - 182
Parry v. Frame, ... 534
Parsell v. Circuit Judge, - - 558
Parsons v. Hardy, ■ - 197, 313
V. Harper, - - - 733, 733
V. Lloyd, - 733
V. Martin, - - - 13,43
V. PettingiU, - - - 369
Partenheimer v. Van Order, - 435
Parton V. Prang, - - 634
Partridge v. Menck, - - - 638
V. Scott, - - - 418
Pasley v. Freeman, - 583
Passiman v. Fletcher, - - 663
Passmore v. Western Union Tel.

Co., - - - 295, 296, 298
Patrick v. Farmers' Ins. Co., 71, 73
Patten v. Chicago, etc. R. R.

Co., - 291, 714

V. Gurney, - - 584, 597

V. Northern Cent. R. R. Co., 436

Patterson v. Ackerson, - - 127

V. Boom Co., - 434, 436, 450

v. Boston, ■ - - 443

V. Thompson, 736, 738

V. Wilcox, - - 736, 739

Pattison v. Adams, - 534

Paul V. Fi-azier, - - 737

V. Hadlv, - - - 583

, V. Narse, - - 133

Paull V. Half erty, - 674

Payne v. Elhot, - 487

V. Graves, . - - - 131

xViv

TABLE OF CASES CITED,

Payne v. Haine, - - 133, '133

Peaks V. Oldham, - - 666

Pearse v. Coaker, ... 345

Peai'son v. Duane, - - . 253

V. Inlow, - - 381

Pease v. Shippen, - - - 679

Peck V. Brewer, - - - 573

•^ Hiler, - - - 115, 116

V. N. Y. 0. etc. E. R. Co., 391

Peckham v. Hadwin, - - 360

Peebles v. Boston, etc. E. E. Co., 525,

528
Peele v. Northcote, - - - 38
Peet V. Chicago & N. W. E. R.

Co., - - - 318, 336

Peisch V. Dickson, - - - 47
Peltier v. Mict, - - - - 653
Peltz V. Eichele, - - 639, 633
Pendergast v. McCosten, - - 345
Penley v. Watts, - 187, 139

Pennell v. Woodburn, 137, 150

Penn. Co. y. Boy, - 737

Penn. & Ohio Canal Co. v. Gra-
ham, - - 359, 363
Penn. E. E. Co. v. Allen, 359, 713
V. Bannill, - - - 443, 450
V. Books, 350, 359, 361, 268, 870
V. BunneU, - - 434, 463, 464
V. Butler, - - 283
V. Cooper, . - - 400
V. Dale, - - 730
V. Goodman, - - 283, 383
V. Keller, ... 383
V. Kelly, - - 735
V. Paterson, - - 139, 143
V. Vandever, - - 283
Pennybecker v. McDougal, - 539
Penoyer v. Hallett, - - 197
People V. Abbott, - - 738, 739
V. Benson, - - - 739
V. Brewer, - - 743
V. Board of Supervisors, - 465
V. Canal Commissioners, 465, 468
V. Corp. of Albany, - - 430
V. Jackson, ... 729
V. Kelsey, - - - 118
V. Kenyon, - 739
V. Mayor of Brooklyn, 433
V. McArdle, - - 739
V. Williams, ... 449
People ex rel. Fountain v. Su-
pervisors of Westchester Co., 430
Peoria Bridge Asso. v. Looniis, 731
Peoria Ins. Co. v. Laurie, - 448
V. Whitehill, - - - 78
Peoria Marine & Fire Ins. Co.

V. Lewis, - - - 73

Peoria, etc. E. E. Co. v. Bryant, 438,

446,448

V. Sawyer, ... 434, 437

Pepper v. Eowly, - - - 118

Pages.

Perham v. Coney, - , - 480, 580

Perk V. Lemon, - - 483

Perkins v. Freeman, - - 483

V. Missouri, etc. E. E. Co., 379

v. Towle, - - - - 389

V. Washington Ins. Co., - 9

V. Wright, - - - - 391

Perley v. Eastern E. E. Co., 714

Perrigo v. Spaulding, - - 608

Perrine v. Hankinson, 107, 111, 113

V. Perrine, - - 859

Perry v. Aldrich, - 130

V. Breed, - - 647

V. Chandler, - - - 485

V. Grubb, - - - - 116

V. Mayor, etc., - - 493

Persse v. Cole, ... 345

Peters v. Ballistier, - 13

Peterson v. Edmonson, - 137

V. Haight, - - - 573

V. Morgan, - . . - 683

V. Poignard, - - - 13

Pewtress v. Austin, - 583

Phelin v. Kenderdine, - - 741

Phelps V. London, etc. E'y Co., 393

V. New Haven, etc. Co.. 134, 139

V.Williamson,,- '- 203

Phenix v. Clark, - - - 541

Philadelphia v. Dyer, - 468

Philadelphia, etc. E. E. Co. v.

Derby, - - 377

V. Quiglev, - - ' - - 277
Philippe V. Wolff, - '- - 734
Phillips V. Earle, - - 191, 343
V. Homfray, - - - 378
V. Hoyle, - - - 736, 739
V. Jones, .... 588
V. Moir, .... 38
V. Monger, .... 108
V. Mongesi - - - - 573
V. Pease, - - 465

V. Phillips, - - 397

V. Scott, - ■ - 33

V. Speyers, - - 488

V. Stevens, - - - - 133
Philp V. Nock, 601, 603, 604, 605, 606,

614

Philpot V. Taylor, . . 45

Phipps V. Tarpley, - - - 151

Phoenix Ins. Co. v. Allen, 37

Pierce v. Benjamin, - 483, 538, 533

V. Dart, - - 420

V. Millay, .... 713

V. Pierce, - - . 107, 745

V. Thompson, ... 700

V. Van Dyke, - 556, 560

V. Worcester, etc. R. E, Co., 486

Pike V. Nicholas, - - - 637

Pillsbury v. Moore, - . 395, 403'

Pinckney v. Dimn, - - - 39

Pine v. Eeed, .... 73

TABLE OF CASES CITED.

xIt

Pick V. Rubicon Hydr. Co., - 449
Pickard v. OolUns, - 395, 896

Pickering v. Fisk, - . - 388

V. Truste, - - - - 531
Pickett V. Bridges, - - - 560
Pickford v. Grand J. P'y Co., - 306
Pinero v. Judson, - - 110

Pink V. Catenich, - - - 679
Pinkerton v. Boston, etc. R. R.

Co., - - - - 449

V. Manchester, - - - 3, 37

V. Railroad Co., - - - 496
Pinkham v. Chelmsford, - 464

Pinney v. Andrews, - - - 593

V. Berry, ... 414

Piper V. Brown, ... 619

V. Kingsbury, - - , - 337
Pirie v. Steele, - - - - 81
Pitcher v. Tovey, - - - 133
Pitman v. Hooper, ... g04

V. Kintner, - ... 56
Pitt V. Donovan, ... 674
Pitts V. Hall, - - - 605, 606

Pittsburj
d

ton,

V. Huzam,
V. Powers,

V. Slflsser,
v. Th(^|son,
o. ^Astin,

etc. R. R. Co. V. An-

- 368

- 313

- 358

- 313

- 353

- 737

- 437,463

- 370,371

- 369
3

- 370
391, 704

- 447
590, 598

Placer Co.

Plate V. N. Y. C. R. R. Co.,
Plath V, Braundsdorfl,
Piatt V. Bright, -

V. Brown,
Playf ord v. United Kingdom Tel.'

Co., - - 314

Pleasants v. State, ... 739
Plevin V. HenshaU, - . - 539
Plimpton V. Gardiner, - 437

Plumb V. Ives, - - - 389

Plummer v. Penebscot L. Asso., 318,
415, 419, 431
Poind extre v. Royal Exchange, 80
Polack V. Pioche, 133, 133

Polhill V. Walker, - . -56
Polk V. AUen, - - 488, 493

Pollard V. Lyon, . - - 639

V. Underwood, - . - 358
Pollett V. Long, - . . - 419
Pomeroy v. Chicago, etc. R. R.

Co., 449

V. Smith, - . . .535
Pool v. Devers, - - .647, 675
Poole V. Adkisson, - - 50

Poor T. Woodburn, ... 573
Pope V. Barrett, - - . 43

V. Jenkins, ... 543, 553

Vol. Ill- d

Pope V. Welsh, -
Porter v. Botkins,
V. Bradley, -
V. Fletcher,
V. Froment,

679

- 685

- 149
586, 597

438

V. Hannibal, etc. R. R. Co., 713

V. Henderson, - 693

V. Henley, - - - 349

V. Hildebrand, - - - 393

V. North Missouri R. R. Co., 433

V. St. B. New England, 351, 353

Porterfield v. Humphreys, - 319

Portland Bank v. Stubbs, 196

Portsmouth Ins. Co. v. Brazee, 74

V. Brinckley, - - 85

Post V. ^tna Ins. Co., - 71, 73

V. Hampshire Mut. F. Ins.

Co., - - - 89

V. Munn, 476, 483, 530

V. Robertson, 197

V. Vetter, - 166

Postern v. Jones, - 844

Poston V. Jones, - - - 115

Potter V. Chicago, etc. R. R.

Co., - - - 383, 391

V. Everitt, - - 353

V. Lansing, - - - 31

V. Mardre, - 513, 517, 518

V. Merchants' Bank, 531, 533

V. Metropolitan R. R. Co., 717

V. North, - 557

V. Truitt, - 111

, V. Washburn, 474

Pottstown Gas Co. v. Murphy, 394

Powell V. Aiken, - - 378

V. Glenn, - . - - 537

V. Hinsdale, - • - - 573

V. M. & B. M. Co., - 353

V. Myers, - - - . 391

V. Penn. R. R. Co., - 314

V. Trustees of Newbergh, 46, 50

Power V. Whitmore, - - 83

Powers V. Council BlufiEs, 898, 407,

414

V. Presgroves, - 657, 679, 693

V. Wheatly, - 330

Pratt V. N. Y. Central Ins. Co., 71

V. Paine, - - - -151

Prebble v. Kent, - - - 530

Prentiss v. Shaw, ... 713

Prescott V. Otterslatter, - - 167

Preston v. Cooper, ... 700

Prestons v. McCaU, - .114

Price v. Hartshorn, ... 193

v. Hobbs, - - - 354

T. Oswego, etc. R. R. Co., - 344

V. Piekett, - - - 130, 131

V. Milwaukee, etc. R. R. Co., 438

V. Severn, ... - 391

V. Wbitely, - - - 643, 661

Prickett v. Ritter, - - ■- 108

xlvi

TABLE OF OASES OITED.

Priest V. Nichols, - - - 171
Priestley v. N. I. & C. R. R. Co., 316
Prince Albert v. Strange, - - 634
Proctor V. Eastern R. R. Co., 313
V. Houghtaling, - - - 685
Profitt V. Henderson, 393

Proud V. Bates, - - - - 443
Proudlove v. Twemlow, - - 485
Provident, etc. Co. of Mt. Ster-
; ling V. Givens, - 448

Pruitt V. Cox, ■ - - 739

Pugh V. McCarty, - - 693

PuUen V. Glidden, 707, 708, 709

Puller V. Stainforth, - - 186, 187
Pullman, etc. Co. v. Reed, 370

Pumpelly v. Gi-een Bay Co., 431
Purple V. Horton, - 686

Putnam v. Broadway, etc. R.

R. Co., - 714

V. Home Ins. Co., - - 63

Pymv. Great Northern R'y Co., 383

Queen v. Waterhouse, - 398

Quigley V. C. P. R. R. Co., 359, 361,
370, 371, 713
Quimbey v. Carter, - - - 590
Quincy R. R. Co. v. Redge, 453

Quintette v. Carpenter, - - 108

R V. M , - - 685

Rafael v. Verelst, - 388

Railroad Co. v. Gesner, - 400

V. Hutchins, - - 880

T. Lookwood, - 314

V. Miller. - - 388

V. Pratt, - - - 214

V. Sprayberry, - 388

V. Tyree, - 452, 456

Rakes v. Amazon Ins. Co. , 72

Raleigh R. R. Co. -v. Wicker, - 456

Ramsey v. Gardner, - - 46

V. Thomas, - - - 558

Rand v. Harris, - - 197

Randall v, Alburtis, - - 115

V. Cleaveland, - - 393

v. Lynch, 305

Randell v. Trimen, - - 55

Range v. Harwood, - - 50

Ranger v. Goodrich, - - 639

Rank y. Rank, - 519, 539

Rankin v. Oliphant, - - 354

V. Pacific R. R. Co., - - 337

V. Potter, - - - 67

Ransom v. Mayor, etc., - 683, 634

V. N. Y. etc. R. R. Co. , 7 1 3, 713,

717, 733

Ransome v. N. Y. & E. R. R. Co., 105,

259, 368, 379

Ransone v. Christian, - 677, 693

Ravenga v. Mackintosh, - - 708

Rawdon v. Blatchford, - - 585

Pages.
Rawlings v. Lowndes, - - 359
V. Morgan, . - - 139

Rawls V. American Ins. Co., 97

Rayner v. Kinney, - . - 677

Raynor v. Nims, - - - 389
Read v. St. Louis, etc. R. R. Co., 236
Reamv. Rank, - - 389

Redfield v. Davis, - - 1

Redpath v. Western Union Tel.

Co., - 297

Redwav v. Gray, - . - 658

Reed v. Clark, - - 319, 330, 323

V. Hanover B. R. R. Co., 451,

467

V. Inhabitants of Wall, - 465

V. Price, - - 363, 364, 366

V. Ward, - - - 131

V. Williams, 739, 743, 743

Reeder v. Purdy, - 364, 865, 390

Reggio V. Braggiotti, 150, 592

Regina v. Brown, - 441

V. Martin, - - 739

v. Mercer, - - - 729

v. Robins, - - - 729

V. Tissington, - - - 729

Reid V. Fairbanks, Aj513, 517

V. Renn Glass FactorBL - 466

Reilly v. Franklin Ins. Cofg^- 69

Reily v. Lamar, - . - 41

Relf V. Rapp, - - - 191

Relief Ins. Co. v. Shaw, ^^ - 63

Relyea v. New H. R. M^., 303

Remington v. Foster, Jm- - 396

Remington Sewing MaiKine Co.

V. Kezertee, 596

Reno V. Hogan, 314

Rensselaer Glass Factory Co. v.

Reid, - 488

Ren wick v. Morris, - - - 420

Respass v. Morton, - - 45

Hestor v. Pomfreich, - - 666

Rex V. Barker, - - - - 739

V. Clarke. - - - - 729

V. Hodgson, ... 729

V. Neil, - - - - 394

V. White, - - - - 394

Reynolds v. Shuler, - 480, 528

V. Tucker, - 688, 690, 693

Rheems v. Naugatuok W. Co., 590,

594

Rhoda V. Alameda Co., - 492

Rhodes v. Baird, 158, 160

V. Ijames, - - - 657

V. Louisville, etc. R. R. Co., 214

Rice V. Cottrell, - - - . 680

V. HoUenbeck, 376, 509, 517

V. Indianapolis, etc. R. R.

Co., - - - 237, 243

V. Nickerson, ... 726
V. Turnpike Co., - - - 457
V. White, .... 590

TABLE OF CASES CITED.

xlvii

Rich V. Smith, -

Eichards v. Fouts, -

Richardson v. Dunn,

V. Futtrell, -

V. Milburn, ■

116

743

46

16

- 383

V. N. Y. C. R. R. Co., - 285, 290
V. Northrup, 381, 680, 692

V. Skolfield, - 359

V. Vt. Ceut. R. R. Co., - 418
Riciimond v. Bronson, 238, 389, 248
V. Dubuque, etc. R. R. Co., 181
V. D. S. C. R. R. Co., - - 311
V. Union St. B. Co., - 237

Richmond Turnpike Co. v. Van-

derbilt, - - 374

Richmondville Union Sem. v.

Hamilton Mut. Ins. Co., - 77

Ricketts v. Lastetter, - 148, 152

Riddle v. Driver, - 509

Rider v. Stryker, - - . 449

Riding v. Smith, - - - 667

Ridley v. Perry, - - - 685

Riena v. Cross, - - - 203

Rigby V. Hewitt, - - - 308

Riggs V. Bell, - - - - 183

V. Lindpay, - - - 47

Riley v. Horme, - - 232

V. Martin, - - 488

V. Nugent, - - - 661

Ringgold V. Haven, - - 238

Ringhousey. Keener, - - 349

Ripey v. Miller, - - - 393

Ripley v. Davis, - - . 488

V. Gelstori, - - 59

V. Wightman, - - - 138

Ripon V. Bittel, - 259, 363, 717

Rippe V. Chicago, etc. R. R. Co. ,, 448

Rittenhouse v. Independent L.

T., - - 295, 301, 311

Rivers v. Gregg, - 97

Rix v. Mut. Ins. Co., - - 90

Robbins v. Fletcher, - - 647

v. Milwaukee, - - 448

V. Packard, - - - - 523

V. Tread way, - - - 640

Roberts v. BerdeJI, - 520, 531

V. Connelly, - - - 739

V. Mason, - - - 479

V. Plaisted, - - - - 586

V. Roberts, 663, 664, 665, 669

V. Snell, - - - - 132

V. Tennell, - 106, 107

V. Thompson, - - 27

Robertson v. Jackson, - - 305

V. Jones, - - - 381

V. Livingstone, - - - 41

Robinett v. Lewis, - 355

Robinson v. Ames, - - - 18

v. Barrow, - - 489, 538

V. Boyd, - - - - 597

V. Burton, - - 741, 743, 743

Pages,
Robinson v. Dmmmond, - 675, 677
V. Hartridge, - - 488

V. Harvey, - - - - 697
V. Hurley, - - - 520, 533
V. International- L. Ins. Co., 15
V. Kellum, - - - 700

V. L'Engle, - - - - 127
V. Mei-chants' D. T. Co., - 289
Rockford, etc. R. R. Co. v. Mc-

Kinley, ■ - 464

Rook Island, etc. R. R. Co. v.

Lynch, - - - 448

Rockwell V. Brown, - - 649, 699

V. Third Avenue R. R. Co., 717

Rodgers v. Bass, - - 15

Rodriquez v. Tadmire, - 680, 709

Rogers v. Crombie, - - 531

V. Henry, - - - 469

V. Nowill, - - 628, 680

V. Ostram, - - - 117

V. Randall, - - - 367, 471

V. Smith, ... 724

Rohrschneider v. Knickerbocker

L. Ins. Co.,- - - 581

Rollins v. Clay, - - - - 364

Rolph V. Crouch, - - 149, 150

Romaine v. Van Allen, - 504

Rome R. R. Co. v. Sloan, - - 247

Romig V. Romig, 523

Rondout R. R. Co. v. Deyer, 464

Rooney v. Sac. R. R. Co., - 448

Root V. King, 676, 679, 685, 689

V. Lowndes, 649, 650

Roper V. Wren, - - - 131

Rose V. Groves, - - - - 667

V. Miles, - - - 437

V. Pearson, - - - - 549

V. Story, - 469, 527, 645

V. Wallace, - - - 593

Ross V. Butler, - . - 394

V. Dysart, - - 148

V. Blizabethtown R. R. Ca, 129,

447

V. Missouri, etc. R. R. Co., 293

V.Ross, - - 661

Rossiter v. Cassitt, . - - 360

V. Chester. - - - 197

Rounds V. Delaware, etc. R. R.

Co., - ... 277

Rowe V. Johnson, ... 357

V. Moses, - - - - 727

Rowlands v. Samuel, - 704, 70S

Rowley V. Gibbs, - - 547,550

V. "London, etc. R'y Co., 383

V. Rice, ... - 485

Royal V. Smith, - 816, 333

Royce v. Guggenheim, 115, 116, 117

Rubber Co. v. Goodyear, 608, 610,

613
Rucker v. MoNeely, - - - 389
Ruder v. Purdy, - - 734, 737

xlviii

TABLE or CASES CITED.

Euflner v. Hewitt, -
Bummell v. Otis,
Rundle v. Moore,
Russ V. Ship Active,

V. Steamboat War
Russell V. Blake,

V. Brown, -

V. Clark,

V. Hawkeye,

V. Langstafife,

V. Palmer,

V. Tomlmson,

V. Turner, -
Rutland v. Dayton, -
Rutland, etc. R. R. Co,

of M., -
Ryburn v. Pryor,
Ryder v. Hathaway,

V. Thayer, -
Ryers v. Wheeler, -
Ryerson v. Chapman,

V. Quackenbush,

Pages.

- 4, 46, 50

- 661
-13, 14, 30

83
Eagle, - 368

- 349

- 396, 403

- 584, 590

- 16

- 24

- 38

- 425

31

- 139
V. Bank

478, 531

- 489

- 517

- 12

- 345

- 151

- 132

Sackrider v. Beers, - - - 398
Sacramento, etc. R. R. Co. v.

Moffatt, - - 448

Sadler v. Bean, - - - 521

Safely v. Gilmore. - - 114

Safford v. Grout, - - - 585
V. The People, - - 739

Sagerv. Portsmouth, etc. R. R.

Co., - 214

Salisbury v. Herchenroder, 714

Salkold Y. Skelton, - 558

Sallund v. Johnson, - 587

Salmon v. Smith, - - - 118

Sampson v. Henry, 388, 713, 727

Samuel v. Bond, - - 686

Samuels v. Evening Mail Asso., 665

Sanborn v. Firemen's Ins. Co., 63

Sandback v. Quigley, - 357

Sanders v. Clark, - 516

V. Johnson, - 661

V. Kentish, - - - 508

V. Stuart, - - - - 399

V. Vance, - - - - 489

Sanderson v. CaldweU, 642, 651, 658,

659
Sandford v. Catawissa, etc. R.

R. Co., - - - 191

V. Eighth Ave. R. R. Co., 277

Sands v. Lilienthal, - - 317

Sanf ord v. Augusta, - - 735

V. Dillaway, - - 34

V. Handy, - - ■ 579

San Francisco, etc. R. R. Co. v.

Caldwell, - 430, 433

V. Mahoney, - 450, 451

Sangamon, etc. R. R. Co. v.

Henry, - 313, 219

Sans V. Joerris, - 643, 690, 697

Sargeant v. Downey,
Sargent v. ,

V. Ashe,

V. Machias,

Pages.
39

- 735, 741

- 107, 109
449

V. Yale Lock Manuf. Co., - 603,

619

Sauer v. Schulenberg, - - 317

Saunders v. Brosius, - - 518

v. Clark, - - - - 491

V. MUls, - - 683, 694

Savage v. Brewer, - - 700

V. Corn Ex. Ins. Co., - 74

V. F. & Inland Ins. Co., - 76

V. Stevens, - 586, 587

Savannah, etc. Co. v. Bourquin, 398

Saville v. Roberts, - 699, 703, 704

Sawter v. N. Y. etc. R. R. Co., 383

Sawyer v. Hopkins,
Sayei's v. Holmes,
Sayrev. Sayre, -
S. B. Emily v. Carney,
Scammon v. Campbell,
Scanlan v. Cowley, -
Schiefelin v. Carpenter,
Schilling V. Holmes,
Schindel V. Schindel,
Schlater v. Gay,
Schlemmer v. North,
Schley v. Lyon,
Schmertz v. Dwyer, -
Schofield v. Ferrars,

. - 651

- 560
679, 680

338
353
707
134

- 108

- 475

- 380

- 153
■ 493

13, 13, 36
540, 542, 544

School District v. Baston, etc. R.

E. Co., - 214

V. Shoemaker, - - 556

Schrimper v. Heilman, - - 648
Schufeldt V. Schintzler, - 585

Schulenberg v. Harrinaan, - 510
Schuylkill Co. v. Freedley, 442

Schuylkill Nav. Co. v. Farr, - 414

V. Thoburn, - - 450

Schwartz v. Atlanta, etc. Tel.

Co., - - - - 298

Sohwarzel v. Holenshade, 606, 607
Schwinger v. Raymond, - 203

Scott V. Avery, - - 69

V. Bay, - - - 395, 417

V. Boston, etc. R. R. Co.,

V. Bryson,
V. Dixon,
V. Elliott,
V. Fletcher,
V. Hamilton,
V. Hughes, -
V. Libby,
V. McKinnish,
V. Newington,
V. Peebles, -
V. Shepherd,
Scovill V. Griffith,
Scripps V. Foster,
V. Reilly, -

318

473, 474

- 589
538, 539

- 709
712

- 548
197, 300

- 683

- 474

- 697
374, 387

- 215
694, 696
661, 694

TABLE OF CASES CITED,

xiis

Scrugham v. Carter, -
Scudder v. Bradford,
Scull V. Briddle,
Seabury v. Ross,
Seals V. Cummings,
Seamans v. Smith,

- 573

83
489
541
521

- 381

Searle v. Lackawanna, etc. R. R.

Co., ■ 436, 443, 463

V. Scovell, - 199

Sears v. Lyons, - - 389

V. Wingate, - - 2J3

Seaton v. Jamison, - - - 357
Seay v. Bacon, - 564

V. Marks, - - 530

Secor V. Harris, - - - 644

Security Ins. Co. v. Kentucky

Ins. Co., - - 86

Sedgeworth v. Overend, 474

Sedgwick v. HoUenback, - - 147
Seely v. Alden, 398, 404, 433

V. Cole, 692

Seeman v. Feeney, 479

Segar v. Edwards, - - - 3
Seger v. Barkhamsted, 359, 260, 680,

713
Selden v. Cushman, - 469

Selkirk v. Cobb, - 488

Seller v. Work, - - • - - 11
Selliok V. Hall, - 426

Sellman t. Bowen, - 355

Selma R. R. v, Camp, - 448

Sentance v. Hawley, - - 46
Servatius v. Piokel, - 653, 661, 714
Severance v. Hilton, ~ - 647, 667
Sewall V. Lancaster Bank, 487

SeweU V. Champion, - - 483

Sexton V. Brock, - - - 652
Seyfert v. Bean, - 154

Seymour v. Billings, ■ 573

V. Chicago, etc. R. R. Co., - 370

V. Greenwood, - 274

V. Ives, - - - - 495 .

V. McCormick, 601, 602. 604, 606,
614, 633, 633

V. Merrills,- - 6s6

Shaddock V. Clifton, - - - 735
Shafer v. Smith, - - 478

V. "Wilson, - 164, 419

Shaffer v. Lee, - 134

Shallies v. Wilcox, - 173

Shank v. Case, - - - 677

Shannon v. Marmaduke, - - 3
Sharon v. Mosher, - 581, 593

Sharp V. Powell, - - 714

Sharrod v. London, etc. R'y Co., 374
Shartle v. Hutchinson, 675

V. Minneapolis, - 730

Shattuck V. Myers, - 743

V. Stoneham, etc. R. R. Co., 463,

464

V. Wilton R. R. Co., - 467

Pages.

Shaw V. Charleston, - - 433

V. Cummiskey, . - - 415

V. Holland, - - 498, 508

V. Laughten, - ^ - 551

V. Preton, - . - - 4

V. Reed, - - - - 24

V. S. C. R. R. Co., - - 237

V. Stine, - - - 586

V. White, - 353

Shawe v. Felton, - - 68

Shawmut v. St. Paul, etc. R. R.

Co., - 424

Shawneetown v. Mason, - - 454

Shea V. Potrere, - 737

Sheafe v. O'Neil, - - - 353
Sheahan v. Barry, - 316, 326, 328
V. Collins, 656, 657, 680, 683
Shearer v. Shearer, - 361

Shearman v. Akins, - - 46

Sheehan v. Edgar, 730

Sheets v. Selden, - - - 127
SheffiU V. Van Deusen, - 693, 694
Sheldon v. Carpenter, 704

V. Southern Exp. Co., 525

Shelton v. Simmons, - 676

Shenango, etc. R. R. Co. v.-

Braham, - 434, 441, 450

Shepard v. MerriU, - 686

V. Wakeman, - 668

Shepherd v. Johnson, - 497, 508

V. Milwaukee Gas Co. , - 419

Sheppard v. Wardell, - 356

Sheridan v. New Quay Co., - 525

•Sherlev v. Billings, - - 371

Sherman v. Clark, 543, 546, 571

V. Dutch, - - - 383, 388

V. Hudson R. R. R. Co., 318

V. Milwaukee R. R. Co., - 403

V. Rawson, - - 317, 319

V. Wells, - - 337, 339

Sherrod v. Langdon, 593

Sherry v. Schuyler, - - 483

Sherwood v. Seaman, - 166

V. Stone, - 38

V. St. Paul, etc. R. R. Co., 440,

450, 461

V. Sutton, - - - 593

V. Tetman, - - - - 743

Shields v. Batts, - 353

Y DaiVis - - - - 1 97

Shilliiig Y. Carson, 651, 657, 679, 680,

681
Shipherd v. Field, - - - 8, 43
Shipley v. Baltimore, etc. R. R.

Co., 456

V. Washington Tel. Co., 399, 313
Shipman v. Burrows, 657, 660, 666,

667
Shipp V. MoCraw, - - - 639
Shipton V. Thornton, - - 199
Shirley v. Keathy, - 678, 686, 691

I

TABLE OF CASES CrfED.

Pages.

Shoenfeld v. Fleisher, - - 9

Short V. Kalloway, - - 138

T. Skipworth, - - 8

ShoTilty V. Miller, - - - 685

Shotwell V. Wendover, 520, 530, 531

Shrack v. The Knight, 49

Shrieve v. Stokes, - 418

'Shumway v. Collins, - - 116

Sibley v. Hulbert, - - 590

Sickles V. Borden, - - 601

Siefke v. Koch, - - 123

Sigmund v. Howard Bank, - 175

Silsbury v. MoCoon, - 375, 509, 517

Silsby V. Foote, 606, 622

Simmes v. Marine Ins. Co., 189

Simmons v. Brown, - - 419

Simons v. Patchett, - - 58

Simonton v. Gray, - - 359

Simpson v. Black, - - - 320

V. Keokuk, - - 408, 421

V. London & N. W. R'y Co., 237,

229

V. McCaffrey, - 391

V. Robinson, - 678

Sinclair v. Eldred, - - - 700

V. Jackson, - - - - 54

Single V. Schneider, - 380, 512, 513,

517, 518, 545, 555, 567

Singleton v. Bolton, - - 629

V. Boone Co. Ins. Co., - 87

Sisson V. Cleveland, etc. R. R.

Co., - 36, 318, 332, 238, 246

Skaggs V. Emerson, - - 115, 116

Skinner v. Grant, - - 697

V. Powers, - - 681, 694

Slater v. Sherman, - - - 713

Slatter v. Meek, 354

Sleight V. Ogle, - - - 733

Sleigle V. HiUer, - - - 354

Slight V. Gutzlaff, ■ - 398

Slingerland v. Bennett, - 590, 593

Sluttz V. Locke, - - - 133

Sloan V. Petrie, - - 677

Smalley v. Smalley, - - - 389

Smart v. Blanchard, 642

Smedes v. Bank of Utlca. - 17

Smith V. Addleman, 353

V. Ankrim, - - 137

V. Baker, - 493

V. Bidany, - - - 115

V. Brinker, - - - - 133

V. Chicago, etc. R. R. Co., 382

V. Compton, - 138

f V. Conn. Ins. Co., - - 72

? V. Dillingham, ■ 559, 560, 561

V. Dodge, - - 539

V. Elliott, - - 395, 396

V. Foster, - - - 536

V. Gonder, - 509, 513

V. Griffith, - - - 342, 248

V. Haverhill Mut. F. Ins. Co. , 70

Pages.
Smith V. Holcomb, - 712, 713

V. Howell, - - - 138

V. Independent L. Tel. Co., 304
V. Ingram, - 363

V. Jackson, - - - 361

V. Lacilles, - - - 9, 10

V. Lovelace, - - 653, 656
V. Mauuf. Ins. Co, - 77

v. Masten, - - 743

V. McCarty, - 359

V. McGuire, - - 181

V. Melburn, - - 739, 743

V. N. H. & N. R. R. Co., 218,
319, 230, 237
V. Overby, - - 713

V. Peat, - 135. 141

V. Phillips, - - - 431

V. Pittsburgh, etc. R. R. Co., 359,
361, 712
V. Plomer, - 4dS

V. Pryor, - - - 622

V. Raleigh, - 117

V. Richards, - - 737

V. Richardson, - - 239

V. Robey, - - 559

V. Scott, - - 698

V. Shepard, - - 115

V. Sher^ian, - - 319

V. Shumway, . - - 679
V. Smith, - - - 374, 705
V. Snyder, - - 558

V. Spooner, - - ■ 674

V. St. Joseph, - ■ - 724
V. Stewart, - 107, 697

V. Thackerah, 418

V. Thomas, - - 661

V. Underlich, - - 154

V. Winston, - 558

V. Wise, - - - 115

V. Woodfine, - - 323

V. Wright, - - - 83, 83
V. Wunderlich, 158, 159, 363, 364
V. Wyman, - 648

V. Yaryan, 743

Smiths V. MoConathy, - - 391
Smout V. Ilbery, - - 53, 54
Sneed v. Jenkins, - - 115

Snell V. Del. Ins. Co., - 74, 75
Sniveley v. Fahnestock, - 471, 477
Snow V. Boston, etc. R. R. Co., 463
V. Carruth, - - - 203

V. Judson, - - 674

V. Union Ins. Co., - 78

Snowdon v. Davis, ■ - 59

Snyder v. Findley, - 587

V. Snyder, ■ 360

V. Vaux, - - 509

V. Western Union R. R. Co., 435.

463
Solen V. Virginia City, etc. R. R.
Co., .... 391

TABLE OF CASES CITED.

li

PdQBS

SoUund V. Johnson, - - - 590
Solms V. Liae, - - - - 437
Soltan V. De Held, - 395, 397

Somerville v. Doughty, 436, 441, 463
Sonnebom v. Stewart, 699, 700, 706,

707
South V. Denneston, - - - 738
Southard v. Rexford, 820, 333, 338
South & North A. E. R. Co. v.

McLendon, - 713

Southern v. How, - - 639

Southern Kxp. Co. v. Moon, - 336
Y. Newby, - 337

Southold V. Daunston, - - 666
South Side R. E. Co. v. Daniel, 444,

464
Southworth V. Packard, - 724

Sowell V. Champion, - 533

Spaids V. Barrett, - - 700

Sparhawkv. Union, etc. E. E. Co., 894
V. Walpole, - - - - 465
Sparks v. Purdy, - - - 528
Speckler v. Sax, - 166

Spedding v. Newell, - - - 55
Spencer v. McMasters, 675, 678

V. St. Paul, etc. E. E. Co., 427
V. Vance, - 488

Spengler v. Davy, - - - 700
Spicer v. Chicago, etc. R. E. Co., 391
V. Waters, 475, 476, 488, 491, 494
Spiller V. Adams, - . - 355
Spooner v. Keeler, - - 683, 689
Spoor V. Holland, - - - 535
Sprague v. Brown, 481, 483, 537

V. Craig, 337, 338

V. McKinsie, - - 538, 537
V. West, - - 304

V. Western Union Tel. Co., 297,
307, 311
Spring V. Allen, - 338

V. Haskell, - - - 387

Squier v. Gould, 437, 717

V. Somerville, - 439

Squire v. HoUenbeck, - 485

V. Western Union Tel. Co., 301
St. Helen's Smelting Co. v. Tip-
ping, - - - - 398
St. Joe, etc. E. E. Co. v. Orr, 450, 451
St. John v. Mayor, 154, 155, 383, 419
v. O'Connel, - - 530
St. Louis, etc. R. E. Co. v.

Brown, - - 461, 463

V. Capps, - 419, 431, 440

v. Haller, - - - 373

V. Eichardson, - - - 453
V. Teters, - 484, 436, 448

St. Paul, etc. E. E. Co. v.

Matthews, - - 448

V, Murphy, - • -451, 461

St. Peter's Church v. Beach, 478, 496

StaflEord v. Mans, - - - 585

Pa^es.

Stafford v. Providence, - - 450

Stallenwerck v. Thacher, - - 38

Stallknecht v. Penn. R. E. Co., 287

Stanley v. Towgood, - - - 183

Stanton v. Hart, - - 708

V. Prichard, - - 377

Stanwood v. Whitmore, - - 654

Staple V. Spring, 396, 403, 403, 428

Staples V. Anderson, 174

Stapleton v. King, - - 496

Starbrid v. Frankfort, - - 725

Stark V. McGowan, - - 417

V. Starr, - 349, 350

Starkey v. Kelly, - - 476, 493

Starr v. Gardner, - - 658

V. Jackson, ... 363

State V. Haines, - - 394

V. Halick, - - 447

V. Ingi-am, - - 139

V. Jeandell, - - 647

V. Jefferson, - - 78d

V. Knapp, - 739

V. Smiley, - - .- - 643

V. Smith, 478, 475, 476, 491, 538

State Ins. Co. v. Taylor, - - 395

State Ins. Co. of Mo. v. Todd, 73

Steadman v. Western Transp.

Co., - - 213

Steamboat John Owen v. John-
son, ■ - - 345
Steam Stone Cutter Co. v.
Windsor Manuf. Co., 608, 610,
611, 613, 620, 633
Stearine, etc. Co. v. Heintzmaun, 13
Stearns v. Cox, - - 647
V. Marsh, ■ 525
Stedman v. Fortune. - 253
V. Taylor, - - - - 193
Steele v. Townsend, - 237
Steinman v. Mc Williams, - 657
Stephens v. Felt, - 605
Stephenson v. Little, - 517
V. Piscataqua F. & M. Ins.

Co., - - 69, 70

V. Price, - - 496

V. Thayer, - - - 533

Sterling v. Garritee, - - 488

V. Peat, - - 149, 151

Sterry v. Foreman, - - 666

Stetlar v. Nellis, - - - 727

Stetson V. Chicago, etc. E. E.

Co., - - 431

V. Faxon, ... 419

Stevens v. Cady, - - - 636
V. Coffeen, - . 107

V. Fuller, - - - - 583
V. Gladding, - 634, 636

V. Hartwell, - 671

V. HoUister, - - - 363
V. Low, - - 493, 537, 531
V, Robins, . - - - 38

lii

TABLE OP CASES CITED.

Stevens v. Sagward, - - 193

V. Tuite, - 563

Stevensoa v. Lombard, - 116, 131

V. Montreal Tel. Co., - - 313

Stewart v. Beard, - 359

V. Cole, - - 699

V. Maddox, - - - 733

V. Martin, - - 483, 536

V. Eipon, - - 714, 730, 733

V. Sonnebom, - 706

V. West India, etc. Co., - 88

Stickuey v. Allen, 477, 494, 539

Stiles V. Comstock, - 680, 689

V. Tilford, - - - 741

V. White, 580, 590, 593, 597

Stillwell V. Bamett, • - - 389

Stimpson v. Conn. R. E. Co., - 392

Stitt V. Little, ■ - 588

Stitzell T. Reynolds, - 639

Stookbridge Iron Co. v. Cone

Iron Works, 348, 378, 513

Stockton V. Freye, - 363

• V. Guthrie, - - 139

Stockton, etc. R. R. Co. v. Gal-

giani, - - - - 451

Stollenwerck v. Thacher, - 538

Stoman v. Great Western R. R.

Co., 393

Stone T. Clough, - - 531

V. Codman, - - 319

V. Cooper, - - 643

V. Dennv, - - - 588

V. Varney, 656, 679

Stonebreaker v. Stonebreaker, 630

Stoneman v. Erie R. R. Co., - 393

Stopp V. Smith, - 478, 707

Storer v. Eaton, - - 10

V. Elliott Ins. Co., 90

Story V. O'Dea, - 560

Stout V. Merrill, - - 585

Stow V. Converse, 653, 656, 657

V. Steel, - - 359

V. Tifft, - 359

Strasberger v. Barber, - 476

V. Western Union Tel. Co., 300

Straus V. Young, - - 707

Strawn v. Strawn, 359

Stribbling v. Ross, - - 359

Strohuv. Hartford Ins. Co., - 85

Strong V. Ins. Co., - 88

v. Manuf. Ins. Co., - - 76

V. New York F. Ins, Co., - 81

Stuart V. Phelps, - - 513

Sturdevant v. Pike, - 3

Sturgeon v. St. Louis, etc. Co., 318,

319
Sturges v. Bissell, 36, 337, 841

V. Keith, - - 494, 496

Sturgis V. Warren, - - 373

Suffolk Co. V. Hayden, 601, 603, 603
SuUivan v. Jones, - - - 110

Pages,
Summers v. Babb, - - 353, 353
Summersville v. Hummell, 436

Sumner v. Utley, . . - 639

V. WiUiams, - 56, 149

Sunday v. Gordon, - - 353

Supervisors v. Bates, 4

Survey v. WeUs, Fargo & Co., 531
Sussex Ins. Co. v. Woodruff, - 93
SutlifiE V. Atwood, - 131, 183

Sutton V. Buck, - - 474

V. Huffman, - - 735, 738

V. Johnson, 707

V. Louisville, - - - 430

V. Temple, - 136, 137

Sutton's Heirs v. Louisville, - 457

Suydamv. Jenkins, 475, 476, 483, 493,

494, 497, 498, 506, 559, 566, 567

v. Watts, - 589

Swaine v. Perine, - - 360

Swan V. Middlesex, - 463, 464

V. Tappan, - - - 674

Swarthout v. New Jersey S. B.

Co., - - 713

Swatman v. Ambler, - 110

Sweatland v. IlLinois, etc. Tel.

Co., 896, 300

Swett V. Troy, - .- 433

Swift V. Barnes, 545, 551, 560, 561

V. Dickerman, 647, 657, 659, 690
Swindler v. Hilliard, - 337

Swire v. Leach, - 474, 483

Switzer v. Connett, - 31

Syeds v. Hay, - 13

Sykes v. Lawler, - 735

Syllivau v. Stradling, 107

Sylvester v. Girard, - - 525

Symes v. Oliver, 508, 509

Symington v. MoLin, - - 16
Symonds v. Carter, 647, 651, 653, 661

V. Ciucinnati, etc. R. R. Co., 430,
433, 453

V. Page, - - 345

Syracuse Bank, etc. v. Collins, 24

Taber v. Hutson, - 260, 713

Taokwell v. Lambert, - 590

Tafts V. Charlestown, - - 445

Talbot V. Whipple, - - - 433

Tancred v. Leyland, - 699

Tanner v. Kellogg, - 448

Tappan v. Wil*)n, - - 643

Tarpley v. Blabey, - 693

V. Wilson, - - 483

Tatham v. Le Roy, - - 606

Tatum v. Manning, - 496

Taussig V. Hart, - 13, 43

Tayloe v. Merchants' Ins. Co., 71, 86

Taylor v. ^tna Ins. Co., - 70

v. Brodriok, - - - 353

V. Carpenter, - 629, 630, 635

V. Church, ... 661

TABLE OF CASES CITED.

liii

Taylor v. Cottier, ... '337

V. Dustin, ■ - - 261, 4S7

V. Hall, - - - - 639

V. Ketchum, - 30, 43, 488

V. Knox, - - - 7

V. Leith, - - 088

V. Monroe, - - - 717

V. Robinson, - - 709

V. Roger Williams Ins. Co., 73

V. Shelkett, - - -739

V. Shum, - - - - 132

V. Tully, - - . 666

V. West Pacific R. R. Co., - 282

Teagarden v. Hetfield, 427

Teague v. Irwin, - . . 585

TefEt V. Wilcox, 712, 717, 719, 722

Telfer v. Northern R. R. Co., 383, 283

Tenant v. Goldwin, 394

Tenbrooke v. Jahke, 449

Ten Eyck v. Houghtailing, 130

Tenney v. State Bank, - 525

Terra Haute, etc. R. R. Co. v.

Vanatta, - 370

Terry v. Allis, - 523

V. Hutchinson, . - - 736

V. Jewett, - 382, 284

V. Mayor, etc., 168, 421

TerwiUiger v. Bealls, - - 4

V. Wands, - 662, 663, 668, 671

Thamway v. Collins, 115

Tliayer v. Brooks, - 398

V. Hutchinson, - 488, 534

V. Manley, 501, 523, 531

V. Sherlock, ■ 374, 389

Theobald v. Railway Pass., 104

Thetford v. Tyler, 109

Thibault V. Russell, - - 192

Third Nat. Bank v. Bovd, - 496

Thomas v. Clarke, - ' - 188, 201

V. CrosweU, - 650

V. Dunnaway, - 677

V. Fischer, - - 677

/. Gammel, - 353, 354

V. Great Western R'y Co., 292

V. Isett, 473, 476

V. Mallinchrodt, - - 356

V. MoCann, - - 587

V. Russell, - - 708

V. Thomas' Bx'r, - - 350

V. Wiggers, - •• 172

V. Winchester, 593

V. Womack, - - 290

V. Zumbalen, ■ - 109

Thompson v. Bancroft, - - 81

V. Bowen, - - - 686

V. Bowers, - - - 648

V. Charnock, - - 69

V. Clendening, - 743

V. Davenport, - 53

V. Ellsworth, - - - 732

V. Fargo, - - - - 242

Pages.
Thompson v. Gibson, - 376, 403
V. Gwyn, - - - 13, 80
V. Milwaukee, etc. R. R.

Co., - - . - 445

V. Morris, etc. Co., 372, 400

V. Morrow, - - - - 353
V. New Orleans, etc. R. R.

Co., - - • - 353, 270

V. Perkins, - - 38

V. Pettitt, - - - 471

V. Powning, - 479

V. Sheplar, - - - - 593

V. St. Louis Ins. Co., - - 69

Thomson v. Winchester, - 583, 630

Thorn v. Knapp, 319, 320, 321, 678

Thorne v. Deas, 9

V. McVeagh, - - 339

V. St. Louis Ins. Co., - - 69

Thornton v. Smith, - - 395

Thrasher v. Pinokard, 353, 353

V. Tyack, - - - 354

Throgmorton v. Davis, - 648

Thurman v. Wells, ■ - 236

Thurston v. Hancock, 418

V. Portland, - 448

Thwing V. Washington Ins. Co. , 199

Tidman v. Ainslie, 697, 698

Tighe v. Wicks, - - 659

Tilden v. Johnson, - 513, 516

Tilley v. Hudson R. R. R. Co., 383

Tillotson V. Cheetham, 653, 661

Tilson V. Robbins, 642

TindaU v. Bell, - - - 138

Tingley v. Providence, etc. R. R,

Co., - - - 455, 464

Tinney v. New Jersey S. B. Co., 291
Tinsley v. Tinsley, - 176

Titus V. Corkins, - 479

V. Follett, - - - 658

V. Neilson, - 361

Tobias v. Harland, 667

Tobin V. Hartford, 80

Tod V. Baylor, - 352

Todd V. Jackson, - - 306

V. Kankakee R. R. Co., 456, 461
Toleip, etc. R. R. Co. v. Ham-
mond, ■ 392
V. Johnston, - 473
V. Kichler, - - 249
V. Morrison, - - - 431
V. Patterson, 370
ToUeson v. Posey, - - 653
Tome V. Dubois, - 489, 510, 513
Tomlinson v. Day, - - 110
V. Derby, • - - 717, 719
V. Warner, - - 700
Tompson v. Massey, - - 705
Toms V. Corporation of Whitby, 674
Tone V. Brace, - 115, 14jlj
Teniae, etc. R. R. Co. v. Un-
sicker, .... 443

liv

TABLE OF CASES CITEt).

JPO/QBSt

Tongue v. Natwell, - - - 349
Toogood V. Spyring, - - 653
Torre v. Summers, . - - 744
Torrey v. Minor, - - 352

Towle V. Stevenson, - - 45

Townsend v. McKenon, - - 149
V. Nickerson Wharf Co., - 153,
154
Trabue v. Mays, - - 647, 697
Tracey v. Good, - ^ 531

Tracy v. Albany Exp. Co., - 149
V. Batters, - - - 363

TralofJ V. N. Y. etc. I?. R. Co., 247
Transportation Co. v. Downer, 237
Trask t. Insurance Co., - - 72
Travis v. Barger, - . - 743
Treadwell v. Davis, - - 475, 525
Treat v. Barber, - - 472, 727
v. Browning, 680, 686, 697

Treman v. Morris, ... 560
Tremeere" v. Morrison, - 134

Trenton Mut. L. Ins. Co. v. John-
son, - - - 99
V. Perrine, - 667, 668
Trimble v. Spiller, - 735
Trinity College v. Hartford, - 433,
452, 453, 454
Tripp V. Grouner, 535
Trombley v. Humphrey, - 430
Troy v. Cheshire R. R. Co., 370. 403,
406, 446
Troy, etc. R. R. Co. v. Northern

T. Co., - - - 443, 444, 464
True V. International Tel. Co.. 298,
297, 800, 302, 311
V. Plumley, 645, 709

Truitt V. Revill, - - . . 544
Trull V. Granger, - 147, 149

Trustees of Baptist Church v.

Brooklyn F. Ins. Co., 62

Tryon v. Whitmarsh, - 574

Tubbs V. Van Kleck, - 317

Tucker v. Mass. Cent. E. R. Co., 434,

437

V. Newman, - - 393

V. Wright, - - - 531

Tuckwell V. Lambert, - - 583

Tudor V. Macomber, - - - 83

Tufts V. Charlestown, 464

Tuite V. Wakelee, - - 13

TuUidge v. Wade, - 389

Tully V. Dunn, - - - 109

Tunis V. Grandy, - 115, 116

TurnbuU v. Gadsen, - 575

V. Gordon, - 2

Turner v. Beall, - - 18

V. Gallillee, - - - 556

V. Hawkeye Tel. Co., - 300, 306

V. Lamb, . 135

V. Morris. - ■ - 354

V. N. B. & M. E. R. Co., - 378

Turner v. Retter,

- 530

V. Richardson, -

- 123

V. Robinson,

- 624

V. Telgate, -

- 733

V. Turner, -

- - 29

Turney v. Smith,

- - 357

Tuttle V. Brown,

- - 598

V. C. R. I. & P. R. R. Co., - 724

T. Wilson, - 511

Twinam v. Swart, - - 539

Twyman v. Knowles, 366

Tyler V. Etna Ins. Co., - - 92

V. Western Union Tel. Co., 295

397, 303

Tyly V. Morrice, - 243
Tyng V. Commercial Warehouse

Co., 36, 488, 501, 520

Tyson v. Booth, - . 715

V. Simpson, ... 554

V. State Bank, - - 17

Uhler V. Seraple, . . .361
XJUman v. Barnard, ■ - 474

Underbill v. Agawam Mut. Ins.

Co., - - . .86

V. Taylor, - - 692, 693

v. Welton, - - - 665

Underwood v. Birchard, ■ - 147

V. Farmers' Joint Stock Ins.

Co., - - - .72

Unger v. Lister, - 362

Union Express Co. v. Graham, 236,

XT ■ X 237

Union Hall Association v. Mor-
rison, - - - 349
Union Lumbering Co. v. Tronson, 573
Union Pacific R. R. Co. v. Hause, 391
Union R. R. & T. Co. v. Trabue, 237
United States v. La,nd in Monte-
rey Co., - - - - 451
V. Gildersleeve, 296, 398, 313, 313
V. Magoon, - 513
V. Mills, . 510
V. WengM-, - - . .300
United States Exp. Co. v. Back-
man, - . 237
V. Hames, - . - - 216
V. Keefer, - - . 345
United States Nickel Co. v.

Worthington, - 606

United States Tel. Co. v. Gilder-

sleeve,- - - . 396

Updegrove v. Zimmerman, . 675

Up ham V. Lefavour, - . 43

Upton V. South, etc. R. R. Co., 433

V. Townsend, - 115 117

TT \ ^f"' .r ; 3^4, 583, 584

Urquhart v. Mclver, - 37

Usher v. Severance, - - . 693

Utter V. Chapman, - 178, 184, 188

Utterback v. Binus, - . .349

TABLE 01' CASES CITED.

Iv

Valet Y. Horner, ... 174
Vallum V. Simpson, - . - 573
Valton V. National L. Ass. Co., 99
Van Alen v. Rogers, - 343, 314

Van Ankin v. Westfall, - - 686
Van Benschoten v. Yaple, 676, 680,

689

Van Broeklin v. Brantford, - 148

Van Brunt v. Schenck, - 485

Vance v. Evans, - - - 129

V. Inhabitants, etc., . . 345

Vandenburgh v. Truax, - 887

Vanderpool v. Smith, - 166

Van Derveer v. Sutphin, 647, 681

Van Deusenv. Newcomer, - 733

V. Young, 374, 393, 394

Vandyke v. Brown, - - 46

Van Epps v. Harrison, 579, 580, 591

Van Horn v. Crane, 131

V. Kennit, - - - - 393

Van Name v. Van Name, - 353

Van Pelt v. Davenport, . 408, 431

Van Renssalear v Bradley, 131, 138

V. Chadwick, - 121, 125

V. Gallup, - - - - ISO

V. Giffiord. - - 135, 136

V. Jewett, - 130, 339, 340

V. Jones, - 136, 130

V. Radcliff, - - 303

Van Schaackv. Northern T. Co., 836

Van Steenburg v. Tobias, - - 435

Van Tassel v. Capron, - 658

Vantries v. Richey, - 4

Van Vactes v. McKillip, - - 745

Van Vleet v. McLean, - 587, 588

Van Vionker v. Eastman, 860

Van Wart v. Smith, - - 18

'v. Wooley, 18, 19, 31, 33, 33, 46

Van Winkle v. U. S. Mail Steath-

ship. . - 337, 347

Vassel V. Cole, - - 737

Vatel v. Herner, - 118

Vaughanv. Blanchard, - 115

v. Wood, - - 508

Veasey v. Doton, - - 584

Veazie v. Somerby,. - - 572

V. Williams, - - 575

Vedder v. Vedder, - - 398

Venard v. Cross, - - 433

Vernam v. Smith, - 117, 118, 146
Vernon v. Keys, - - 584

Verrill v. Minot, - - - 713
Verry v. Watkins, - 738, 739, 743
Viany v. Ferron, - - 113

Vicars v. Wilcocks, - - - 671
Vick V, Whitfield, - 679, 685

Vicksbiirg, etc. R. R. Co. v.

Caldewood, - - 456

v. Patton. - - 371

V. Ragsdale, - 213, 339, 334

Viele V. Goss, - - - 588, 594

Pages.
Villipique v. Shuler, - - 737

Violett V. Stettiiiius, - - 194
Virginia, etc. R. R. Co. v. Henry, 440
V. Lovejoy, - - 450

V. Lynch, - - - - 455
Vivian v. Campion, . - - 135
Vlierbloom v. Chapman, - 197

Von Storch V. Griffin, - 327

Vroman v. Am. M. U. Exp. Co., 348

Wachter v. Quenzer, - - 689

Wade V. Halligan, 115, 173, 177, 573

v. Leroy, - 263,. 717

V. Roberts, - - 46

V. Thayer, - - - 278

Wadsworth v. Treat, - 712, 713

Wagaman v. Byers, - 645

Waggoner v. Jermaine, 395

Wagner v. Colder, - - 715

V. Gage Co., - - 456

v. Peterson, 37, 43, 507

V. White, ... 126

Waite V. Gilbert, - - - 236

Wakeman v. Dalley, - 588

Walburn v. Ins. Co., - 94

Walcott V. Hall, - - 6S3

Waldran v. MpCarty, - - 117

Walker v. Bank of State of N.

Y., - - 18, 25

V. Borland, - - - 473

V. Erie R'y Co., - 259, 261, 268,

714, 717, 733

V. Fuller, - - - - 480

V. Hadduck, - - 139

V. Hatton, - - - 133, 137

V. Jackson, - . - - 191

V. Osgood, - - 553, 560, 571

V. Palmer, - - - 3

V. Reeves, - - 123

V. Schuyler, - - 353

V. Shoemaker, - - 174

V. Smith, - - 13, 37

V. Tucker, - . - 115

Wall V. Gordon, - - 624

V. Hill, - . - - 353

V. Hinds, - . - 133

Wallace v. Clark, - - 743

V. Drew, ... - 435

v. Goodall, 874, 377, 381

V. Lent, - - 174

V. Matthews, - 189

V. Swift, - - 7

V. TeUfair, - . - - 20

Wallis V. Cook, - - 337

V. Mease, - . - 649

WaUs V. Bailey, - - -9

V. Johnson, . - 560

Walrath v. Campbell, - - 572

V. Redfield, 388, 414, 419, 420

Walser v. Thies, - - 700

Walsh V. Chicago, etc. R. R. Co., 254

Ivi

TABLE OF CASES CITED.

Pages.
Walsh V. "Washington Marine

Ins. Co., - TO

Walter v. Fotheringill, - - 212

V. Post, - - 366

V. Selfe, - - - 395

Walther v. Wetmore, 509, 510, 517,

528

Walton V. Crowley, - - - 628

V. Hargroves, - - 359

V. Jordan, - 587

V. Waterhouse, - - - 133

Wampach v. St. Paul, etc. R. R.

Co., - - - - 437

Wann v. Western Union Tel.

Co., - ■ - 395, 296

Wanneraaker v. Bower, 488, 485, 532
Wanzer v. Bright, - - 707

V. Wycoff, - - 700, 707

Ward V. Benson, - 488, 536

V. Center, - - - 583

V. Dick, 647, 648

V. Henry, - - 475, 525

V. Kelsey, - - - 167

V. N. Y. C. R. R. Co., 213, 216,
325
V. Warner, - - - 366

V. Weeks, - 671

V. Wilcox, - - - 110

V. Vanderbilt, 350, 359, 714

Ward's C. & P. L. Co. v. El-
kins, - - 307, 308, 238
Warden v. Fosdiok, - 588
Warden v. Green, - - 337
Ware v. Cartledge, - - 654
Ware River R. R. v. Vibbard, 559
Warmouth v. Cramer, 686
Waraer v. Abbey, 388
Warren v. Caulk, - - - 573
V. Cole, 385, 470, 478, 587, 590, 598
V. First Div. etc. R. R. Co., 466,
467
V. Hewitt, 46
V. Peabody. - 303
V. St. Paul, etc. R. E. Co., 450,
451
Warrington v. Furber, - 34
Washington Ice Co. v. Webster, 559
Washington Tel Co. v. Hobson, 395,

804

Waterer v. Freeman, 703

Waterman v. Button, - - 73

Waters v. Gooch, - 854

V. Jones, - 656

V. Langdon, - - 476, 491

Watkins v. Baird, - - 699

Watkinson v. Laughton, 339

Watson V. Bigelow, - - 45

V. Christie, - - 679

V. Duykinck, 204

V. Loring, ■ - - 18

V. Moore, - - - 683, 685

Pages.
Watson V. Pittsburgh, etc. R. R.

Co., - - - 434, 487

V. Trask, - - - 642

V. Watson, ... - 354

Watt V. Potter, - - 488, 491

Watts V. Coffin, - - - 115

V. Praser, - - - - 693

V. Potter, - - - 473

Weaver v. Hendricks, - 651

V. Page, ■ - 700, 705

Webb V. Boyle, - - 352

V. Russell, - - 124

Weber v. Henry, - 572

V. Weber, - - - - 587

Webster v. De Tassett, - 9, 11, 20

V. Moe, - 380

V. Pierce, - - 14, 29

V. Whitworth, - 29

Weckler v. Chicago, - - - 430

Weed V. Adams, - - 33

V. Panama R. E. Co., 277

Week V. Fulton, - - 349

Weeks v. Profert, - 54

Wegener v. Smith. - - - 204

Wehle V. Butler, 476, 488, 491, 530,

586

V. Haviland, - 86, 476, 483, 491

Weir V. St. Paul, etc. R. R. Co., 480,

452

Weisenberg v. Appleton, - - 730

Weiss V. Whittemore, 659, 661, 667

Weit V. St. Paul, etc. R, R. Co., 452

Welbar v. Johnson, - - 833

Welch V. Boston, etc. R. R. Co., 314

V. Buckins, - - - 359

V. Hicks, - 194, 196, 197

V. Milwaukee, etc. R. R. Co.^ 461

V. Ware, 651, 662, 712, 718

Welles V. Boston Ins. Co., 86, 88

V. Castle, - 126

Waller v. Castles, 117

Wellington v. Downer Kerosene

Oil Co., - 714

V. Small, - - 597

Wells V. Mason, ... 115

V. Padget, - - 816, 817, 328

V. Waterhouse, 584

Welsh V. Kibler, - - - 151

V. Pittsburgh, etc. R. R.

Co., - - 214, 219

Welton V. Martin, 423

Wengert v. Beashore, - 699

West V. Caldwell, - - 560

V. Forrest, - - 713

V. Hart, - - - 133

V. Huges, - 344

V. Lamer, ... 368

V.Walker, - 677, 693

V. Wentworth, . 504

Westcott V. Campbell, - . 353

V. Fargo, - - 314, 336

TABLE OF CASES CITED.

Ivii

Pages.

West Counties Manure Co. v.
Lower Chemical Manure
Co., -■ - - . 674

Western, etc. R. R. Co. v. John-
ston, - - - - 431

Western Penn. R. R. v. Hill, 436,

439

Western Tel. Co. v. Hoyt, 196, 197
V. Newhall, - - 236

Western Union Tel. Co. v. Bu-
chanan, - - - 296
V. Carew, - - . 295, 298
V. Eyser, - - - 370, 271
V. Penton, - 296, 297, 307, 308
T. Fontaine, - - 396
V. Graham, - 296, 397, 305
V. Meek, - - - - 298

Westlake v. De Graw, 110, 138, 127,
172, 177

West Newbury v. Chase, - - 464

Weston V. R. R. Co., - - 218
V. Weston, - - . 108

Westwood V. Cowne, - - 687

Wetherbee v. Green, 378, 513, 517,

555, 587

V. Marsh, - 881

Wetzell V. Dinsmore, - 244

Weymouth v. Chicago, etc. R.
R. Co.,- - - - 516

Whalen v. Keith, - - 394

V. Lavman, - - - - 317
V. St.' Louis, etc. R. R. Co., 359,

Wharf V. Roberts, -

- 588

Wharton v. Lewis, -

335

Wheaton v. Peters, -

- 634

Wheeldon v. Lowell,

- 587

Wheeler v. Nesbit, -

707

V. Pereles,

- 525

V. Shed,

111

V. Train,

- 573

Wheelook v. Wheelwright, 13, 538
Whipple V. FuUer, 700, 703

Whissenhunt v. Jones, - 245

Whitbeck v. N. Y. C. R. R. Co., 368,
374, 377
White V. Binstead, - 484, 532

V. C. & Charlotte, etc. R. R.

Co., - . - 434, 441

V. Campbell, - - - 741
V. Chapin, - - - 420

V. Conn. Mut. L. Ins. Co., 89
V. County Commissioners, 433
V. Lloyd, - - - 556

V. Madison, - - - 54, 58
V. Martland, 736, 737, 739, 742,
743, 744
V. Merritt, - - - - 674
V. Molyneux, - - - 137
V. Moseley, - - - 384, 419
V. Moses, - - - - 349

Pages.

White V. Nellis,

- 738, 740

V. Ross,

- 549

V. Smith, -

- 30, 44, 590

V. Teal,

- - - 525

v. Thomas, -

- - - 320

«v. Tucker, -

- - - 708

V. Van Houten, -

V. Webb, - - - - 474

Whitehead v. Kennedy, - - 291

V. Whitney, - - 149

Whitehouse v. Atkinson, 490, 493

White Valley, etc. R. R. Co. v.

McClure, ■ - 443

Whitford v. Panama R. R. Co., 283,

384

Whitmore v. BischofE, - 398, 414

Y. Boston, etc. R. R. Co., 433, 453,

464, 467

Whitney v. Allaire, - - - 587

V. Bartholomew, - 394

V. Beckford, - - - 528

Y. Chicago & N. W. R. R.

Co., - - . 287, 338

V. Elmer, - • - 741

Y. Hitchcock, - 535, 536

Y. Janesville Gazette, - 690
Y. Merchants' Exp. Co., 13, 238
Y. Merchants' Union Exp.

Co., - 28, 245

Y. Meyers, - 114, 119

Y. N. Y. Ins. Co., - - 197

Y. Rogers, ... 197

Y. Wyman, - - 33

Whittemore v. Moore, - - 108

Y. Weiss, - - - 640

Whitten y. Fuller, - . 531

Whitwell V. WeUs, - - 558, 559

Wibert y. N. Y. & E. R. R. Co., 218

Wicker v. Hotchkiss, - - 708

Wickham y. Freeman, - 383

Wickie y. Lawrence, - 131

Wicks Y. Shepherd, - - .866

Wiel Y. Stewart, - - 414, 417

Wier V. Allen, - - - 681, 874

Wiesenberg y. Appleton, - 723

Wiggin Y. Coffin, - - 390, 291

Wightman v. Coates, 317

Y. Providence, - - . 730

V. West M, & T. Ins. Co., - 73

V. Western Ins. Co., - 70

Wilbur Y. Beecher, - - 604

V. Johnson, - 316, 333, 324

Wilcox Y. Parmelee, - - 245

Wild V. Holt, - - - 381

Wilder y. House, - - - 384

Wildman v. North, - - - 558

Y. Norton, - - - - 558

Wilf ord Y. Berkeley, - - 744

WiUioit Y. Hancock, - 738

Wilkes V. Hungerford Market

Co., 156

Iviii

TABLE OF CASES CTTED.

Wilkes V. Lion, ... 344

WUkins V. Freynor, - I - - 560

V. Wingate, - - - 107

Wilkison v. Clay, - - - 14

V. Coverdale, . - - 9

V. Laughton, - ^2

Willard v. Bridge, - - - 504

V. Stone, - - 327, 328, 730

Williams v. Beebe, - - 573

V. BurreU, - - - 148, 150

V. Crum, - - 489

V. Currie, - 382

V. Earle, - - - - 144

V. Hill, - - 663, 664, 666

V. Holdredge, - - 639

V. HoUingsworth, - 817, 327

V. Hunter, - ■ - 700

V. Johnson, - - 638

' V. Littlefield, - - - . 8

V. Natural B. Plk. Ed., - 449

V. Olipliaut, . - - 165

V. Rome, etc. R. E. Co., 608, 621

V. Sherman, - 107

V. VaU, - - - - 573

V. VanderbUt, 105, 350, 255, 359,

714

V. WiUiama, - 135, 139

Williamson v. Allison, 538

V. Freen, - - 653

Willis V. Forest, - - - 737

Willover v. Hill, - 688, 689, 690

WiUs V. Noyes, - - - -701

V. WeUs, - - - 76, 533

WiUson V. Willson, - - - 150

Wilmington, etc. R. R. Co. v.

Stauffer, - - 434, 436

Wilms V. White, - - - 654
Wilson V. Apple, - - 687, 688
V. Conine, - - - 520, 538
V. Davisson, . - - 360
V. Fitch, - - - 683

V. Ooit, - - 665

T. Granby, - - 731

V. Hamilton, - - 219

V. Lancashire, etc. Co., 218, 219,
233
V. Martin, - - - 473

V. Mathews, - - - 501
V. Nations, - - - 675, 677
■V. Newcastle & Ben. E. E.

Co., - - - 313

V. Noonan, - - 643, 651, 656
V. Oat man, - - - 353

V. Quinine, - - - 493

V. Eobinson, - - 675

V. Eockford, etc. R. E. Co., 484,
437, 438, 455, 456
T. Runyon, - - - 658

V. Sproul, - - 739, 743

V. York, Newcastle, etc. Co., 218
V. Young, - - - 717

Pages.
Winchester v. Craig, 380, 513, 513,

516

V. Patterson, - - 237

Wingate v. Mechanics' Bank, - 25

V. Smith, - - 376

Winn V. Elliott, - - 359

Winne v. lU. Cent. E. R. Co., 336,

340
Winona, etc. R. R. Co. v. Den-
man, ... - 450
V. Waldron, - - 443, 451
Win penny v. French, - 45

Winslow V. Vt. etc. R. E. Co., 344
Winter v. Henn, - 745

Wintermute v. Cooke, - 86

Winters v. Hannibal, etc. R. E.

Co., - - - 737

Win ton v. Cornish, - - 127

Wintz V. Morrison, - 583, 598

Wise V. Faulkner, - - 131

Witcher v. Benton, - 454, 455

Withers V. Macon, etc. E. E. Co., 193,

194

Witty V. Matthews, - - 166

Wohler v. Buffalo, etc. Co., - 863

Wolcott V. Eagle Ins. Co., - 82

V. Sullivan, - - 168

Wolf V. Studebaker, 149, 165, 178

V. Weiner, - - 115

V. Western Union Tel. Co., 296

Wolf's Administrator v. Lacy, 238,

339

Wolfe V. Howard Ins. Co., 76, 87

V. Koppel, 38, 39

Wolfley V. Eising, - 573

Wollasten v. Hakewill, 131

Wolveridge v. Steward, - 140

Wood V. BeU, - - - 495

V. Braynard, - 551, 559

V. Cooper, - 29

V. Hudson, - - 453

V. Matthews, - . - 744

V. Morewood, 378, 881, 513

V. Partridge, - - 121

V. Poughkeepsie Ins. Co., - 85

V. Weir, ... 700

Woodard v. Bellamy, - 326

Woodbarne v. Scarborough, 521

Woodburn v. Cogdal, - - 560

Woodbury v. Jones, - - 1.53

V. Thompson, - - 664, 665

Wooder v. Dennett, - - 56

Woodgerv. Great West. E'yCo., 337

Woodfolk V. Nashville, etc. E.

E. Co., 456

Woodham v. Gelston, - - 480
WoodhuU V. Eosenthal, 344, 316, 348,

850
Woodman v. Tufts, - - 895

Woodmansee v. Logan, - 700

Woodruff V. Brown, - - 357

TABLE OF CASES CITED.

lix

Pages.

Woods V. Banks, ... 365

V. Devin, - . . 391, 292

V. Finnell, - - 700, 701, 705

V. Nashau Manufg Co., 372

V. Pangbum, . - 649

V. Pope, - . - 139

V. Wallace, - - 360, 361

Woodward v. Aborn, - 395

V. Anderson, - - 737

V. m. Cent. R. E. Co., 288, 340

V. Mich. L. & N. P. R. R. Co., 285

T. Suydam, - 45

V. Thatcher, - - 592

V. Walton, - - - - 3S9

WooUev v. Carter, 374, 388, 477

V. Watheng, - llO

Woolridge v. Wilkins, ' 353

Woosterv. Taylor, - 621

Worcester School Trustees v.

Rowlands, - - 133, 135

Wordiu V. Bemis, - 204

Work V. Bennett, - 507

Workman v. Mifiin, - 128

Works V. Farmers' Ins. Co., - 71

Worrall v. Munn, - 393

Worsley v. Wood, - 72

Worten v. Searing. - 658

Worthington v. Young, - - 349

Wotherspoon v. Currie, - 638, 630

Wotten V. Shirt, - - 122

Wren t. Kii-ton, - 29

T. Wield, - - - - 674

Wright v. Baldwin, . - 55

V. Bennett, - - 573

V. Bolles W. W. Co., - 511

V. Chandler, 388

V. Compton, 712

V. Hartford Ins. Co., - 70

V. Jennings, 353, 354, 855

V. Lattin, - 115, 117, 173

V. Matthews, - - 573

V. Roach, ■ - - - 590

V. Schroeder, . - 657, 680

V. Spencer, - ■ - 535

V. Walker, - - - 488

V. WUcox, 373, 274, 275

Pages.
Wright V. Wisconsin R, R. Co., 448

V. Woodgate, - 653

Wrightup T. Chamberlain, 138, 150
W. & W. R'y Co. V. Roberts, 209
Wyatt V. White, 708

V. Harrison, - 418

Wylie V. Smitherman, - 469

Wyman v. Leavitt, - 712, 716

V. Lexington, etc. R. R. Co., 463
Wynn v. Brooke, - - 150

Wyrley Canal Co. v. Bradley, - 418
Wythe V. ilyers, 350, 351

Yahoola, etc. Co. v. Irby, - 380

Yale T. Saunders, - - 538, 530

Yater v. Mullen, . - 488

Yates V. Dunster, - 140

V. Fassett, - - 550

V. Joyce, - 597

V. Paddock, - - 353

Yeager v. Weaver, 149, 152, 165

Yeates v. Allin, - 364

V. Reed, 690, 694

Yeatman v. Corder, - 46, 50

Yeaton v. Fry, - 67

Yeo V. Mercerau, ■ 359

Yolo County v. Sacramento, - 424

Yonge V. Pacific M. Steamship

Co., - - - 250

Yorgensen v. Yorgensen, 364

York V. Pease, - - - 653

York M. Co. v. 111. Cent. E. R.

Co.. - - 214

Young V. Bennett, - - 679, 685
V. Harrison, - 433, 441, 453
V. Hartford T. Ins. Co. - 73
V. Lloyd, - 513, 516

V. Spencer, - - 393

V. TarbeU, . - - - 359
V. Willett, ... 551

Zabriskie v. Smith, - 381, 574

Zalev. Zale, - - 114, 115

Zeigler v. WeUs, Fargo & Co., 238,

532
Zitske V. Goldberg, - - 541

PART II.

THE LAW OF DAMAGES

AS

APPLIED TO VARIOUS CONTRACTS AND WRONGS.

CHAPTEE VIII.

AGENCY.

Section 1.

peufcipal against agent.

General statement of the legal relation between, and the reciprocal obliga-
tions of principal and agent — The particular duties and the measure
of an agent's liability to his principal — For neglect of the duty to pro-
cure insurance — For disregarding orders for the purchase and ship-
ment of goods — Miscellaneous illustrations of an agent's liability for
violations of duty — For defaults in regard to commercial paper —
Same principles applied to factors — To brokers — Responsibility for
acting urithout or beyond authority.

GeNEEAI, STATEMENT OF THE EECIPEOOAX OBLIGATIONS OF PEIN-

crpAL AND AGENT. — Agencj is founded upon a contract, either
express or implied, by which one party confides to the other
the management of some business to be transacted in his name,
or on his account, by which the other assumes to do the busi-
ness and to render an account of It.^

The contract embraces reciprocal obligations between the
parties, and either may have redress in damages for their viola-
tion. An agent who has no interest is bound to obey the
instructions of his principal as a paramount duty, and to do the
business placed in his hands with diligence and fidelity; he
must, also, exercise a reasonable degree of skill and good
judgment, according to the delicacy and importance of his
undertaking.^ Infractions of his contract are also instances of
failure in duty; and the principal has an election to sue on the

12 Kent's Com. 612. 2 Eedfleld v. Dayis, 6 Coimi 438.

3 AGENCY.

contract or for negligence as a tort.' But except where the
dereliction is aggravated by fraud, the measure of damages is
the same, whether the action is in one form or the other, and
is equally governed by the contract.^ The agent is an employe,
and, therefore, entitled to compensation ; he acts in the place
of his principal and to effectuate his purposes, and has a right
to indemnity ; his functions are of a fiduciary nature, and he is
subject to the rigid rules which apply to trustees. In respect
of the matter of his agency, he can accept no inconsistent
employment, nor act for his own benefit to the injury of his
principal. Any advantage gained by the agent, whether it is
the fruit of performance, or of violation of duty, belongs to his
principal.'

"Where, by departing from the instructions of his principal,
he obtains a better result than could have been obtained by
following them, the principal may claim the advantage thus
obtained ; he may do so though the agent contributed his own
funds or responsibility in producing that result, and even if the
principal incurred no risk or expense. The plaintiff's intestate,
D, having a policy of insurance upon his life, had agreed with
the company for its surrender and a return to him of the pre-
mium notes held by the company, which notes for that purpose
had been sent to the company's agent to be delivered up. D
entrusted the policy to the defendant as his agent, with instruc-
tion to surrender the same for cancellation. Defendant sur-

1 Ashley v. Eoot, 4 Allen, 504. See vSItna Ins. Co. v. Church, 21

2 Bank of Orange v. Brown, 3 Ohio St. 493; Ingersol v. Stark-
Wend. 158; Baker v. Drake, 53 N. Y. weather, Walk. Ch. 346; McKinley
Sll; Pinkerton v. Manchester R. E. v. Irvine, 18 Ala. 6S1; Banks v.
43 N. H. 424. Judah, 8 Conn. 145; Church v. Ster-

3 Dodd V. AVakeman, 26 N. J. Eq. ling, 16 Conn. 388; Sturdevant v.
484; Lafferty v. Jelley, 33 Ind. 471; Pike, 1 Ind. 277; Copeland v. Mar-
Mouran v. Warner, 3 Lowell, 53; can tile Ins. Co. 6 Pick. 198; Moore
Bruce v. Davenport, 36 Barb. 849; v. Mandlebaum, 8 Mich. 438; Moore
Morrison v. The Ogdenburgh, etc. v. Moore, 5 N. Y. 256; Cumberland,
B. E. Ce. 53 Barb. 173; Morrison v. etc. Co. v. Sherman, 30 Barb. 553
Thompson, L. E. 9 Q. B. 480; Parker Shannon v. Marmaduke, 14 Tex. 217
V. Nickerson, 112 Mass. 195; Han- Walker v. Palmer, 24 Ala. 358
sacker v. Sturges, 29 Cal. 142; Pai-k- Hitchcock v. Watson, 18 111. 289;

, ist v. Alexander, 1 John. Ch. 394; Kimber v. Barber, L. E. 8 Ch. App.

Bain v. Brown, 56 N. Y. 385; Green- 56; TurnbuU v. Gorden, 38 L. J. Ch.

tree v. Eosenstock, 61 N. Y. 583; 331.
Segar v. Edwards, 11 Leigh, 213.

PRINCIPAL AGAINST AGENT. 3

Tendered the policy, but, before the notes had been canceled or
surrendered, applied to have the policy renewed for himself and
one G. The agent thereupon returned the notes to the company,
with a statement that D wished to renew and that defendant
and G were to help him. A renewal policy was thereupon
issued for the benefit of defendant and G. The premiums were
thereafter paid by defendant and G, as were also D's premium
notes, less the dividends credited thereon. G assigned his in-
terest to defendant, and, upon the death of D, defendant col-
lected and received the amount of the policy. In an action to.
compel the defendant to account, it was held that, by accepting
the renewal policy, the defendant must be deemed to have
adopted the instrumentalities by which it was obtained, and
was bound by the representation made by the agent to the
company ; that aside from this, the defendant while acting as
agent, having acquired, by departing from his instructions, a
benefit, a part of the consideration for which proceeded from
his principal, the plaintiff had a right to adopt his acts and to
call him to account for the profits derived from the transaction.^

So long as property or money belonging to the principal can ^
be traced and distinguished in the hands of the agent, his rep- .'
resentatives or assignees, the principal is entitled to recover it, **
unless it has been transferred for value, without notice.^ In
respect to third persons, he is identified with his principal, and
for the most part incurs no personal responsibility, when he acts,
in the making and execution of contracts,. in the name of his
principal. The agent may, however, make himself a party, and
assume liabilities as such, by failing to disclose his principal, or
to act in his name when disclosed.

An agent derives possession from his principal or by virtue of
his employment and cannot dispute his principal's title.' Thus
money borrowed for a public object, and on the credit of the
county, by an agent of the board of supervisors, under a resolu-
tion passed by them, without any legal authority, but not in ^
violation of public policy, or of any positive statute, may be re- ',

1 Button V. Willner, 53 N. Y. 313. Va. 3 Gratt. 547; Denston v. Perkins,
See Ackenburgh v. McCool, 36 Ind. 3 Pick. 86.

473; Bain v. Brown, 7 Lans. 506; 56 spiacer Co. v. Astin, 8 Gal. 303;
N. Y. 385. Clark v. Moody, 17 Mass. 145; Ham-

2 Overseers of the Poor v. Bank of mond v. Christie, 5 Robertson, 160.

4 AGENCT.

covered from the hands of such agent by the board, and their
want of authority to make the loan is no defense.' An agent
must account to his principal until the true owner appears and
establishes his title or right.^ An auctioneer sued for the pro-
ceeds of goods entrusted to and sold by him, cannot set up
title in himself, as a defense, or in mitigation of damages.' But
an agent is not precluded from proving that the principal ob-
tained the goods by fraud, where the rightful owner has given
notice of his rights.*

It is an agent's duty to give the principal necessary informa-
tion of what transpires in the agency, to enable him to protect
his interests ; to keep proper accounts and to render them on
demand, and under certain circumstances without any demand.'
The principal has a right to act on the assumption that the
agent's reports made and accounts rendered are correct, and the
agent will not be at liberty afterwards to dispute them.* Thus
trover was brought for two insurance policies by the principal,
a master of a vessel, against his agents, who were insurance
brokers, and who had written the plaintiff that they had got
two policies, one on account of the plaintiff's clothes and wages,
and another on account of the owners, underwritten by W. A
loss having happened, the defendants produced a policy under-
written by S, only insuring the ship in which the plaintiff had
no interest. Lord Mansfield said: "I shall consider the defend-
ants as the actual insurers." The defense attempted was that
the letter was written by defendant's clerk through mistake,
and that trover would not lie for that which never existed,
but it was held that the defendants could not contradict their
own representation.'

1 Supervisors v. Bates, 17 N. Y. Poignard, 8 B. Mon. 30&; Brown v.
242. Arrott, 6 W. & S. 402; Forrestier

2 Bain v. Clark, 39 Mo. 252; Au- v. Bordman, 1 Story, 43; Ruffner v.
bery V. Fiske, 36 N. Y. 47; Floyd v. Hewitt, 7 W. Va. 585; Eaton v.
Bovard, 6 W. & S. 75; Beran v. Walton, 33 N. H. 353; Lyle v. Mur-
Cullen, 7 Pa. St. 281; Ledoux V. An- ray, 4 Sandf. 590; TerwiUiger t.
derson, 2 La. Ann. 558; Ledoux v. BeaUs, 6 Lans. 403.

Cooper, id. 586. 6 Vantries v. Richey, 8 W. & S.

3 Osgood V. Nichols, 5 Gray, 420. 87; Boston Carpet Company v. Jour-
i Hardman v. Willcock, 9 Bing. neay, 36 N. Y. 384.

383, note. 'Harding v. Carter, 11 Peters-

6 1 Pars, on Cont. 88; EUiott v. dorfE's Abr. 400. In Shaw v. Picton

Walker, 1 Rawle, 126; Peterson v. 4B. & C. 715, Bayley, J., said: "It

PEINOIPAL AGAINST AGENT. 5

"Where, on the proofs presented, a factor, as defendant, was
liable for a loss occasioned by his negligence, the onus of prov-
ing what the actual loss was, was held to be on him, and not
upon the principal; that in the absence of such proof, the full
value of the goods, or at least of the money produced by their
sale, might be adopted as the measure of damages.^

The paeticttlae duties and the measueb op liability oe
AGENTS TO THEiE PEiNciPALS. — The particular duties of agents
are various, depending on the nature of their agency; and
breaches of duty will vary accordingly. The general rules of
compensation, however, are the same as to all, but they must
have a special application according to the duty in the particu-
lar instance and the peculiar facts which constitute a breach.
And whether the duty is such as is implied by the'situation and
the usages and course of business, or such as may be imposed
by instructions, the agent is liable for all losses which result
from his failure to fulfil his obhgations. He is liable for at
least nominal damages for any breach of his agreement or duty;
for the law presumes some damage from every violation of
contract.^

"Where the principal suffers actual injury he is entitled to full
indemnity.' An examination of the cases will show that the
general principle is peculiarly .applicable, that the injured party

is quite clear that if an agent (em- intentionally communicated to a
ployed to receive money, and bound principal that the money due to him
by his duty to his principal from has been received, he makes the
tiine to time to communicate to him communication at his peril, and is
whether the money is received or not at liberty afterwards to recover
not) renders an account from time the money back again.''
to time, which contains a statement i Brown v. Arrott, supra; Beck-
that the money is i-eceived, he is man v. Shouse, 5 Rawle, 179; Beards-
bound by that account, unless he lee v. Richardson, 11 Wend. 25;
can show that that statement was Clark v. Miller, 4 Wend. 628.
made unintentionally and by mis- 2 Frothingham v. Everton, 12 N.
talje. If he cannot show that, he is H. 339; Blot v. Boiceau, 3 N. Y. 78;
not at liberty afterwards to say that Marzetti v. Williams, 1 B. & Ad.
the money had not been received 415. .

and never will be received, and to ' Brown v. Arrott, 6 Watts & S.

claim reimbursement in respect of 403; Frothinghara v. Everton, 13 N.

those sums for which he had pre- H. 339; Amory v. Hamilton, 17

viously given credit. I think that Mass. 103; Harvey v. Turner, 4

when an agent has deliberately and Eawle, 323.

6 AGENCT.

is entitled to receive such a sum in damages as will place him
in as favorable condition as he would have been in had the con-
tract and duty been fulfilled.^ But such damages must be a
proximate consequence of the agent's breach of duty ; or they .
must be such as it may reasonably be supposed were within the
contemplation of the parties. The injury need not proceed di-
rectly from the act or omission of the agent ; but if it does
not there must be an immediate practical dependence for ex-
emption therefrom on some act which it was his duty to per-
form; or the exposure to the loss which occurs from an
independent cause must proceed directly from some act of the
agent which was a departure from the line of his duty, or from
his omission of some act which it was his duty to perform to
avoid such exposure or to provide indemnity against its possi-
ble consequences. This may be made clearer by some illustra-
tions. A plaintiff put on the defendant's barge lime to be
conveyed from the Medway to London. The master of the
barge deviated unnecessarily from the usual course, and during
the deviation a tempest wet the lime, and the barge taking fire,
thereby, the whole was lost. It was held that the law implies
a duty on the owner of a vessel, whether a general ship, or one
hired for the special purpose of the voyage, to proceed without
unnecessary deviation in the usual course. On the point
whether the damage was so proximate to the defendant's
breach of that duty as to be the subject of an action, Tindal,
0. J., said, " it was not rested, as indeed it could not be rested^
on the particular circumstances which accompanied the destrup-
tion of the barge ; for it is obvious that the legal consequences
would be the same whether the loss was immediately by the
sinking of the barge at once by a heavy sea, when she was out
of her direct and usual course, or whether it happened at the
same place, not in consequence of an immediate death'^ wound,
but by a connected chain of causes producing the same ulti-
mate event. It is only a variation in the precise mode by
which the vessel was destroyed, which variation will necessarily
occur in each individual case. But the objection taken is that
there is no natural or necessary connection between the wrong
of the master in taking the barge out of its proper course, and

1 Magnin v. Dinsmore, 62 N. Y. 35.

PEmCIPAL AGAINST AGENT. 7

the loss itself ; for that the same loss might have been occa-
sioned by the very same tempest if the barge had proceeded in
her direct course. But if this argument were to prevail, the
deviation of the master, which is undoubtedly a ground of ac-
tion against the owner, would never, or under very peculiar cir-
cumstances, entitle the plaintiff to recover. For if a ship is
captured in the course of deviation, no one can be certain that
she might not have been captured if in her proper course.
And yet in Parker v. James,' where a ship was captured whilst
in the act of deviation, no such ground of defense was even
suggested. Or, again, if the ship strike against a rock, or per-
ishes by storm in the one course, no one can predicate that she
might not equally have struck upon another rock, or met with
the same or another storm, if pursuing her right and ordinary
voyage. The same answer might be attempted to an action
against a defendant who had by mistake forwarded a parcel by
the wrong conveyance, and a loss had thereby ensued ; and yet
the defendant in that case would undoubtedly be liable. But
we think the real answer to the objection is that no wrong-
doer can be allowed to apportion or qualify his own wrong ;
and that as a loss has actually happened whilst his wrongful act
was in operation and force, and which is attributable to his
wrongful act, he cannot set up as an answer to the action the
bare possibility of a loss, if his wrongful act had not been
done. It might admit of a different construction if he could
show not only that the same loss might have happened, but
that it must have happened, if the act complained of had
not been done." ^ So a factor is liable for a loss arising from
his neglect to keep his principal informed of matters material
to his interest; or from allowing moneys to remain in the
hands of a sub-agent after he is informed of the receipt of
them by such sub-agent.' Neither the ignorance of the princi-
pal nor the omission to call at once on the sub-agent for money
in his hands, is the immediate cause of loss; but the want of
timely notice prevents the principal exerting himself when ex-

U Camp. 113. 3 Brown v. Arrott, 6 W. & S. 402;

2 Davis V. Garrett, 6 Bing. '716. Taylor v. Knox, 1 Dana, 395; Clark

See Wallace v. Swift, 31 U. C. Q. B. v. Bank of WheeHng, 17 Pa. St.

523. 323.

» AGENOT

ertion is necessary to prevent loss in Ms affairs, and the failure
to take moneys from the hands of a sub-agent leaves them ex-
posed to the consequences of his insolvency or want of fidelity.
An agent who unreasonably neglects to inform his principal of
the receipt of money is chargeable with interest, although he
acts in good faith. ^

A judgment creditor agreed, in lieu of her judgment, to ac-
cept the bond of another, conditioned to provide for and main-
tain her during life, or to pay her, if she preferred it, $150 per
annum ; the bond to be secured by mortgage on the land of the
obligor. A person employed to prepare the instruments, and
to have the mortgage entered of record, withheld it from rec-
ord until the property became otherwise incumbered by claims
to an amount beyond its value, and the debtor became insolv-
ent. In an action on the case by the party injured, it was
held she could recover from the agent all that she had lost by
his default, — all that the mortgage, if duly recorded, would
have been worth to her.^ The liability of agents charged with
the duty to procure insurance, and who fail in that duty, is
another example of loss from exposure arising from their
omission to perform an act to provide indemnity against its
possible consequences.'

The acceptance of an agency is a general undertaking, among
other things, to obey the directions of the principal, and this
general undertaking becomes specific when the instructions are
from time to time communicated. These instructions may be
general, given for the accomplishment of the object for which
the agency is created, or special with a view of some subordi-
nate and subsidiary detail, in furtherance of that object. The
pecuniary advantages which these general or special instruc-
tions manifestly embrace, in the light of other information
which the agent possesses in common with his principal, are
thus brought within their contemplation. These instructions

1 Dodge V. Perkins, 9 Pick. 368; Hammond, 4 Camp. 344; 6 Taunt.
Caark V. Moody, 17 Mass. 145. 495; Charles v. Altin, 15 C. B. 46;

2 Miller v. Wilson, 24 Pa. St. 114, Williams v. Littlefield, 13 Wend.
Howell V. Young, 5 B. & O. 359; 362; CafErey v. Darby, 6 Ves. 488.
Shipherd v. Field, 70 111, 438; Short 3 See post, p. 9.

V. Skipworth, 1 Brock. 103; Park v.

PEINCIPAl AGAINST AGENT. »

are, unless the contrary intention is expressed, supplemented by
tlie usages of trade and business;^ they fix boundaries of
authority, as to subjects and methods, which may be exercised
in the principal's name, at his risk and on his responsibility, in-
dependent of any subsequent election on his part. Hence, if the
agent extends his operations to subjects not within his commis-
sion, or conducts them in a method excluded by his instruc-
tions, he acts at his peril; the principal is not bound; and if his
property is thus lost, or his interests sacrificed or prejudiced,
the agent must make good the loss, — and this loss is the amount
shown to be necessary to place the principal in as good condi-
tion as a faithful performance of the agent's duty would have
placed him in. The instructions may relate to measures
deemed expedient by the principal to secure himself against a
contingent or possible loss. If these instructions are disre-
garded, the agent will not be heard, to say that he is not liable
by reason of the uncertainty of the loss, if it happens ; for it is a
loss in contemplation of the parties ; the instructions were in-
tended to make exemption from such possible loss certain.
After the disregard of such instructions, the loss when it occurs
is morally the-direot consequence of the agent's breach of duty,
whatever may be the immediate physical cause.

Foe neglect of dvtt oe agreement to peocttee insueance.. —
Any agent, who is in any case required to insure the property of
his principal and fails to do so, or does it defectively ; or in case
of his inability, fails to give his principal timely notice, that he
may thereby be warned to do it himself, will be held liable for
the loss if one occurs which would be covered by the required
insurance ; and this loss is equal to the indemnity which it was
the agent's duty to procure by the insurance.^

TJpon an undertaking to effect an insurance according to

1 See "Walls v. BaUey, 49 N. Y. 464. Tastett, 7 T. R. 157; Miner v. Tagert,

2 Park V. Hammond, 4 Camp. 344; 3 Binn. 304; Mallough v. Barber, 4
6 Taunt. 495; Perkins v. Washing- Camp. 150 ; Shoenf eld v. Fleisher, 73
ton Ins. Co. 4 Cow. 645, 664; Morris HI. 404; Beardsley v. Davis, 52 Barb.
V. Sammerl, 2 Wash. C. C. 203; De 159; Callander v. Oehichs, 5 Bing.
Tastett V. Cronsillat, id. 133; Thome N. C. 58; Smith v. Lascelles, 3 T. E.
V. Deas, 4 John. 84; Wilkinson v. 187; Gray v. Murray, 3 John. Ch.
Coverdale, 1 Esp. 75; Webster v. De 167,

10 AaENCY.

special instructions, a part of the duty implied is the giving of
notice to the employer in case of failure ; and an actual promise
to that effect, though averred in the declaration, need not be
proved.* A like duty to give notice was held to be imposed on a
foreign merchant who had been accustomed to effect insurances
for his correspondent abroad. It was held that he was an-
swerable for his neglect because he thereby deprives the prin-
cipal of any opportunity of applying elsewhere to procure the
insurance.^

An insurance broker received instructions to effect a policy
for 5501. on a ship and freight at and from Teneriffe to London,
at ten guineas per cent. He effected it in the words of the
order to him, without having subscribed a liberty, as was cus-
tomary in such policies, " to touch and stay at all or any of the
Canary Islands." It was held that the broker was liable for not
having inserted the clause in question, and the principal recov-
ered for the sum directed toTje insured, deducting the premium.'
If an agent neglect to obey instructions to procure insurance,
he is not entitled to charge his principal the premium on ac-
count of his habilitj'' to answer for the loss, if one should occur,
if no loss happens.* "Where the agreement to insure is general,
and there is no difficulty in procuring full insurance, and such
is the general practice, in the particular matter embraced in the
contract, the fair and reasonable construction of the agreement
is that the party undertakes *to procure a contract for full in-
demnity. In the absence of any evidence, aside from the gen-
eral agreement to insure, the court, in fixing the amount of
damages, would not, it seems, stop short of a fuU insurance.
The contract of insurance is one of indemnity ; and the party
whose property is destroyed wiU not obtain indemnity unless
he recovers the full value of his property. In an action against
an agent for not procuring full insurance, the measure of dam-
ages is therefore the value of the property destroyed ; to be
reduced by any amount received under a partial insurance.'

1 Callander v. Oelriohs, 5 Bing. N. ^ Beardsley v. Davis, 53 Barb. 159;
C. 58. Ex parte Bateman, 20 Jur. 365; '

2 Smitli V. Lascelles, 2 T. R. 187. Betteley v. Stainsley, 12 C. B. N. S.

3 Mallough V. Barber, 4 Camp. 150. 499; Douglass v. Murphy, 16 U. C.

4 Storer v. Eaton, 50 Me. 319. Q. B. 113.

PEINCIPAL AGAINST AGENT. 11

If the insurance directed, howfever, would be invalid, and could
not be enforced at law, an action against the agent would not be
maintainable for substantial damages; nor would it be any
answer to that defense, that by usage and courtesy such insur-
ances were usually paid.^ As to costs incurred by the principal
in an unsuccessful suit against the underwriters,, where the
broker had been in fault in respect of his principal's orders to
procure insurance, the costs of that action were disallowed.
Lord Eldon saying there was no necessity to bring that action
to entitle the plaintiff to recover against the broker, and as it
did not appear that the action on the policy was brought by
the desire or with the concurrence of the broker, he was not
liable for the costs.^

Foe diseegarding oedees foe the puechase and shipment
OF goods. — If an agent abroad is directed to invest funds fur-
nished him in goods of a certain description, and ship them to
another place or country, and he disobeys the order, the prin-
cipalis thus deprived of a gain or profit, if the goods would be
worth more at the place to which they were required to be sent
than at the place of shipment, after paying the cost of trans-
portation, and would have reached the destination had the order
been executed. The right of the principal to recover damages
from the agent for this breach of duty, measured by that gain
or profit, is obvious, if the difference of market value, and the
safe arrival of the goods, can be established with the requisite
certainty. It is a well-established rule that the damages to be
recovered for a breach of contract must be shown with cer-
tainty, and not left to speculation or conjecture. The former
fact, although sometimes mentioned as an insuperable objec-
tion,' has ceased to be a legal obstacle. Market values are sus-
ceptible of proof as a legal proposition ; though in a particular
instance it may be practically impossible. The time and place
being fixed with reasonable certainty, the state of the market
is but an ordinary inquiry by evidence — it is a practical, not a
legal difficulty. A court or jury may take cognizance of the

1 Webster v. De Tastet, 7 T. E. 157. ' The Amiable Nancy, 3 Wheat.

2 Seller v. Work, cited in Marsh 546; L'Amistad de Eues, 5 id. 385.
on Ins. 343.

12 AGENCY.

fact when it is proved, and whether it is a foreign or domestic
market can make no difference. That the property would have
reached its destination if the agent had obeyed his instructions
will, in many cases, be capable of the most satisfactory proofs;
as where directions are given to send the goods by a particular
vessel, and ^hat vessel actually malces the voyage in safety.'
Where the agent disobeys such an order, the burden should
rest on him to show that if he had not disobeyed a loss would
have occurred; or, in other words, that no injury has resulted
from his breach of duty ; and it is not enough that if he had
obeyed instructions a loss might have occurred ; he must show
that it must have happened.*

A merchant in New York directed his correspondent in China
to invest money, furnished him, in silks for the New York
market ; and he disregarded the order, and it appearing that the
silks could have been sold at a profit, it was deemed profit which
was within the contemplation of the parties, and being such as
the proof showed with reasonable certainty would be realized,
it was properly taken into consideration in the estimate of dam-
ages for such breach of duty.' In this case Eapello, J., said :
" It is not necessary now to decide what is the proper rule of
damages; but we are not prepared to sanction the idea that
the rule adopted in cases of marine trespass, which is the
prime cost or value of the property at the time of the loss,
with interest,* is necessarily applicable to the case of the
violation of a contract, entered into for the express purpose of
procuring goods for sale at their place of destination, when
their market value at that place can be shown. The fact that
damages have been sustained must be proved with reasonable
certainty ; but even a loss of profits, if within the contempla-
tion of the parties, at the time of entering i nto the contract
and a direct consequence of the breach, and not speculative or
contingent, may be recoverable.^ The certainty of the loss

1 Bell V. Cunningham, 3 Pet. 69; Wilkinson v. Laughton, 8 John

S. C. 5 Mason, 161. 213.

2 Davis V. Garrett, 6 Bing. 716; ^ Heinemann v. Heard SON. Y. 27.

Eyder v. Tliayer, 3 La. Ann. 149: * 3 Wheat. 560.

Farwell v. Price, 30 Mo. 587; 5 Griffla v. Colver, 16 N. Y. 494-

Sohmerlz v. Dwyer, 53 Pa. St. 335; Masterton v. The Mayor 7 Hill 61-

Eby V. Schumacker, 29 Pa. St. 40; 3 Pet. 85. > . .

PRINCIPAL AGAmST AGENT. 13

must depend upon the evidence ; but to apply to such contracts
the rules settled in cases of capture and collision would, in the
generality of cases, exempt foreign agents from all responsibility
for breaches of their contract with, or violation of their duty
to, their principals, in respect to the purchase and shipment of
goods, whether arising from negligence or fraud." ^

Miscellaneous illustrations op agent's liability pok neglect
OR BREACH. — The primary obligation of an agent whose author-
ity is limited by instructions is to adhere faithfully to them ;
for if he unnecessarily exceeds his commission, he renders him-
self responsible for the consequences.^

"Where a carrier of goods, or other agent, has charge of goods
consigned C. O. D., and delivers them without collecting the
moneys charged on them, he will be held liable for the amount
which he was required to collect.' In such cases the agent disposes
of the principal's property, though a special property, contrary to
his instructions, and, therefore, is chargeable as upon an appro-
priation to his own use.* Any disposition of the principal's
property, or choses in action, contrary to his duty, by which
the principal is divested of the property and suffers injury,
entitles him to recover of the agent as for a wrongful appropri-
ation or conversion, to the extent of his interest and rights in
the same.'

"Where the insured employed a factor or agent to settle with

1 See GaflEord v. Eensley, 40 Vt. 506. McMorris v. Simpson, 31 Wend. 610;

2 Fuller V. EUis, 39 Vt. 345; Bundle Syeds v. Hay, 4 T. E. 360; Stearine,
V. Moore, 3 John. Cas. 36; Hutch- etc. Co. v. Heintzmann, 17 C. B. N.
ings V. Ladd, 16 Mich. 493; Goodrich S. 56; Hatchings v. Ladd, 16 Mich.
V.Thompson, 4Robt. 75; Schmerlzv. 493; Thompson v. Gwyn, 46 Miss.
Dwyer, 53 Pa. St. 835; Johnson v. 533.

N. Y. Cent. R. E. Co. 31 Barb. 190; <Id.; LeGuena v. Gouvemeur, 1

Scott V. Rogers, 31 N. Y. 676; Lever- John. Cas. 436.

iok V. Meigs, 1 Cow. 668; Peters v. ^Id.; Hancock v. Gomez, 50N. Y.

BalHstier, 3 Pick. 495; Kingston v. 668; Tuite v. Wakelee, 19 Cal. 693

Wilson, 4 Wash. C. C. 310; Whitney Taussig v. Hart, 58 N. Y. 435; Jack

v. Merchants' Express Co. 104 Mass. son v. Baker, 1 Wash. C. C. 394

153. Parsons v. Martin, 11 Gray, 111

s Walker v. Smith, 4 Dall. 389; Gray v. Murray, 3 John. Ch. 167

Laverty v. Snethen, 68 N. Y. 533; Eundle v. Moore, 8 John. Cas. 36:

Wheelock v. Whedwright, 5 Mass. Allen v. Brown, 51 Barb. 86.
103; Scott V. Eogers, 31 N. Y. 676;

14 AGENCT.

the insurers as for a total loss, and , an abandonment was duly
made, and the agent afterwards, through mistake or misappre-
hension of a letter of the insured, or from negligence, adjusted
the claim as an average loss at twenty per cent., and. canceled
the policy, it was held that the agent was responsible for the
. whole amount.'

An agent has no right to mix the funds of his principal with
his own, and hold him liable for the depreciation of the moneys.
If he would keep the money at the risk of his principal, for
losses on bank failures, or other losses on the money itself, he
must keep it separate and distinct from bis own.'

"Where grain was delivered to wharfingers to be shipped to a
certain party in New Orleans ; and before shipment they were
notified not to ship to such party, but to another, which they
neglected to do and shipped according to the first direction ; the
price of the grain being lost in consequence of the insolvency of
the consignees, it was held that the wharfingers were liable to
the shipper for the value.' A commission merchant took a bond
for a simple contract debt due to him for goods sold on com-
mission, and included in the same instrument a debt due to
himself; it was held that by thus extinguishing the simple con-
tract debt of his principal, and depriving him of the means of
pursuing his claim against his debtor, the agent was at once
answerable to him for the amount of the goods.* If a principal
direct his agent to ship goods by a particular steamer or mode
of conveyance, and the agent unnecessarily send by another and
they are lost ; the directed method having been departed from,
the goods are disposed of contrary to the duty of the agent, and
he must bear the loss.'

1 Rundle V. Moore, supra; Kemp- Co. 31 Barb. 196; Goodrich v.
ker V. Roblyer, 29 Iowa, 274. Thompson, 4 Eobt. 75; Hand v.

2 "Webster V. Pierce, 35 III. 158. Bagnes, 4 Whart. 204; Ang. on Car.

3 Howell V. Morlan, 78 111. 162; §§162,176,178,213. In Johnson v.
Cutler V. Bell, 4 Camp. 184; Bessent N. Y. Cent. R. R. Co., it was con-
V. Harris, 63 N. C. 542; Marr v. Bar- sidered that a deviation from the
rett, 41 Me. 403. course marked out by the principal

* Jackson v. Baker, 1 Wash. C. C. which is rendered necessary by the

394. See Wilkinson v. Clay, 6 TaUut. circumstances of the case, not f ore-

110. seen by the principal, is justiiiable,

5 Johnson v. New JT. Cent. R, R; if the agent exercises the care and

PEINCIPAL AGAINST AGENT, 15

An agent, in matters left to his discretion, must exercise a
reasonable judgment, and especially must act in good faith. An
agent appointed to settle a claim against a third party received
from the debtor promissory notes for the amount, payable at a
future day, which were perfectly ^ood, and were in fact paid
when due. Before maturity the agent sold them for less than
their face, without consulting with or informing his principals,
and without making any inquiries of parties with whom money
had been deposited for their payment. Upon being called upon
to account, he denied that he had received anything on the
notes for which he was liable to account ; it was held that the
sale of the notes was a clear violation of duty to his principals,
and warranted a finding that it was made without authority ;
that the principals were entitled to recover, as for money had
and' received, to the full amount of the notes.^

He is bound to exercise his powers, or proceed in doing the
business of his agency, according to usage, or in the ordinary
course of the business he is employed in ; that he will do so is
to be assumed as the tacit direction of his principal from the
absence of express directions. Hence, in such matters as are
regulated by usage, they are at once his commission and a chart
for his guidance.'* Thus it was held that an agent of an insur-
ance company, from the nature of the power to receive pay-
ment, having authority to receive payment of premiums,
necessarily had power to accept whatever was generally used
for the purpose of making payments in the locality where the
debts were to be collected. The actual currency of that local-
ity soon after the direction to coUect premiums, being supplanted
by confederate notes, and thenceforth that being the financial
means used in buying and selling property and in creating and
discharging debts, he was held authorized in his discretion to
receive such notes ; having received them in good faith, the pay-
ments were also valid as between the assured and the insurer.'

skill which his agency calls for; un- i Allen v. Brown, 51 Barb. 86.

less the instructions amount in sub- ' Story on Agency, § 96; Phillips

stance to a prohibition of the act in v. Moir, 69 111. 155; 13 Petersdoi-ffi's

any other than the prescribed Abr. 751, 753, and notes.

method. Greenleaf v. Moody, 13 ^ Robinson v. International Life

Allen, 363; Forrestier v, Bordman, Ins. Co. 52 Barb. 450; Baird v. HaH,

J Story, 51. 67 N. C. 230; Eodgers v. Bass, 46

16 AGENCY.

But where debts in the hands of an agent are payable in a paj-
ticular currency, he is not authorized to accept a different one,
and he cannot do so except at his peril. During the years
1861-2, a party placed in the hands of his agent for collection,
a number of notes and drafts, by their tenms payable in United
States currency, with no instructions as to the currency in
which the collections should be made ; the agent was left to ex-
ercise his discretion as to the procedure to be taken to enforce
payment; he accepted confederate currency in payment and
surrendered the notes and drafts ; it was held that the action of
the agent was wrongful as to his principal ; without authority,
actual or presumptive ; and that he was liable to pay his princi-
pal the full amoimt of the notes and drafts in United States
currency, although confederate money was at the time and
place of payment the only currency in circulation.^

If a factor be directed to sell for gold he cannot discharge his
liability to his principal in a depreciated currency.^ So a bank
which receives an uncertified check in payment of a draft held
by the bank for collection, will be held liable for the amount
of the draft, whether the check is paid or not, the draft having
been surrendered ; and a local custom to receive such checks
is no defense.^

Foe defaults in eegard to oommekcial paper. — The same
general rule as to the measure of damages, which has been
stated,* applies to agents having in charge for the owners,
commercial paper, or other securities for the payment of
money. If, through the negligence or unauthorized act of the
agent, the paper or security becomes worthless, or its value im-
paired, the principal will have a right of action against the
agent for damages equal to the loss. In respect to checks and
bills of exchange, diligence is required not only to preserve the
liability of the drawer and indorsers, but to have the advantage
of such diligence as will be immediately productive. If an

Tex. 505. See Turner v. BeaU, 33 697; Symington v. McLin, 1 Dev. &

La. Ann. 490; Richardson v. Futrell, Bat. 291.

43 Miss. 535; Bernard v. Maury, 30 ' Nunnemacher v. Lanier, 48 Barb.

Gratt. 434. 234. But see Russell v. Hankey, 6

1 Mangum v. Ball, 48 Miss. 388. T. R. 13.

2 Poindexter v. King, 31 La. Ann. * Ante, p. 5.

PKINCIPAL AGAINST AGENT. 17

agent, to procure acceptance of a bill, or for collection of a bill,
check, or promissory note, by neglect seasonably to present the
paper to the drawee or maker, discharges the other parties, he
is liable W the damages which ensue. "Where the debt is thus
lost, the delinquent agent v(in. be liable for the amount.^

Where a debtor transferred a note as collateral security for
the payment of a sum of money owing by him, the amount
of the note, when paid, to be applied towards the satisfaction of
the creditor's demand, and if not paid to be returned to the
debtor ; the latter was held entitled to maintain an action in
his own name for breach of duty against a bank with which the
note was left by the creditor for collection, the bank having
neglected to give notice of non-payment, whereby the debt was
lost, and he was held entitled to recover the whole amount of
the note and interest.*

The duty of the bank to exercise diligence in such a case need
not be founded on any express contract with the person deposit^
ing the note for collection ; it will be implied from the custom
of banks, in favor of such person as may be beneficially inter-
ested in having the duty performed.'

The owner of a bill has an interest in having it presented for
acceptance without delay, although such presentment is not
necessary in the case of a bill payable on a day certain, to
enable him to retain his claim against the drawer or indorser of
such bill ; and if the agent who has been entrusted with the bill
for the purpose of getting it accepted and paid, or accepted
only, neglects to coniply with the direction of the owner to get
the bill accepted without any unnecessary delay, he will be
liable to the owner for the damage which the latter sustains
by such negligence.* Nor does it require special instruction
from the principal to impose this duty.'

1 Bank of "WasMngton v. Triplett, 13; Hamilton v. Cunningham, 2

1 Pet. 35; Tyson v. State Bank, 6 Brock. 367; Bank of Orleans t.

Blackf. 225; Allen v. Suydam, 20 Smith, 3 Hill, 560.

Wend. 321; 17 Wend. 371; Mont- ^McKinster v. Bank of Utica, 9

gomery Co. Bank v. Albany City Wend. 46; affirmed, 11 Wend. 473.

Bank, 3 Seld. 459; Smedes v. Bank sid.

of Utica, 20 John. 372; 3 Cow. 663; « Allen v. Suydam, 20 Wend. 831;

Fabens v. MercantUe Bank, 33 Pick. S. C. 17 Wend. 371 ; Chifc on BUls, 373.

330; Bidwell v. Madison, 10 Minn. 'Id.

Vol. in -a

18 AGENCY.

If protested for noQ-acceptance, the holder is not obliged to
delay suit until the maturity of the bill ; he may proceed at
once against the drawer or indorser.* An immediate present-
ment not only determines the question whether the security
of the drawees, or an acceptance av/pra protest', is to be added;
but, on protest, it leads directly to inquiry and explanation,
and enables the holder to take such prudential measures
against aU other parties as their character, circumstances,
or the g eneral state of the times may demand.^ There may,
therefore, be a case where there is not such negligence of
the agent as would discharge a drawer or indorser, and yet
be such as would entitle the principal to damages. These
damages are not necessarily the amount of the bQl, for the
recovery will be limited to compensation for the actual in-
jury. Prima facie, if the parties to the biU are discharged, the
debt is lost ; it cannot be presumed to exist in any other avail-
able form, and in that case the amount of the bUl is the measure
of damages. If the fact is otherwise, of course it may be
shown. Where A, being indebted to B, sent him C's biU on D
for the amount, and was .not a party to it, and D, having no
funds of C, refused acceptance, of which no notice was given,
by the negligence of B's agent, in an action by B against his
agent it was held that, inasmuch as A had not indorsed the
biU, he was not entitled to notice, and must still remain liable
to B for his debt, and that the drawer was not entitled to no-
tice because he had no funds in the hands of the drawee;
therefore B was entitled to such damages as he had suffered, but
was not entitled to recover the whole amount of the bill ; he was
only entitled to such damages as he had sustained in consequence
of having been delayed in the pursuit of his remedy against the
drawer.^ So, if there is negligent delay by an agent in pre-
senting a bill for acceptance, and the antecedent parties, though
not thereby discharged from their legal hability, in the mean-

1 Walker v. Bank of State of N. Mass. 557; Bank of Rochester t.

Y. 9 N. Y. 583; Ballingalls v. Glos- Gray, 2 HiU, 337.

ter, 3 East, 481; Allan v. Manson, 4 2 Allen v. Suydam, 17 Wend. 871.

Camp. 115; Mason v. Franklin, 3 ' Van Wart v. Woolley, 3 B. & 0.

John. 203; Eobinson v. Ames, 20 439. See Van Wart v. Smith 1

John. 146; Watson v. Loring, 3 Wend. 219.

rKIJS'OIPAL AG-ADSrST AGENT.

19

time, become insolvent, the amount of the bill is prima facie
the loss.'

1 In Allen v. Suydam, supra, the
action was brought against an agent
for collection of a draft drawn July
21, 1833, payable sixty days after
date, received by such agent August
16th. The agent retained it until
September 3, when he transmitted
it to the cashier of a bank in another
state, where the drawee was doing
business, and it was received by
such cashier on the 6th of Septem-
ber and presented for acceptance on
the following day. The drawees
said they were not ready to ac-
cept— that -they did not accept for
the drawer without instructions,
and they had none, but expected to
hear from the drawer soon. The
cashier called again on the 10th, and
the drawees were then instructed
not to accept, and refused; where-
upon the draft was protested. On
the 9th of October, the drawer died
insolvent* When the draft was
drawn he had funds in the hands of
the drawees, but the amount was
not shown; they testified, however,
that the lateness of the day of pre-
sentment for acceptance made no
difference in regard to acceptance,
as it was an invariable rule with
them not to accept without previ-
ous advice. It appeared that subse-
quent to the 16th of August the
drawees accepted other di'af ts to the
amount of $3,000; and it appeared
also that the drawer conducted busi-
ness as a merchant in the city of
New York down to the time of his
death; whilst on the other hand it
was shown that on the Sith of July,
1838, his note to the plaintiffs for
$606.77 was protested at Concord,
and remained unprovided for until
the draft in question was , drawn
for the amount. The trial court

charged the jury in the action for
negligence in not presenting the
draft for acceptance, that the jury,
having no other knowledge of the
amount of the damage than from
the proof of the amount of the
draft, should find a verdict in favor
of the plaintiffs for the amount of
the draft and interest. The delay
of the agent to present for accept-
ance was negligence. Cowen, J.,
said (17 Wend. 871): "I have exam-
ined Van Wart v. Woolley as re-
ported in the different books re-
ferred to by Chitty. In 5 Dowl &
Eyl. and 3 Barn. & Cress., Lord Ten-
terden, C. J., delivers the opinion
of the court that mere delay of the
agent to give notice to his principal,
though the drawer were not there-
fore discharged, would subject him
to damages. In Mood & Malk. N.
P. reporters, the damages were as-
sessed, before the same judge, at
one shilling. The smallness of the
sum was because, in the meantime,
the plaintiff had recovered the full
amount, with damages and costs,
by an action in this state against
Irving & Co., who transmitted the
biU to England. Campbell, for the
defense, strenuously contended that
the mere delay of the remedy
against an insolvent drawer who
never had funds, and that, too,
where the amount of the whole bill
had been recovered from another,
would not maintain an action. Lord
Tenterden, however, was clearly of
a contrary opinion.

"We may certainly assume upon
such authority, that the object of
notice is not confined to the saving
of the ultimate legal remedy. Such
a view, too, is justified by the nat-
ure of the business. And immedi-

20

AGENCY.

ate presentmeiit not only deter-
mines the question whether the
security of the drawees, or an accept-
ance supra protest is to be added;
but, on protest, it leads directly to
inquiry and explanation, and en-
ables the holder to take such pru-
dential measures against all other
parties as their character, circum-
stances, or general state of the
times may demand. In the case at
bar, there was not only a want of
funds in the hands of the drawees,
but a positive fraud by the drawer,
who countermanded the accept-
ance; neither of which was known
to the plaintiffs below, nor could be,
until the demand made at Concord.
A demand before maturity, almost
certainly leading to discoveries very
important to the principal, is not so
unusual aa to leave agents jn igno-
rance that an acceptance should be
Bought for, through the earliest
practicable means of communica-
tion. A knowledge of the truth, a
few days or even a few hours earlier
or later, is many times decisive. On
the whole, we think the court below
were right in holding, as a matter
of law, that the delay of the de-
fendants was unreasonable, and that
they were therefore liable in this
action."

The court of errors reversed the
judgment below on the question of
damages. At the maturity of the
bill, the drawer was insolvent, but
he had continued to do business as
a merchant. There was no actual
proof that had the bill been pre-
sented without delay, after the
defendant received it and notice
of non-acceptance given, payment
could have been obtained, and the
question was not submitted to the
jury; the liability of the defendant
for the amount of the bill was de-
cided as a matter of law. The neg-

ligence complained of, though it did
not discharge the drawer, prevented
any attempt to obtain payment or
security; prevented the very en-
deavor that diligence in presentment
of such paper is intended to afford
opportunity for. Should it not de-
volve on the party whose negligence
is the obstacle to exertion in the
direction of obtaining payment to
show that it would have been un-
successful? Senator Verplank, in
his dissenting opinion (30 Wend.
334), said: " I can, therefore, find
no sounder rule of damages, nor one
better for protecting and reconciling
all these claims of policy and jus-
tice, than that pointed out by the
decisions in a large class of cases of
agency, and by the analogy of the
measure of damages in trover. In
those cases, the presumption is, in
the first instance, to the full nom-
inal amount of the loss, as it ap-
pears on the face of the transaction
against the agent wanting in dili-
gence, or the party guilty of the
tortious conversion. Thus, where
an agent or factor neglects to insure
for his principal, according to order,
he is held responsible for the de-
fault, prima facie, to the total
amount which he ought to have
covered by insurance. But at the
same time he is allowed to put him-
self in the place of the underwriter
and to prove fraud, deviation, or
any other defense which would have
been good, had the insurance been
made, or which would go to show
that nothing at all, or how much,
was actually lost by the neglect.
Delany v. Stoddart, 1 T. E. 32; Wal-
lace V. Tellfair, 3 T. E. 188; Webster
V. De Tastett, 7 T. E. 157. In the
courts of this state, Eundle v. Moore,
3 John. Cas. 86. And in the courts
of the United States, Morris v.
Summerl, 2 Wash. C. C. 203. See,

PEINCIPAL AGAINST AGESfT.

21

also, 1 Phil, on Ins. 531. So, too, in
actions against sheriffs, where those
official public agents become charge-
able with the debt of another, by
their own negUgenoeor misconduct.
When the defatdt is established, the
amount due the plaintiff in the
original suit is the prima facie evi-
dence of the measure of damages.
This presumption may be controlled
or rebutted, and the sheriff may
give in evidence any fact showing
either that the party has not been
actually injured, or to how much
less amount. He may show, for
instance, the insolvency of the orig-
inal debtor. But the burden of
proof is upon him; if he leaves the
presumption uncontradicted, that
establishes the measure of damages.
This has been frequently ruled at
our circuits, nor can I find that it
has ever been questioned in our
supreme court, and is substantially
recognized in Potter v. Lansing,
1 John. 315; Eussell v. Turner, 7 id.
189. The Massachusetts decisions
are particularly full on this point.
See 10 Mass. 470; 11 id. 89; id. 183;
13 id. 187. Similar decisions may
be found in the reports of other
states. So again in trover. In In-
galls V. Lord, 1 Conn. 340, in trover
for a note, it was held that the
prima facie measure of damages
was the face of the note; but that
evidence might be given to reduce
the amount, by proving payment in
part, or the insolvency of the maker,
or any other fact invalidating the
note or lessening its value. It is
true that Lord Tenterden, in Van
Wart V. WooUey, . . held that
damages must be shown, and that
the face of the biU. is not the con-
clusive measure; but this, I think,
is not in contradiction to the view
that I have taken. I therefore take
the cases before mentioned to point

out the sound doctrine here. The
face of the bill is the prima facie
measure of damages. These may
be reduced by any positive evidence
proving the real damage to be less;
but the burden of that proof must
be upon that negligent agent, and
not on the party who suffers by his
negligence. Circumstances like
these of the present case may often
render it diffictdt or impossible for
either party to prove, or even to
form a probable estimate of the pre-
cise damages incurred by the agent's
neglect. In such cases, is it not just
that those chances of loss which
must fall upon one or the other
should be thrown upon the party in
default, and not upon the innocent
sufferer ? It was then for the de-
fendants here to show that the debt
would not have been paid had due
diligence been used, or that there
were any other circumstances to
diminish the actual damages below
the nominal amount."

In the majority opinion by the
chancellor it was said: " In relation
to the amount of damages, ... I
think the chargS of the judge who
tried the cause was clearly wrong;
and that it has unquestionably pro-
duced great injustice in this case.
, , , The relation between the
drawer and indorser of the bill and
the person to whom it is transferred
for the mere purpose of negotiation
or collection, is not the relation of
indorser and indorsee, so as to throw
the loss of the whole amount of the
biU upon the latter, if he neglects to
present the same for acceptance and
payment in time, or to give notice
of its dishonor to the indorser, as
required by law. Nor wiU the pay-
ment of damages, by the agent,
have the effect to subrogate him to
all the rights and remedies of the
person from whom he received the

22

AGEIfCY.

bill, as against other parties who
may be liable for the payment
thereof; but it is a mere contract of
agency which leaves the indorser to
all his rights and remedies for the
recovery of his debt as against other
parties, and only renders the indor-
ser liable as agent for the actual or
probable damages wliich his princi-
pal has sustained in consequence of
the negligence of such agent. This
principle was distinctly recognized
by the court of king's bench, in
England, in the case of Van Wart
V. WooUey, 5 Dowl. & Eyl. 374,
where the plaintiff had not lest his
remedy against the drawers of the
bill, or the person from whom he
received it, by reason of the neglect
of the agents to present it for ac-
ceptance in due time; the drawers
of the bUl in that case having
drawn without authority when
they had no funds in the hands of
the drawees, and Irving & Co., who
sent the bUl to the plaintiffs in pay-
ment, not standing in the situation
of indorsers of' the bill, as their
n^mes did not appear upon it. In
that case, however, if there had been
any evidence to warrant the belief
that the bill would have been ac-
cepted if an immediate acceptance
or rejection of the biU by the draw-
ees had been insisted on, according
to the decision in the case of the
Bank . of Scotland v. Hamilton
(Glen on Bills, 109), the loss which
had arisen from the neglect of the
defendants in not pressing for an
acceptance, or in not giving due no-
tice of the dishonor of the bill im-
mediately, if it could then probably
have been collected from the draw-
ees, shovild have fallen upon Woolley
& Co. instead of Irving & Co., who
had remitted the same to Van
Wart; and the plaintiff would then
have been permitted to recover what-

ever damages had been sustained by
such negligence, for the benefit of
Irving & Co. In that respect Irving
and Co. stood in the same relative
situation to Van Wart, as Dunlop
did to the BaBk of Scotland, in the
case before referred to; and WooUey
& Co. occupied the situation of
Hamilton & Co., who were held
liable in that case in exoneration of
Dunlop's liability. The only differ-
ence in principle which I can see
between the two cases is, that in
the Scotch case it was evident that
the bill would probably have been
accepted and saved, if it had been
presented for acceptance on Satur-
day, when it was received in Glas-
gow, instead of being kept back untU
Tuesday evening, when the news of
the drawer's failure had reached that
place; and, therefore, to exonerate
Dunlop, who remitted the bUl, the
agents in Glasgow were very prop-
erly charged vrith the amoimt of
the bUl, the whole of which had
been lost through their negligence,
except the smaU amount of divi-
dend which the bank would be en-
titled to out of th^ drawer's estate
under the commission of bank-
ruptcy against him; whereas, in the
case of Van Wart v. WooUey, there
was no reason to beUeve that the
biU would have been accepted if the
agent had insisted upon an answer
immediately, and there was as little
probabUity that anything would
have been obtained from the draw-
ers if Van Wart or Irving & Co. had
received notice of the dishonor of
tjie bUl immediately after it was re-
ceived by the agents in London. In
the latter case, therefore, the dam-
age which either Van Wart or those
who had transmitted him the bUl in
payment had sustained, was merely
nominal. Besides, the supreme
court of this state having decided

PEINCIPAL AGAINST AGENT.

23

that neither the drawer nor Irving
& Co. were discharged from their
liability to the plaintiff by this
neglect of his agent, neither of
them, in fact, having been injured
by such neglect, the plaintiff, upon
the second trial, was, of course,
only held to be entitled to such
damages as he had sustained, and
which were nominal only. If the rule
laid down by the judge who tried
the present case was correct, that the
principal was entitled to recover the
whole amount of the biU and inter-
est, because there was no other evi-
dence to enable the jury to discover
what the damage was, then the
plaintiff in the case of Van Wart v.
Woolley should have been permitted
to retain his verdict upon the first
trial; as it did not then appear
whether he could actually succeed
in collecting the money either from
the drawers of the bill or from
Irving & Co.; neither did it then
appear whether, by the laws of this
state, where they resided, they
were not actually discharged from
liability, so that no judgment could
be recovered against them, in con-
sequence of the negligence of the
agent.

" The granting of the new trial in
that case, therefore, proceeded upon
the principle that the agent was not
liable for the whole amount of the
bill, unless damages to that extent
had been sustained by his neglect;
and that to recover damages to that
extent it was incumbent on the
party claiming, to give sufficient
evidence to satisfy the court and
jury that it was at least probable
that he had sustained damages to
that amount. Neither the Scotch
nor the English case, therefore, is an
authority to sustain the charge of
the judge in relation to the amount
of damages in the present case; on
the contrary, the case of Van Wart

V, Woolley is a direct authority to
show that the agent ought not to be
charged with the whole amount of
the biU, unless there is sufficient evi-
dence to render it at least probable
that the whole amount of the debt
would have been saved if the agent
had discharged the duty which his
situation imposed upon him. Where
there is a reasonable probability that
the biU would have been accepted
and paid if the agent had done his
•duty; or where by the negligence of
the agent the liability of a drawer
or indorser who was apparently
able to pay the bill has been dis-
charged, so that the owner of the
bill cannot legally recover against
such drawer or indorser, I admit the
agent by whose negligence the loss
has occurred is prima facie liable
for the whole amount thereof with
interest as damages; unless he is able
to satisfy the court and jury that the
whole amount of the bill has not
been actually lost to the owner in
consequence of such negligence. . .
Under the circumstances of this
case, therefore, I think the jury
should have been instructed that,
upon the evidence, the plaintiffs
were only entitled to nominal dam-
ages; or at least they should have
been told to find only such damages
as they should, from the evidence,
behe ve it probable the plaintM might
have sustaiijed by the delay in pre-
senting the draft for acceptance
immediately; for I do not see how it
is possible for any one to believe, or
even to suppose it probable from this
evidence, that the whole amount of
this draft was in fact lost to the
plaintiff below, by the delay of the
AUens in presenting it to the draw-
ees, and giving notice of the dishonor
thereof immediately to the drawer,
who never intended that it should
be accepted and paid."
It is manifest that Van Wart v.

2i

AGENCY.

WooUey was correctly decided; for
Irving & Co. were properly aflsumed
to be stm liable for the debt which
the bill was remitted to pay; and
there was no evidence to i-ebut the
presumption of their ability to dis-
charge that debt. Hence the delay
of measures against the drawer in
consequence of the agent's negli-
gence did not endanger its ultimate
collection. The exemption of Van
Wart from loss did not depend on
the aioceptance of the bill, nor on his
recourse to the drawer. Allen v.
Suydam presents no such features;
the holder's only dependence in that
case for payment was immediate re-
course to the drawer. It is, there-
fore, not a parallel case. If he had
received the timely notice he was
entitled to from the agents, there
was a reasonable probability that he
could have obtained payment or se-
curity from the drawer. As the
agent's negligence precluded any
efiEort of this kind at a time that was
vitally important for that purpose,
were they entitled to have their
wrong qualified by what is equivar
lent to a presumption that had the
agent's duty been performed, the
same loss would have been sustained?
As between the holder of commercial
paper and antecedent parties, the
law presumes damage from the
omission to present for payment.
Heylyn v. Adamson, 3 Bun-. 669;
Cowley v^ Dunlop, 7 T. E. 581. This
is so though the party to whom such
presentment must be made is bank-
rupt or insolvent. EusseU v. Lang-
staSe, 3 Doug. 515; Warrington v.
Furber, 8 East, 245; Nicholson v,
Gouthit, 3 H. Bl. 609; Easdaile v.
Sowerby, 11 East, 117; Bower v.
Howe, 5 Taunt. 30; Ex parte Big-
nold, 1 Deac. 713; Holland v. Turner,
10 OOnn. 308; Jackson v. Richards, 3
Cai. 343; Crossen v. Hutchinson, 9
Mass. 305; Garland v. Salem Bank,

9 Mass. 408; Sandford v. Dillaway,

10 MafiS. 53; Famum v. Foule, 12
Mass. 89; Groton v. Dallheim, 6
Greenlf. 476; Shaw v. Reed, 13 Kck.
133; Greeley v. Hunt, 31 Me. 455;
Hunt V. Wadleigh, 36 Me. 271. Be-
tween such parties it is a conclusive
presumption, to the extent of the
face- of the paper, and discharges
from liability to pay it; between the
agent and the holder, whenever the
former is guilty of actionable negli-
gence in respect to the same acts, it
would seem just that there shoiild
be a rebuttable presumption of a like
amount of injury. See Murray v.
Judah, 6 Cow. 484; Syracuse Bank
& N. Y. R. E. Co. V. Collins, 8 Lans.
29; Bradford v. Fox, 38 N. Y. 289;
Hoard v. Gamer, 3 Sandf. 179; Si-
galls V, Lord, 1 Cow. 240; CaflErey v.
Darby, 6 Ves. 496; Davis v. Garrett,
6 Bing, 716; Beardslee v. Richard-
son, 11 Wend. 25; Brown v. Arrott,
6 W. & S. 402; Beckman v. Shouse,

5 Rawle, 189.

In an action for the price of goods,
it appeared that the same were sold
at York on Saturday, the 10th day
of December, 1825, and on the same
day at 3 P. M. the vendee delivered
to the vendor, as and for a payment
of the price, certain promissory
notes of the bank of D & Co., at
Huddersfield, payable on demand to
bearer, D & Co. stopped payment
on the same day at 11 A. M.,
and never afterwards resumed; but
neither of the parties knew of the
stoppage or of the insolvency of D

6 Co. The vendor never circulated
the notes, or presented them to the
bankers for payment. But on Satur-
day, the 17th, he required the vendee
to take back the notes, and to pay
him the amount, which the latter
refused. Held, under these circum-
stances, that the vendor of the
goods was guilty of laches, and had
thereby made the notes his own,

PEINCIPAL AGAINST AGENT. 25

It is not only the duty of an agent employed to procure ac-
ceptance to apply promptly for it, and to give Kis principal
notice of refusal, but also to obtain an absolute and valid ac-
ceptance, or to treat the bill as dishonored. If he takes an
acceptance which does not bind the drawee, reposes upon it,
and gives no notice that acceptance has been refused, he will
be held to the same responsibility as though he had presented
the bill for acceptance, and on refusal he had given no notice.'

If a bill is duly accepted when presented, the duties of an
agent for its collection are similar to those of an agent for the
collection of a promissory note. The holder in either case is
entitled to have the paper presented at maturity to the party
primarily liable for payment, and to prompt notice of non-pay-
ment, to enable him to take immediate measures against that
party on his own judgment of the exigencies, and to notify the
indorsers and drawer to preserve his right of recourse to them.
Of course, where such presentment is not made for any of the
reasons which in law constitute an excuse for non-presentment,
the agent is not liable for neglect. But in such cases only is
non-presentment excused ; he is bound to the same diligence in
notifying the principal of the facts to enable him to protect his
rights as in other cases of dishonor.

The duties of a bank or other collecting agent, receiving a
check for collection, are more exigent and comphcated than in
reapect to other negotiable paper ; and for negligence the same
rule of damages applies, — that of making good any loss that

and consequently that they operated here, if the notes had been returned
as a satisfaction of the debt. Cam- on the TTiesday to the defendant, he
idge V. Allenby, 6 B. & C. 373. In might have taken steps against the
this case Bayley, J., said: "The bankers, and he had a right to ex-
neglect ... on the part of the ercise his judgment whether he
plaintiff to give to the defendant would do so or not, although they
notice of the insolvency of the had stopped; or he might have a
bankers may have been prejudicial remedy against the person who paid
to the defendant. The law requires him the notes."
that the party on whom the loss is i Walker v. Bank of the State of
to be thrown should have notice of N. Y. 5 Seld. 583. See "Wingate v.
non-payment, in order to enable him Mechanics' Bank, 10 Pa. St. 104;
to exercise his judgment whether McKinster v. Bank of Utica, 9
he will take legal measures against Wend. 46.
other parties to the bill or note, Now

26

AGENCY.

ensues to the principal in respect to moneys for -which the
check is drawn. The check is for money presently, and to ob-
tain it at once is the obvious right of the holder, and the
obvious intention of the drawer, if it is made in good faith.
Tliis, as the primary purpose, can only be adequately subserved
by diligence stimulated by this view ; and it will sometimes ex-
ceed that required for the preservation of the Uability of the
drawer and indorsers.' The duty of a collecting agent devolves

' Mr. Morse, in his excellent treat-
ise on Banks and Banking, p. 337,
says: " Every bank of deposit in
the country is wont daily to receive
from its customers, upon deposit for
their credit, great numbers of
checks drawn upon other banks;
though it wiU be remembered that
the present discussion is confined to
tliose cases where the drawee-banks
are in the same city or town as the
receiving bank. In the case of
every deposit of this nature the
bank makes itself the agent of the
depositor for the collection of the
check. If circumstances should
cause the obligation in any partic-
ular transaction to run to any per-
son or party other than the one
from whom the bank receives it,
the nature of the obligation is not
thereby substantially affected; es-
pecially it can never be increased.
The duty of the bank is still pre-
cisely the same duty, though it may
prove that a true owner, not at first
known to the bank, is the party who
Is really entitled to claim perform-
ance of that duty, or damages for its
breach. For the sake of brevity, we
will hereafter designate the person,
whoever he may be, to whom the
obligation of the bank runs, as the
depositor or customer. It is neces-
sary in the outset thoroughly to
disembarrass the relation of the
bank to the customer, and conse-
quently the whole matter of the

duties and liabilities of the bank in
the premises, from two wholly
alien subjects, to wit: The relation
of the payee, owner, or holder of
the paper to the maker, drawer or
acceptor thereof; and the relation
of the party giving it in charge to
the bank to any other person stand-
ing earlier in the progression of
title. With the two last mentioned
considerations the collecting bank
^as nothing whatsoever to do; it
may ignore them utterly; in fact,
oftentimes it may be incumbent
upon it to ignore them utterly, for
they may be rendered by circum-
stances in any particular case in-
consistent with its own different,
peculiar and wholly independent
obligations in the business.

"The reiteration of this doctrine
must be pardoned by reason of its
importance. The common law,
speaking through a great multitude
of decisions, has laid down the rules
which govern the presentment of
checks as between the drawer, the
indorsers, and the various subse-
quent holders; and there is complicBr
tion enough in the topic. The
common law has in like manner
laid down the principles controlling
the presentment of checks by a col-
lecting bank as between the bank
and the depositor; and in this
topic also there is independent and
ample complication. The entangle-
ment of the two would result in a

FEINOIPAi AGAINST AGENT. 27

on a party who receives, as collateral security for a debt, com-
mercial paper or any securities for the payment of money from
his debtor; he makes the paper his own, or subjects himself to
equivalent damages by any act or negligence which deprives
the debtor thereof, or involves a loss of the moneys represented
by such collaterals.' In Koberts v. Thompson,^ Scott, J., said:
" The general rule is, that where a party receives a note as col-
lateral security for an existing debt, without any special agree-
ment, the party receiving such note must use ordinary care and
diligence in collecting it ; and if any loss should happen to the
other party by reason of a want of such care and diligence,
the law will compel him to make good the loss. Such cases
are not governed by the strict rules of commercial law appli-
cable to commercial paper, but fall under the general law of
agency, which must determine the rights and habilities of the
parties." It was held that where a debtor assigned to his
creditor as collateral security a negotiable promissory note of a
third person, before maturity, and by the terms of the assign-
ment waives demand and notice of non-payment, such creditor,
acting in good faith, is not bound to demand or insist upon pay-
ment of the security bfefore its maturity, though he may know,
at the time, that payment would be made if insisted upon.

Where the defendant covenanted to take proper means to
collect the amount secured by a mortgage of real estate, and
was guilty of negligent delay, and still retained the security,
Sandford, J., said, in answer to the defendant's position that
the mortgage was either good or bad, if bad he could collect

senseless and inextricable confusion, affect the time within, which the

If this one deposits a check in a bank is bound to "its customers to

bank there is a certain time within present it."

which the bank is bound to that ' The Phoenix Ins. Oo. v. Allen, 11

depositor to present the check to Mich. 501; Little v. Phoenix Bank,

the drawer for payment. It may 3 HiU, 425; 7 HiU, 359; Dayton y.

be that a presentment before that TruU, 23 "Wend. 345; Copper v.

time would be necessary to enable Powell, Anthon, 49; Jennison v.

the payee to hold the drawer, or the Parker, 7 Mich. 355; Bradford v. Fox,

holder to hold his indorser in case 39 Barb. 203; S. C. 16 Abb. Pr. 51; 38

of non-payment, or it may be that N. Y. 289; Heartt v. Rhodes, 66 Dl.

presentment after that time would 851; Story on Prom. Notes, § 498;

suffice for both these purposes. Palmer v. Holland, 51 N. Y. 416.

Neither of these facts modify or 2 14 Ohio St. 1.

28 AGENOT.

nothing, and if good the plaintiff has lost nothing: " This we
think is not sound. The mortgage, however good it may bei,
avails the plaintiff nothing so long as the defendant retains it,
and neglects to collect it. He sustained his damage, if it were
good, two or three years since, when he was entitled to receive
his share of the security, and received nothing. His injury is
the same as if he held the defendant's note, payable at that
time, and it had remained unpaid. As to the amount, the
amount of the bond and mortgage is its presumptive value. It
belongs to the defendant to prove it to be a doubtful or a worth-
less security." ^

Where a debt was reaUy lost by the negligence of the attor-
ney, through the insolvency of the debtor, in an action for the
negligence of the attorney, the court loosely told the jury they
might find what amount of damages they pleased. As the
debtor was not totally insolvent, the jury found a verdict for a
part of the plaintiff's demand.^

An express company having received from the drawer, for
collection, with instructions to return it at once if not paid, a
draft for a sum overdue from the drawee to the drawer, with
interest, presented it for payment, when the drawee declined to
pay $1.20 included in the draft. Thereu'jon the company,
without collecting anything on the draft, agreed with him that
they would hold it until he could inquire of the drawer as to
the disputed part ; and he wrote the same day, making such
inquiry, and adding: "The parties will hold the draft until I
hear from you." Upon receiving a reply in due course of mail,
from the drawer, that the additional sum was for interest, the
drawee was, and for two days continued to be, ready to pay the
draft, which the express company continued to hold, but neg-
lected again to present. The third day was Sunday, and on the
fourth day he became insolvent. It was held that the express
company were liable for the drawer's loss on the draft by the
drawee's insolvency.' In New York, where the collecting bank
is held hable for the default of a notary employed by it, the
measure of damages which the holder of the paper can recover

1 Hoard v. Garner, 3 Sandf. 179; s Whitney v. Merchants' Union
Grant v. Ludlow, 8 Ohio St. 1. Exp. Co. 104 Mass. 153.

2ftusseU V. Palmer, 3 Wils. 335.

PEDSrCIPAL AGAINST AGENT. 29

from the bank, on the ground of such default of the notary, is
the amount of the note and interest. If the holder has sued
an indorser, and has failed to recover by reason of the default
of the notary, it cannot increase the damages by adding the
expenses of that suit ; for the action against the bank is based
upon the imphed undertaking of the bank to give the notice,
and not upon any false representation that the notice has been
duly given.i

Reference has already been made to cases illustrating the
responsibility of agents in respect to the currency they collect
for their principals, and the losses afterwards by bank failures
or depreciation.^ He has no authority to receive anything but
money, unless authorized to do so.* If the agent is authorized
to receive depreciated currency, and does so, the loss by depre-
ciation is that of the principal.* But if on making collections
the bank or other agent receiving the money merely gives the
principal credit for the amount, and uses the funds or blends
them with, others of his own, he assumes the risk of subsequent
depreciation.' So if he deposit it with his banker, in his own
name, and a loss occurs from the banker's insolvency.*

An agent to collect money is bound to make immediate
payment to his principal.' He is not obliged to incur the risk,
in the absence of instructions, of selecting the mode of remit-
tance to a distant principal; but it is his duty in such case, when
he has collected money on account of his principal, to give him
immediate notice of the fact.* He will be chargeable with in-

' Downer v. Madison Co. Bank, 6 v. Allard, 7 Bush, 482; Hammon v.

Hill, 648; Morse on Banks and Cattle, 6 S. & E. 390; MacDonnell v.

Banking, 368. Harding, 7 Sim. 178; Webster v.

2 See ante, p. 17. Pierce, 35 Dl. 158; Wren v. Kirton,

3 Drain v. Doggett, 41 Iowa, 683; 11 Ves. 377; Caffrey v. Darby, 6 Ves.
Aiiltman v. Lee, 43 id. 404; Webster 496; Massachusetts, etc. Ins. Co. v.
V. Whitworth, 49 Ala. 301; Turner Carpenter, 2 Sweeny, 734; Norris v.
V. Turner, 36 Tex. 41; Mudgett v. Hero, 33 La. Ann. 605; Sargeant v.
Day, 13 Oal. 139. Downey, 49 Wis. 534. See Wood v.

* Marine Bank v. Fulton Bank, 3 Cooper, 3 Heisk. 441; Hale v. Wall,

Wall. 353. 22 Gratt. 434; Bellinger v. Gervais,

5 Id.; Webster v. Pierce, 35 111. 1 Desaus. 174.
158. See Bartlett v. Hamilton, 46 7 Merchants' Bank v. Eawls, 21 Ga.'

Me. 425; Pinckney v. Dunn, 2 S. C. 389; Lyle v. Murray, 4 Sandf. 590.
314. «W.

6 Story on Agency, § 208; Cartwell

30 AGENCY.

terest if he unreasonably neglect or delay giving such notice ; '
so if he convert the money to his own use.^

Same PErN-ciPLES applied to factoes. — In the absence of
special directions as to price, a factor must sell for the fair value
or market price; and if he disregards this duty and sells at a
less price, he will be compelled to account for the goods at the
prices which his duty required him to realize for them.' He
has a reasonable time to make sale, and in case of neglect he is
hable for the market value during that period ; and this price
the plaintiff has the burden of proving.* He thus makes him-
self responsible for the goods at the price for which it was his
duty to sell them, when a reasonable time for making a sale has
elapsed.' He is, however, only bound to ordinary diligence.
"When his instructions leave the management of the property to
his discretion, he is bound only to good faith and reasonable
conduct.* He is required to act with reasonable care and pru-
dence; to exercise his judgment after proper inquiry and
precaution.'

Like other agents, a factor must obey the orders of his princi-
pal, and is hable for losses which result from any deviation.
If he is directed to hold for sale till a particular day and then
sell, and he disobeys by selling before, he is liable for the differ-
ence between the price on that day and the price obtained.'
And if directed not to sell below a certain price, and he does
sell for a less price, he is liable for the actual damage sus-
tained.'

1 Dodge V. Perkins, 9 Pick. 368; Evans v. Root, 7 N. Y. 186; Courcier
Clark V. Moody, 17 Mass. 145. v. Bitter, 4 Wash. 0. C. 549; John-

2 Hill V. Hiint, 9 Gray, 66. son v. Wade, 2 Bax. (Tenn.) 280;

3 Bigelow V. Walker, 24 Vt. 149; Hornsby v. Fielding, 10 Heisk. 367.
Linsley v. Carpenter, 4 Robt. 200. See KeUy v. Smith, 1 Blatohf . 290.

4 Graham v. Maitland, 37 How. 'Hindev. Smith, 6Lans. 464; Tay-
Pr. 307. lor v. Ketchum, 5 Robt. 507; Whit«

5 Atkinson V. Burton, 4 Bush, 399; v. Smith, 6 Lans. 5; Thompson v.
Whelan v. Lynch, 60 N. Y. 469. Gwyn, 46 Miss. 533; Loraine v. Cart-

6 Evans v. Potter, 2 Gall. 13. See wright, 8 Wash. O. C. 151; Gray v.
Guy V. Oakley, 13 John. 333. Bass,. 42 Ga. 270. See Knowlton

'Leverick v. Meigs, 1 Cow. 645; v. Fitch, 48 Barb. 593; S. C. 52 N. Y.
Gheen v. Johnson, 90 Pa, St. 38. 28a

8 Brown v. McGran, 14 Pet, 479;

PEINCIPAL AGAINST AGENT. 31

It was once held in ISTew York, that where an agent sells be-
low the limit fixed in his instructions, the measure of damages
is the difference between the price obtained on the sale and the
minimum price hmited by the instructions.^ This decision was
reversed, the appellate court holding that the principal was only-
entitled to compensation for the injury actually sustained ; that
it was competent for the factor to show in reduction of dam-
ages that the goods at the time of the sale, and do\vn to the
time of the trial, were worth no more than the price at which
they were sold ; that he takes the risk by such a sale of a rise
ia the value of the goods at any time before the action is
brought, and perhaps down to the time of the trial. The in-
voice price, or that fixed by the principal in the instructions, is
prima facie their value ; and as to articles having no market
value, the principal may insist on the price annexed to the in-
structions.^ In a Massachusetts case, where a factor agreed he
would not sell a consignment of tobacco for less than forty
cents a pound, but did sell for less, the trial court refused to
charge that the defendant would not be liable above the fair
market value at the time it was sold, but was liable on the basis
of its value when a return of it was demanded. This ruling was
affirmed. The court said : " The sale of the tobacco below the
limit of their authority was a breach of their agreement, and
they cannot restrict the damages to the market value at that
precise point of time. The injury may have consisted not in
selling below the existing market price, but in choosing a time
for sale when the market was depressed, and a favorable price
could not be realized. The consignor had a right to insist that
his goods should be held until his price could be obtained. We
do not find it necessary to decide what rule of damages is ab-
solutely correct. It has sometimes been said that the highest
market price before action brought is the standard; at others,
that the highest value before the trial may be awarded. It is
safe to say that the factor is at least liable for the highest mar-
ket value of the goods within a reasonable time after the sale
in violation of instructions." '

iBlot V. Boicean, 1 Sandf. Ill; ^Maynard v. Pease, 99 Mass.

Switzer v. Connett, 11 Mo. 88. 555; Anstell v. Crawford, 7 Ala.

2 3 N. Y. 78; Hind^ v. Smith, 6 335.
Lans. 464.

33 AGENCY.

The limit by agreement or instructions may be fixed with
reference to the selling price of other similar goods ; when, in
case of a sale for less, damages will be given on the basis of
that limit; such selling price may be determined either by offers
to sell made of the goods referred to in the ordinary course of
business, or by actual sales.' In Brown v. McGran,^ it is laid
down as a general doctrine that : " Whenever a consignment
is made to a factor for sale, the consignor has a right generally
to control the sale thereof, according to his own pleasure, from
time to time, if no advances have been made or liabilities in-
curred on account thereof; and the factor is bound to obey his
orders. This arises from the ordinary relation of principal and
agent. If, however, the factor makes advances, or incurs lia-
bilities, on account of the consignment, by which he acquires a
special property therein; then the factor has a right to sell so
much of the consignment as may be necessary to reimburse
such advances or meet such liabilities ; unless there is some ex-
isting agreement between himself and consignor, which controls
or varies this right. Thus, for example, if contemporaneous
with the consignment and advances or liabilities, there are or-
ders given by the consignor, which are assented to by the factor,
that the goods shall not be sold until a fixed time, in such a
case, the consignment is presumed to be received by the factor
subject to such orders ; and he is not at liberty to sell the goods
to reimburse the advances or liabilities, until after that time has
elapsed. The same rule wiU apply to orders not to sell below
a fixed price; unless, indeed, the consignor shall, after due
notice and request, refuse to provide any other means to reim-
burse the factor. And in no case will the factor be at liberty
to sell the consignment contrary to the orders of the consignot",
although he has made advances, or incurred liabilities thereon, if
the consignor stands ready and offers to reimburse and discharge
such advances and liabilities. On the other hand, where the con-
signment is made generally without any specific orders as to the
time or mode of sale, and the factor makes advances or incurs
liabilities on the footing of such consignment, then the legal
presumption is that the factor is intended to be clothed with
the ordinary rights of factors to seU in the exercise of a sound

> Harrison v. Glover, 72 N. Y, 451. » 14 Pet. 479.

PEINCIPAL AGAINST AGENT. do

discretion, at such time and in such mode as the usage of trade
and his general duty require; and to reimburse himself for his
advances and liabilities, out of the proceeds of the sale ; and
the consignor has no right by any subsequent orders, given
after advances have been made, or liabilities incurred, by the
factor, to suspend or control this right of sale, exce pt so far
as respects the surplus of the consignment, not necessary for
the reimbursement of such advances or liabilities." This doc-
trine was approved in the subsequent case of Eield v. Far-
rington.^

Where a factor is directed to seU at a particular time, it is his
duty to sell when that time arrives or within a reasonable time
thereafter, for the best price he can then obtain. If he omits
to do so, the principal may treat the property as appropriated
by the factor, and is entitled to recover the amount the goods
could have been sold for if the order had been complied with.^
In such a case the principal is obviously entitled to the price
which would have been received if the agent had followed the
instructions. So where the instructions are to hold until a cer-
tain price can be realized and the market advances to that price-,,
but the agent has sold before, it is manifestly just to hold the
agent for the difference between what he received and the limit
fixed in his instructions. But where the instructions fix a limit
of the price, which is at the time and continues to be in advance
of the market value ; where the agent sells after his power to
sell has ceased, and when it was his duty to forward the goods
to another market, or merely to hold them, and therefore by ,
selling in violation of instructions he may be charged with a
conversion, the question at what time the value shaU be esti-
mated in the assessment of damages is one of considerable diifi-
culty, and on which there is considerable conflict of decision.
Such cases will often differ from ordinary cases of trover, in the
circumstance that the defendant knew the owner's intentions
and was under obligation to obey instructions to effectuate them ;

1 10 Wall. 141. See Weed v. But see BeU v. Palmer, 6 Cow. 138;

Adams, 37 Conn. 378; Whitney v. Marfleld v. Goodhue, 3 N. Y. 63.

Wyman, 34 Md. 134; Marfield v. 2 Whelan v. Lynch, 65 Barb. 336;

Douglass, 1 Sandf . 360 (reversed, 3 N. 60 N. Y. 469.
Y. 70); PhUlips v. Scott, 43 Mo. 86.
Vol. Ill — 3

34 AaENCY.

hence the profits or ultimate advantage which the principal had
in view, and which subsequent events showed would have been
realized, were in a legal sense contemplated by the parties. But
it is a question whether this should place an agent in a situation
to answer by a severer standard than any wrongdoer who tort-
iously converts another's property, ignorant and reckless of the
owner's intentions. The violation of an agent's conventional
duty is no more culpable than is the violation of the owner's
right of property by the other ; it was the duty of the agent
to obey instructions of his principal ; and it is no less the solemn
duty of others to abstain from the violation of the rights of
ownership. Where a factor was instructed by his principal to
sell wheat on consignment at a specified price on a given day,
and if not sold on that day to ship the same to New York, he
was held bound to obey the instructions or be hable as for a
conversion. On the day mentioned for the sale, in the instruc-
tions, the factor, by giving a refusal until the morning of the
following day, and then perfecting the sale for the required
price, was held to have violated his instructions and to have in-
curred that liability.' Upon these facts Hogeboom, J., said:
" The question is one of complete indemnity to the party in-
jured. It is not stated in terms, and perhaps not in effect, that
the sale by the defendant was fraudulent or in bad faith ; and,
therefore, no damages founded specially on that ground ought
to be recovered. But it is stated that the sale was without
authority and in violation of instructions, and, therefore, every
, damage consequent upon such a sale should be allowed. It is
not stated that the instructions to ship to New York were with
a view to the immediate sale of the wheat on its arrival at New
York, and, therefore, the plaintiff should not be limited to the
price of the wheat immediately after it would have arrived in
New York, if forwarded according to the plaintiff's instructions.
But it is stated, inferentiaUy at least, that the order to ship to
New York was with a view to an ultimate sale theire. . . .
Perhaps, if this would involve a more restricted rule of dam-
ages than would otherwise obtain, the plaintiff is not limited to
it, inasmuch as there is in the complaint an allegation of an ille-
*
1 Scott v. Rogers, 31 N. Y. 676.

PEINOIPAL A&AmST AGENT. 35-

gal conversion of the property entitling the plaintiff to such
damages as belong to such a cause of action. . . . There is
nothing in the case or in the evidence by which we can pre-
cisely ascertain what the plaintiff would have done with the
property if he had retained it ; and this presents one of the chief
difficulties in ascertaining, in point of fact, the damages which
the plaintiff has sustained. If he designed an immediate sale
thereof, on its arrival in New York, the price at which he could
have sold it at that time as compared with the price which the
defendant got for it, and which from a stipulation in the case
we are authorized to iafer has been paid over to the plaintiff,
would show the loss sustained by him. But, as before stated,
neither the allegations in the complaint nor the evidence in the
case discloses any clear proof of an intent to make an immedi-
ate sale ; and I think, as well under well settled rules of law as
the reason and spirit of the case, the plaintiff ought not to be
limited to such damages. He may be supposed to be reason-
ably conversant with the market and with the prospects of a rise
in the price, which subsequent events verified. . . . If at
some subsequent time, within a reasonable period after the con-
version, he had notified the defendants of his election to adopt
the price at that period, I think that would have fixed a reason-
able and lawful standard for the estimate of damages. It would
have been saying, in substance, I elect to consider the property
as mine up to this period ; I now elect to make a sale of it, and
I hold you responsible for the present value of the property.
But no such course was taken. . . . E"o suit was commenced
until years afterwards ; and it is now claimed to be the legal
rule, that the aggrieved party may make price at any time after
the conversion and before the trial of the cause, or, at least, that
he may do so, provided the suit is commenced within a reason-
able time after the conversion. . . . It is obviously a rule
of doubtful justice to give to the plaintiff the whole period until
the statute of limitations would attach for the commencement
of his action, and the whole period intervening between the
conversion and the trial to select his standard of price, without
ever having given notice of his intention to adopt the price of
any particular period. A much more just and equitable rule,
independent of adjudications upon this question, would seem to

36 AGENCY.

be, to allow the plaintiff some reasonable period within the stat-
ute of limitations for fixing the price of the property, provided
he notifies the adverse party at the tmrm of such act on his part ;
but never to allow him unlimited liberty of selection as to the
price of which he will avail himself at the trial of the cause. If
he does not make and notify his election of time, then to fix the
time by the day of the commencement of the- action."

The rule adopted in this case was based on the assumed fact
that the plaintiff did not intend to sell his wheat in New York
at once after its arrival ; and the legal right to the benefit he
had impliedly reserved to himself, by his instructions, of any
rise in that market which might take place in the near future ;
and this was construed to embrace the remainder of the season,
from July 13th to November 29th, when navigation closed. The
fact that he did not intend to sell immediately after the arrival
of the wheat in New York was inferred apparently from the
absence of proof that he intended an immediate sale. As the
fact was important on the question of damages, it may admit of
question whether the party asserting it, and claiming an increase
of damages in consequence of it, should not have been re-
quired to prove it. The injury to the plaintiff by the sale made
by the defendant was prima facie the difference between the
amount obtained by that sale and the value of the wheat in
New York when it should have arrived there, after deducting
the cost of transportation.^ Since the opinion was given from
which the above extract was taken, there has been an important
change declared in New York in the rule of damages for con-
version, as well as for non-delivery of goods on a contract of
sale where the price has been paid. In the absence of special
circumstances, it is now the value of the property at the time
and place of conversion, or breach of the contract, with inter-
est.2 And this is beUeved to be the general rule in this country.

iBell V. Cunningham, 3 Pet. 69
Schmertz v. Dwyer, 53 Pa. St. 335
Eby V. Schumacher, 39 Pa. St. 40:
Sturgess v. BisseU, 46 N. Y. 462
Magnin v. Dinsmore, 63 N. Y. 85

Ormsby v. Vermont Copper M. Co.
56 N. Y. 623; M. & T. Bank v. F. &
M. Nat. Bank, 60 N. Y. 40; Wehler.
HavUand, 69 N. Y. 448; Mathews v.
Coe, 49 N. Y. 57; Tyng v. Commer-

Sisaon v. Cleveland, etc. E. R. Co. cial Warehouse, 58 N. Y. 808; Whelan
14 Mich. 489. v. Lynch, 60 N. Y. 469; Wintermute

2 Baker v. Drake, .53 N. Y. 311; v. Cooke, 73 N. Y, 107.

PEmOIPAX AGAINST AGENT. 37

though it does not prevail uniformly in all of the states. The
same rule ought to prevail between principal and agent ; there
are the same considerations to support it.^

The special circumstances which warrant an increase of dam-
ages beyond the value at the time and place of conversion are
those which on general principles justify the allowance of con-
sequential damages ; and sometimes the courts proceed on prin-
ciples analogous to those which a court of equity apply to
unfaithful trustees. Where property is disposed of by an agent
contrary to instructions, or without authority, it is often prop-
erty purchased and directed to be held for a particular purpose.
When that happens, and the object is thwarted by the act or
omission complained of, the injury is properly estimated with
reference to the special value of the property for the particular
use intended.

The acceptance of a consignment is an implied acceptance of
the accompanying terms stated by the consignor. Thus, where
the consignor informed his factor that he had made a consign-
ment to him, and should anticipate the avails by drawing cer-
tain bills of exchange on him ; by accepting the consignment it
was considered that he became bound to pay the bills ; that,
having failed to pay them, he was liable to the drawer for the
damages and costs which he had been compelled to pay by rea-
son of the bills having been protested.^ A factor is authorized
to sell on credit where it is justified by the usages of trade, and
the credit is not beyond the usual period.' But where the prin-
cipal consigns for sale without instructions, and the fadtor sells
for cash on delivery, without giving any credit, it is his duty
to obtain payment before he allows the property to go out of
his control. If, through any negligence or carelessness on his
part, or as matter of favor to the vendee, he is allowed to get
possession, without making payment, the factor is liable to the

iSee "Wagner v. Peterson, 83 Pa. De Lasardi v. Hewitt, 7 B. Mon. 697;

St. 238; Pinkerton v. Manchester R. Greely v. Bartlett, 1 Greenl. 173;

E. 42 N. H. 434. See vol. I, pp. 173, Clark v. Van Northwick, 1 Pick.

174. 343; Forrestier v. Bordman, 1 Story,

2 Urquhart V. Mclver, 4 John. 103. 43; Daylight Burner Co. v. Odlin,
See "Walker v. Smith, 4 Dan. 889. 51 N. H. 56; Story on Agency, §§ 60,

3 Byrne v. Schwing, 6 B. Mon. 199; 110.

38 AGENCY.

consignor for the price. ^ So if, on the expiration of a credit,
he extends it without the assent of his principal, he is responsi-
ble for any loss which results from such extension.^ In selling
on credit the factor must exercise skill and prudence ; and if,
without consulting his principal, he gives credit to a customer
known to be, or whom due inquiry would have shown to be, of
doubtful responsibility, he wiE be chargeable with any conse-
quent loss.' Factors may conduct the business either wholly or
in part without disclosing their principals, take notes, judg-
ments and insurance policies, in their own names, without be-
ing chargeable with conversion, or those forms having the
effect to exclude their principals.^ They are entitled to a gen-
eral lien on the goods, or their proceeds, in their hands, for
their demands against the principal, not only for commissions,
advances and disbursements, but for their liabilities in behalf
of their principals not yet matured.'

Where a factor receives a del credere or guaranty commis-
sion there is some diversity as to his undertaking : whether it is
absolute, as that of the primary debtor, to pay the principal
the amount to which he is entitled for the goods sold, on the
expiration of the buyer's credit, irrespective of his solvency or
insolvency ; ' or whether it is a guaranty which binds the factor
like a surety to pay on the purchaser's default.'' On either
view, when the event transpires which entitles the principal to
apply to the factor for payment, recovery may be had against

iDeshler v. Beers, 33 HI. 368. See « Sherwood v. Stone, 14 N. Y. 267;

Stallenwerok v. Thacher, 115 Mass. Wolfe v. Koppel, 3 Denio, 868; 5

224; Phillips v. Moir, 69 El. 155; HiU, 458; Cartwright v. Greene, 47

Morrison v. Cole, 30 Mich. 103; Barb. 9; Grove v. Dubois, 1 T. E.

Johnson v. Totten, 8 Cal. 843; Gil- 112; Bize v. Dickason, 1 T. E. 385.
bei-t V. Chauvitean, id. 458. 7 QaU v. Comber, 7 Taunt. 538

2Hairston v. Midley, I'Gratt. 98; Hornby v. Lacy, 6 M. & S. 566

Amoiy V. Hamilton, 17 Mass. 103. Peele v. Northcote, 7 Taunt. 478

3 Ernest v. StoUer, 5 Dill. C. 0. Morris v. Cleasby, 4 M. & S. 568

488; Jlowe v. Sutherland, 39 Iowa, Story on Agency, § 315; Thompson

484; Foster v. Waller, 75 HI. 464; v. Perkins, 3 Mason, 232. See

BurrUl v. Phillips, 1 GaU. 360. See Bradley v. Eichai-dson, 33 Vt. 731;

Goi-man v. Wheeler, 10 Gray, 362. S. C. 3 Blatch. 348; Lewis v. Breh-

« Story on Agency, § 111. me, 33 Md. 413; Muller v. Bohlens,

5 Stevens v. Eobins, 13 Mass. 180; 3 Wash. 0. C. 378; 1 Pars, on Cent.

Story on Agency, §§ 351, 377, 378. 92.

PEINCIPAL AGAINST AGENT.

3a

him for the goods sold, of the amount which would be recover-
able in an action for money had and received if the purchaser
had in fact paid.^ If the money be paid to the factor, that
generally fulfils the guaranty, which does not extend to assure
its safe arrival to the hands of the principal, though such factor
is bound to the care and prudence due from an agent in send-
ing it.^ But if the guaranty evinces an intention to cover a
safe remittance, the responsibihty may be thus enlarged.'

Keeping and rendering accounts, and giving the principal
seasonable information, important to his interests, are especially
duties of this class of agents,^ and they are held very strictly

iSwan V. Nesmith, 7 Pick. 330;
Wolfe V. Koppel, 5 Hill, 458; 3 Den.
368. See Dunnell V. Mason, 1 Story,
543.

21 Pars, on Cent. 93; Lucas v.
Groning, 7 Taunt. 164; Muller v.
Bohlens, 3 Wash. 0. C. 378; Hen-
bach V. Rather, 3 Duer, 337; Lever-
rick V. Meigs, 1 Cow. 645. But see
Lewis V. Brehme, 33 Ind. 413.

3 McKenzie f . Scott, 6 Bro. P. C.
380.

^Arrott V. Brown, 6 Whart. 9
Brown v. Arrott, 6 W. & S. 403
EUiott V. Walker, 1 Eawle, 136
Forrestier_ V. Bordman, 1 Story, 48
Clark T. Moody, 17 Mass. 145. In
this case. Parsons, C. J., said: " The
general rule laid down in the books
is, that where goods are delivered to
a factor to be sold and disposed of
for his principal, the law implies a
promise on the part of the factor that
he will render an account of them
whenever called upon by the princi-
pal, and if he refuses to account, he
is liable in assumpsit for the breach
of his implied promise. . . .

" Generally the consignor accom-
panies his consignment with direc-
tions how to apply the proceeds,
either to pay them over to a third
person; or to remit in biUs, or in
merchandise, or in specie; or to

hold them to answer his future or-
ders; and in these cases there can
be no difficulty. For the factor can-
not be liable until he has actually
or impliedly broken his orders. I
say impliedly, for if the factor
should become bankrupt or insolv-
ent, with the goods of the princi-
pal, or their proceeds, in his hands,
so that he is disabled from remitting
them, or otherwise appropriating
them according to the instructions
of the principal, there seems to be
no reason why an action would not
immediately lie against him; by an-
alogy to the common law principle,
that when a duty is to arise upon a
demand, and the party liable has dis-
abled himself from performing, the
necessity of a demand ceases. . . .
"It is the duty of factors to ac-
count to their principals in a reason-
able time, without any demand, in
cases where a demand would be im-
practicable or highly inconvenient;
so that a factor abroad, who should
receive goods to sell, without special
directions as to the mode of remit-
tance, would be held, according to
the course of business, to give his
principal information of his prog-
ress in the transaction; and if he
should neglect unreasonably to for-
ward his account to his employer,

40 AGENCY.

responsible for the truth of their accounts and reports. In
Pennsylvania it has been held that where the information trans-
mitted is such as may induce the principal, in the adaptation of
his operations to his means, to rely on an outstanding debt as a
fund on which he may confidently draw, the agent makes the
debt his own. The representation has the effect of an estop-
pel.i In that case the agent credited the principal in his annual
account current with a debt outstanding, and that debt after-
wards proved bad, and because the agent neglected to give
notice of that fact within a reasonable time, he was held re-
sponsible as an insurer of the debt. There would seem to be
none of the qualities of an estoppel in the facts of such a case,
and no ground for making the agent liable as an insurer. He
incurred no liability for selling on credit, because he sold to a
purchaser then in good credit, or apparently so ; he credited the
debt as one against such a purchaser, but not acting on a guar-
anty commission, he did not insure its collection. His omission
to give notice of a subsequent failure was mere negligence, as
the insolvency is not considered as impeaching the good faith
or prudence of the sale. Such negligence, on general principles,
rendered him liable for the actual injury resulting therefrom,^

this negligence would be a breach ceeds to the order of his principal;

of his contract, and subject him to and he does nothing in violation of

an action. those orders, or to disable himself

"So if he should render an un- from complying with them when

true account, even without any in- they shall be received, and trans-

tention of fraud, claiming a greater mits a true account of sales, in a

credit than he was entitled to, so reasonable time according to the

that the balance shown was not course of business, and is ready to

true, we conceive the principal remit or answer drafts upon him,

would have a right Of action, with- we think no action will lie against

out a demand. For he would be him for the balance in his hands,

obliged to submit to such charges as For his contract is to sell and render

the factor should choose to make, or an accovmt, and he ought not to be

to wait, perhaps at the risk of his held to remit at his own risk; and

debt, until his agent should volun- he cannot remit at the risk of his

tarily correct his account, and ac- principal, unless in compliance with

knowledge a just balance. instructions."

" But if the factor should receive i Harvey v. Turner, 4 Rawle, 223;

and sell the goods, without any spe- Arrott v. Brown, 6 Whart. 9. See

cial orders as to remittance, and ante, p. 4.

upon an understanding, express or 2 Elliot v. Walker, 1 Eawle, 126
imphed, that he is to hold the pro-

I

PEINCIPAi AGAINST AGENT. 41

by the principal not having early information to warn him
against any operations proceeding upon that credit as a fund.
The existence of the credit is a circumstance in the situation
requiring greater diligence in communicating any fact affecting
it ; it is also a fact material on the question of damages, if in
the absence of notice the principal was subjected to any sacri-
fice by acting upon such credit as real. The assumption that
such negligence caused a loss equal to the amount of the debt,
and that the agent should therefore be responsible for it as an
insurer, independent of the consequences in the particular case,
is treated as an exception, in that state, to the general rule, and
has been criticised as suoh.^ Whether a factor assumes an un-
collected debt on report of which he gives the principal credit,
assumes liabilities, or makes payments, is a question of inten-
tion. "When the factor pays or gives his note or a credit to his
principal for such a debt in a final account, it has been consid-
ered that the agent intended to make the debt his own.^ But
giving credit to the principal for unmatured debts in an account
current, or giving notes made payable when funds from such
debts are expected, is not a conclusive assumption of such debts
by the factor; such credit is but a liquidation of the account,
and does not alter the factor's responsibility.^ He is entitled to
charge back to the principal such of the credited debts as prove
bad,* or to defend against the principal's action on a note given
for such credits, in the same event, on the ground of a failure
of consideration.'

A factor or consignee, after apprising his principal of the sale
of goods consigned to him, may wait to receive directions as to
the mode of remitting the net proceeds ; he is not liable to an
action until he is in some default in remitting or paying the
proceeds according to the orders of his principal.* He is not

1 1 Am. L. Cases, note to Goodenow Hapgood v. Batcheller, 4 Met.
T. Tyler. 573.

2 Oakley v. Crenshaw, 4 Cow. 250. * Reily v. Lamar, supra.

See Hapgood v. Batcheller, 4 Met. 5 Hapgood v. Batcheller, supra.

573; Eobertsonv. Livingston, 5 Cow. « Ferris v. Paris, 10 John. 385;

473; Harvey v. Turner, 4 Eawle, Holden v. Crafts, 4 E. D. Smith,

223. . 490; Cooley v. Betts, 24 Wend. 203;

3 Robertson v. Livingston, 5 Cow. Brink v. Dolsen, 8 Barb. 337; Green-
473; Eeily v. Lamar, 2 Cranch, 343; tree v. Rosenstock, 61 N. Y. 583.

42 AGENCr.

liable to interest until he is in some default.' He must make
remittance in the manner directed by the principal. If directed
to remit by draft, and he remits in a different manner, and the
money is lost, he must bear the loss.^ In February, 1837, S, a
resident of 'New York, received a sum of money as agent of H,
who resided in Liverpool, and was directed to remit by pur-
chasing and forwarding a bill of exchange. S' thereupon pur-
chased a bill on his own credit at a premium of eleven and
one-half per cent., which he forwarded to H at ten per cent.,
that being the rate at which similar bills were then selling for
cash. H kept the bill until November, 1839, having in the
meantime made various unsuccessful efforts to collect it, and
was then first informed that it had not been purchased with his
money. He immediately wrote to S that the bill would not be
regarded as payment, and shortly afterwards brought an action
for money had and received, and it was held that the action
was maintainable.'

To BE0KEE8. — Brokers constitute a distinct class of agents,
and are employed in a great variety of commercial transactions.
Breaches of their duty are compensated on the same general
principles as apply between principal and agent generally.
Though, strictly, a broker is a mere negotiator of bargains be-
tween other parties, without any trust or bailment of the sub-
ject of his agency ; still the name is sometimes applied to agents
who have actual or symbolical possession of the thing which is
the subject of their negotiations.*

He must make full satisfaction to his principal for any loss
sustained by his fault ; the principal has recourse upon him for
damages which will be equivalent in amount to the advantages
he was' entitled to expect from a due performance o f his duty.
Thus, a loan broker who undertook to obtain ample security
for his principal's money by mortgage of real estate, and took a
mortgage which proved insufficient security in consequence of

lEllery v. Cunningham, 1 Met. 2 Foster v. Preston, 8 Cow. 198;

113; Pope Y. Barrett, 1 Mason, 117. Kerr v. Cotton, 33 Tex. 411.

See Fulkerson v. White, 33 Tex. 3 Hays v. Stone, 7 Hill, 128.

674. * See Story on Agency, § 33.

PEDJCrPAL AGAINST AQCNT. 43

prior incumbrances, was held liable for the loss.^ So, we have-
seen an insurance broker who neglects his duty to effect insur-
ance, or performs the duty defectively, is made liable in respect
to the loss in place of the insurance, as the insurer would have
been had the pohcy been duly effected.^ A house agent who
charges a commission to a landlord for letting his house is
bound to due and reasonable care in ascertaining the solvency
of the tenant ; and if in default in this respect, to make com-
pensation for the rent lost by the tenant's insolvency.'

Stock brokers are employed in respect to stocks, bonds and
things of that nature to make sales and purchases very nearly
as factors are in respect to merchandise, and their liabilities are
governed by the same principles. They are as agents bound to
obey the instructions of their customers, and must not only
answer for any loss or damage which results from any devia-
tion, but may be made liable as for conversion whenever they
make any disposition of the subjects of their agency contrary
to their duty. Where a certificate of shares in a corporation
was entrusted to a broker with directions to sell under circum-
stances specified, it was held that he had no right to transfer
the shares for any other purpose to the name of another person
or to his own name ; and that evidence of a custom or usage
among brokers so to do was not admissilsle ; that the owner
might treat such a transfer as a sale, and recover of the broker
thp market price of the shares on the day of the transfer,
although the broker afterwards tendered to him another certifi-
cate of an equal number of such shares.^ And he is subject to
the same rule of damages if he convert stock or bonds deposited
with him as a pledge or security.' "Where a broker undertakes
to sell stock short for a customer and to carry it on the pay-
ment of margin and commission, he is bound to make both a
sale and a purchase. Every short sale is made by the seller
with the contemplation of covering it by a purchase when the
market shall have declined; and for the purpose of making a

I Shipherd v. Field, 70 lU. 438. S. 0. 5 Eobt. 507; Taussig v. Hart, 49

2Aiite, p. 9. N. Y. 301.

sHeys v. TindaU, 1 B. & S. 296. 6 Wagner v. Peterson, 83 Pa. St.

4 Parsons v. Martin, 11 Gray, 111; 238; Neiler v. KeUy, 69 id. 403.
Taylor v. Ketchum, 85 How. Pr. 389;

44 ' AGENCT.

profit by the decline. When the broker has made the short sale,
he having delivered the stock to the purchaser and received the
price, he is said to carry the stock for his principal until he is
bound by his contract to purchase stock to cover it, and the
margin is the broker's security against any loss by advance in
the market during that time. If this time is not fixed by the
contract, the law implies from his agreement to make a short
sale for his customer for a commission, that it is part of the bar-
gain that the broker shaU carry the stock for a reasonable time,
for in no other way can the object of the parties be effectuated.
A short sale to be covered immediately would be a very idle
transaction. The broker can, however, close the transaction at
any time if the margin upon his demand and notice is not kejpt
good. After he has carried the stock for a reasonable time,
thus affording his customer an opportunity to realize his ex-
pectations, he may, upon notice, close the transaction with his
customer. He is his agent, and must obey his orders both in
making the sale and covering it. If he acts without orders, or
against the orders of his principal, he commits a breach of duty,
and becomes liable, like any other agent, for the loss he may
occasion his principal. Where a broker, after a short sale
of stock made for his principal, without notice to him, or any
default on his part, or any authority from him, bought in the
stock and covered the short sale, and afterwards, on receiving
the principal's direction to cover the short sale, did not as he
could not comply, having previously disabled himself from
doing so by his own purchase, he was held liable to his principal,
for this breach of duty, for the difference between the price at
which the stock was sold short and the market price on the day
when the order was received to purchase, with interest, deduct-
ing commissions and revenue stamps.^

A broker purchased stock for a customer, not as an invest-
ment, but upon speculation; the latter furnishing a small
amount as a margin, and the former supplying the residue ; it
was held that if, upon being advised of an unauthorized sale of
the stock the principal desires further to prosecute the advent-

iWhite V. Smith, 54 N. Y. 533; Knowlton v. Pitch, 48 Barb. 593; 52
N. Y. 288.

PEmCIPAL AGAINST AGENT. 45

ure, he has a right to disaffirm the sale, and to require the
broker to replace the stock, and upon failure or refusal to do
this, the remedy of the principal is to replace it himself ; and
the advance in the market price from the time of the sale up to
a reasonable time to replace it, after notice of the unauthorized
sale, affords a complete indemnity and is the proper measure of
damages.^

Damages foe acting as agent without, oe nsr excess of
AUTHOEiTT.— A party may suffer injury from the assumption by
another to act as his agent, without any authority, as well as
by acts of an agent contrary to private instructions, but in the
exercise of such apparent authority that the principal cannot
repudiate them. In such cases the pretended or disobedient
agent is liable to the principal for the loss he suffers from such
misconduct. "Where a person falsely pretending to be the
agent of the owner of land to sell the same, executed a contract
for its sale, which was recorded, and upon which thQ purchaser
brought suit for specific performance, thereby putting the
owner to trouble and expense, such pretended agent was held
liable to the owner in an action on the case for the damages
sustained by him in defending the suit.^ So, where an agent so
misconducted that his principal was obliged to go into chancery
to be relieved from his act, it was held that the agent should
pay the costs.' But where the principal is not bound, and has
the option to repudiate the act done in his behalf without
authority, he will ratify it as to the agent by ratifying the act as
to the other party, and will thus exonerate the agent from liabil-
ity for acting without or in excess of his authority.* An agent
who has employed a sub-agent under such circumstances that the
latter is responsible directly to him, instead of the principal, is
as to such sub-agent a principal; he may sue in his own name
for any breach of duty by such sub-agent ; he will be entitled

1 Baker V. Drake, 53 N. Y. 311; Ohio, 360; ^tna Ins. Co. v. Sabine,

Markham v. Jaudon, 41 id. 335. 6 McLean, 393; Bray v. Gunn, 53

2Philpotv. Taylor, 75 lU. 309. Ga. 144; Towle v. Stevenson, 1

3 Eespass v. Morton, Hard. (Ky.) John. Cas. 110; Beall v. January, 63

336. Mo. 434; Nesbitt v. Helser, 49 Mo.

^Winpenny v. French, 18 Ohio 883; Bean v. Drew, 15 La. Ann. 461;

St. 469; Woodward v. Suydam, 11 Watson v. Bigelow, 47 Mo. 413.

4:6 AGENCY.

to recover for the benefit of his principal such damages as he
has suffered or will suffer therefrom ; or to an amount which
will indemnify himself if the principal has recovered from him
the damages resulting from such sub-agent's fault,' and includ-
ing costs, where it was reasonable to defend, and the defense
is conducted in a reasonable manner.^

Section 2.

agent against prkrcipal.

An agent is entitled to reimbursement of moneys paid for his principal —
His right, as a factor, to make sales for this purpose — When he is
entitled to charge for exchange — How the right to reimbursement
affected by agent's made of doing the business — An agent's right to in-
demnity— Not entitled against the consequences of known and inten-
tional wrong.

An agent is not only entitled to compensation for his serv-
ices in performing the business of his agency, but also to be
reimbursed the moneys paid by him therein, and to be indem-
nified in respect to any liabilities he has incurred within his
authority to third persons in behalf of his principal, or by
obeying his lawful orders. The subject of compensation for
services has been sufficiently discussed in the chapter on that
subject.'

An agent is ENTTILED to EEnOtrESBMENT OF MONEYS PAID FOE

ms PEiNciPAL. — The agent's right to be repaid moneys he has
expended for his principal pursuant to his authority rests upon
a clear legal ground ; they are moneys paid at the principal's
request, and the law implies a duty and promise to refund.*

1 Van Wart v. WooUey, 5 Dowl. & Euffner v. Hewitt, 7 W. Va. 585;
R. 374; Story on Agency, § 201; Powell r. Trustees of Newbergh, 19
Mainwaring v. Brandon, 8 Taunt. John. 384; Elliott v. Walkor, 1
203. See Allen v. Suydam, 30 Eawle, 125; D'Arcy v. Lyle, 5 Bin.
Wend. 331, 328. 441; Brown v. Clayton, 13 Ga. 564;

2 Mers le Blanch v. Wilson, L. R. 8 Warren v. Hewett, 45 id. 501; Wade
C. P. 337. See vol. I, p. 135; Baxen- v. Roberts, 6 Humph. 134; Shear-
dale V. London, etc. R'y Co. L. R. man v. AVins, 4 Pick. 383; Yeat-
10 Ex. 35. See Richardson v. Dunn, man v. Corder, 38 Mo. 339; Bastable
8 C. B. N. S. 655. v. Denegre, 23 La. Ann. 134; Gree-

3 Vol. II, p. 440. ley v. Bartlett, 1 Greenl. 172; Van-
^Ramsayv. Gardner, llJohn. 437; dyke v. Brown, 8 N. J. Eq. 657;

Packard v. Lienow, 13 Mass. 11; Sentance v, Hawley, 13 C. B. N. S.

AGENT AGAINST PEINOIPAL. 4:7

Thus where a principal ordered his agent to purchase a com-
modity for him, and to draw on him for the amount ; when the
agent has complied with such direction the principal is bound
to accept and pay his bills ; if he fails to do so, the agent is en-
titled to recover from him not only the amount of the bills,
but damages and costs of protest. If the agent has paid these
he may recover upon a count for money paid, and the bills may
be given in evidence on that count.^ This right of action will
not be affected if the agent sell the commodity without orders,
after the protest of the biUs, although he has rendered no ac-
count of the'sales.^

The eight of factor to make sales to beimbuhse himself. —
But where the goods or assets of the principal in the hands of
the factor or agent are a primary fund for the payment of
moneys due him, it is necessary for him to show that the
primary fund is exhausted, and the remedy against the prin-
cipal personally is limited to the deficiency.' But in Massa-
chusetts it has been held * that advances made by a factor on
receipt of goods consigned to him for sale are presently due, and
suit may be brought therefor without waiting for the avails of
the consiglgient. The principal consigned to a factor parcels
of cotton ror sale, and immediately drew drafts on him which
were accepted and paid. The cotton was sold by him to per-
sons in good credit, for their notes payable to him on time.
Before their maturity some of the makers became insolvent,
and the factor brought suit fgr the moneys advanced on the
drafts. The court said, by Shaw, Oh. J., that "the payment of
the drafts by the plaintiffs, and the time of their payment,
were not at all dependent upon the sale of the cotton. The

456; Capp v. Topham, 6 East, 393
Blackmar v. Thomas, 38 N. Y. 67
Hidden v. Waldo, 55 N. Y. 394

1 Riggs V. Lindsay, 7 Cranch, 500.

2 Id.

3 Corlies v. Gumming, 6 Cow. 181 ;

Gihon v. Stanton, 9 N. Y. 476; Story Montgomerie v. Ivers, 17 John,
on Agency, §335. In Moore v. Rem- Gihon v. Stanton, 9 N. Y. 476; Hid-
ington, 34 Barb. 437, it was held den v. Waldo, 55 N. Y. 394. See
that where an agent is entitled to Peisch v. Dickson, 1 Mason, 9; Bar-
charge for expenses, he may recover rill v. Phillips, 1 Gall. 860.
for the fair worth of his board, *Beokwith v. Sibley, 11 Pick,
even though he actually paid noth- 483,
ing for it.

48 AGENCT.

consignment of the cotton for sale, upon which the plaintiff
would have a lien, not only for the repayment of the amount
of the particular drafts, but for their general balance, no doubt
emboldened the consignors to draw more freely upon their cor-
raspondents than they otherwise would, and operated as an in-
ducement to the latter to accept and pay their drafts. But
that circumstance has very little tendency to prove that the
plaintiffs relied exclusively upon that fund, or had agreed to
await reimbursement until such particular fund was realized
or had failed. . . . The legal relation of the parties
then was this : The defendants were indebted to the plaintiffs
for money due presently; they had a lien on the cotton before
the sale, and on the notes taken for it, after the sale, as security
for the debt due them. And although they took the notes in
their own name, it was in trust for the consignors ; the prop-
erty in the notes remained beneficially in the defendants, and
the plaintiffs had only a lien.' But where a creditor has a col-
lateral security for his debt, he is not confined to rest exclu-
sively upon such security for repayment ; but notwithstanding
the pledge or collateral security, may look to the general credit
of the debtor; and have his action, unless there is some agree-
ment or contract, express or implied, to give time,j|i to look to
a particular fund. In the present case, the burden is upon the
defendants, and no such agreement is proved, and no usa,ge,
course of dealing or other circumstances from which such a
contract can be implied." In a later case,^ the defendant ap-
plied to the plaintiffs to make and they made sundry advances
in cash and in their acceptances to enable him to purchase
sheepsHns, upon an agreement that he would pull the wool and
consign the same to the plaintiffs as security for such advances,
and for sale upon a guaranty commission. Hubbard, J., said:
" The facts, as they are stated, do not furnish evidence that the
plaintiffs agreed to give the defendant credit until the property
consigned to them was sold. The plaintiffs stand like other
commission merchants. They have no right, in the absence of
directions, immediately to sell the goods consigned to them, if

iDenston v. Perkins, 2 Pick. 86; 'XJpham v. Lefavour, 11 Metcalf,
Chesterfield Manuf. Ca v. Dehon, 5 174.
Pick. 7.

AGENT AGAINST PEINCrPAL.

49

the interest of the consignors will be sacrificed by such a sale^
The receiving of the goods under an agreement like the pres-
ent carries with it, also, the obligation to give a reasonable
credit ; and to force the goods into market as soon as received,
without regard to the interest of the owner, and merely to
turn them into money as early as practicable, would be such a
breach of duty as to expose them to a claim of damages, if the
-^, goods were sacrificed by the sale. On the other hand, they are
J only required to give a reasonable time, and then, if the goods
are not sold, they may call for payment, or further security,
' and may sue for the amount due them."

"When he is entiiled to chaege foe exchange. — Under an
agreement to collect debts and apply proceeds to the payment
of a principal's indebtedness to the agent,- he is entitled to de-
duct from the proceeds the rate of exchange between the place
of collection and the place where the debt from the principal
is payable, and his reasonable commissions.^

How the eight to eeimbitesement affected by mode of doing
THE business. — Where an agent who was employed to subscribe-
) stock in a railroad company, for his principal and in his name,,
subscribed and paid calls in his own name, it was held that the-
principal was not bound ; and on tender of a transfer of th&
certificate the agent was not entitled to recover for the money
paid ; he should have pursued the instructions and subscribed
in his principal's name.^ But where the order was general to.
buy stock for the principal, and the brokers bought, paid for it,
and took the certificate in their own names, after an offer to
transfer the certificate, a demand of payment and neglect by
the principal to pay, they were held entitled to recover the price
paid, and not merely the difference between that price and the
market value of the stock on the day of their demand.^

Where the principal is liable 'for moneys paid by the agent,
he is liable also for interest, if a stipulation therefor exists or
may be presumed from the nature of the business or the usage

iHowe V. Wade, 4 McLean, 319. ^ Giddings t. Sears, 103 Mas& 311.

2 Shrack v. McKnight, 84 Pa. St. See Dodge v. Tilston, 13 Pick. 338.
26.

VOL.m— 4

^0

AGENCY.

of trade ; or if the principal is in default in the performance of
his obligation to reimburse the agent.' To give rise to this
obligation to reimburse, on the part of the principal, the dis-
bursement must be within the agent's authority, and the money
must have been reasonably and in good faith paid.^ He should
pursue his principal's instructions, and cannot recover for extra
expenses caused by departing therefrom.'

An agent's eight to indemnity' — An agent is entitled to in-
demnity for losses or damages sustained in transacting the busi-
ness of his agency, and against liabilities incurred therein.
Where an agent, acting bona fide and without fault in the
proper service of the principal, is subjected to expense, or sued
on any contract made by him, or for any act done pursuant to
his authority, the law implies that the principal will indemnify
and reimburse him.* This is the general principle, arising from
the relation of the parties, and applies not only to entitle him
to recover full compensation where the loss has already hap-
pened, but also, quia timet, in giving him the right to retain
funds or securities as indemnitj'' for outstanding liabilities which
have not matured, or been actually enforced.'

1 Story on Agency, § 338; vol. I, his instructions, and he was not en-
pp. 588, 596. titled to pay for his expenses after

2 RuflEner v. Hewitt, 7 W. Va. 585. he left the place to which his in-
In PuUer v. Ellis, 39 Vt. 345, the structions directed him to go. And
plaintiff had hired the defendant, regarding him as a general agent, he
who was skilled in the management did not exercise a sound discretion
of horses, to take two horses to and act with common prudence, and
Eichmond, Va., for exhibition at the on that ground was not entitled to
state fair, and to sell them, if possi- recover. Brown v. Clayton, 12 Ga-
ble, for the most he could get for 564; Story on Agency, § 336.
them. While at Richmond he sold 3 Range v. Harwood, 39 Tex. 139;
one, and after ineffectual efforts to Keys v. Westford, 17 Pick. 373.
dispose of the other, without con- * Powell v. Trustees of Newburgh,
suiting his principal, he took it to 19 John. 384; D'Arcy v. Lyle, 5 Bin.
Charleston, S. C, and finally sue- '441; Stocking v. Sage, 1 Conn. 519.
ceeded in selling it; but his expenses * Id. ; Story on Agency, § 339; Bar-
amounted to $445.33. On account table v. Denegre, 28 La. Ann. 124;
of the unsettled state of the coun- Drummond v. Humphreys, 39 Me.
try, it was impossible for the defend- 347; Poole v. Adkisson, 1 Dana, 115;
ant to bring back the horse after he Yeatman v. Corder, 38 Mo. 337;
reached Wilmington, N. C. It was Howe v. Buffalo, etc. E, E. Co. 37
held that the defendant exceeded N. Y. 297,

AGENT AGAINST PEINCIPAL. 51

To afford ground for compensation, the loss must occur with-
out the agent's fault,i naturally and directly from the execution
of the agency ; this must be the cause and not merely the occa^
sion of the damage.^ Thus, if he is compelled to pay damages
to a third person for a false representation of the quality of the
■principal's goods, made innocently in pursuance of directions
from the principal, and in consequence of a deception practiced
by him ; ' or for converting the property of a third person, by
the direction of the principal, claiming to be the owner, the
agent having no notice of any adverse title,* the injury pro-
ceeds from the execution of the agency, and the agent is entitled
to indemnity from the principal.

iN^OT ALLOWED AGAINST CONSEQUENCES OF KNOWN AND INTEN-
TIONAL WEONG. — If one request or direct another to do an act
which he knows at the time will be a trespass, and promise to
indemnify him, the promise is void ; but if the person who does
the act at the instance or by the command of another does not
know at the time that he is committing a trespass, the promise
of indemnity is valid.'

If a third person has recovered judgment against the agent
which he has satisfied, the amount which he has been so com-
pelled to pay is the measure of damages in his action for
recovery over against the principal.^ In such case, if the third
person so recovering judgment against the agent accepts the
note of the agent in discharge of the judgment, it is equivalent
to payment for the purpose of recovery against the principal.''

1 Elliott V. Walker, 1 Eawle, 126. Ives v. Jones, 3 Ired. L. 538; Hays

2 Duncan v. Hill, L. E. 8 Ex. 243. v. Stone, 7 HUl, 138; Howe v. Buf-
sPaley on Agency, 152, 301. falo, etc. R. R. Co. 37 N. Y. 397.
*Adamson v. Jarvis, 4 Bing. 66; 6 Howe v. BufiEalo, etc. B. R. Co.

Coventry v. Barton, 17 John. 142; supra; Kip v. Brigham, 6 John. 158;
Avery v. Halsey, 14 Kck. 174; Al- Blasdale v. Babcock, 1 id. 17. See
laire v. Ouland, 2 John. Cas. 54. vol. I, p. 139.

5 Coventry v. Barton, 17 John. 143
Betts V. Gibbins, 3 A. & L. 57
Adamson v. Jarvis, 4 Bing. 66, 73

'Howe V. BufiEalo, etc. E. E. Co.
supra.

52 AGENCY.

Section 3.

third persons against agent.

Under what circumstances an agent may render himself liable to third per-
sons— Measure of damages in their favor where he acts without or
beyond his authority — His liability on his implied warranty of author-
ity— When money may be recovered back from an agent.

Under what ciecumstancbs an agent mat eendee himselp lia-
ble TO THIRD PERSONS. — In matters of contract a third person may
in many cases recover against one who is, in fact, an agent act-
ing within the scope of his authority, as well as against one
exceeding his authority, or acting as agent without being such
at aU. Where one who is in truth an agent, but does not
disclose his principal, makes a contract in his own name ; or dis-
closes his principal, and yet contracts in his own name because
credit is given to him personally, or his personal responsibility
is relied upon, he becomes the principal, and his agency in no
way affects his liability. There is another class of cases where
written contracts are made by persons assuming to be agents,
but who have not the requisite authority, and the contract is
so framed that when the name of the principal and the words
indicating agency are rejected because not used or inserted by
authority, a complete contract remains in the name of the
agent. In such cases the pretended agent has been held liable
as the principal. The cases, however, are in conflict on the
question whether the agent can be made hable as principal on
such an instrument.^ But where he is treated as the principal,
and liable accordingly, the element of agency is wanting, as in
the preceding class.

Measure of damages where he acts without or beyond his
AUTHORITY. — A pcrsoH assumiug to act as an agent for another
having no authority, or exceeding his authority, is liable in
some form of action to the person with whom he deals in that
assumed character.* And he is responsible not only where he so

'Story on Agency, § 304a and sPaley on Agency, by Dunlop,
notes, p. 387; Story on Agency, § 264.

THIRD PERSONS AGAINST AGENT. 53

assumes to act, and fraudulently asserts that he has authority,
but also where he misleads by knowingly acting without
authority, although intending no fraud.* So, also, where he
undertakes to act as an agent in good faith, believing that he
has due authority, when he has not, and acts under an inno-
cent mistake.^ Mr. Baron Alderson, in Smout v. Ilbery, said :
" There is no doubt that, in the case of a fraudulent misrepre-
sentation of his authority, with an intention to deceive, tKe
agent would be personally responsible. But, independently of
this, which is perfectly free from doubt, there seems to be still
two other classes of cases, in which an agent who, without
actual authority, makes a contract in the name of his principal,
is personally liable, even where no proof of such fraudulent in-
tention can be given. First, where he has no authority, and
knows it, but nevertheless makes the contract, as having such
authority. In that case, on the plainest principles of justice, he
is liable. For he induces the other party to enter into the con-
tract, on what amounts to a misrepresentation of a fact pecul-
iarly within his knowledge ; and it is but just that he who does
so should be considered as holding himself out as having com-
petent authority to contract, and as guarantying the conse-
quences arising from the want of such authority. But there is
a third class, in which the courts have held that, where a party,
making the contract as agent, bona fide believes that such
authority is vested in him, but he has, in fact, no such author-
ity, he is still personally liable. In these cases, it is true, the
agent is not actuated by any fraudulent motives ; nor has he made
any statement which he knows to be untrue. But still his lia-
bility depends on the same principles as before. It is wrong,
differing only in degree, but not in its essence, from the former
case, to state as true what the individual making such state-
ment does not know to be true, even though he does not know
it to be false, but believes, without sufficient grounds, that the
statement will ultimately turn out to be correct. And, if that
wrong produces injury to a third person, who is whoUy ignorant

1 Id. ; Downman v. Jones, 9 Jurist, Sm. Lead. Cas. 232-337, in note to
454-458. Thompson v. Davenport, 9 B. & C.

2 Story on Agency, § 364; Smout 78.
V. Ilbery, 10 M. & W. 1, 9, 10; 3

54

AGENCY.

of the grounds on which such belief of the supposed agent
is bounded, and who has relied on the correctness of his asser-
tion, it is equally just that he who makes such assertion should
be personally liable for its consequences. On examination of the
authorities, we are satisfied that all the cases in which an agent
has been held personally responsible, will be found to arrange
themselves under one or the other of these classes. In aU of
them it will be found that he has either been guilty of some
fraud, has made some statement which he knew to be false, or
has stated to be true what he did not know to be true; omit-
ting, at the same time, to give such information to the otlier
contracting party as would enable him, equally with himself, to
judge as to the authority under which he proposed to act." ^

An agent liable on implied waeeantt op authoeity. — He
is liable as upon a warranty of his authority ; ^ and for the rea-
son that, where he exceeds his authority or acts without any,
and so has not bound his principal, he has misled the party
with whom he has dealt. Therefore, the rule does not apply
where it appears that he fully communicated his authority,
before the dealings in question were concluded. In that case
the other party acts upon his own judgment of the agent's
power.' And so where an agency had existed but had been
determined by the death of the principal abroad unknown to
either party.''

The liability rests upon fraud or warranty, and extends to
the whole loss or injury which the party dealt with sustains in
consequence of the contract as made not being binding upon
the supposed principal. Thus where an agent employed to
purchase property at auction at a limited price exceeded his au-
thority, he was considered as purchasing on his own account.^
So where an agent of a bank, by means of false representa-

1 Collen V. Wright, 8 El. & Bl. 647; Raymond, 32 Conn. 379; Sinclair v.
Weeks v. Brofert, L. R. 8 C. P. 437. Jackson, 8 Cow. 585; Hall v. Lau-

2 White T, Madison, 26 N. Y. 117; derdale, 46 N. Y. 70; Jefts v. York,
26 How. Pr. 481; CoUen v. Wright, 10 Cush. 392; Story on Agency',
8 El. & Bl. 647; Baltzen v. Mcolay, § 365. See Lander v. Castro, 43 Cal.
53 N. Y. 467. 497.

3 Barry v. Pike, 31 La. Ann. 331; ^gmout v. Hbery, 10 M. & W. 1.
Aspinwall v. Torrance, 1 Lans. 381; 5 Hampton v. Specknagle, 9 S. &
Clark V. Foster, 8 Vt. 98; Ogden v. R. 213.

THIED PERSONS AGAINST AGENT.

55

tions as to his authority to employ attorneys for his principal,
secured professional services for the bank in sundry attachment
proceedings, and on suit against the bank by the attorney for
the value of his services, it turned out that the agent had no
such authority as represented, and so the bank could not be
made responsible ; it was held that the attorney had his action
agaiast the agent personally for the value of his services as at-
torney, together vyith the actual amount of his costs incurred
in the suit against the bank.^ The same doctrine has been ap-
plied in other cases. The damages properly include the value
of the property sold, or of the services rendered by the procure^
ment of the agent unqualified to bind the supposed principal ;
and if an abortive suit has been prosecuted on the contract,
on the faith of its being a binding contract, against such prin-
cipal, the costs of that action are recoverable as part of the
damages.^

1 Wright V. Baldwin, 51 Mo. 369.

2 Eckstein V. Whitehead, 10 U. C.
C. P. 65; Randell v. Trimen, 18 C. B.
78,6 ; 37 Eng. L. & Eq. 275 ; Spedding v.
NeveU, L. B. 4 C. P. 312; Goodwin
V. Francis, L. E. 5 C. P. 395; Collen
V. Wright, 7 El. & Bl. 301. In this
case, W signed a written agree-
ment describing himself in the
signature as agent of G, whereby
he agreed with C that a lease
should be granted to C of a farm
belonging to G. 0 and W both be-
lieved that W had authority from
G to make the agreement; but in
fact W had no such authority. G
refusing to grant the lease, C filed a
bill against him for specific per-
formance, and, after G had put in
his answer, denying W's authority,
0 gave W notice of the suit, and
ground of defense, and that 0
would proceed with the suit at W's
expense, unless W gave him notice
not further to proceed; and that C
would bring an action against W for
damages in the event, either of the
bill being dismissed on the ground

of the defense set up, or of W re-
quiring C not to further proceed.
W answered repudiating his liabil-
ity to C. The bill was dismissed on
the ground of the defense set up.
It was held that C was entitled to
maintain an action against W as for
breach of a promise that W had the
authority; and that O might recover
in such action damages for the ex-
pense of the chancery proceedings,
it not appearing that he had insti-
tuted them incautiously, and they
being therefore damages naturally
resulting from the misrepresenta-
tion made by W. Lord Campbell,
0. J., said: "We are to consider
whether the plaintiff is entitled to
recover in respect of the expenses
of the chancery suit. I think he is.
He acted as a reasonable man would
who gave faith to the representa-
tion that a contract had been made
by the alleged principal; he required
that that contract should be specific-
ally performed. The case cannot
differ from that of a sale of goods
by a party alleging himself to be a

50 AGENCY.

The measure of damages. — The same sum which, the agent,
without authority, had agreed for in behalf of his solvent prin-
cipal, would be the sum recoverable against him.^ In other
words, where upon an executed consideration a certain sum
would be due from the supposed principal if he had been bound
by the contract and solvent, that sum is recoverable from the
unqualified agent.^

Where the agent has exceeded his authority, the party with
whom the contract is made is not bound to look to the princi-
pal for so much of the contract as the agent was authorized to
make, but may hold the agent responsible to the amount of the
contract.' It seems, however, that the holder of such a contract
may resort to the principal for so much as the agent had author-
ity to promise in his behalf, where it is severable.* If one pre-
tending to be an agent has contracted as such without authority
from the principal, the party contracted with, on learning the
facts, has the right to repudiate the contract, and hold the per-
son who assumed to be agent immediately responsible for dam-
ages on his warranty of authority, without waiting for the time
when an action might be maintained on the contract itself.
Damages in such a case, it is said, are measured, not by the
contract, but by the injury resulting from the agent's want of
power.^ But such damages must ordinarily be such as could be

broker. The purchaser says that the contract was authorized on the
the alleged broker's contract is part of the alleged principal."
broken, because he had no authority i Sumner v. Williams, 8 Mass. 162;
to sell. If, before the action was Meech v. Smith, 7 Wend. 315; Du-
brought, the alleged broker had ex- senbury v. Ellis, 3 John. Cas. 70;
plained the mistake, the purchaser Pal^aer t. Stephens, 1 Denio, 471;
could not have recovered damages Pitman v. Entner, 5 Blackf. 250;
incurred by subsequently prosecut- Bowen v. Morris, 3 Taunt. 885; Pol-
ing the action. But if the assertion hiU v. Walter, 3 B. & Ad. 114;
v^as made and never retracted, I Wooder v. Dennett, 9 N. H. 55;
could not blame him for bringing Grafton Bank v. Flanders, 4 N. H.
the action. If the purchaser could 339; Feeter v. Heath, 11 Wend. 477.
not know that the alleged broker 2];,^,

had no authority to make the con- ' Feeter v. Heath, 11 Wend. 477.

tract, the loss arising from the ac- "Johnson v. Blasdale, 1 Sm. & M.

tion seems to me naturally to result 17. See Gordon v. Buchanan, 5

from the allegation. I cannot dis- Yerg. 71; 1 Par. on Cont. 69.

tinguish the case of such an action ^ White v. Madison, 36 How. Pr.

from the case of a bill for specific 481; S. C. 36 N. Y. 117.
performance filed in the belief that

THIRD PEESOHS A&AINST AGENT. 67

recovered against the party for a total breach, or a breach co-
extensive with the principal's repudiation of the supposed agent's
act. The auctioneer who sells real property without sufficient
authority, so that the purchaser can get no title, wUl be liable
to pay the purchaser's expenses of investigating the title, with
interest on the deposit, and also interest on the purchase money,
if kept in readiness and unproductive.^ If a special agent em-
ployed to seU, with orders not to warrant, nevertheless does so,
the principal would not be bound, and the agent will be answer-
able ; for otherwise the buyer would be without remedy.^ By
the contract, so far as the agent is concerned, the other con-
tracting party is entitled to the same compensation as upon a
total breach of a valid contract. Jf the principal is not bound
by and does not adopt the contract, the consequential loss to
the other party is the same that he would suffer if the principal
had bound himself according to the tenor of the contract, and
then refused to fulfil. In the latter case the injured party may
obtain his damages by action directly upon the contract ; this
may not always or generally be done in an action against the
agent; but in an action on his express or implied warranty of
authority, or for the deceit, the same rule of compensation
which would be applicable to the defaulting party would be the
only adequate measure of redress against the agent who had
caused the same injury through a want of the assumed power
to bind the party who refuses to ratify and perform. This is
well illustrated by the judgment in an English case.' The
action was against the agent for breach of implied warranty,
that in purchasing a ship from the plaintiff he had authority to
make the contract for the supposed principal. It appeared at
the trial that the principal having refused to adopt the defend-
ant's contract, the plaintiff resold the ship at a less price than
the contract price. The resale was taken to be reasonably made
for the best price that could be obtained, and it was taken that
the principal was perfectly solvent, and it was held that a ver-
dict was properly taken for damages measured by the difference
between the contract price and that obtained on the resale.
Lord Campbell, C. J., said : " "What was the contract in this

1 2 Sedgw. on Dam. 89, note. s Simons v. Patchett, 7 EL & Bl.

2 Paley on Agency, by Dunlop, 386 ; 568.
Fenn v. Harrison, 3 T. E. 75T.

58 AGENCY.

case ? That the defendant had authority from . . (his prin-
cipals), . . so that the bargain he had made in their name
was binding on them. What, then, has the plaintiff suffered
from this bargain not being binding on . . (them) . . ?
It is not disputed that, if the bargain had been binding, and
had not been fulfilled, the plaintiff would have recovered
against . . (the principals) . . damages for not fulfiUing
the contract;, and if they had fulfilled the contract, the plaintiff
would have had from them the fuU price. The loss of the
damages, therefore, which he would have recovered from . .
(the principals) . . is the direct consequence of the breach
of the defendant's contract. Yiewing the matter in another
light, the result is much the same. It is not to be disputed that,
if direct evidence had been given of a fall in the market price
of ships between the time of the making of the supposed bar-
gain and the time at which the plaintiff might reasonably resell
the ship, that fall in the price would be recoverable. Might not
the jury reasonably infer such a fall in price from the difference
in price actually obtained in this case ? If so, the case would
be brought within the general rule as to the measure of dam-
ages for not accepting goods." This case proceeded upon the
assumption of the solvency of the principal. On that assump-
tion the same rule was applied which would have applied to the
principal if he had been bound by the contract and refused to
accept and pay for the property. The damages to be recovered
against the false agent, however, are what was lost by the
plaintiff by not having the valid contract which the agent war-
ranted he had. Though if there had been such a binding con-
tract, the purchaser would have been liable to the plaintiff in
damages ; yet if the purchaser was not solvent, the jury would
say that the loss in consequence of not having a binding con-
tract was not the sum for which he would in that case have had
judgment against the purchaser.^

When money may be eecoveeed back feom agent. — An agent
win be responsible on his contracts, though made as agent,
where there is no responsible principal to resort to; that is,
where he represents a principal not suable other than the gov-

1 Simons v, Patchett, supra, per Crompton, J.

THIKD PEESONS AGAINST AGENT. 59

eminent.' So where money has been paid to an agent for the
use of his principal, under such circumstances that the party
paying it might recover it back from the latter. In such cases,
as long as the money has not been paid over by the agent, nor
his situation altered, as by giving his principal fresh credit
upon the faith of it, it may be recovered from the agent.^

An action may be brought against an agent who has received
money to which his principal has no right, if the agent has had
notice not to pay the money over; and in some cases without
such notice, if the money has not been actually paid over.'
Where an agent has settled with his principal by retaining his
own fees and costs, and paying over the balance, he has so
closed his account as not to be liable to repay the money paid
to him by mistake.* But it is not sufficient that the agent has
passed the sum received to the principal's account, giving him
credit for it in discharge of a debt to himself.^ "Where the pay-
ment to the agent has been compulsory, and not expressly for
the use of the principal, or has been obtained by the agent
fraudulently or illegally, no notice not to pay it over to the
principal is necessary; and the action may be maintained
against the agent, notwithstanding he may have paid the
money over to his principal.*

An agent is liable foe his toets. — An agent is also liable
for torts committed by himself, although done in the business
of another ; ' that is-, for acts of affirmative misfeasance, whether

iPaleyon Agency, 374; Story on ' Duller v. Harrison, 3 Cowp. 565;

Agency, § 380; Hills v. Bannester, 8 Paley on Agency, by Dunlop, 389.

Cow. 31. See Frye v. Lockwood, 4 Cow. 454;

2 Paley on Agency, 888; Buller v. La Farge v. Kneelaad, 7 id. 456;
Harrison, 3 Cowp. 565; Coi v. Pren- Carew v. Otis, 1 John. 418.

tice, 8 M. & 8. 844; Hearsay y. « Snowdon v. Davis, 1 Taunt. 359;
Pruyn, 7 John. 179; Langley v. Ripley v. Gelston, 9 John. 201; Ed-
Warner, 1 Sandf. 209; Mowatt v. wards v. Hodding, 1 Marsh. 877; 5
McClelan, 1 Wend. 178; Story on Taunt. 815; Hardatjre v. Stewart, 5
Agency, § 300. See Bank of the U, Esp. 103; Miller v. Aris, 1 Selw. N.
S. V. Bank of Washington, 6 Pet. 8, P. 108. See EUiott v. Swartwout,
18. 10 Pet. 137.

3 Hearsay v. Pruyn, supra. 7 Horner v. Lawrence, 37 N, J. L.
* Mowatt V. McClelan, 1 Wend. 46.

173.

60 AGENCY.

done intentionally or ignorantly, in pursuance of the agency, he
is directly liable to the person injured ; and the latter is not
hmited to an action against the principaL^ But for negligence
of duty imposed by his employment an agent or servant is not
Hable to a third person, but only to the employer. There is no
privity of consideration between the servant and the person
who employs his master; and nonfeasance alone will not sup-
port an action without consideration,^

1 Crane v. Onderdoiik, 67 Barb. 47; ° Paley on Agency, by Dunlop,
Erwin v. Davenport, 9 Heisk. 44; 396, 399.
Elmore v. Brooks, 5 id, 45.

DrSUEANCE. 61

CHAPTEE IX.

INSUBANCE.
Growth arid importance of insurance contracts.

The law of insurance has now arrived at such a condition of
importance that it occupies a very large share of the attention
of the courts and the legal profession. A hundred years ago
it had scarcely an existence, and its growth has been entirely
out of proportion to that of other branches of the commercial
law, great as these have been. A glance at the modern law
reports reveals the fact that the adjudged cases involving the
consideration of the law of insurance probably exceed those of
any other class.

And when we reflect that not a ship hoists her anchor for a
voyage on the ocean, nor a river steamer casts her lines loose
from her wharf, without this protection from the results of
disaster; that not a village on the continents of Europe and
America has failed to take its "bonds of fate" against the
ravages of flood and fire, equally with the great commercial
cities of the world ; and that solicitous affection has in thou-
sands of instances demanded provision against the edicts of
death itself, by a ransom in favor of the living ; we need not be
surprised at the almost overshadowing proportions to which
this topic of the law has grown in so short a period. Against
the perils of storm and wreck, treachery and public enemies on
sea and river ; against accidents by fire, whether kindled by
God in the lightning's flash, or by the imprudence or viciousness
of men on land or ocean ; against the inevitable decree of death
itself, to whose hand all must yield, the law of insurance has
provided indemnity if not consolation.

The business itself demands and absorbs an amount of capital
and capacity commensurate with the vastness of the field it
occupies, and the discussions to which it has given rise are
second in magnitude to none that claim the attention of the
fomm.

The comparatively restricted portion of this vast field, appro-

P2 INSUEAlfCE.

priate for consideration in a treatise like the present, would
seem to lighten the writer's labors ; but a very little reflection
will satisfy the reader that the extent and application of the
remedies for wrongs can never be thoroughly explained or
understood until the elements of the broken contract have been
carefully studied and analyzed ; and while the remedy is but an
insignificant part of the whole subject, its useful presentation
presupposes a careful examination of all that precedes it.

While, therefore, the present chapter will be devoted to the
question of the damages arising upon contracts of insurance,
the preparation for that discussion is necessarily drawn from a
somewhat careful survey of the wider field embracing the entire
subject.

Different kinds of instjeastce. — Insurance is generally
divided into three classes, viz. : Marine, fire, and life insurance.

The first is defined to be a contract by which one party,
called the underwriter', or insurer, for a stipulated sum, called a
premium, undertakes to indemnify the other, who is called the
insured, against all perils of the sea, or certain enumerated
perils, to which the ship, cargo or freight, which is caUed the
subject of insurance, may be exposed during a certain voyage,
or for a period of time.

The second is defined to be contracts of insurance against
accidents or loss by fire, and is applicable to all species of prop-
erty subject to injury or destruction by fire.

The third class is contracts upon the life of some particular
person, which are to the effect that upon the death of the person
whose life is insured, during the time for which it is so insured,
or if generally upon his life, that upon the occurrence of his
death, the insurer will pay the amount of the policy to the
person holding the same.

The instrument, when executed, as it usually is, in writing,
by the parties, contains the terms of the contract, arid is de-
nominated a policy of insurance.'

1 Unless required by statute, the Fire Ins. Co. 19 N. Y. 305; Angell v.
contract of insurance need not be in Hartford Ins. Co. 59 N. Y. 171; San-
writing. Commercial Ins. Co. v. born v. Firemen's Ins, Co. 16 Gray,
Union Ins. Co. 19 How. (U. S.) 318; 448; Baxter v. Massasoit Ins. Co. 13
Trust, of Baptist Church v. Brooklyn Allen, 330; Putnam v. Home Ins.

MAEINE raSUEANOE. 63

Section 1.

MARINE INSUEANCa!!.

The cause of damage must be proximate — Extent of injury; manner of
ascertainment — Interpretation of contract — Valued policies — Meth-
ods provided by the contract for ascertaining damages; when invalid —
When proofs of loss a condition precedent — Manner and time of mak-
ing prQofs — Preliminary proofs intended for information only —
Pleadings — Rule of damages on open policies — In cases of partial
loss — Losses are adjusted on the principle of indemnity — General
average.

Cause of damage mitst be peoximate. — Preliminary to enter-
ing upon the general question of the measure of damages in
marine insurance, there is one branch of the subject, affecting
the right of recovery, that deserves specific notice. It is a
maxim in marine insurance, " that the direct, and not the re-
mote cause of the damage," is to be considered.^ The existence
of this rule is not controvertwd, but there has been great dispute
in its application.

The United States supreme court applied the maxim as foUows :

1. When two causes of loss concur, one at the risk of the
assured, and the other insured against, or one cause insured
against by A, and the other by B, if the damage caused by each
peril can be discriminated from the other, it must be borne
proportionately.

2. But if the damage caused by the two perils cannot be dis-
tinguished from each other, then the party responsible for the
predominating efficient cause, or which set in operation the
other, is hable for the loss.

It was therefore held in the particular case, that when an
insurance upon a steamboat against fire excepted "any fire
happening by means of any invasion, insurrection, riot or civil
commotion, or of any military or usurped power," it is an in-
surance against fire caused by a collision, and that the under-
writers against fire were responsible for a loss occasioned by the

Co. 123 Mass. 334; Relief Ins. Co. v. lonides v. Universal Ins. Co. 14 C.

Shaw, 94 U. S. 574; Hening v. U. B. (N. S.) 360; 108 E. C. L, 259; Ins.

S. Ins. Co. 3 Dill. 26; Davenport Co. v. Transportation Co. 13 Wall.

V. Peoria Ins. Co. 17 Iowa, 376. 194, 301.
1 Davis V. Garrett, 6 Bing. 716;

64 INSUEANOE.

sinking of a vessel caused by fire, though, the fire was occa-
sioned by a collision not insured against, if the effect of the
collision, without the fire, would have been only, to cause the
vessel to settle to her upper deck, and that was such a condition
as that she could have been saved.

Erie, C. J.,' said : " The conclusion I have come to, after an
attentive consideration, is that the plaintiff is entitled to recover
in respect of a loss of a part of the insurance. The policy was
for £3,000 upon six thousand five hundred bags of coffee, valued
at £25,000, and it contained an exception in the following words:
" "Warranted free from capture, seizure and detention, and all
consequences thereof or any attempt thereat, and free from all
consequences of hostilities, riots or commotions.' The insured
ship, with the coffee on board, on her voyage from Belize "to
New York, had to pass Cape Hatteras. The captain intending
to shape his course north northeast until he had rounded the
cape, apd then to steer due north, being out of his reckoning,
and conceiving that he had passed the cape, when he was, in
fact, about thirty miles south and ten miles west of it, ran the
ship on shore at Hatteras Inlet, where she was eventually lost.
If these had been the only facts, it would have been a clear case
of loss by perils of the sea. But it appears that at Cape Hat-
teras, until the secession of the Southern States of America,
there had always been a light maintained, and that the Hght
had been extinguished for hostile purposes by the confederate
or southern party, who were at the time in possession of North
Carolina. It may be taken as a fact, for the purpose of the
present judgment, that if the light had still been there, the cap-
tain would have seen it, and might have put about in time and
saved the ship,

" The great contention on the first part of the case was
whether the loss so brought about was a loss ' by the conse-
quence of hostilities,' within the meaning of the policy. The
extinguishment of the light was undoubtedly an act of hostility
upon the part of the confederates towards the federals ; but was
the loss the consequence of hostilities ? I agree with the learned
counsel, that the question is entirely one of construction, and

iln lonides v. Universal Ina, Co. 14 C. B. (N. S.) 26a

MAEINE IN8UKANCE. 65

that the intention of the parties is to be gathered from the con-
tract itself, taking it with the surrounding circumstances. . . .
I agree with the learned counsel who suggested that the words
of the exception in this policy are to be construed as they would
be if the Assured had reassured his cargo against the perils
which are excepted by the warranty now in question, so that to
make the policy attach, the court must in that case have held
that the consequence of hostilities was so connected with the
loss of the ship as to make the underwriters liable. The maxim
' causa proxima non remota spectatur ' is peculiarly applicable
to insurance law. The loss must be immediately connected
with the supposed cause of it. Now, the relation of cause and
effect is matter which cannot always be actually ascertained ;
but if, in the ordinary course of events, a certain result usually
follows from a given cause, the immediate relation of the one
to the other may be considered to be established. Was the
putting out of the light at Cape Hatteras so immediately con-
nected with the loss of the ship as to make the one the conse-
quence of the other?

" Can it be said that the absence of the light would have been
followed by the loss of the ship, if the captain had not been out
of his reckoning? It seems to me that these two events are too>
distantly connected with each other to stand in the relation ©£'
cause and effect. I will put an instance of what I conceive tO)
be a 'consequence of hostilities' within the meaning of this,
policy. Suppose there was a hostile attempt to seize the slrip, ,
and the master in seeking to escape capture ran ashore and the
ship was lost : there the loss would be a loss by the consequences .
of hostilities within the terms of this exception. Or, suppose
the ship chased by a cruiser, and, to avoid seizure, she gets into
a bay where there is neither harbor nor anchorage, and in con-
sequence of her inability to get out she is driven on shore by
the wind and lost : that loss would be a loss resulting from an
attempt at capture, and would be within the exception. But I
will suppose a third case, — the ship chased into a bay where she
is unable to anchor or to make any harbor, and getting out
again on a change of wind, but in pursuing her voyage -encoun-
ters a storm which, but for the delay, she would have" escaped,
and being overwhelmed was lost: there, although itmay.be said
Vol. Ill -5

66 INSUEANCE.

that the loss never would have occurred but for the hostile at-
tempt at seizure, and that the consequence of the attempt at
seizure was the cause without which the loss would not have
happened, yet the proximaie cause of loss would be the perils of
the sea, and not the attempt at seizure. Take another instance.
The warranty extends to loss from all the consequences of hos-
tilities. Assume that a vessel is about to enter a port having
two channels, in one of which torpedoes are sunk in order to
protect the port from hostile aggression, and the master of the
vessel, in ignorance of the fact, enters this channel and his ship
is blown up : in that case the proximate cause of the loss would
clearly be the consequences of hostilities, and so within the ex-
ception. But, suppose the master, being aware of the danger
presented in the one channel, and, in order to avoid it, attempts
to make the port by the other, and by unskilful navigation runs
aground and is lost, — in my opinion that would not be a loss
within the exception, not being a loss proximately connected
with the consequences of hostilities, but a loss by a peril of the
sea, and covered by the policy.

" Applying these principles to the facts of tne present case, I
am of opinion that, the captain having missed his reckoning, and
either not keeping a sufficient lookout, or not lying to when his
position was doubtful, and so running on shore, it cannot be
said that the absence of the light was proximately the cause of
the loss ; but that the loss was not within the exception con-
tained in the warranty, but was within the general terms of the
dolicy ; and that, as the wreck of the ship brought about the loss
of the cargo, the insurers are liable."

Perhaps the most useful and satisfactory decisions of recent
date on the question are found in the cases of Insurance Co. v.
Boon,' and Insurance Co. v. Express Co.,^ to which the practi-
tioner is referred.

Extent of injury; manjstee of asceetainment. — Assuming
that a contract has been made between the underwriter and the
insured, and that a breach of the underwriter's undertaking has
occurred, the first question of interest to the parties is as to the
extent of the injury, and' how it shall be made good. And the

195U. S. 117. 8 Id. 227.

MAEINE INSUEAirCE. 67

first observation is, that whenever the policy by its terms pro-
vides a particular manner of ascertaining the damages, that must
be followed. Insurance contracts are to be interpreted and con-
strued in the same way, and by the same general rules, which
apply to other business contracts. The state of the existing
law, the effect of usage and custom, the usual course of business,
the intention of the parties, the technical and popular meaning
of words, the effect of warranties, special representations, of con-
ditions, exceptions and limitations in the contract, — none of
these call for special observation, save that they are to be ex-
pounded as in all other contracts, finally, to effectuate the pur-
poses had in view when made.'

Inteepeetation of conteact. — It is, T:/erhaps, fair to say
that in marine insurance particularly the policy or written
contract is a less perfect guide to the real engagement of the
parties to it than almost any other species of contract ; for the
subject matter is such that in the nature of it the stipulations
must often be general, in order to cover a variety of details,
and thus leave much to interpretation finally by the judicial
tribunals. In alluding to this class of instruments. Chief Jus-
tice JMarshaU observed ^ that "policies of insurance are gener-
ally the most informal instruments which are brought into
courts of justice; and there are no instruments which are more
liberally construed in order to effect the real intention of the
parties, if that intention can be clearly ascertained." While
perhaps the growing importance of insurance has led to greater
precision than when Judge Marshall uttered this criticism of
insurance contracts, there is no doubt still much justice and
truth in his remarks.'

Vajlited policies. — One very common means of fixing the
amount of the underwriter's liability in cases of loss is by what

iNo clearer general statement of ^yeaton v. Fry, 5 Cranch, 343.

the law for construing contracts sparkhurst v. Gloucester Mutual

can probably be found than that Fishing Ins. Co. 100 Mass. 301;

contained in chapter 30 of Mr. Oliver v. Mutual Com. Ins. Co. 3

Bishop's little work on contracts, Curt. C. C. 390-1; Rankin v. Potter,

published in 1878. The rules for in- 5 Moak's Bng. Rep. 40; id. L. R. 6

terpretation are concisely and f orci- H. L. 88.
bly stated, and the citation of cases
is copious and discriminating.

68 ESrSITEANOE.

is known as a " valued policy." This is where the amount to
which the underwriter is bound is for a sum fixed upon by
agreement, by the parties to the contract, at the time it is made,
and is usually not open to evidence to vary it ; when such a
contract is made, it can only be impeached for fraud.^ But if
upon a valued policy there is only a partial loss of the subject
of insurance, the insured can only recover the proportion which
the loss bears to the whole amount fixed in the policy, and if
the contract furnishes the rule of determination, other evidence
will not be admissible, as for instance : the parties by the policy
agreed upon an estimate of $9,600 as the value of three hun-
dred and eighty kegs of a particular kind of tobacco. One
hundred and fifty-seven kegs were lost, and the court held that
the insurer was bound by his contract to pay for the partial
loss at the same rate he would have paid for the whole, if the
whole had perished, and evidence of the value was excluded.^
In the case of Forbes v. Aspinwall,' the principle of tjie above
case was in part denied ; but as the facts were not parallel, the
case can scarcely be construed as denying the rule or as materi-
ally qualifying it. The case of Shawe v. Felton * apphes the
rule in a very extreme case. The syllabus of that case is to
the effect : " That on an insurance on ship and goods, valued at
so much, on a voyage to Africa and the West Indies, the assured
is entitled to recover the whole sum on a total loss which hap-
pened in the latest period of the voyage, although a consider-
able part of the estimated value consisted originally in stores
and provisions for the purchase and sustenance of slaves during
the voyage, and the slaves were brought to a profitable market
at the final place of the ship's destination, where she arrived in
port a mere wreck, and soon after foundered. "Where a ship
insured arrived in port a mere wreck, and was obliged to be
lashed to a hulk to avoid sinking, and in attempting to remove
her to the shore a few days afterward, she sunk, held, that the
assured might recover as for a total loss, though her car^o was

1 Harris v. Eagle Ins. Co. 5 Johns. 2 Harris v. Eagle Ins, Co. 5 Johns.

368; Lewis v. Rucker, 2 Burr. 1167; 374.

Cushman v. N. W. Ins. Co. 34 Me. 3 is Bast, 323.

487; Lycoming Ins. Co. v. Mitchell, *2 East, 109.
48 Pa. St. 367; Forbes t. AspinwaU,
13 East, 323.

MAEINE INSUEAI^CB. 69

saved and brought to a profitable market." It was said in that
case that to open the poUcy and order an inquiry would take
away all the certainty which valued policies were intended to
have, and to nullify the deliberate agreement of the parties,
which had been made to avoid the necessity of an investigation
into the damages actually occurring. The rule that the value
fixed in the policy shall be conclusive has been adopted by stat-
ute in some of the states, and it has been held that under such
a statute a stipulation inserted in the policy requiring proofs of
loss, estimates, etc., by the insured, and if differences arise,
there should be an arbitration before any suit could be main-
tained, was void.^

Methods peovided by the oonteaot foe AscEETAiNme dam-
ages; WHEN INVALID. — It is a commou provision in fire insur-
ance cases to stipulate for a settlement of losses insured
against, by arbitrators or umpires, to be selected in a manner
pointed out in the contract. It is also very generally required
that the insured shall furnish certain proofs of the loss, within
an arbitrary fixed period after the occurrence, or "immedi-
ately," as " soon as possible," or " within a reasonable time." •

It may be remarked that no stipulation, the effect of which
would be to affect the jurisdiction of the courts to determine
upon the liability or non-liability of the insurer, is regarded as
vahd. And as we have already seen,^ a stipulation for ascer-
taining the cash value of the loss by proofs and umpire, before
any suit can be instituted against the insurer, when the statute
provided that the sum fixed in the policy should be the meas-
ure of damages, is invalid.* Any stipulation in the contract
that deprives the courts of the power to determine the right to
recover, is void, no matter what substitute may be provided to
determine that question.* Parties, after the damages have ac-

iReillyetal. v. Franklin. Ins. Co. 'Thompson v. St. Louis Ins. Co.

43 Wis. 449, quoting White v. Conn. 43 Wis. 459; Hughes v. Vinland F.

Mut. Life Ins. Co. 5 Cent. L. Jour. Ins. Co. 48 Wis. 333; Ball v. HqlUs-

486; Farmers' Ins. Co. v. Curry, 10 ter, 1 Wils. 139; Ins. Co. v. Morse,

Chi. L. N. 43. In opposition: Emery 30 Wall. 445.

V. Piscataqua F. & M. Ins. Co. 53 *Soott v. Avery, 5 H. L. Cas. 811;

Me. 333; Chamberlain v. N. H. Ins. Thompson v. Charnook, 8 T. R. 189;

Co. 55 N. H. 349. Stephenson v. Piscataqua F. & M.

3 Ante, p. 68. Ins. Co. 54 Me. 70.

70 INSUEAsrOE.

-^1

crued, may agree to any lawful method of settlement, but they
cannot stipulate in advance how the damages shall be deter-
mined, so as to prevent a resort to the courts for thair lawful
remedy, any more than they can provide a remedy prohibited
by law.^ Subject to these restrictions, which are imposed as a
matter of public policy, on the power of parties to make a
binding contract not to resort to the judicial tribunals, any
lawful means of ascertaining the loss and arriving at an ad-
justment of the amount is valid and binding.

When certain proofs of loss are required by the contract to
be made by the insured, before the loss is payable, those proofs
are a condition precedent to a right of action against the in-
surer.2 And no action can b'e maintained on the policy, unless
it is averred that these conditions have been complied with, and
the proof shall sustain the allegations at the trial.'

When peoofs of loss a condition peecedbnt. — When these
proofs of loss are to be furnished within a given time after the
occurrence of the casualty, the insured must comply with the
requirement.* It occurs to the writer that such a rule, based
simply on an arbitrary fixed time, ought to be construed only
as directory, and that when a reasonable compliance with the
requirement in substance is shown, it should be sufficient.
When by the contract the proofs of the loss are to be made in
a reasonable time, what is such time, is a question of fact to be
determined upon evidence, if disputed, and is therefore a ques-
tion for the jury.'

Manner and time of making peoofs. — These proofs must
be furnished in \hef0r7n, specified in the contract, but if none
is specified, then it is sufficient that the proofs furnish satisfac-
tory evidence of the loss.* In the New York case cited, the
court observed that the provision in policies of insurance, re-

1 Stephenson v. Pisoataqua F. & ^wightman v. Western Ins. Co. 8
M. Ins. Co. 54 Me. 70. Eob. 482; Edwards v. Baltimore

2 Colombian Ins. Co. v. Lawrence, Ins. Co. 3 GUI (Md.), 176.

10 Pet. 507; Wright v. Hartford 6 phoenix Ins. Co. v. Taylor, 5

Ins. Co. 36 Wis. 533; Edgerly v. Minn. 493; Germania F. Ins. Co. v.

Farmers' Ins. Co. 43 Iowa, 587. Curran, 8 Kan. 9: Waish v. Waah-

3 Ibid. ington Marine Ins. Co. 33 N. Y. 427;
•1 Smith V. Haverhill Mut. Fire Ins. Taylor v. .lEtna Ins. Co. 13 Gray,

Co. 1 AUen, 397. 434.

MAEINE INSCfEANOE. 71

quiring notice and proof of loss, is to be expounded liberally
in favor of the assure^ ; and its requirements are satisfied by
furnishing such reasonable evidence as the party can command
at the time, to give assurance to the underwriters of his right
to receive the money, and of their liability for the loss. This
opinion v\ras pronounced in a case where the insurance had been
effected by one for the benefit of himself and other owners,
and all the parties had not united in the preliminary notice and
proofs, and the changes in some of the interest were not noted
therein.

, The manner of making proofs is discussed in a large number
of cases, of which those cited below may be found instructive.^
And the requirements of the policy as to preliminary proofe
may be waived either expressly, or by conduct from which a
waiver may be implied.^ There is probably no difference in the
construction to be placed upon marine contracts of insurance
and those against fire on land, in the matter of making the
proofs and estimates of loss, and the oases of both classes are
referred to as equally in point.

While mere silence on the part of the insurer is not a waiver
of proofs of loss in accordance with the contract, still any act
which has the effect to mislead the insured into the belief that
the proofs will not be required, is proper evidence to the jury of
a waiver, and is admissible to be considered ; and the question as
to whether there has been a waiver, is a question for the jury.'

1 Keeler v. Niagara Fire Ins. Co. Comst. 133; Hentle v. Franklin Ins.
16 Wis. 533; Kemochan v. N. Y. Co. 1 Cush. 357; Tayloe v. Merchants'
Bowery Ins. Co. 17 N. Y. 438; Works Ins. Co. 9 How. (U. S.) 390. And it
V. Farmers' Ins. Co. 57 Me. 381; Frost is said, that when strict compliance
V. Ins. Co. 5 Den. (N. Y.) 154; Pratt has become impossible with the
■V. N. Y. Central Ins. Co. 55 N. Y. terms of the contract, it will be ez-
505; Ay res v. Hartford Ins. Co. 17 cused if the party furnishes the best
Iowa, 176. attainable proof and shows good

2 In addition to the cases cited in faith. Hynds v. Schenectady Ins.
the preceding note, the following Co. 11 N. Y. 554; Norton v. Eensse-
will be found in point on the subject laer Ins. Co. 7 Cow. 645; Lycoming
of waiver of the suiHciency of pre- Ins. Co. v. Scholenberger, 44 Pa. St
liminary proofs of loss: Charlestown 359; Patrick v. Farmers' Ins. Co. 43
Ins. Co. V. Neve, 2 McNeil (S. C-), N. H. 631; Clark v. N. E. Ins. Co. 6
237; Post V. Mtna, Ins. Co. 43 Barb. Cush. 343; Cornell v. Le Roy, 9
351; Mtna.Iw. Co. v. Tyler, 16 Wend. Wend. 163.

385; O'Neil v. Buffalo F. Ins. Co, 3 3 Johnston v. Cal. Ins. Co. 7 John.

72 nfsuEAiTCE.

Peeliminaet peoofs foe iNTTOEMATioiir ONLY. — AJl these pro-
ceedings relating to notice, proof o£ loss and so forth, are for
the protection and information of the insurer, and do not fix
the amount of the damages or confine the right of the insurer
to recover.

They clearly cannot be made to bind the insurer, however
formally they may be made, and upon the same principle the
other party is not bound. Although these proofs seem to be
treated in some sort as admissions by the insured, and may be
properly regarded as evidence, it seems hardly consistent to give
a greater efl'ect to them as against one party than the other.
They are really intended for the protection and benefit of both;
they in fact ought to bind neither. Like a coroner's inquest in
a case of homicide, they are purely for information, and any at-
tempt to give them a quasi-judicial consequence is as unfair to
one party as to the other.^

When the books and accounts of the insured have been lost
or destroyed, the preliminary proofs which they might furnish
are not required.^

The following cases on the question of proofs of loss, what
are in time and what are not, what is a waiver by the insurer
and what is not, may be profitably consulted by the practi-
tioner.' "When the pleadings contained an allegation that the

315; Great "West. Ins. Co. v. Staaden, 28 Wis. 473; O'Conner v. Hartford

26 lU. 365; O'Brien v. Com. Ins. Co. F. Ins. Co. 31 "Wis. 161; Blossom v.

63 N. Y. 111. Lycoming F. Ins. Co. 64 N. T. 166;

1 ^tna Ins. Co. v. Stevens, 48 111. Palmer v. St. Paul F. & M. Ins. Co.
81; McMartin v. Ins. Co. of N. A. 55 44 "Wis. 201; O'Brien v. Phoenix F.
N. Y. 233. Ins. Co. 76 N. Y. 459; Raiies v. Am-

2 Mechanics' Fire Ins. Co. v. Nich- azon Ins. Co. 51 Md. 513; Hicks v.
ols, 16 N. J. L. 410;, "Wightman v. Empire F. Ins. Co. 6 Mo. App. 254;
"West M. & F. Ins. Co. 8 Rob. (La.) Underwood v. Farmers' Joint Stock
443. Ins. Co. 57 N. Y. 500; Bunstead v.

3 Peoria Marine and F. Ins. Co. T. Div. Mut. Ins. Co. 13 N. Y. 81;
Lewis, 18 111. 558; Edwards v. Bait. "Worsley v. "Wood, 6 T. R. 710; Craig
Ins. Co. 8 GUI, 176; Kimball v. How- v. Parkis, 40 N. Y. 181; Inman v.
ard Ins. Co. 8 Gray, 33; Kuicker- "West. Ins. Co. 12 "Wend. 452; Diehl
bocker Ins. Co. v. Gould, 80 111. 888; v. Adams Co. Mut. Ins. Co. 58 Pa.
Duncan v. Topham, 8 Man. Gr. & St. 452; Trask v. Ins. Co. 29 Pa. St.
Scott, 239; "Waterman v. Button, 6 198; Patrick v. Farmers' Ins. Co. 43
"Wis. 265; Hall v. Delaplaine, 5 "Wis. N. H. 621; Brink v. Hanover F. Ins.
206; KiUips v. Putnam Fire Ins. Co, Co. 70 N. Y. 593; Smith v. Com. Ins.

MAEINE INSUEAJTOE. 73

condition in the policy, that preliminary proofs should be made,
had been complied with, it was held supported by evidence that
the insurer waived the proofs.^

Pleadin-gs. — "When the preliminary proofs of the loss have
been made by the insured according to the contract, or have
' been waived by the insurer, expressly, or by such conduct as
will relieve the insured from the duty of making them, and
there is a refusal to pay the indemnity provided, resort must
then be had to the judicial tribunals. In stating his case for
recovery, the party must present all the facts upon which his
right to recover depends. The contract should be either set
out at length or in legal effect, with full allegations of the
breach or breaches, the loss, the compliance of plaintiff with
its requirements, if any, subsequent to the loss, or a waiver of
them by defendant, or the impossibility of compliance, when
that would operate to excuse, an allegation of the injury and
its extent, demand, when the same is necessary, and refusal to
pay. Upon the joinder of issue and the settlement of inci-
dental questions affecting the right of recovery, comes the more
important discussion of the amount of damages.

EniiE OF DAMAGES ON OPEN POLICIES. — "We havc already seen
that in cases of a valued policy the amount of recovery is
fixed, and evidence of the loss is not admissible beyond or

Co. 49 Wis. 333; ^tna Ins. Co. v. 29; Basoli v. Humboldt Ins. Co. 35
Stanton (Geo.), 9 Ins. L. Jour. 6; N. J. L. 439; Taylor v. Roger Will-
Chandler V. Com. F. Ins. Co. 88 Pa. iams Ins. Co. 51 N. H. 50; Hibernia
St. 334; Hibernia Ins. Co. v. O'Con- Mut. F. Ins. Co. v. Meyer, 39 N. J.
nor, 29 Mich. 241; Aurora F. & M. L. 483; Heath v. Fi-anklin Ins. Co. 1
Ins. Co. V. Kranick, 36 Mich. 389; Gush. 357; Clark v. N. E. Ins. Co.
Harriman at al. v. Queen Ins. Co. 49 6 id. 343; Francis v. Somerville Ins.
Wis. 71; Franklin Fire Ins. Co. v. Co. 25 N. J. L. 78; State Ins. Co. of
Chicago Ice Co. 36 Md. 103; Home Mo. v. Todd, 83 Pa. St. 373; Mason
Ins. Co. V. Bait. W. Co. 93 U. S. 537; v. Citizens' F. & M. Ina. Co. 10 W.
Levy V. Peabody Ins. Co. 10 W. Va. Va. 573; Post v. ^tna Ins. Co. 43
560; Young v. Hartford F. Ins. Co. Barb. 357; Peoria Ins. Co. v. White-
45 Iowa, 377; Home Ins. Co. v. hill, 25 El. 466.
Lindsey, 26 Ohio St. 348; Farmers' iPine v. Reid, 6 Man. & Gr. 1;
Ins. Co. V. Frick, 39 Ohio St. 466; Atlantic Ins. Co. v. Manning, 3 Col.
Jones V. Mich. Ins. Co. 36 N. J. L. 334.

V4 ,' rNSUEAIICE.

aliunde the contract.* But assuming that the policy is an open
one, i. e., the value in case of loss has not been fixed by pro-
vision in the contract, then the rule as to the measure of dam-
ages is tlie actual loss sustained hy the insured at the time of the
aocident or loss, to he determined hy evidence, as in other cases of
damage, controlled or varied only by the terms of the contract.^
The original cost, or the cost of reproduction, is no necessary
element of the value.' And when the insurance is upon a lim-
ited interest, for example, a mortgage on property, and not
upon the property itself, the actual loss will control the amount
of the recovery ; ^ and the value of any remaining interest is not
admissible to depreciate the amount of the limited interest for
which recovery is sought.' The application of this rule has
resulted in establishing other rules for the ascertainment of
damages on this principle ; and to some of the more prominent
we will now refer. The insured offered to prove the actual
cash value before the injury from which the damage caused by
collision might be inferred, and thus the cash value of the
property, when attacked by the fire, ascertained; and it was
held that the evidence was rightly excluded, and that the only
way to establish the damage was by ascertaining the cost of
restoring the vessel to the condition she was in before the fire.*
It is proper to observe of this case that the insured had two
policies of insurance on the vessel ; one covering accidents by
collision, and one a fire policy, and the cause was tried on the
refusal of the insurers to pay the latter loss. The evidence as
to the value of the vessel, which was excluded, went to show
its condition, not at the time of the accident by fire, but before.

1 Ante, p. 68. Bush, 587; Com. Ins. Co. v. Sinnott,

2 Commonwealth Ins. Co. v. Sin- 37 Pa. St. 205; Carson v. Marine
nott, 37 Pa. St. 205; Portsmouth Ins. Ins. Co. 2 Wash. C. C. 468.

Co. V. Brazee, 16 Ohio, 82; Ins. Co. <Hadley v. N. H. F. Ins. Co. 55 N.

V. Transportation Co. 12 Wall. 194- H. 110.

203; Snail v. Del. Ins. Co. 4 DaU. s Carpenter v. Prov, etc. Ins. Co.

430; Carson v. Marine Ins. Co. 3 16 Pet. 496; Clark v. Wilson, 108

Wash. C. C. 468; American Ins. Co. Mass. 219.

V. Griswold, 14 Wend. 399; Savage ^ Ins. Co. v. Transportation Co. 13

V. Corn Ex. Ins. Co. 36 N. Y. 655. WaU. 301, citing 10 Gray, 143.
s^tna Ins. Co. v. Johnson, 11

MABINE mSUEANOE. 75

The decision is a very clear recognition of the principle of the
general measure of damages, and the strict application of it to
the contract ; and it was observed by the court that there was
no other way of ascertaining such damages except to find " the
cost of restoring the vessel to the condition she was in before
the fire, and not her condition before the collision, which pre-
ceded and caused the fire." The court also observed that if, in
restoring the vessel, the repairs covered the injuries by the
collision, as well as by the fire, the former should be excluded
in fixing the amount of the loss by fire.' If goods are jetti-
soned, their value must be ascertained by the prime cost.^
But while this is proper evidence, it is held that it is not con-
clusive, but the insured may prove and recover the actual value
of his loss.' In this case the vessel had been purchased by the
insured at a condemnation sale for a low figure, and the insurers
insisted that this price should govern the amount of the dam-
age ; but the court was clearly of opinion that the insured " was
entitled to.prove and to recover the actual value of the vessel ; "
and Mr. Justice "Washington observed, in the case of Carson v.
Marine Ins. Co.* (a case involving insurance on cargo), that he
could see no reason for establishing this rule which would not
equally apply to the case of goods insured.

The cases cited apply this rule under various circumstances.
In one poUcy it was stipulated that " the said loss or damage
be estimated according to the true actual cash value of the
said property at the time the loss shall happen." The court
below instructed the jury " that the value as estimated in the
manufacture of each machine, and before it was tried in the
field, would be the standard of valuation." This instruction
the supreme court held to be error, and said that the true rule
■was,, "what were the machines worth at the time the fire hap-
pened, and this must be ascertained by testimony." ' In ascer-
taining the value of the property insured the premium on the

1 See Dows" V. FaneuE Hall Ins. Co. ' Snell v. Delaware Ins. Co. 4 Dall.
127 Mass. 346. _ 430.

2 Le Eoy v. United Ins. Co. 7 John. * 3 "Wash. C. O. 472.

344. 6 Com. Ins. Co. v. Sinnott, 37 Pa.

St. 205.

76 rNSTTBAlTCE.

policy IS to be added ^ as part of the value. So also it is held
that the value insured is estimated upon the proof of value
with charges upon the goods added.^ But in a case where the
insured abandons the property to the insurer, who refuses to ac-
cept the abandonment, the insured cannot recover for any but
necessary expenses. And if in such case, instead of selling the
ship, as he may do, or laying her up and discharging the crew,
the insured continue the crew in service under wages, he cannot
make that expense a charge on the underwriter. The latter is
answerable for the loss of the subject insured, with the neces-
sary expenses incurred in laboring for the recovery and safety
of it, but his contract reaches no other charge.' The actual
value of the property lost will furnish the measure of damages
in aU cases where there is an open policy and the amount
named in the policy is equal to the loss.'* In an action brought
on an agreement to insure certain property, on a failure to do
so, the court held the measure of damages to be the value of
the property upon proof of its loss.' And where the liabihty
of the insurer, by the terms of the policy, could not exceed one-
half the value of the property destroyed, it was held that the
value of the goods at the time of the loss, furnished the basis
upon which the damages were to be calculated. The cases on
the subject are too numerous to cite, but they support the gen-
eral proposition stated with practical uniformity.* In cases
where the loss exceeds the amount of the insurance, the insured
has the right to recover the whole amount of the pohcy ; ^ and
although the policy contains a stipulation " that, in aU cases of
other insurance, the insured shall not be entitled to demand or

1 Louisville, etc. Ins. Co. v. Bland, SEla v. French, 11 N. H. 356.

9 Dan. 143. 6 Fried v. Royal Ins. Co. etc. 47

2 Ante, p. 68; 7 Johns. 344. Barb. 137 — a case of life insur-

3 Frothingham y. Prince, 3 Mass. ance; Wills v. Wells, 8 Taunt. 264;
563; Lawrence v. Van Home et al. Atwood v. Union Mut. F. Ins. Co.
1 Caines, 376; Henshaw v. Marine 28 N. H. 334; Fried v. Eoyal Ins.
Ins. Co. 3 Caines, 274; McBride v. Co. 50 N. Y. 243.

Marine Ins. Co. 7 Johns. 480; Bar- 'Etna Ins. Co. v. Tyjer, 16 Wend,

ker V. Phenix Ins. Co. 8 Johns. 307. 385; Strong v. Manuf. Ins. Co. 10

* WoUe V. Howard Ins. Co. 7 N. Pick. 40; Commonwealth v. Hide &

Y. 583; Savage v. Corn Ex. F. & In- L. Ins. Co. 113 Mass. 186.
land Ins. Co. 36 N. Y. 655.

MAEINE mSUEAJJOE. 77

recover on this policy any greater portion of the loss or dam-
age than the amount truly insured bears to the whole amount
insured on said property," if the property exceeds in value the
amount of the insurance, the insurer is liable for the sum con-
tained in the policy.' The loss is usually estimated in cases of
marine insurance by the value at the time and place where the
cargo was to be sold.^ The value of the property in such case
may be ascertained by the original value at the port where the
voyage commenced, deducting the wear and tear; and the
value of goods is usually that which they had at the place of
lading; ^ the exception to this being, that where the goods are
placed on board for a particular market, the value at that point
is taken to be the real value — the general rule being, that
gains and proiits must be insured as such, and are not in-
cluded, unless in the particular case specified, in the general
loss.

In cases or pabtial loss. — While the rules already stated
and examples given in illustration are sufficient to furnish a
guide to the measure of damages in oases of entire loss of the
subject insured, they do not fuRy apply in a class of instances
which are complicated by the fact of only a partial injury. It
becomes important, therefore, to inquire when there is a total
loss, and when it may be so treated, though the loss is only in
fact of a part. The American rule is, when in marine insur-
ance the cost of repairs exceeds half the value of the property
insured, the loss is regarded as total, and the insured by an
abandonment becomes entitled to damages in the full amount
of the insurance.* In the case last cited, the vessel having
been condemned by the French government, a formal aban-
donment was not regarded as necessary to perfect the right of

lEtnalns.-Co. V. Tyler, 16 "Wend. 'Coffin v. Newburyport M. In-

385; Haley v. Dorchester Ins. Co. 1 surance Co. 9 Mass. 436; Mintum v.

AUen, 536; Eichmondville Union CaL Insurance Company, 10 Johns.

Seminary v. Hamilton Mixt. Ins. Co. 75.

14 Gray, 459. ■• Smith v. Manuf . Ins. Co. 7 Met.

2Clai-k V. United F. & M. Insur- 448; Gracie v. New York Ins. Co.

ance Co. 7 Mass. 345; Lee v. Grin- 8 Johns, 387.
neU, 5 Duer, 400.

is INBTTEANCE.

the insured to recover for a total loss. If a total loss actuary
occurs, the assured may recover for such loss without an aban-
donment; if the loss is, however, only constructively total, a
formal abandonment is necessary to complete the right of the
assured to recover. But the insured is never required to aban-
pdon and claim for a total loss unless the subject is totally
destroyed. He has his election to claim for a partial loss and
retain that which is preserved from the peril.' Assuming that a
case exists which entitles the insured to claim as for a partial
loss, and, when it not being total, he elects to receive his insur-
ance on that part which has been lost, what is the rule? In
cases where the value is fixed by the policy, the rule, as already
stated,^ is that the insured is entitled to recover the proportion
which the loss bears to the whole amount fixed in the policy,
and no evidence in such cases is admissible as to the value — the
policy being conclusive as to that, while the evidence is admit-
ted to fix the proportion of the loss to the whole amount in-
sured. But it must be understood that a mere specification of
value will not convert an open into a valued policy, when either
through repugnant conditions, such as a limitation to the
amount necessary to replace, the actual value is made the basis
of indemnity, or when, in case of partial loss, there is no appar-
ent means of determining the amount of indemnity apart
from the actual damages. "When the part lost is of a specified
number of valued articles of equal worth, the damage is that
proportion of the valued sum.' A very common device for
their own protection, by insurers, is to insert in the contract a
provision giving the right to elect to replace the loss — in fire
insurances, to rebuild — or pay the insurance; but all such ar-
rangements are unknown to the general law of insurance,
except as they are made a part of the contract by express
stipulation of the parties. In such cases it is held that the con-
tract is not simply one of insurance, but is, to use the language

1 See 8 John. 337, supra; Snow v. » Brown v. Quinoy Mut. F. Ins. Co,
Union Ins. Co. 119 Mass. 593, and 105 Mass. 396; Cushman v. N. W.
cases cited in the opinion. Ins. Co. 84 Me. 487.

2 Ante, p. 68; Harris v. Eagle Fire
Co. 5 John. 374.

MAEINE INSUEANCE. 79

of the court in a New York case, a " building contract," and is
to be interpreted like any other of that kind.' In the case re-
ferred to, the insured, after a loss by fire, commenced to rebuild,
and the insurance company concluded to avail itself of its
option to "replace," and offered to do so. The insured de-
clined to recognize the right of the company to refuse to pay
the insurance, completed his building, and then brought suit on
the policy for the value of the property destroyed. The court
held that the plaintiff's insurance policy had become a contract
to " rebuild," and nonsuited the plaintiff because the defendant
was not permitted to do so. "While such clauses in contracts
are common, and are a good means by v^hich the insurer re-
trieves his misfortune, they are but inventions to escape liability
or restrict it, and are hardly within the pale of legitimate in-
surance. When the partial loss complained of is upon an open
policy, the damages foUow the rule — the actual cash value of
the goods where laden, with interest and charges added. Profits
are excluded because they are themselves the subject of sepa-
rate insurance; the exception being, that when a ship is loaded
and insured for a particular market,^ the value at the port of
destination is taken as the true value for which the insurer is
liable in cases of contribution by way of average.

Losses aee adjusted on the peinciple of indemnitt. — In
adjusting these partial losses, the guiding principle is that the
contract of insurance is based on the idea of indemnity to the
insured in case of loss ; hence all means which the law supplies,
independent of the contract, for ascertaining the amount of the
injury, have their origin in the idea of indemnity. So, while it
is true that where there has been a total loss of the subject of
insurance, and the price has been fixed by the contract, that
value must be taken ; if the value has not been fixed, and the
subject has been lost, its actual cash value, to be ascertained
by competent evidence, must be accepted by the insured ; on
the same principle, where an insurance is effected on an en-
tire cargo, or on all goods to which it attaches, if part of the
cargo or goods is safely delivered on shore, and the balance lost,

iBeals V. Home Insurance Co. 36 ^Ante, p. 77.
N. Y. 533.

80 mBTJEAlTCE.

a proportionate reduction must be made from the amount of
the insurance ; and it makes no difference whether the policy
be a valued or open one, because by the delivery of part, so
much has been withdrawn from the liability insured against ; ^
and where there is an insurance on the charter of a ship, or the
freight of a full cargo, if less than a fuD freight would have
been insured, had there been no loss, the insured must submit
to a proportionate deduction in the event of loss.^ "Where there
is an open policy on the freight, the manner of arriving at the
indemnity is to ascertain the loss by computing the entire
amount of freight payable, deducting what is saved, and the
balance will constitute the amount to be paid. Xo deduction
is made for expenses in this calculation.' "Whilst this rule seems
to be a departure from the strict doctrine of indemnity, it is
supported upon the ground that it is the universal usage, and
is analogous to the rule of fixed damages in valued policies.^
"Where the injury occurs to the ship, and the question is as to
the extent of the damage, the reasonable rule is to ascertain
what has been the actual cost of repairs, where they have been
made, or the estimated cost, if they have not been made, and
these will constitute the loss to be paid.' If the ship has been
sold without repairs, under circumstances which do not entitle
the owner to claim for an entire loss, the insured is entitled to
recover the difference between the price the ship brought and
her value at the inception of the risk. In order to limit the
effect of this general rule, it is held that, in making repairs, in-
stead of charging the insurer with the entire cost, while the
owner who retains the renewed ship is put in a better position
by the substitution of new material for old, a usage has grown
up, and is now sanctioned by the courts, by which one-third of
the cost of the new is subtracted in favor of the insurer.^ And
this rule is agam hmited, so that where the owner has derived
no benefit, as where the vessel was new and in her first voyage,
or where the ship has been broken up or sold, the reduction is

1 Tobin V. Harford, 13 C. B. (N. S.) a Palmer v. Blackburn, 1 Bing. 61.
791; afSrmed, 17 id. 528; Brooke v. *Mo3s v. Smith, 9 C. B. 104
Louisiana Ins. Co. 4 Mart. (La.) N. 5 4 m. & (J. 669.

S. 640, 681. ePoingdestre v. Eoyal Exchange,

2 Forbes v. Aspinall, 13 East, 323. E. & Mood. 378.

MAJEINE DTStnEAXCE 81

not maxie.i In argument in the court of exchequer in this last
case. Sir F. Pollock said, in reply to the attempt to procure a
reduction on account of repairs to a ship on her first voyage,
that " a policy of insurance is a contract of indemnity, which
is not to be put aside by any rule not as plain as that which
makes a bill payable after three days' grace," and Lord Abinger,
C. B., agreed with him- Whether charges incurred in the pres-
ervation of vessel and cargo are recoverable as average loss, or
under the provision for "suing, laboring and traveling," seems
as yet uncertain. Such charges have been recovered where
they were incurred before a loss, because, as the vessel became
afterwards a total loss and the underwriters had to take her
and pay the insurance, they took her ctmi onere — taking the
place of the owner, who would have been liable.^ While the
insurer is not liable for provisions or traveling expenses of a
ship, and they are not recoverable from him as insurer, where
he succeeds the owner, by reason of his contract, which permits
the latter to abandon to him, he becomes liable in his new
character of owner.'

General average. — Intimately connected with the question
of damages in marine insurance cases is the law of " general
average." When, owing to stress of weather, or other great
peril, to which the ship and cargo are subject, extraordinary
saciificffi are made of some portion, or some extraordinary ex-
penses are necessarily incurred, for the benefit of the ship and
cargo, this loss is held as a lien on the balance remaining of the
cargo and the ship, to be made good to whoever has been the
particular sufferer.* The term " general average " is a contri-
bution made by aU parties concerned or inter^ted in either ship
or cargo, towards reimbursing the individuals or persons whose
particular loss was incurred for the conamon benefit. Whatever
is done deliberately and voluntarily under circumstances of
great peril and distress for the preservation of the ship and re-
maining cargo, may be brought into general average, and must

iFenwick v. Robinson, 3 C. & P. 3 Thompson v. Bancroft, 4 East, 34.

333; Pirie v. Steele, 8 C. & P. 200. « Marsh. Ins. 544; Abbott on Ship-

2 Lirie V. Janane, 13 East, 648; Le ping, 396; Strong v. New York F.

Caieminaiit v. Pearson, 4 Taunt. 367. Ins. Co. 11 John. 334
V0L.in — 6

82 ETSUEANOB.

be made good by the insurers against the peril insured against
in proper proportion.^ And the adjustment of the general aver-
age, though made in a foreign country, and upon a basis which
would not be recognized where the insurance contract was made,
is held to be conclusive on the insurer.^ The English rule is
less strict on the insurer, and requires " clear proof " that the
foreign adjustment could have been enforced where it was made.'
I To entitle the loss to be brought into general average the sacri-
fice must not be chargeable to the fault of the owner, and it
must be voluntary and intended for the common benefit.* Jet-
tison of deck cargo cannot be claimed for general average, nor
a loss wholly due to a sea peril.* "When the duty to contribute
by way of general average is settled, the next question is as to
the sources of the contribution ; and here it should be observed
that goods which are sacrificed, contribute equally with such as
are saved ; for if this were not required, the loser would be in
a better condition than the other contributors, as he would have
the entire value returned to him, while his co-sufferers would
lose a proportion.* Nor does anything contribute which has
not- been exposed to risk; for instance, where part of a cargo
has been landed or has been sold for ship necessities.' Gener-
ally it is said that the ship and freight always contribute, and
aU goods carried for traific whether they pay freight or not, and
whether they belong to merchants, passengers, owners or mas-
ters, and they pay according to their value.^ Bullion and jewels
contribute, unless worn on the person. Baggage and wearing
apparel of passengers are exempt. Deck goods contribute —
though generally, as we have seen, they could not demand con-
tribution if lost; and where a ship is ransomed from pirates the

1 Euss V. Ship Active, 3 Wash. C. 403; Scudder v. Bradford, 14 Pick.

C. 336; Strong v. Ins. Co. 11 John. 13; Wolcott v. Eagle Ins. Co. 4 Pick.

333; LouisvUle, etc. Ins. Co. v. 439; Smith v. Wright, 1 Gaines, 43.
Bland, 9 Dana, 147. 5 Lenox v. United Ins. Co. 3 John.

2 11 John, supra; Depad v. Ocean Cas. 334; Crane v. Aiken, 13 Me. 239;

Ins." Cq. 5 Cow. 03. Covington v. Roberts, 3 B. & P. N.

3 Harris v. Scaramanger, L. R. 7 R. 378; Power v. Whitmore, 4 M & S.
C. P. 481 ; Stewart v. West India, etc. 141.

Co. L. R. 8 Q. B. 88, 363; Power v. « Arnold on Ins. 918; Abbott on

Whitmore, 4 M. & S, 141; Mayne on Ship. 505, 553, 11th ed.

Dam. sec. 466. ' 7 ibid.

4 Butler wu Wildman, 8 B. & Aid. 8 Brown v. Stapyleton, 4 Bing. 119.

MAEINE IN8URAN0E. S3

seamen contribute out of their wages ; and where freight is due at
the time, it is subject to the contribution. If the freight has been
paid in advance, it is exempt.^ Neither are provisions for the
ship, or anything that belongs to the " wear and tear," hable to
be brdught in.

The contribution is dependent on two things which are parts
of one design: 1st, the method of ascertaining the loss; and
2dj the method of ascertaining the value of the property saved.
Both depend upon where the adjustment is effected. If it is
done at the port whence the ship sailed, the loss will be the in-
voice price, and charges added, unless the goods can be replaced,
in which case the loss will be the invoice price and shipping
charges, but no insurance.^ Prepaid freight must also be added
if the goods would have been carried on.' The value of the
property saved is determined by the same rule. When the ad-
justment takes place at an intermediate port, or at the ship's
port of destination, the property is estimated at the value it
would seli for, deducting freight, duty, and landing expenses.
And where the property saved has been damaged by the same
accident that caused the loss, or by a subsequent disaster, their
value is estimated as if all the lost and saved had arrived at
port in the same condition. If the goods sacrificed are recovered
Taef ore the adjustment, the loss is estimated by adding to the dam-
ages sustained by them, the expenses attending their recovery.
The principle running all through these various rules is that
equality is equity, and the intention is to do simply what is just.
Rules are adopted with modifications and exceptions to effectuate
theit purpose, and are not allowed to override the real purpose
of accomplishing what is just.* When damages occurring to the
ship are of such a character as to amount to a partial loss, the
manner of computing the general average is to ascertain the cost

1 Frazer v. "Worms, 19 0. B. (N. S.) 4 Bing. N. C. 134; Milward v. Hibbert,
159. 3 Q. B. ISO; Crane v. Aiken, 13 Me.

2 Tudor V. Macomber, 14 Pick. 84. 239; Lenox v. United Ins. Co. 3 John.

3 Frazer v. "Worms, supra. Cas. 334; Smith v. "Wright, 1 Caines,

4 On the subject of the manner of 43; Dodge v. Barton, 5 Greenl. 386.
making adjustments the following Also the treatises of Arnold and
cases may be consulted: Miller v. Benecke on this branch of the sub-
Letherington, 6 H. & N. 278; af- ject of insurance.

firmed, 7 H. & N. 954; Gould v. OUver,

84: raSUEANOE.

of repairs, deducting the one-third new from old.' "Where there
is a total loss of the ship, the measure of damages, or rather
the amount of the loss, is held to be the value the ship would
have been to the owner if he could have had' her in security at
the time of the loss, with the gross freight she would have
earned by the voyage.^ This is not the accepted law in England
or in continental countries, according to Benecke, but it may be
regarded as the law of this country, notwithstanding the opinion
of Chancellor Kent in the case of Bradhurst v. The Columbian
Ins. Co.* The rule laid down by the supreme court of the United
States is supported by very able American authority, which is
cited, and has never been modified by that court. When the
ship has been sold, the price she brought fixes her value in mak-
ing the adjustment.* If she has not been sold, or has been totally
lost, the value is ascertained by first ascertaining her value
when the voyage was commenced; from this is subtracted the
provisions and stores used up to the time of the loss, and any
partial loss she may have sustained anterior to the finai loss ; and
it is said that to this should be added any amount paid the ship
as contribution on account of general average loss to herself.'
The balance will be the basis of the contribution. The cases in-
volving the method of the adjustment are almost without num-
ber ; and the professional reader will find it to his advantage in
complicated cases to consult a standard work like Arnold, or
Phillips, where the rules and exceptions are particularly dis-
cussed in detail.

1 Abbott on Ship. (11th ed.) 551. 3 9 John. 13.

2 Columbian Ins. Co. v. Aehby, 13 ^Bell v. Smith, 3 John. 98,
Pet. 331. 5 Am. on Ins. 986 (4th ed.).

msE EsrsuEAuoB. 85

Seotion 2.

FIRE msURANOE.

Rule of indemnity the same as in marine insurance; rules of construction
the same; contract may be by parol; examples — General rule of dam-
ages; insurer hound for the whole loss within the amount of the
policy — What the jury may consider; illustrations — Damage to be
proved by legal evidence as in other cases — General average in fire
insurance; ^cample — Insurer's liability on contracts to pay all losses,
not exceeding a fixed proportion of stock insured; instances; excep-
tions— Damages in special cases — Insurance on commission goods —
Rule in case of loss where m,ortgagee insured; where he insures for his
own benefit; contradictory decisions; Massachusetts rule commended —
Contracts to replace or rebuild — No defense that a subsequent law or
ordinance forbids the erection; insurer may put the insured in as good
condition by repairs and renewals; particular instances — Adjustments
and replacements where there are several policies; damages for failure
of insurer to fulfil building contracts.

FiBE iNsuEAucE. — Thus far the subject of damages recover-
able in marine insurance has been observed upon, and while the
general remarks as to the character and quality of the contract
are equally'' applicable to fire insurance, and many of the cases
are cited from either class of insurance with propriety, there
are some differences that demand notice.

All that has been said as to the contract being one for the
indemnity of the insured for marine losses, is equally applicable
to contracts of insurance against fire.

"Whenever it is established that the parties have concluded a
contract, by which the risk insured against, the amount of the
indemnity, the duration of the obhgation, the amount of the
premium, and the manner of its payment, are definitely fixed,
there is an agreement which is as sacred in the eye of the law
as any that can be made.^ And this contract, which must be
such as to bind both parties to it,'' is to be interpreted and con-
strued, except when controlled or limited by statute, by the
same rules and principles of interpretation which govern other
contracts.' Contracts for insurance may be not only made

1 First Baptist Church v. Brooklyn 3 Portsmouth Ins. Co. v. Brinckly,
Ins. Co. 28 N. Y. 153; Strohn v. 3 Ins. Law Jour. 843; 111. Ins. Co. v.
Hartford Ins. Co. 37 Wis. 635. MarseiUes Manuf. Co. 6 lU. 236,

2 Wood Y. Poughkeepsie Ins. Co. supra.
33 N. Y. 619.

86

INSTJEAITOB.

by parol, but it has been held that they may be so made,
though the charter of the insurance company requires all con-
tracts of insurance to be in writing; i and if the risk has been
accepted, and notice of the fact forwarded to the insured,
though it may not have reached the latter until after the
destruction, the insurer's obligation is complete.^ It has been
held that the contract is complete though the insurer, an incor-
porated company, had left the matter in the hands of an agent
to determine, if he had agreed to it, though the company had
not received any notice of his acceptance of it.' And the con-
tract is complete when the policy has been forwarded to the
agent for delivery to the insured, though in fact it has not been
delivered.^

G-ENEEAL ETJLE OF DAMAGES. — Assummg, therefore, the exist-
ence of a contract between the insurer and the insured "against
loss of or injury to the subject by fire, and assuming^ that a
loss has occurred, the first question is as to the amount which
the insured can recover.

Remembering the rule, that insurance is a contract of in-
demnity, and that the insurer agrees for the immediate, not the
remote consequences of the loss,* he is bound to pay the whole
loss, if within the amount of the policy, without regard to the
proportion between the amount insured and the value of the
property at risk ; and he is liable for the damage to the build-
ing or goods, excludiug all gains or profits which might have
come to the insured if the fire had not occurred.^ The quali-
fication just stated does not extend to the exclusion of evidence
of the rental of buildings insured, where the value of the build-
ings is in issue, and the evidence is offered to prove such value.''

1 Security Ins. Co. v. Kentucky 117; Insurance Co. v. Express Co.

Ins. Co. 7 Bush, 81. See contra, id. 327.

Head v. Providence Ins. Co. 2 ^Liscom v. Boston Mut. Fire Ins.

Cranch, 137. Co. 9 Met. 305; Underbill v. Agawam

" Tayloe v. Merchants' Ins. Co. 9 Mut. Ins. Co. 6 Cush. 440; Phosnix

How. (U. S.) 390; Hallock v. Com- Ins. Co. v. Cochran, 51 Pa. St. 143;

mercial Insurance Co. 36 N. J. L. Welles v. Boston Ins. Co. 6 Pick.

268. 182; Wright and Pole, Matter of, 1

3 Ellis T. Albany City Ins. Co. 50 A. & E. 621; Niblo v. North Am.

N. Y. 403. Ins. Co. 1 Sandf. 351.

■1 Hallock T. Ins. Co. supra. ' Cumberland Valley Mut. Prot.

s Insurance Co. v. Boon, 95 U. S. Co. v. Schell, 39 Pa. St. 31.

FIEE INSUEAITCE. 87

Where an insured building is totally destroyed, in estimating
the amount of the loss, there is no rule based on the estimated
cost of a new building, with the difference between the new
and the old structure, as in adjusting marine losses on ships ; ^
nor does the cost of rebuilding furnish the rule of damages.
The fair value of the property destroyed, as fixed by the judg-
ment of a jury, is accepted as decisive of the question.^

"What juey may consider. — It is said when the subject of the
insurance has not a " ready " market value, the jury have the
right to form their own judgment of the value, provided it be
not unfair. The cost of replacing the thing, deterioration, its
worth to a stranger, are elements proper to be considered, but
are not conclusive.' And in the case of articles having a ready
market, the market value at the time and place of the destruc-
tion is regarded as the cash value ; but a temporary rise or de-
pression of that value, above or below the ordinary value, should
not be allowed to control. ISTeither cost, profits, or unpaid
duties, are necessary elements, unless the latter reduce the
insurable interest ; and in the case of damaged goods, a fair sale
at auction with the knowledge of' the insurer furnishes a proper
basis for fixing the damages.* In cases where the insurer re-
stricts his liability by the policy to two-thirds, or some propor-
tion of the actual value of the building and goods " at the time
of loss," the limit applies equally to both classes of property ;
and when the insurer provides that partial losses shall be paid
in full, not exceeding the amount insured, provided the insured
had on hand the lowest amount stated in the application, as if
the insurance is on merchandise to the amount of three thou-
sand dollars, it is not regarded as a case of partial loss, though a
small amount, for example, twent}'' or thirty dollars' worth, were
saved, because that was not the real intention of the parties.^

1 Miss. Mut. Ins. Co. v. Ingram, * "Wolfe v. Howard Ins. Co. 1

34 Miss. 315. Sandf. 124; Hoffman v. ^tna Ins.

2Brinley v. National Ins. Co. 11 Co. 1 Eob. (N. Y.) 501; Hoffman v.

Met. 195. Western Insurance Co. 1 La. An.

^Brinley v. Nat. Ins. Co. sujjra; 316.

Niblo V. North Am. Ins. Co. 1 Sandf. 5 Singleton v. Boone County Ins.

551; Commonwealth Ins. Co. v. Sin- Co. 45 Mo. 250.
nott, 37 Pa. St. 205.

88 rNSUKANOB.

There is no right of abandonment in fire as in marine insur-
ance,^ and goods destroyed are to be paid for at their value at
the time of their loss ; and if they are only damaged, the differ-
ence between their value in their present and their prior condition.
When the goods are so injured as not to be salable in the ordi-
nary way, the insured may, on notice to the insurer, or with his
knowledge, make a fair sale at auction, and, crediting him with
the proceeds, recover the balance. If the sale is made without
notice to, or knowledge of, the insurer, the insured takes upon
himself the burden of proving that the goods brought all they
were worth, the returns of the sale, of themselves, being insuffi-
cient evidence of the value.^ When the parties have agreed in
the policy upon the manner of ascertaining the value of the
property, the law wiLL sustain the agreement, as already stated
in the opening of this chapter.'

Dajmiagbs peoved by Amr legal testimony. — If no such agree-
ment exists, then thp law permits the insured to prove by any
legal testimony what the value actually was, so as to fix the
damages ; * and as to what testimony is admissible to establish
the ultimate point in the inquiry, is more a question in the law
of evidence, than in that of insurance. There are many varying
and inharmonious decisions on what is proper testimony, but
for the reason assigned they wOl not be further referred to.

Geneeal avbeage IK FiEE iNSUEAKCE. — "While it is said the
election of the insured to abandon the property does not exist
in, fire, as in marine insurance, and this constitutes one of the
distinctions between them, they have in some cases a feature in
common which we would least expect to find, viz.: general
average. During the progress of a fire the insured, with the
approval of the insurer, procured and hung out of the windows
6t the building wet blankets, which proved to be of essential
service in stopping the progress of the fiames, and in preserving
the goods in the building. On this state of facts, it was held*
that the insurer and the insured should contribute towards the

1 Henderson v. Western M. & F. < Lycoming Fire Ins. Co. v. Jack-
Ins. Co. 10 Rob. (La.) 164. son, 83 111. 303.

2 Ibid. 5 Welles v. Boston Ins. Co. 6 Pick.
sAnte, p. 66. 183.

FIEE mSUEAKOE. 89

loss of the blankets so used, in proportion to the amount which
they respectively had at risk in the store and contents. It was
a practical case of dry land jettison, and general average con-
tribution, deduced from the " laws of the sea." Common sense
and common justice proved superior to the general rule, that,
in a loss under a policy of insurance against fire, the amount
is to be paid without contribution ; and shows that the insurer
may become liable beyond the amount named in the policy.

Eecoveeies dt special cases. — If a contract of insurance is
to the effect that the insurer wiU pay all losses and damages, not
exceeding a specified sum, which may happen to the insured
property during the term of the insurance, and that the loss and
damage shall be estimated according to the true and actual
value of the property at the time the fire shaU occur, and be
paid at the rate of two-thirds of the actual loss, — the insurer's
liability is not hmited to two-thirds of the actual loss. The
liability under such a contract is to pay all losses sustained by
the insured within the sum named in the policy, and not exceed-
ing two-thirds the value of the stock insured. If the goods in-
sured were worth only the amount specified in the policy, the
insurer would only be liable for two-thirds of that amount ; but
if the stock were worth twice the amount of the sum stated in
the policy, the insurer would be liable for the whole sum stated
therein, because the loss exceeded the two-thirds of value which
the insurer agreed to pay.^ And whenever the contract is that
the insurer wiU pay the value, or a, certain proportion of the
value of the property at the time of the loss, that value is deter-
mined by its then value, without reference to its worth at the
time of the inception of , the risk.^ In cases where divers lots
of goods in different places or buUdings, and separately valued,
are insured together for a gross sum named in the policy, though
only on a proportion of the value, and a loss exceeding the pro-
portion happens to a part of the lots, the liability of the insurer
is not confined to thie- proportion of the value of the lots which

1 Ashland Mut. Ins. Co. v. Hou- Co. 31 N. H. 238; Post v. Hampshire
singer, 10 Ohio St. 10; Huckins v. Mut. F. Ins. Co. 13 Met. 555; At-
People's Ins. Co. 81 N. H. 238. wood v. Union Mut. F. Ins. Co. 38

2 Huckins v. People's Mut. F. Ins. N, H. 234.

90 mSTIEAlIOE.

are destroyed, but is to the extent of the injury, not exceeding
the amount named in the policy. In a case in the supreme court
of New Hampshire, where an insurance was effected for a gross
sum on the plaintiff's house and sheds, valued at $1,200, furniture
therein $250, barns $250, barn and shed in the meadow $250,
hay and grain therein $400, it was held in a suit involving losses
to the amount of $900, the loss being of the barn and sheds in
the meadow and the hay and grain therein, that the insurer
was hable for the entire loss of aU the hay in both bams, and
not simply a proportion of each parcel or lot actually destroyed.'
On the same doctrine, it was held in Louisiana, that where an
insurance was taken on cotton to the amount of $20,000, the
cotton being stored in seven different warehouses, and cotton to
the value of $17,000 was destroyed in one of the warehouses,
the insured was entitled to recover the full sum lost, and was
not limited to a proportion to be ascertained by a comparison of
the sum in the policy to the value of 'the whole property insured.
The court construed the policy to mean that the insurer en-
gaged by his contract to indemnify the insured against all loss or
damage, on all and every part and parcel of the cotton insured,
to the extent of $20,000 ; and as the loss was within that sum,
although six of the seven lots insured were uninjured, the in-
sured was entitled to recover for the entire loss.^ And it maj''
be stated as a rule, that where the amount of insurance is not
'distinctly apportioned between the subjects of it by the policy,
the latter, to its full amount, wiU bear any loss that happens to
either.' But if the pohcy is specifically limited to certain
designated subjects, it will not be extended beyond the things
specified.* In the New Hampshire case just cited, it was held
that on a policy for $1,500, where the by-laws of the insurer pro-
vided that in no case would the company become bound to pay
more than two-thirds of the actual value of the property insured
at the time of loss, and the insured proved that he had on hand
at the time property of the value of $2,250, that the insurer

iRix V. Mut. Ins. Co. 30 N. H. 198. Co. 31 N. H. 238; Storer v. Elliott

■' Nicolet V. Ins. Co. 3 La. 371. Ins. Co. 45 Me. 175; Liddle v. Menket

'Blake v. Exchange Mut. Ins. Co. F. Ins. Co. 4 Bosvv. 179; Bengass v.

12 Gray, 365, and cases cited supra. Alliance Ins. Co. 10 Allen, 331.
* Supra; Huckins v. People's Ins.

FIRE INSUBAITCE. 91

might recover the full amount of $1,500, it appearing that so
much had been destroyed.

Insitrahob on commission goods. — There is some difficulty in
applying the measure of damages, where the policy is taken
upon goods which are held for sale on commission. It is clear
that unless the policy specifies that the goods are held upon
commission, and are insured for the true and actual or some
specified value, and insured as such, the loser cannot recover
beyond the loss of his commissions. A party who sells goods
on commission has such an interest as entitles him to insure
them, but he must not insure such goods as his own ; for as his
contract is one of indemnity, and his interest, in fact, limited,
he will be restricted to his actual loss. But where the propeity
so held is insured, as well the interest of the factor as of the
consignor whom he represents, and who need not be specified or
named, the policy will attach upon the thing, as in other cases.
And where a policy embraces " goods as well the property of
the assured as those held by him on commission," and agrees
to make good to the insured all loss and damage, to be estimated
according to the true actual value at the time the loss shall
happen, the insured may recover the whole value of such prop-
erty, and not merely the amount of his lien or commissions.^
In a Massachusetts case the insurers were commission merchants,
and took out a policy for $10,000 on merchandise in their
store, and by them held in trust. At the time of taking
the policy they represented to the insurance company that
they were in the habit of receiving goods for sale ; that they
made advances on some of them, and on some they made none ;
that the goods on hand were constantly changing by sales and
new consignments ; and that they desired to be iiisured on such
goods to secure themselves against loss by fire, as the consign-
ors might not be able to repay the advances. On the case
stated, it was decided that the insurer was liable only to the
extent of the interest of the insured in the property lost; in
other words, to such goods, and only to the extent that advances
had been made or commissions attached.^

iDe Forest v. Fulton F. Ins. Co. ^Parks v. General Interest Assur-
1 Hall, 84; Brichta v. New York Ins. ance Go. 5 Pick. 34.
Co. 3 HaU, 873.

92 iNSUEAiraE.

Insueaitoe by mortgagee. — Where a mortgagee of property
insures on his own account, it is but an insurance to the extent
of his debt, and the insurer is liable only to the amount of the
debt ; but if the mortgagor takes out a policy and assigns it to
the mortgagee as part of the security, the mortgagee is entitled
to recover the whole amount, though if there be an. overplus be-
yond what is due on the mortgage debt, he will be liable to
account to the mortgagor for it.^ In a case arising in Massa-
chusetts, it was held that when a mortgagee at his own expense
insures his interest in the property against loss by fire, without
particularly describing the nature of his interest, he is entitled
on the happening of the loss, to recover the amount of his loss
as mortgagee to his own use, without first assigning his mort-
gage to the insurer; nor is he compelled to account to the
mortgagor for the amount so recovered in whole or in part; he
retains a right to recover his whole debt from the mortgagor.
And, on the other hand, when the debt is paid by the mortgagee,
the money is not in law or equity the money of the insurer,
who has paid the loss, nor is it money paid for his use.^ It
must be confessed that at first view the doctrine of the case of
King V. State Mutual F. Insurance Co. seems at variance with
other well established principles, but a closer examination of it
wiU show it to be sound law. If a mortgagor insures and as-
signs the policy to the mortgagee as a further security for his
debt, or if the mortgagee agrees to insure as part of his con-
tract with the mortgagor, it is reasonable to say that he shall,
as between him and the mortgagor, have only his debt, and
that the policy is but a part of the security for that debt ; but
• when the mortgagee, for his own security and at his own ex-
pense, and for his own exclusive benefit, procures an insurance,
there is no such relation between the mortgagor and mortgagee
as would authorize the former, or any one subrogated to his
rights, to call upon the insured for any part of the money paid
on such policy.

The insurance company having received its premium, and the

1 Tyler v. Etna Ins. Co. 16 Wend. 2 King v. State Mut. F. Ins. Co.
385; Carpenter v. Providence Ins. 7 Cusli. 1. The English case of Dob-
Co. 16 Pet. 495; Foster v. Equit. Mut. son V. Land, 8 Hare, 316, proceeds
F. Ins. Co. 3 Gray, 316; MoEwan v. upon similar principles.
Western Ins. Co. 1 Mich. N. P. 118.

FIEB mSUBANOE. 93

event having occurred upon vs^hich its liability became fixed,
could no more defend the action than in any other case of a
contract liability; nor would the mortgagor have any right to
call on the insured, because the money was procured on an in-
dependent contract and consideration, moving from the party
who received it. This case is supported by some subsequent
adjudications, and seems on principle to be unassailable.^ It is
further announced in the case last cited from ISTew Jersey, that
where a mortgagee holds other securities for the same debt and
effects insurance on the mortgaged property, and subsequently
parts with any of his securities, or part of his mortgage is paid,
the insurer wiU only be liable on his policy to the amount re-
maining unpaid. But if the mortgagee parts with his other
securities, or receives payment of part of his debt after a suit
has been commenced, he is entitled to recover the f uU amount
of his insurance. Nothing else being put in issue by the plead-
ings, the right of the parties must be determined as they ex-
isted at the time the suit was instituted. If the mortgagee has
been paid the debt, to protect or secure which the insurance
was effected, or if he has impaired the rights of the insurer in
any securities, to the benefit of which the insurer was entitled,
the latter must resort for relief to a court of equity, his
equitable claim not being a proper subject for a jury.

It is respectfully submitted that the whole difficulty here
suggested is based on the erroneous notion that a contract made
by one person for his ovra benefit, on a consideration proceed-
ing from him, with which the other has nothing to do, may be
treated as giving that other a right. Of course under the code
system of pleading, where legal and equitable defenses m^y be
mingled in the same action, the difficulty last suggested would
have no existence. In New York ^ it was held that, when the
insurer did not have notice that the insurance was on a mort-
gage interest, it was no defense to the action on the policy by
the mortgagee, that the mortgage was ample security for what

1 Concord Mut. Ins. Co. t. Wood- sex Ins. Co. v. Woodrufl, 36 N. J. L.

bury, 45 Me. 453; Howard v. Lamar 541.

Ins. Co. 51 111. 409. It is ques- ^Kernochan v. New York Bowery

tioned in Kew Jersey, and the oppo- Ins. Co. 17 N. Y, 438,
site rule is there recognized. Sus-

94 INSUEAKCE.

remained unpaid on the mortgage debt, notwithstanding the
loss by fire, and that therefore the plaintiff was not injured,
though a loss had actually occurred. The court said that " if
in any case the insurer of a mortgagee is entitled on payment
of a loss to an interest in the debt and security, it is a mere
equity, not arising out of the contract of insurance, but from
all the circumstances of the case." The court further said that
the insurance was not of the " debt of the mortgagor," but
was of the property, and upon its destruction the insured mort-
gagee had the right to recover. This case, to the extent the de-
cision went, was decided upon correct principles, though the
court did not seem inclined to fully adopt the Massachusetts
doctrine.

CoNTEACTs TO EEPLACE oE EEBuiLD. — As has been already said,
there is now a class of insurance contracts in which the insurer
reserves the right to replace the articles lost or rebuild the
structures destroyed. This right depends wholly on the con-
tract, and does not exist independent of it. Under such a con-
tract, if the insurer rebuilds, or replaces the goods, no action for
the loss in money can be maintained. But if he fail to rebuild,
the measure of damages is not what it would cost to replace or
repair the property, but such a sum as will be a fair indemnity
for the loss.' And where the insurer elects to rebuild, and is not
permitted by the public authorities by reason of the building
being dangerous, or not being in conformity with some ordinance
of the city, he must pay the damages for not performing his
contract.^ The fact that such a structure is prohibited by gov-
ernmental authority, and that a new building must be of better
material — brick, for instance, instead of wood — does not excuse
the insurer ; he must either build in conformity to such regula-
tions or pay the insured the actual amount of the loss.' Under

' Commonwealth Ins. Co. v. Sin- & E. 746), in the English exchequer

nott, 37 Pa. St. 205; Walbum v. Ins. chamber, the subject of relief from

Co. 4 La, 289. a contract where fulfilment has be-

2 Brady v. Northwestern Ins. Co. come impossible is fully discussed.
11 Mich. 425; Brown v. Royal Ins. In the American publication of that
Co. 1 EUis & Ellis, 853. case (96 E. C. L. Rep. 795), the ed-

3 1 Ellis & Ellis, supra. In the itor adds a lengthy and valuable note
noted case of Hall v. Wright (E. B. showing that the American cases

FIKE INBTJEANCE. 95

a provision ia a policy authorizing the insurer to elect to rebuild
the property destroyed, he may place the insured in as good
condition as he was before the fire occurred, by repairs or re-
newals, which make it equal to its former condition. And in
an action on the policy, evidence of the repair and renewal is a
good defense.* The insurer may show further in defense of an
action, that after his liability occurred and before the time for
their felection to repair had expired, they had made an arrange-
ment with the insured by which the time for making the repairs
had been extended beyond the time 'fixed in the policy, and this
will be a good defense to the action for the loss.^ It is also held
that when the insurer reserves the option to make good the loss
by " rebuilding, replacing or repairs, tJie itisured to contribute
one-fourtJi of the expense," etc., and there is a partial loss, and
the insurer makes substantial repairs, though not so perfect as
the contract requires, the insured is entitled to recover the dif-
ference between the value of the buildings as repaired in part,
and what the value would have been had the repairs been com-
plete. The insurer in such a contract must pay one-fourth of
the value of such repairs to the estate — not simply one-fourth
of the cost.^

Adjustments among instibees wheee theee aee seveeal. — In
cases of insurance in more companies than one, when each re-
serves the election to rebuild, and upon a loss each elects to
rebuild and fails in the performance, the insured will be entitled
to recover the damages he has sustained by a breach of the con-
tract to rebuild, by proceedings against either company, or
against all ; and in the former case, the insurer who has done
nothing towards the performance is liable thereafter to the other

support the general doctrine of the daniel v. Tuckerman, 17 Barb. 184;

case. " Where the party by his own Phillips v. Storm, 16 Mass. 238.

contract creates a duty or charge ' Franklin F. Ins. Co. v. Hamill,

upon himself, he is bound to make 5 Md. 170; Mlmaker v. Fi-anklin Ins.

it good, if he may, notwithstanding Co. 5 Pa. St. 18S.

any accident by inevitable neces- ^Ellmaker v. Franklin Ins. Co.

sity; because he might have pro- supra.

vided against it by his contract.'' ^Parkerv. Eagle Ins. Co. 9 Gray,

Paradine v. Jane, Aleyn, 86; Barker 153.

V. Hodgson, 3 M. &"s. 367; Clen-

96 ESrSUEAIfCE.

for contribution ; * and if the building contract, in such case, is
only partially performed, the hability under the rule stated above,
in cases of part performance, is for the difference between the
value of the work done and the value of the property if it had
been done according to contract.^

This brief view of the rule of damages in fire insurance cases
must suffice. It might be extended almost indefinitely by a
review of the voluminous cases which are reported in the courts
of the American states, and in the courts of the United States.
Such a labor more naturally belongs to a work devoted to the
topic of insurance exclusively, and as a number of such treatises
are already in existence, the profession would hardly justify a
further excursion into that field."

Section 3.

life aot) accident insueance.

Definition of life insurance — Character of the contract of life insur-
ance— Not a contract of indemnity — When such insurance is held as
security — When it is not a collateral security — Accident policies; when
available only for indemnity; how damages estimated; recovery may he
had for the actual loss, not exceeding amount of the contract; conse-
quential damages not considered — Difference between English and
American rule as to scope of recovery — Bute of damages stated.

Definttion of life rtfSTiRANOE. — As already stated,* a life
insurance contract is an agreement upon the part of the insurer
with the person who takes the policy, that upon the death of the
person whose life is insured during the time for which it is so
insured, or, if generally upon his life, upon the occurrence of his
death, the insurer wiU pay the amount of the pohoy to the per-
son holding the same.

Chaeacter of the conteact. — The discussions as to whether
a life insurance is, or is not, a contract of indemnity make it
necessary to do what has been omitted in the notice of marine

1 Morrell v. Irving Fire Ins. Co. 38 ols, of New York, will furnish the
N. T. 429. practitioner with a ready means of

2 Morrill v. Irving Fire Ins. Co. consulting the cases, and presents
supra. the law and reported cases in a very

' The recent digest of insurance concise and admirable manner,
decisions by Messrs. Hine and Nich- « Ante, p. 63.

LIFE AND ACCIDENT INSUEANOE. 97

and fire insurance contracts, viz. : discuss briefly the nature of
the contract itself, as this influences in a degree the measure of
the recovery in particular cases.

There seems to be a fundamental difference between the lead-
ing authorities on the point whether a life insurance contract
is one of indemnity or not ; the well-settled English rule being
that it is not, and the preponderant authorities in America in-
clining to the contrary. Except in a particular class of cases,
however, arising under these contracts, the question is an abstract
one, but in that class it becomes vital, and hence important to
be considered. Whenever the amount of the recovery may be
determined or limited by the idea of its being given by way of
indemnity, it is important to fix the nature of the contract, and
it must be admitted as stated above, that there is a want of
harmony in the decisions. It was at first held in England, in
Gadsell v. Boldero,' that a life insurance policy was a contract
for indemnity, and such seems to be the current opinion in this
country.^ To the contrary, it is now settled in England that
such a policy is a simple contract to pay such a sum at the death
of the person named therein, whose life is insured, and neither
more nor less than that sum, with interest from the death, can
be recovered.'

It seems that the original case in England * was acquiesced in by
the parties, no steps having been taken to reverse it, but was gen-
erally disregarded in practice ; and, after many years, has been
overruled in that country.* It was overruled by the unanimous
decisions of six judges sitting in the exchequer chamber. Baron
Parke said, in the course of his opinion, that " the contract com-
monly called life insurance, when properly considered, is a mere
contract to pay a certain sum of money on the death of a
person, in consideration of the due payment of a certain annuity
for his life, the amount of annuity being calculated in the first

19 East, 72. Assurance Co. 15 C. B. 365; Law v.

2 American Life and Health Ins. London, etc. Assurance Co. 1 K. & J.

Co. V. Rotaertshaw, 36 Pa. St. 189; 323; Bawls v. American Ins. Co. 27

Bevin v. Conn. Mut. Ins. Co. 33 N. Y. 283.
Conn. 344; Kivers v. Gregg, 5 Rich. ^ Gadsell v. Boldero, supra.
Eq. (S. C.) 374. sDalby v. India & London Ass.

s Dalby v. India and London Life Co. supra.
Vol. Ill— 7

Ho DTSTIEAITOE.

instance according to the probable duration of the life ; and
"when once fixed it is constant and invariable. The stipulated
amount of annuity is to be uniformly paid on one side, and the
sum to be paid in the event of death is always (except where
bonuses have been given by prosperous offices) the same on the
other. This species of insurance in no way resembles a contract
of indemnity." The overruled case proceeded upon the statute
of 14 G. Ill, c. 48, but upon an erroneous construction of it.
That statute to prevent wagering policies required that the
person effecting for himself the insurance should have an inter-
est in the continuance of the life insured, and limited the re-
covery to that interest. The overruling case held that
wagering policies were not void at common law ; and that the
statute only required an interest to support the insurance when
it was effected, and limited the recovery to the interest then
existing. In this country, wagering contracts, by statute and
by the common law, have generally been held void, as immoral
and contrary to public policy; and hence the right of one
person to obtain, for his own benefit, insurance on the life of
another, is more restricted. Such insurance is permitted if it is
not, in fact, intended in whole or in part, as a wagering vent-
ure. A person who has an interest in the continuance of the
life which is the subject of the insurance, may effect an insurance
upon it. The amount of it is chiefly important as an evi-
dentiary fact in the determination of its validity — in determin-
ing whether it is speculative. If such an interest exists at the
time the insurance is effected, the contract has a valid incep-
tion. Whether it will continue valid if that interest afterwards
ceases, is perhaps an open question in this country ; * though it
is said in a late case by the supreme court of the United States,
that a policy taken out in good faith, and valid at its inception,
is not avoided by the cessation of the insurable interest, unless
such be the necessary effect of the provisions of the policy
itself. 2 The interest, probably, should be pecuniary, but when
insusceptible of definite measurement in money, the amount
fixed in the policy will not affect the validity of the contract

13 Smith Lead. Caa. 353, 353; Fer- » Connecticut Mut. L. Ins. C!o. v.
ber V. American Mut. L. Ins. Co. 15 Schaefer, 94 U. S. 461.
Gray, 349.

LIFE AND ACCIDENT INSTTEANCE. 99

without other proof tending to show an intention to speculate
on the chances of the life; nor will it be subject to modification
by extrinsic proof.' Policies which are subject to no objection
at their inception or afterwards, for being unsupported by the
requisite interest in the beneficiary, are enforced not only in
England but in this country; and they are not enforced on the
principle of indemnity, but as valued policies, imposing on
the insurer the obligation, upon the happening of the death, to
pay the precise sum the life was insured for.* "When a legal pol-
icy upon a life is made, all that remains is to follow the terms
of the contract. If, in consideration of certain premiums paid
or to be paid, annually or otherwise, a person enters into a con-
tract with another, to the effect that at a given time or on the
occurrence of an event, he will pay that other so much money,
the failure to pay after the occurrence is a breach of the con-
tract, affording to that other a perfect right of action for the
precise sum agreed to be paid. The party agreeing to pay has
received the consideration in the premium money, and whether
we call the resulting express obligation an indemnity, a debt,
or a penalty, it becomes due as a liquidated sum, under the;
contract ; and any attempt to question the right of the policy '
holder is only to raise a question as to whether the obligd^ in
any contract may not repudiate it, and still keep the benefits
of full performance of the provisions in his favor. When one
person has such an interest in the life of another as to be en-
titled to effect an insurance on his life, and does so, paying his
own money for the policy, it is a contract between the insurer
and the holder of the policy; and any inquiry as to whether
the interest of the insured has continued, and is in existence at

1 Connecticut Mutual Life Insur- Barb. 9; 30 N. Y. 33; Hoyt v. N. Y.

ance Co. V. Schaefer, 94 U S. 461; Ins. Co. 3Bosw. 440; Morrellv. Tren-

Bevin v. Connecticut Mutual Life ton F. & L. Ins. Co. 10 Cush. 383;

Ins. Co. 33 Conn. 344; Loomis v. Lord v. Dall, 13 Mass. 115; Mitchell

Eagle Ins. Co. 6 Gray, 896; Meltz v. v. Union L. Ins. Co. 45 Me. 104.
Eagle Ins. Co. 3 E. D. Smith, 368; 2 Trenton Mutual L. &F. Ins. Co.

Equitable Life Ins. Co. v. Patterson, v. Johnson, 34 N. J. L. 576; Bevin v.

41 Ga. 338; Chisholm v. Capital Life Connecticut Mut. L. Ins. Co. 33

Ins. Co. 53 Mo. 313; Lewfs v. Phoe- Conn. 344; Lord v. DjUI, 12 Mass. 115;

nix Mut. L. Ins. Co. 39 Conn. 104; Goodwin v. Mass Mut. L. Ins. Co.

Valton V. National L. ASs. Co. 23 73 N. Y. 480, 497.

100

INSUKANOE.

the. time the death occurs, either by the insurer or the repre-
sentatives of the deceased, is on principle immaterial and irrel-
evant. The motive of A to insure the life of B is probably
self-interest, but it is of no consequence to C, who issues a policy
to A, what the real motive is, if it be lawful and furnishes to
C the agreed consideration for the engagement. If A buys
and pays for a particular thing, which C delivers, no other
party has any interest in the transaction, legal or equitable.
The insurer gets his premium, and the person advancing it is
entitled to the benefit of the contract as much as if he had sold
a lot of merchandise, and the purchaser had agreed to pay a
stated price at a certain time.^

1 Professor De Morgan, in his Es-
say on Probabilities, p. 344, has so
thoroughly annihilated the theory
of the case of Gadsell v. Boldero,
and the cases following and adopt-
ing it, that I cannot forbear quoting.
He says:

" Tlie word insurance or assur-
ance has given rise to some wrong
ncHons, and it will be worth while
to examine the nature of the con-
tract. A & Co. engage with B that,
in consideration of 11. a year, paid
by him during his life, they will pay
201. to his representatives as soon as
he shall be dead. Both parties' run
a risk: A & Co. that of having to
pay B more than they receive; B
that of paying more than wUl at his
death produce 201. But the risk of
the office is of immediate loss; and
that of B of deferred loss; that of
the former is also continually lessen-
ing, and that oE the latter increasing;
until, should B live long enough,
both risks become certainties. If
the insurance be only for a term of
years, B runs the risk of losing his
premiums altogether.

" The office does not inquire what
reason B may have for assuring his
own life or that of another person,
nor do any possible contingencies,

except those of life, affect the office
calculations. We cannot, therefore,
be too much surprised at the igno-
rance shown by that judge who de-
clared that life insurance was of. its
ovsTi nature a contract of indemnity;
that is, if, by any lucky chance, B can
be proved to have accomplished the
object for which he insured by other
means, he has no claim upon the
office. The circumstances are as
follows: and the absurd conclusion
is law, and would be practice, if the
insurance offices had not refused to
ackijowledge the decision, or protect
themselves by the precedent. A &
Co. covenanted with B to pay 5001.
if C should die within the term of
seven years next ensuing, in consid-
eration of the usual premium. 0
did die within the term; A & Co., in
answer to a claim of 5001., replied
that the intention of B in insuring
the life of C was to obtain security
for the payment of a debt of 500Z.
due by C to B, which debt had
already been paid by C's executors;
consequently they owed nothing to
B. An action was brought by B,
and defended by A & Co., on the
above plea; and a special case being
made, the case was decided by the
court of queen's bench against the

LIFE AND ACCIDENT INSUEANCE.

101

When ldte inbueance collateeal seoueitt. — "When a person
takes an insurance on his life, paying the premiums, and assigns
the policy as collateral security to his creditor for a debt, there
is no question that the assignee is a trustee for the proceeds be-

plaintiflfs, thereby establishing the
principle that life insurance is a
thing similar to fire or ship insur-
ance; namely, a contract of indem-
nity, to be fulfilled with allowance
of salvage.

" The defendant's case rested upon
the asserted nature of the contract,
and the statute of 14 G. Ill, c. 48,
which enacts that ' no greater sum
shall be recovered from the insurers
than the amount or value of the in-
terest of the insured in such life.'
The act does not state at what time
the interest is to be reckoned, but
the plaintiffs contend that the time
of death was the meaning of the
statute; the defendants averi'ed, and
the court decided, that the time of
bringing the action was to be under-
stood. The plaintiffs contended that
the debt was not the object of in-
surance, but the life of the insured;
the court decided that ' this action
is, in point of law, founded upon
a supposed damnification of the
plaintiffs, occasioned by the death,
existing and continuing to exist at
the time of the action brought; and,
being so found, it follows, of course,
that if, before the action was
brought, the damage which was at
first supposed likely to result to the
creditor was wholly obviated and
prevented by the payment of his
debt, the foundation of the action
on his part, or the ground of such
insurance, fails.' This sentence con-
tains nothing but very good sense,
and no doubt very good law; but the
application of it was accompanied
by a mistake as to the nature of the
damuiflcation which the plaintiffs

had sustained. The counsel on both
sides, the court, the insurance office,
and the plaintiffs themselves, showed
a very partial knowledge of the nat-
ure of the contract; and I make no
doubt, that almost every pei'son who
heard it agreed with the court, how-
ever much they might impugn the
decision on other grounds, that the
damage to the creditor was ' wholly
obviated and prevented by the pay-
ment of the debt.'

" In order to show that such was
not the case, we must suppose that
an exactly similar transaction had
taken place before any insurance
office existed. How this could have
been may not be apparent, if we take
the notion which the law formerly-
entertained of such an office;
namely, that it is a species of gam-
bling house; but if we prefer to
consider it as a savings bank, with
an equalization system, which is un-
questionably the correct notion, we
may return to the circumstances
which the case would have presented
had there been no insurance. C, a
person whose credit has become
doubtful, is indebted to B to an
amount which B could not afford to
lose; consequently B, knowing that
the chance of payment is precarious,
resolves to diminish his expenses,
hoping by economy to restore to his
family the sum which he may have
lost by his engagements with C. He
collects, accordingly, a small fund,
which he places with his banker,
avowing the purpose of its collec-
tion. In the meantime C dies, and
some friends pay off his debts, and
that due to B among the rest. The

102

INSUBANOE.

yond the amount of the debt. In such case the policy is merely
pledged as collateral, and follows the general rule applicable to
all collateral securities ; the proceeds are applied in payment of
ihe debt secured, and the surplus goes to the debtor or his rep-

latter having now no further occa-
sion for such economy, draws upon
his banker for the amount, and is
answered that, since the purpose of
the saving was fulfilled by the pay-
ment of C's debt, he, B, has no fur-
ther claim upon his own money.
An action is brought, and the courts
decide that the banker is right, and
that B, having really attained his
object in one way, has no right of
property in the proceeds of another
attempt to serve the same purpose.

" The only distinction between
the case just put and that which
actually occurred is, that the banker
was a person who gained his profits
by receiving such savings during a
contingent term, and guarantying a
fixed sum; standing the loss, if there
were any, and paying himself for it
out of the gain which would accrue
in another instance; the premium
having been calculated so as to in-
sure a moral certainty of profit upon
the average of similar cases. It is
not pretended, on either side, that
the chance of indemnification at the
hands of C's executors was made to
lessen the consideration paid by B
for the guaranty; and the legal iniq-
uity of the decision may, I think, be
made clear, as follows:

" It will hardly be disputed, firstly,
that the legislature is the judge of
what shall constitute valuable con-
sideration; and secondly, that a con-
sideration which is expressly allowed
to be good in a statute, should be
admitted as such in the decisions of
the courts. Now, the contract of
insurance, be it gambling, or be it
not, rests entirely upon the permis-

sion given by the law to consider a
high chance of a small sum as good
consideration for a low chance of a
large sum. If I now pay 3Z. of
premium for 1001. in case I should
die in a year, and if my executors
can maintain an action for lOOZ., it
must be because the law sanctions
the notion that 21., nearly certain,
may, with consent of parties, be
considered as an actual equivalent
for a distant chance of 1001.; aa
much so as one weight of silver for
another of bread, or food, clothing
and wages for personal services. It
is true that the same law, fearing
certain reputed immoral practices,
to which the power of making a
particular bargain offers tempta-
tions, may limit the circumstances
under which it will permit such
bargains to be made; but this is
equally true in regard to the other
sort of contracts mentioned; Indeed,
there is no sort of bargain which is
not under regulation. The law,
then, allows risks, and permits un-
equal chances to be compensated by
giving odds; the courts declare that,
after the cost shall have been made,
and one of the parties shall have
stood his risk, which turns out in his
favor, the other party shall receive
an ex post facto release from the
conditions of his bargain, because
circumstances afterwards arise,
which, had they existed at the time
of making the bargain, would have
made it illegal. The several princi-
ples on which the decision was
founded, well cai-ried out, as they
say in parliament, would require
that the previous conti-acta of a man

LIFE AlfD ACCIDENT INSUEANCB. 103

resentatives ; and oa this principle the case of American Life &
H. Ins. Co. V. Eobertshaw ' was rightly decided.

But as has already been said of the case of a mortgagee who
insures the mortgaged property on his own account agaiilst loss
by fire, this furnishes no reason for either the insurer or th«
debtor to demand an inquisition into the contract.^ The con-
tract is to pay to the holder of the policy the sum specifically
mentioned on the death of the person named ; and the duty of
the insurer is plain, so long as contracts are regarded as things
to be enforced or kept, as they are made. In a recent case in
the supreme court of the United States,' the duty of a creditor ■
to account to the estate of his debtor for the overplus received
by him in a policy of insurance beyond the amount of his debt
is distinctly recognized and enforced; but it is nowhere intimated
that if the creditor had procured a policy on the life of his
debtor, paying the premiums himself, that any such duty to ao-
count would have arisen. The case was this : P insured his life
for $3,000 in the American Life Insurance Company in Novem-
ber, 1866. In 1871 P was owing B, and being embarrassed and
unable to pay the accruing premiums on the policy, made an
assignment of the pohcy to B, who annually paid the premiums
until 1873, when an absolute assignment and transfer of the
policy was made to B. It was conceded that the entire assign-
ment, and the final one, had their origin in the loan of B to P
in 1871, and the court construed the last assignment, though ab-
solute in form, as simply intended by the parties as an appoint-
ment of B to receive from the company, upon the death of P,
such sum as wpuld then become due on the policy, and, after
reimbursing himself to the e;xtent of his loans to P, to pay the
balance to the persons entitled, viz. : his, P's, legal representatives.

■who became insane should be null office for the return of the premi-
and void; that the meat which a ums; alleging that, as it turned out,
man buys for his dinner should be the office would have been indemni-
i-eturnable to the butcher under the fled, and, therefore, should be con-
cost, if a friend should invite him in sidered as having run no risk."
the meantime; and, in the case be- 1 36 Pa. St. 189.
fore us, supposing that C should 2 King v. State Mut. Ins. Co. T
have outlived the term, and his debt Cush. 1; ante, p. 99.
v^ere paid, as before, then B might ' Page v. Burnstine, 103 U. S. 664.
have brought his action against the

104 INSURANCE.

It was accordingly decreed that B was the trustee of the estate
for the balance remaining in his hands, after repaying the loan
and the advances for premiums. No effort was made by the
company to compel the holder of the policy to accept the simple
amount of his loan as an indemnity, and the case is in entire
harmony mth the doctrine herein maintained.

Accident policies. — Where the injury to the person does not
produce death, these policies are entirely different, and are clearly
contracts for indemnity.* In this class of cases, the damages
are not estimated by any proportion between the amount of
injury sustained, and the amount payable had death occurred,
but the damage is the amount of injury the insured has actu-
ally sustained, not exceeding the sum mentioned in the policy.
The expenses incident to the injury, and compensation for the
suffering resulting therefrom to the insured, are the basis of the
estimate. Eemote consequences of the injury are not to be con-
sidered ; for instance, the special loss which the accident may
impose upon an individual, growing out of his profession, occu-
pation, or the state of his business, the damages are such as
naturally follow the effects of the injury; like the loss of a
limb, or an eye, and the attendant loss of time, suffering, ex-
pense, eto.^

Diffeeence between English and AiiEEicAN decisions as to
THE scope of eecovert. — The English case last cited limits
the right to recover, in case of an accident insurance, to the suf-
fering and expenses of the injured party, and the ruling is fol-
lowed in some of the American states.' This, however, seems
not be the accepted doctrine of the American courts ; and upon
principle is not sustainable. The action in such case is upon the
broken contract, and if loss of time f oUows the breach, it seems
reasonable that it should be the subject of compensation. If a
person, as the direct consequence of an injury, loses his time and
money in treating his injury, to say that the latter shall be paid
back, and the former be without compensation, is both unjust

1 Theobald v. RaUway Pass. Ass. 3 Francis v. St. Louis Transfer Co.

Go. 10 Ex. 45. 5 Mo. App. 9.

2Hadley v. Baxendale, 9 Ex. 354;
Theobald v. R. P. Ass. Co. supra.

LIFE A2JD ACCIDENT mSUEANCE. 105

and illogical. Indemnity requires it, and the general and ac-
cepted rule in analogous cases fully supports it.^ Some of the
cases cited were actions for breach of contract, and are therefore
precisely in point ; in others they were cases based on the defend-
ant's negligence, and were for personal injuries resulting there-
from, and upon principle apposite to the point under reYiew.

Kestatement of the measuee and elements of damage. —
As a conclusion, the rule of damages measuring the right of
recovery in life insurance is :

1. Upon the death of the party insured, the insurer becomes
liable to pay the amount of the policy, and interest upon that
sum, if there be delay.

2. When there is an injury, not fatal, the accident insurer is
liable to pay the insured damages, such as a jury may find in-
cluded in the following elements :

(1) Expense incurred. (2) Suffering resulting from the hurt
received. (3) Loss of time during the disability caused by the
injury.

1 Ransom v. N. Y. & Erie R. R. Co. Iowa, 159; Dimtwater v. Dinsmore,

15 N. Y. 431; Williams v. Vander- 16 Hun (N. Y.), 250; Indianapolis v.

but, 38 N. Y. 334 (per Balcom, J.); Gaston, 58 Ind. 334; Morris v. C. B.

Howe Machine Co. v. Bryson, 44 & Q. R. Co. 45 Iowa, 39.

106 LAUDLOED AlfD TENANT.

CHAPTEE X

LANDLORD AND TENANT!

Section 1.

landlord against tenant.

Action for use and occupation — Action for rent — No apportionment or
abatement of rent on account of the bad condition or partial destruction
of the demised property — Entire destruction of demised premises ends
liability for rent — Same, when entire premises taken for public vse —
Covenants for repairs — Liability of assignee for repairs — Damages
for repairs or non-repair in special cases — Covenants not to sub-let or
assign — Covenants to insure.

The principal claim of a landlord against his tenant is that
for rent, or for compensation in some form for the use of the
demised premises. Leases generally contain, however, other cov-
enants or stipulations for breach of which damages are recover-
able; among these are covenants to repair, not to sub-let or
assign, and to insure. All these topics will be discussed in their
order.

Action foe use aitd occupation. — This is an action of gen-
eral assumpsit for reasonable compensation for the use of real
estate with the permission of the owner, or one who is as to the
occupant entitled to the rights of a landlord. In England, this
action is supposed to be given by the statute of Geo. II, and it
is probable that the action did so originate ; but the weight of
American authority is that it is maintainable on the principles
of the common law.' It must be founded upon contract, express

1 Crouch V. Briles, 7 J. J. Marsh, fore, be recovered only by an action

255; Roberts v. Tennell, 3 T. B. Mon. of a higher nature, has been quite

247; Burnham v. Best, 10 B. Mon. generally exploded, and especially

227; Gould v. Thompson, 4 Met. 327; since the true theory of implied

Dwight V. Cutler, 3 Mich. 566; promises in assumpsit has come to

Eppes' Ex'rs v. Cole, 4 Hen. & Munf . be better understood and settled,

161. In Hogsett v. Ellis, 17 Mich, and such promises no longer rest

351,371, Christianoy, J., said: "Since merely upon the inference that a

the old notion that such a claim promise in fact has been made, but

savorsof the realty, and could, there- upon the duty ot the defendant to

LAlfDLOED AGAINST TENANT. 107

or implied, creating the relation of landlord and tenant, and im-
posing upon the defendant the obligation to pay for the use of
the premises.1 The form of the action, however, does not pur-
port that it is based upon an express contract, nor does it pre-
suppose any demise ; ^ still if there be an actual lease, not under
seal, this action will lie, and such lease is admissible to establish
the relation of landlord and tenant and to fix the amount of
rent.' A contract may be evidence to settle the amount of rent,
though not valid as a lease under the statute of frauds.* On a
verbal lease for more than a year, no action will lie where the
statute requires it to be in writing ; but if the statute has not de-
clared it to be void, any use may be made of it by either party,
except that of bringing an action upon it. The lessee, if he
enters under such a lease, may use it for the purpose of show-
ing that he is not a trespasser, and after he has enjoyed the
leased premises for the term, he will be liable for the rent, not
upon the express contract, but upon the contract implied by
law, from his use and occupation of the premises, and either
party, it is believed, may use the contract to fix the amount to
be recovered.^

pay, a duty which he will not be Barb. 343; Dalton v. Laudahn, 30

heard to deny that he has promised Mich. 349; Logan v. Lewis, 7 J. J.

to perform, courts in this country Marsh. 3.

have very properly held that aa- 2 chambers v. Eoss, 25 N. J. L,

sumpsit for use and occupation may 393.

be maintained at common law. And 3 Burnham v. Best, 10 B. Mon. 237;
we are certainly unable to see why Sargent v. Ashe, 33 Me. 301; Osgood
the implied promise to pay a reason- v. Dewey, 13 John. 340; Stevens v.
able compensation for the use of the Coffeen, 39 lU. 148; Perrine v. Hahk-
owner's premises, does not, within inson, 11 N.- J. L. 181; Williams v.
the hmitations above laid down, Sherman, 7 Wend. 109; Crawford v.
come clearly within the principle of Jones, 54 Ala. 459; SyUivan v. Strad-
an impUed promise at common law, ling, 3 Wils. 314; Birch v. Wright, 1
as the like promise to pay for the T. E. 387; Wilkins v. Wingate, 6
use of a horse or the reasonable T. E. 63; Brewer v. Palmer, 3 Esp.
value of goods purchased." 313; Baker v. Holtpzaflfell, 4 Taunt.
I Taylor's L. & Ten. § 636; Hood v. 45; Egler v. Marsden, 5 Taunt. 25;
Mather, 31 Mo. 308; Edmondson v. Smith v. Stewart, 6 John. 46; Ban-
Kite, 43 Mo. 176; Kittridge v. Peas- croft v. WardweU, 13 John. 489.
lee, 3 Allen, 335; Davidson v. Ernest, < De Medina v. Poison, Holt, N. P.
7 Ala. 817; Bradley v. Davenport, 6 47.

Conn. 1; Hen wood v. Cheeseman, 3 5 Roberts v. Tennell, 3 T. B. Mon,

S. & E. 500; Pierce v. Pierce, 35 347; Parker v. Hollis, 50 Ala. 411.

103 LAITDLOED AND TENANT.

Circumstances ia the conduct of the parties may sufiBce to show
that the occupation was with the owner's permission, notwith-
standing a notice to quit, and a tacit agreement in respect to
the amount of rent to be paid. Thus, a tenant had been occu-
pying at a stipulated rent of $250 a month, and the landlord
served him with a notice to quit, having the effect to terminate
the tenancy at the expiration of the current rent period ; but it
appeared that Jbefore that, date the tenant had proposed to the
landlord, through a third person, to continue his tenancy at
$300 per month ; that the landlord expressed himself satisfied
with it, though there was ho evidence that he notified the ten-
ant of his acceptance. The tenant remained in possession, and
the court, in an action for the rent, said, " the inference is that
he did so with the consent of the plaintiff, and that the propo-
sal was accepted. "We must infer this, or infer that he kept
possession against the plaintiff's will and as a trespasser ; and
of the two inferences we adopt the former." ^ Where a tenant
holds over after his lease has expired, the inference that the
parties consent to a continuance of the same terms is so strong
that it is adopted as a rule of law.^ But the rule does not
apply, and such an agreeijaent is not implied where the lease
contains many collateral stipulations which could not be per-
formed in a subsequent term ; ' nor where the intention to con-
tinue the same terms is otherwise rebutted by the terms of the
lease,* or the conduct of the parties ; where notice is given that

I.

1 Hoff V. Baum, 31 Cal. 130; Brink- Flynn, 2 Pa. St. 144; Osgood v.
ley V. Walcott, 10 Heisk. 33; Griffin Dewey, 13 John. 340; Evertson v.
V. Knisely, 75 111. 411. In Cham- Sawyer, 3 Wend. 507; McCarty v.
bars V. Ross, 35 N. J. L. 393, it was Ely, 4 E. D. Smith, 375; Clapp v.
held that a landlord does not deprive Noble, 84 111. 63; Parker v. HoUis,
himself of the right to recover rent of 50 Ala. 411; Meaherv. Pomeroy, 49
a tenant by erroneously disclaiming Ala. 146; Quinette v. Carpenter, 35
his relation of landlord, unless such Mo. 503; Laugerenne v. Dougherty,
disclaimer has been acted on by the 35 Pa. St. 45; Prickett v. Bitter, 16
tenant, or prejudiced him. 111. 96; Weston v. Weston, 103 Mass.

2 Baker v. Boot, 4 McLean, 573; 514.

Amesv. Schuesler, 14 Ala. 600;Schil- SDiller v. Boberts, 13 S. & E.

ling V. Holmes, 33 Cal. 337; Whitte- 60.

more v. Moore, 9 Dana, 315; Carter « Abbot v. Shepherd, 4Phila. 90; 15

V. Collar, 1 Phila. 339; Phillips v. Am. Dec, 581, note.

Monger, 4 Whart. 336; HemphUl v.

LANDLOltD AGAINST TENANT. 109

a higher rent will be claimed,' or the tenant gives notice of a
different intention.^ Where the lease was not for an annual
rent, it has been held not to govern after the term expired, but
other evidence was admissible to show what was a reasonable
annual rent.' So it has been held that circumstances affecting
the condition of the premises may be shown to diminish or in-
crease the rent.* The old lease is only evidence of a continuing
agreement, at a like rate, in connection with the silence or other
conduct of the parties evincing consent to abide by its terms
for an extended time. Hence any facts are admissible which
contradict the inference of such consent." Thus, after a suffi-
cient notice to quit, to terminate ar pending lease, a landlord
served the tenant with a notice that if he continued in possession
after the date when the tenancy ceased under the notice, he
would be charged with an increased rent, and it was held that
such increased rent was recoverable.' So where a tenant was
let into possession during the currency of a term, the rent then
being 47Z., with an agreement that at the end of the term he
was to pay 80Z. ; and he paid the 47^., but the agreement was
abandoned in consequence of disputes arising in regard to it,
though he continued to occupy, it was held that the jury should
consider what was a fair rent for the continued holding, and
that no necessary inference could be drawn from the former
holding at AHU

If a tenant enters with the consent of two owners, but after-
wards promises one to pay him his half, this has been held suffi-
cient to entitle him to recover separately for his share.'

A special action may be maintained on an agreement which
is absolute to j)ay rent for the use of real estate, though the
tenant has not taken possession, where there is a demise, parol
or otherwise, and the lessor is not at fault in preventing actual
enjoyment.' But general assumpsit for use and occupation

1 Hoff V. Baum, 31 Cal. 130; Grif- McCai-ty v. Ely, 4 E. D. Smith,
fln V. Knisely, 75 III. 411; Mack v. 375.

Burt, 5 Han. 38. 6 Thomas v. Zumbalen, 43 Mo. 471.

2 Delano v. Montague, 4 Cush. 43. « Higglns v. Halligan, 46 HI. 173.
' Evertson V. Sawyer, 3 Wend. 507. 7 Thetford v. Tyler, 8 Q. B. 95.
^Whittemore v. Moore, 9 Dana, ^ gargent v. Ashe, 33 Me. 301,

815; Clapp v. Noble, 8f Dl. 63. See ^Tully v. Dunn, 43 Ala, 363.

110 LANDLOED ANT) TENANT.

will not lie if the tenant has never gone into possession ; but il
he has taken a lease for a specified term, agreeing to pay rent,
and once gone into possession so as to vest the term, this action
■will lie for the rent of the whole term, although the tenant
may have abandoned the possession before the stipulated period
?• expired.! A mere tenant at will has no term vested in him, and
is only liable for actual occupation.^

Where the agreement was not signed by the lessee, and the
lessor failed to fulfil the agreement on the principal point which
was the inducement to it, the court held that the lessee could
hardly be said to have enjoyed under the ag;reement, and the
jury were instructed to allow compensation only according to
the benefit he actually enjoyed.' The court said " that an evic-
tion of part of the premises being shown, the jury was to ascer-
tain, independently of any agreement, what the defendant ought
to pay." The lessee not having executed the lease, he was not
thereby bound to pay the rent reserved ; and not having enjoyed
what the lease purported to grant, the rent so reserved could
not be regarded as the measure of recovery. In a later English
case, where the lessors had not executed the indenture which
purported to grant certain tolls for a year, it was held that the
grantee, although he enjoyed the tolls for the full term, was not
bound by the covenant on his part to pay the sum reserved as
the consideration. It was considered that the sum so reserved
was fixed as the price of a conveyance of an estate or right in
the toUs for a year, and that though the grantee had had the
tolls, the right or estate had not been granted ; that in fact he
had occupied under a mere license, and therefore there could be
no recovery except on a quantum meruit.^

Where the amount of rent or compensation for the use has
not been fixed by agreement, it is a quantumi Tneruit claim ; the

1 Pinero v. Judson, 6 Bing. 206; Ward v. Wilcox, 1 Denio, 37; Hoflf-

Jones V. Reynolds, 7 C. & P. 335; man v. Delihanty, 13 Abb. 388; Hall

WooUey v. Watheng, 7 C. & P. 610; v. Western Transp. Co. 34 N. Y. 284;

Edge V. Straflford, 1 Cromp. & J. 391; Little v. Martin, 8 Wend. 219; West^

SulUvan v. Jones, 3 C. & P. 579; lake v. DeGraw, 25 Wend. 669.
Crommelin v. Thiess, 31 Ala. 412; 2 Crommelin v. Thiess, 31 Ala. 412.
Adrean v. Hawkins, 4 Har. & J. 319; ' TomUnson v. Day, 2 Brod. &

McGannagle v. Thornton, 10 8. & R. Bing. 680.
251; Cort v. Planer, 7 Robt. 413; <Swatman v. Ambler, 8 Ex. 72.

LAXDLOBD AGAIX5T TEXA>rr. Ill

landlord is only entitled to what it was reasonably worth, and
this mnst be ascei'tained by the jury upon evidence. If the
property was antenantable, that fact wiU affect the amount of
recovery.^

It is an equitable action, and the plaintiff can recover no more
than is equitably due. Where the defendant was turned out of
possession of a demised farm, after making preparations for
crops which he could not reap, so that he received no benefit
from the occupation, it was held that the plaintiff could recover
nothing.* A certain share of the profits of a tavern and farm
was stipulated to be paid for the use of the same, and it was held
to be a money rent ; that though the amount was uncertain, that
was no impediment to recovery on a count for use and occupation.
The uncertainty would be removed by such proof as the plaintiff
might be able to produce. If unable to prove the actual profits,
he might resort to proof of the value. And the defendant
whose appropriate duty it was to keep and render an account
of the profits, as well as to pay over to the plaintiff his share,
might exhibit proof of the actual profit in order thereby to
limit the demand against him.'

To establish the rental value evidence may be received show-
ing what the property had rented for in years immediately
preceding the period in question; and also what other similar
tenements rented for in the same neighborhood at and about the
same time.* On this point Whitman, C. J., said: "Xothing is
more common, in ascertaining the value of one thing, than to
compare it with others of known value, and of a similar descrip-
tion. Money itself is but a thing of known and fixed value;
and we are continually comparing all other things with it by
way of fixing their value. If two dweUing houses are nearly
contiguous, and one of them has a known and fixed value, and
the other has not, but its value has to be ascertained, resort may
be had to a comparison of the one with the other for the pur-
pose. Our constant course of reasoning is from things known
to things unknown; and our deductions depend upon it. Our

1 Brolaskey v. Jjoth, 5 Phila. 81; 'Perrine v .Hkokmson, 11 X. J. It
Potter V. Trnitt, 3 Harr. (DeL) 331. 18L

2 Wheeler v. Shed, 1 D. Chip. 308; ^Fogg v. Hill, 21 Me. 539.
Gilhooley V.Washington, 4 N. Y. 217.

112 LAiTDLOED AND TENANT.

conclusions from circumstantial evidence are of this nature; and
the evidence here relied upon to prove the value of a tenancy-
is of this class. The leases of the store in question in former
years, to which one of the defendants was a party, were prop-
erly admissible. These show what he had admitted the value
of the tenancy to be in years immediately previous. If rents
had fallen, it would have been competent for the defendants to
have shown it by way of lessening the effect in a greater or less
degree arising from such admission." ^ But what one had paid
for the use of the property is not admissible as a ground and
measure of his recovery against another.^ The opinions of wit-
nesses, having knowledge of the particular subject, are generally
held admissible on questions of value.'

Actions foe eent. — Actions for rent are generally actions
for a fixed sum, either reserved by a written instrument or made
certain by oral agreement. In either case, when the contract
is proved the jury have but to ascertain the amount in arrear
and interest ; unless on some ground of defense there is a right
to an abatement, or the right of action or the liability is divided
by conveyance of the reversion or assignment of the term.
The only difference in substance between an action directly on
the terms of the lease, and an action for use and occupation, is,
that in the one the declaration is special and in the other gen-
eral ; the purpose of both actions is the same, and both are alike
actions arising upon contract.''

In certain cases the amount of rent depends on some subse-
quent facts — as where it is a certain proportion of the pfofits to
be realized from a use of the demised premises ; ^ where it is to
be calculated at some rate upon the production of a mine or a
quarry,^ or must be fixed by arbitration.' If after agreeing to
fix the rent by arbitration, one of the parties refuses to act in
selecting an arbitrator, a court may execute this feature of the
agreement by a reference.' Under a covenant in a lease, that if

1 Fogg Y. Hill, 21 Me. 539. 6 Brainerd v. Arnold, 37 Conn.

2 Moore v. Harvey, 50 Vt. 397. 617; Cross v. Tome, 14 Md. 247.

s See Vol. I, p. 795; Vol. II, p. 375. ' Viany v. Ferron, 5 Abb. N. S.

4Dalton V. Laudahn, 30 Mich. 349. 110.

6 Perrine v. Hankinson, 11 N. J. L. ^ id.
181.

LANDLOED AGAINST TENANT.

113

the landlord re-entered for tlie non-payment of rent, ho might
relet the premises as the tenant's agent, and that the tenant
should be liable for any deficiency, the landlord, if he re-enters
and relets, and brings an action for a deficiency, before the rent
under the new lease becomes due, can only recover the differ-
ence between the rent reserved by the original lease, and the
rent agreed to be paid by the new tenant. By commencing the
action without waiting to see if the new tenant pays the rent
he agrees to pay, he assumes the hazard of his default. In such
an action the landlord cannot recover for the expenditures made
by him upon the premises after the re-entry, although by reason
thereof he was enabled to relet at an enhanced rent.^ In a
case where the rent reserved was a certain fixed proportion of
the price of stone which the lessor might get out of the demised
premises and sell, to be paid to the lessor in a reasonable time
after the stone should be sold and paid for, it was held that the
lessees were under an obligation to work the quarries in a reason-
able manner during the term. The case was deemed analogous to
a letting of land upon shares, as it is termed, where it is said it
would hardly be claimed it would be optional with the lessee
whether he would cultivate the land or not. The very nature
of the contract in these cases implies that the property is to be
cultivated for the mutual benefit of the lessor and lessee.^ This
obligation is more precisely defined in a Pennsylvania case.
Upon a lease of coal land at a fixed price per bushel for all that
should be mined, there being no stipulation as to the quantity
to be mined, it was held that the lessors were entitled to recover,
in an action of covenant, the stipulated rate for all that could
reasonably have been mined, but deducting on the part not
mined its value unmined.' Where a denilse was made for a
term of years of all the lessor's right in the coals in a certain
estate, reserving 8d. per ton of coal worked, raised or got in each
year, not exceeding thirteen thousand tons in any year, or that
amount in money, viz., 433?. 6s. 8d., each year as fixed rent,
whether the coal -should be worked or not ; and the lessee cove-
nanted accordingly, it was held that the whole rent stipulated

1 Hackett v. Richards, 13 N. Y. 138. Cross v. Tome, 14 Md. 247. See Filey

2 Brainerd v. Arnold, supra. v. Meyers, 43 Pa. St. 404.

3 Lyon V, MiUer, 34 Pa. St. 393;
\ Vol. Ill -8

114: LANDLORD AOTJ TENAHT.

for Avas payable, although the mine was so exhausted that the
lessee could not raise thirteen thousand tons in a year. The
court held that a fixed rent was stipulated, coupled with a
covenant that the mine should be worked to that extent ; and
the covenant did not carry with it, by any implication, a condi-
tion that there should be coal to that amount capable of being
worked.^ If a tenant of a coal mine is to pay the lessor in coal
at specified prices, in the absence of any special agreement as
to the condition in which the coal is to be delivered, it is the
duty of tjie tenant to deliver it in a marketable condition ; and
if not so delivered, the expense necessarily incurred by the land-
lord in preparing it for market may be charged by him to the
tenant.^

If rent is payable in specific articles, the measure of damages
for failure to deliver them is the same as upon other contracts
for the delivery of specific articles — the value of the articles
when they should have been delivered.^ Where the rent is a fixed
amount payable in specific articles, the lessee is entitled to pay
in that mode at the time when the rent is due; but if he does
not avail himself of that privilege, he is bound to pay that
amount in money, with interest after it becomes due. In other
words, it is like any other debt payable in specific articles.^

If the landlord accepts a surrender ; ' puts an edd to the lease
for any cause, before the expiration of the term,^ or evicts the ten-
ant from any part of the demised premises, his right to rent will

1 Marquis of Bute v. Thompson, 13 and not for specific rent of sixty

M. & W. 487; Jervis v. Tomkinson, thousand bushels of salt.
1 H. & N. 195. Compare Clifford v. 2 Andenried v. Woodward, 28 N. J.

Watts, L. R. 5 C. P. 577. In Prestons L. 265.

V. McCaU, 7 Gratt. 121, the tenant of 3 Brooks v. Cunningham, 49 Miss,

a salt works was bound to pay as 108; Brown v. Adams, 35 Tex. 447.

rent two-thirds of the salt manuf act- See Safely t. G-ilmore, 31 Iowa 588.
ured, and to manufacture at least 4 gee Vol. II, p. 887.
sixty thousand bushels per annum. 5 MackeUar v. Sigler, 47 How. Pr.

He failed to manufacture thatquan- 20; Hall v. Burgess, 5 B. & C. 333;

tity. It was held that the rent to be Home Life Ins. v. Sherman, 46 N. Y.

distrained for, or recovered, was 370; Whitney y. Meyers, 1 Duer,

governed by the actual amount 366; Elliott v. Aiken, 45 N. H. 30.
manufactured; that for failure to ^Day v. Watson, 8 Mich. 535;

manufacture the required amount in Crane v. Hardman, 4 E. D. Smith,

any one year, the proper action would 339; Zale v. Zale, 24 Wend. 76.
be for damages occasioned thereby.

LANDLOED AGAINST TENANT.

115

thereupon cease, or be suspended ; ■ and if this be done between the
days specified in the lease for the payment of rent, the rent for
the current period will be lost, for there can be no apportionment
for a part of a rent period, unless there is an agreement there-
for.2 Where there is an agreement for an apportionment, it will
be made accordingly. Thus, where a lease for three years re-
quired and recited the payment of all the rent in advance, and
provided that in case the premises should be destroyed by fire
during the term, the rent reserved, or a proportionate part
thereof, should be suspended or abated, until the premises
should be put in proper condition for use and habitation by the
lessor, or the lease should be thereby determined and ended, at
the election of the lessor; and during the term the building
v/as destroyed by fire, and the lessor elected not to rebuild ; it
^vas held, that the lessee was entitled to recover back a propor-
L ionate part of the rent paid in advance ; because the provision
for suspension or abatement of rent could apply to nothing but
the rent which had been mentioned as having been paid in ad-

1 Royce v. Guggenheim, 106 Mass.
201; Morse v. Goddard, 13 Met. 177;
Thamway v. Collins, 6 Gray, 237;
Leishman v. White, 1 Allen, 489;
Smith V. Bidany, 4Houst. 113; Hunt
V. Cope, 1 Cowp. 343; "Watts v. Cof-
fin, 11 John. 495; Christopher v.
Austin, 11 N. Y. 316; Wright v. Lat-
tin, 38 III. 393; RandaU v. Alburtis,
1 Hilt. 285; Getes v. Comstock, 4 N. Y.
370; Peck v. Hiler, 14 How. Pr. 155;
34 Barb. 178; Marsh v. Butterworth,
4 Mich. 575; Halligan v. Wade, 31
111. 470; Wade v. HaUigan, 16 111.
507; Bentley v. Sill, 35 111. 414; Tone
V. Brace, 8 Paige, 597; Leadbeater v.
Roth, 35 m. 587; Holbrock v. Young,
108 Mass. 83; Lewis v. Payn, 4
Wend. 433; New York Academy of
Music V. Hackett»2 Hilt. 217; Dyett
V. Pendleton, 8 Cow. 737; Hayner v.
Smith, 63 HI. 430; Upton v. Town-
end, 17 C. B. 30; Vaughan v. Blanch-
ard, 1 Yeates, 175; Blair v. Claxton,
18 N. Y. 539; Tunis v. Grandy, 32

Gratt. 109; Poston v. Jones, 2 Ired.
Eq. 350; Hart v. Windsor, 13 M. &
W. 85; Smith v. Wise, 58 111. 141;
WoK T.Weiner, 7 Phila. 374; Holmes
V. Guier, 44 Mo. 164; McClurg
V. Price, 59 Pa. St. 420; Miriok v.
Hoppin, 118 Mass. 587; Dewey v.
Gray, 2 Cal. 874; Colbom v. Morrill,
117 Mass. 262; Bennet v. Bittle, 4
Rawle, 339; Briggs v. HaU, 4 Leigh,
484; Wells v. Mason, 5 111. 84; Mav-
erick V. Lewis, 3McCord, 130; Sneed
Y. Jenkins, 8 Ired. 27; Chatterton v.
Fox, 5 Duer, 64; Smith v. Shepard,
15 Pick. 147; Hegeman v. Mc Arthur,
1 E. D. Smith. 147: Lynch v. Bald-
win, 69 111. 310; Leopold v. Judson,
75 lU. 586; Walker v. Tucker, 70 lU.
537.

2Zale V. ZaJe, 34 Wend. 76; Skaggs
V. Emerson, 50 Cal. 3; Briggs v.
HaU, 4 Leigh, 484; Chatterton v.
Fox, 5 Duer, 64; Campbell v.
Shields, 11 How. Pr. 565; Kessler
V. McConachy, 1 Rawle, 435.

116 LANDLORD AND TENANT.

vance, and the only way of abating it was by allowing a pro-
portionate part to be recovered back.'

Eviction by a stranger having a paramount title also bars
rent subsequently payable.^ It is a bar because it deprives the
tenant of the consideration.' Eviction by the lessor, even from
a part of the leased premises, suspends the rent for the whole.
Quiet enjoyment of the premises, without any molestation on
the part of the landlord, is the implied condition on which
the tenant is bound to pay rent.* And when his possession is
interfered with in such manner as to amount to an eviction by
the landlord as to a part of the premises, it is a wrong done to
one whom he was bound to protect, and the law will not permit
him to apportion it so as to compel the lessee to pay anything
for the enjoyment of the residue. While an eviction from part
by the landlord continues, he cannot recover from his tenant
for his occupation of any other part, either upon the lease or in
an action for use and occupation.' And the fact that the ten-
ant has recovered damages for the eviction does not restore the
landlord's right to rent while the eviction continues.* But
where the eviction from part of the demised premises is by a
stranger asserting a superior title, it is only a bar pro tanto?
If one of two tenants in common makes a lease, and his co-
tenant afterwards takes possession of part of the common prop-
erty, the same rule applies to exonerate the lessee pro tanto?
Such an eviction is a discharge of so much of the rent as is in
proportion to the land evicted.' So, if the lessor accepts a su^

1 Rich V. Smith, 131 Mass. 338; French, 35 Wend. 443; Colbm-n v.

May V. Rice, 108 Mass. 150. Morrill, 117 Mass. 363; Fitchburg,

2Morse v. Goddard, 13 Met. 177;. etc. Corp. v. Melveu, 15 Mass. 368;

Hegeman v. McArthur, 1 E. D. Briggs v. Hall, 4 Leigh, 484; Tunis

Smith, 147. v. Grandy, S3 Gratt. 109; McClurg v.

3 Royce v. Guggenheim, 106 Mass. Price, 69 Pa. St. 430.

301; Dyett v. Pendleton, 8 Cow. 737; *Peck v. Hiler, 34 Barb. 178.

Taylor's L. & T. § 378; Evans v. Mur- ' Peters v. Grubb, 31 Pa. St. 455;

phy, 1 Stew. & Port. 336. Christopher v. Austin, 11 N. Y. 316;

* Id. Moffat V. Strong, 9 Bosw. 57; Fille-

5 Id. ; Shumway v. Collins, 6 Gray, brown v. Hoar, 134 Mass. 580; John-

337; Leishman v. White, 1 AUen, 489; son v. Oppenheim, 13 Abb. N. S. 448;

Skaggs V. Emerson, 50 Cal. 3; Lewis Giles v. Dugro, 1 Duer, 331.

V. Payn, 4 Wend. 433; Christopher SHoopes v. Meyer, 1 Nev. 433.

V. Austin, 11 N. Y. 316; Lawrence v. 9 Stevenson v. Lombard, 3 East,

LANDLOED AGATfTST TENANT. ' 117

render of part, or rightfully enters upon part for a forfeiture,
or by special condition for entry, the rent may be apportioned.^
Physical expulsion is not necessary. Any act of a permanent
character, done by the landlord, or by his procurement, with
the intention and effect of depriving the tenant of the enjoy-
ment of the premises demised, or of a part thereof, to which he
yields and abandons the possession, may be treated as an evic-
tion.2 To constitute an eviction, the tenant must be disturbed
in his possession, and in pleading an eviction an ouster must be
alleged.' But there are a variety of circumstances which are
deemed such a disturbance of possession as to constitute an evic-
tion short of physical force or legal process. It has been held
that any interference, on the part of the landlord, which impairs
the beneficial enjoyment of the premises, such as the creation of
a nuisance in another part of the same building, or the like, is
suflBcient.'' The tenant must, however, quit the possession in
consequence of such interference.' There is no implied war-
ranty in a general lease that the demised building is safe, well
built, or fit for any particular use ; * and this absence of an
implied covenant not only refers to the beginning, but to the
Avhole term. Even the landlord's default in not repairing, when
he is bound by custom or covenant to do so, and in consequence
the buildings become unfit for occupancy, does not authorize
the tenant to quit, or to refuse to pay rent.'' A breach by the

575; Carter v. Burr, 39 Barb. 59; Lattin, 38 Ul. 393; Morse v. God-

*Hunt V. Cope, 1 Cowp. 242; Lansing dard, 13 Met. 177; Leadbeater v.

V. Van Alstyne, 2 Wend. 661; Law- Roth, 25 lU. 587.

rence y. French. 25 Wend. 443. 5 Home Life Ins. Co. v. Sherman,

1 Coke Litt. 148a. 46 N. Y. 370; Cram v. Dresser, 3

2 RoycB V. Guggenheim, supra; Sandf. 120; Gilhooly v. Washington,
Smith V. Raleigh, 3 Camp. 513; Up- 4 N. Y. 217; Fuller v. Roby, 10 Gray,
ton V. Townend, 17 C. B. 30; Mor- 385.

risv. Tiilson, 81 III. 607; Hayner v. sDutton v. Gerrish, 9 Cush. 89;

Smith, 63 lU. 480. Foster v. Peyser, 9 Cush. 342; Mc-

3 Vernam v. Smith, 15 N. Y. 327; Glashen v. Tallmadge, 37 Barb. 313;
Kerry. Shaw, 13 John. 336; Waldron Cleves v. WiUoughby, 7 Hilt. 83;
V. McCarty, 3 John. 471. Hart v. Windsor, 13 M. & W. 68;

i Dyett V. Pendleton, 8 Cow. 727; Weller v. Castles, 3 Gray, 333; Lib-
Rogers V. Ostram, 35 Barb. 533; Hal- bey v. Tolford, 48 Bte. 316.
ligan V. Wade, 31 111. 470; Cohen v. TRoyce v. Guggenheim, 106 Mass.
Dupont, 1 Sandf. 360; Moffat v. 201.
Strong, 9 Bosw. 57; Wright v..

118 LANDLORD AND TENANT.

lessor of his covenants in the lease for repairs or improvements
is no defense, except by way of recoupment, to his demand for
rent covenanted to be paid, unless by the terms of the lease his
performance of his covenants is made a condition.' Nor can
the tenant, in summary proceedings at the instance of the land-
lord to obtain possession, set up his breaches of covenants in the
lease as a counterclaim.^

Where the landlord, by the terms of the lease of a store
being erected by him, undertook to finish it for immediate occu-
pancy as a store by a given time, it was held that the lessee, by
entering at that time, notwithstanding that the store was not
finished, so that the term was vested, the lessee waived the con-
dition precedent, though not the right to have the work done.
Thereafter the lessor's default in not completing the store was
no defense to an action for rent, except as a counterclaim. If
the lessee had not taken possession, he could only have been
made hable for rent upon his covenant, as for a breach of an
executory contract; and to entitle the lessor to recover, he
would be obliged to show that he had performed his part.'
Tortious conduct of the landlord on the demised premises,
which does not disturb the tenant's possession, though it may
diminish his beneficial enjoyment, will not amount to an evic-
tion, nor have the effect to suspend the rent.*

Eviction is no answer as to rent which has already accrued,
and has become due before the eviction took place.' And this

iLa Farge V. Mansfield, 31 Barb, timerv. Brunner, 6Bosw. 653; Vatel

845; Kelsey v. "Ward, 16 Abb. 98; 38 v. Herner, 1 Hilt. 149; MoFadin v.

N. Y. 83; Etheridge v. Osbom, 13 Eippey, 8 Mo. 738; Luckey v. Frautz-

Wend. 529. kee, 1 E. D. Smith, 47. See Leostzky

2 People V. Kelsey, 14 Abb. 373; v. Canning, 33 Cal. 299.

MoHoy Y. Ryan, 27 Mich. 110; D'Ax-- syernam v. Smith, 15 N. Y. 827;

mond V. PuUen, 13 La. Ann. 137; MoKeon v. "Whitney, 3 Denio, 453;

Eldred v. Leahy, 31 "Wis. 546; Lunn New York Academy of Music v.

V. Gage, 87 111. 19. Hackett, 3 HUt. 317; Pepper v. Eow-

3 La Farge v. Mansfield, 31 Barb, ley, 73 III. 263; Kessler v. McCona-
345; Lmm v. Gage, 37 111. 19. chy, 1 Rawle, 485; Salmon v. Smith,

4 Fuller V. Ruby, 10 Gray, 285; 1 Saund. 203; May v. Diaz, 43 Ala.

Drake v. Cockroft, 4 E. D. Smith, 34; 383; Gates v. Comstock, 4 N. Y. 370;

Johnson V. Oppenheim, 12 Abb. N. S. Johnson v. Oppenheim, 55 N. Y. 280;

449; Edgertoa v. Page, 20 N. Y. 281; Crane v. Hardman, 4 E. D. Smith,

Lounsberry v. Snyder, 31 N. Y. 514; 448; Hinsdale v. "White, 6 Hill, 507;

Cram v. Dresser, 3 Sandf. 130; Mor- Cortsingham v. Phillip, 1 E. D.

lANDLOKD AGAINST TENANT.

119

is so, thougli the rent be payable in advance, and the eviction
takes place during the rent period for which it was payable.^
Nor win. eviction bar rent which accrues after it has ceased, if
the tenant continues in possession." And giving a note for the
rent during eviction from part of the premises is a waiver of
the objection, and the moral obligation from partial enjoyment
is a sufficient consideration.'

Smith, 416; Dawson v. Donati, 2 B.
D. Smith, 121; Wtiitiiey v. Meyers,
1 Duer, 266.

1 Whitney v. Meyers, 1 Duer, 266;
Healy v. MoManus, 23 How. Pr. 238;
Getes V. Gomstock, 4 N. Y. 270.

2 0gden V. Sanderson, 8 E. D.
Smith, 166.

'Anderson v. Cliicago, etc. Ins.
Co. 21 HI. 601. In Merritt v. Clos-
Bon, 36 Vt. 173, the plaintiffs, tenants,
had paid a part of the rent of leased
premises, when they were ousted by
the defendant, who took all the
crops. Held, that in estimating the
damages the defendant is entitle to
have the unpaid rent deducted from
the value of the. crops, though he
could not maintain an independent
action to recover it.

Poland, Ch. J., said: "The court
told the jury that the defendant, by
thus ousting the plaintiffs, forfeited
aS. right to that portion of the rent
unpaid, and that therefore the crops
taken by tiim were to be estimated
at their full value, without deduct-
ing anything for the unpaid rent.
It is undoubtedly true the defendant
could not, if he ousted his tenant
during the term, maintain any action
to recover the rent to be paid for the
term. But the question here was,
what damage or loss had the plaint-
iffs suffered by the wrongful act, or
breach of contract, on the part of
the defendant. What would they
have gained, or been entitled to, if
the defendant had allowed them to
remain on the premises till the end of

the year ? They would have had the
use of the premises and the personal
property to the end of the year, sub-
ject to the payment of the balance
of the rent, and the expense of
keeping the stock. By being ousted
from the premises, the plaintiffs lost
the use of the premises for the resi-
due of the year, the crops on the
farm, and the use of the personal
property; but they also were relieved
from the burden of paying the bal-
ance of the rent, and from keeping
the" stock through the winter. The
true rule of damages was the differ-
ence in value between the two condi-
tions. The county court recognized
this in part, and decided that noth-
ing should be allowed to the plaint-
iffs for the loss of the use of the
premises for the residue of the year,
as the evidence showed that the un-
paid rent was more than the value
of such use, and if they I'emained
they would have the rent to pay.
So the jury were directed, if they
found that the keeping of the stock
through the winter would cost the
plaintiffs more than the worth of
the use of the stock, the differ-
ence should be deducted from the
value of the crops. If there was
BtUl, after the allowance of these
deductions, any sum of unpaid rent
which the plaintiffs would have had
to pay if they had not been ousted,
in order to entitle them to have the
crops as their own by the terms of
the lease, that should have also been
deducted.

120 LAITOLOED AND TENANT.

It is a general principle that there can be no apportionment
of rent in respect to time. By this is meant that the sum accru-
ing between one time of payment and another is a single, entire
debt ; it is due from the tenant only on the condition of enjoy-
ing the premises for the whole rent period, and only to the
owner of the reserved rent when it becomes payable. These
rent payments may be successively recovered by different per-
sons ; but in the absence of an agreement therefor, there can be
no recovery for occupation for a part only of the time between
reni days. If, therefore, the enjoyment be interrupted, the rent
for the current rent period is lost. And if a person having a
life estate, with no power to make a lease to continue longer
than during his life, should make a lease for a year, reserving
rent half yearly, and should die before the end of a half year,
there could be no legal demand for the rent of that half year.
The executor or representative of the lessor would not be enti-
tled to it, although there was no eviction, because the lessor's
title ceased at his death ; and by the nature of the contract, the
tenant was not bound to pay, and the lessor was not entitled to
receive rent, except in the sums and at the times specified in the
lease. His successor in the reversionary estate could not claim
it, for the additional reason that the reversion was not his until
the lease itself was terminated by the death of the life tenant
who gave it. If the lessee continues to hold afterwards, such
holding is necessarily under some new contract with the party
on whom the estate has devolved. ' If the lease continues,
although intermediate the days of payment the reversion passes
wholly into new hands, the obligation of the lessee to pay rent
will continue also. Thus, in the middle of a quarter, the lessor
may convey the whole estate which is under the lease, or it may
be sold under execution or mortgage, or he may die leaving it
to descend to his heirs, or he may dispose of it by will. The
lease itself is unaffected by these events, and the rent is there-

" In actions for breach of contract i Marshall v. Moseley, 31 N. Y.

where the damages are open and un- 280; Perry v. Aldrich, 13 N. H. 343.

liquidated, the true rule of damages Compare Foot, Appellant, 23 Pick.

is to requite the party for what he 299, and Price v. Pickett, 21 Ala.

has actually lost by the violation of 741.
the contract by the other."

LAI^DLOED AGAmST TENANT. 121

fore payable as though they did not occur; but it is payable
only in the sums and at the times specified in the demise. The
reversion may be transmitted to a new owner during the period
between the days of payment, but such an event does not divide
the obligation of the tenant. The accruing rent follows the
reversion wheresoever that goes, and neither the former owner
nor his representative can recover any portion of it. Being
recoverable only in a single sum, and not until the prescribed
day of payment, the common law gives it to him who is the
reversioner at that time.^ The covenant to pay rent creates no
debt until the day of payment arrives.^

"Where the entire reversion is transferred, subject to the lease,
by sale or descent, by act of the lessor or by operation of law,
the rent which becomes payable afterwards follows the rever-
sion, unless reserved or otherwise specially disposed of, and be-
longs to and may be recovered by the party so succeeding to
the reversion.' ISTor is it necessary, in such cases, to perfect his
right to the entire rent afterwards falling due, or to discharge
the tenant's liability to the lessor therefor, that such tenant
should attorn or be evicted.^

A covenant for rent runs with the land, and, at common law,
rent may be apportioned either on severance of the land from
which it issues, or of the reversion to which it is incident.' The
rent must be divided and apportioned whenever several persons
succeed to the right of the lessor to receive the rent ; also when
the demised premises, by assignment of the lessee's estate, goes
in parcels or otherwise to other persons. When the severance
of the reversion is by the act of the lessor, the consent of the

1 Price Y. Pickett, 21 Ala. 741. See 68; Crager v. McLauiy, 41 N. Y.
Mixonv. CoflEuIo, 3Ind. 30;SutKfEv. 319; Van Horn v. Crane, 1 Paige,
Atwood, 15 Ohio St. 186. 455; Meroeron v. Dowson, 5 B. &

2 Wood Y. Partridge, 11 Mass. 488; O. 479; WoUasten v. Hakewill, 3 M.
8 Kent's Com. 470. & G. 297; IngersoU v. Sergeant, 1

3 Wise V. Falkner, 51 Ala. 359; Wliart. 337; Van Rensselaer v. Chad-
Dailey v. Grimes, 37 Md. 440; Fay wick, 33 N. Y. 33; 3 Piatt on Leases,
V. Holloran, 35 Barb. 395; Getzand- 181, 133; Marshall v. Moseley, 31 N.
offer V. Caylor, 38 Md. 380. Y. 383; Crosby v. Loop, 13 lU. 635;

4 Id.; English V. Key, 39 Ala. 113. Cole v. Patterson, 25 Wend. 456;

5 Van Rensselaer v. Bradley, 8 Linton v. Hart, 35 Pa. St. 193; Reed

Denio, 135; Stevenson v. Lombard, v. Ward, 33 Pa. St. 144; Biddle v.

3 East, 575; Astor v. Miller, 3 Paige, Hussman, 33 Mo. 597.

122 LANDLOBD AND TEKAIilT.

tenant is necessary to the apportionment, unless the persons
who become the owners liquidate and settle the proportions to
be paid them respectively ' If not so adjusted, it may be ap-
portioned by the jury, upon evidence, according to the relative
value of the several parts held by each of the owners.* But if
the severance of the reversion is by the act of the law, or where
it occurs by descent to several heirs, or a judicial sale of part,
an apportionment may be made without the consent of the
tenant; he wiU have two or more landlords instead of one, and
be bound to pay rent to each, according to his interest.' When
a tenant has assigned a part of his estate under the lease, by
which he has covenanted to pay rent, he is not thereby relieved
from his obligation. If the lessor thinks proper to rely on his
covenant, he is at liberty to do so without resorting to the
assignee. When the lessee has covenanted to pay rent, he can-
not exonerate himself, either wholly or in part, by any assign-
ment. Nor can he apportion the rent between himself and his
assignee without the concurrence of the landlord, so as to liqui-
date the liability of the assignee.*

The action for rent against the lessee's assignee is based on
privity of estate ; hence he is only liable so long as he remains
in the legal relation to the premises of assignee. If he assigns
to another and the latter accepts the assignment, the liability
of the former is at an end.' The assignee of a lease is liable
for rent only by reason of the privity of estate between him and
the lessor, and this privity of estate is the assignee's right of
possession under the assignment, and not his actual possession ;

1 Bliss V. CoUins, 5 B. & Aid. 876; Salk. 81; Buckland v. Hall, 8 Ves.
Roberts v. Snell, 1 Man. & Gr. 577; 93. See Bailiff of Ipswiok v. Mar-
Kyerson v. Quackenbush, 26 N. J. L. tin, 1 EoU. Abr. 235.

236; Taylor's L. & T. § 383. sgiefke v. Koch, 31 How. Pr. 883;

2 Cuthbert v. Kuhn, 3 Wbart. 857; Sutliflf v. Atwood, 15 Ohio St. 186;
Farley v. Craig, 11 N. J. L. 263; Mo- Hintze v. Thomas, 7 Md. 346; Jour-
Elderrey v. Mannagan, 1 Har. & G. neay v. Brackley, 1 Hilt. 447; Arm-
808; 3 Kent's Com. 370. strong v. Wheeler, 9 Cow. 88; Le-

3 Cole V. Patterson, 25 Wend. 456; keng v. Nash, 3 Str. 1321; Taylor v.
Wotton V. Shirt, Cro. Eliz. 743. Shum, 1 B. & P. 31; Paul t. Narse,

4See Ghegan v. Young, 33 Pa. St. 8 B. & C. 486; Graves v. Porter, 11

18; Frank v. Maguire, 43 Pa. St. 77; Bai-b. 593; Hanuen v. Ewalt, 18 Pa.

WaU V. Hinds, 4 Gray, 356; Taylor's St. 9. See McKeon v. Whitney, 8

L. & T. § 884; Pitcher v. Tovey, 1 Denio, 453.

LANDLOKD AGAINST TENANT.

123

and in an action by the lessor against the assignee for rent, the'
measure of the latter's liability is the extent of his possessory
right, though it be to an undivided part, and not the extent of
his actual possession.^ The assignee of the whole premises is

1 St. Louis Public Schools v. Boat-
men's Ins. Co. 5 Mo. App. 91. In
this case a lease was made to two
persons, one of •whom, by deed, as-
signed his undivided half interest
therein to a third person, who en-
tered into exclusive possession and
occupied the whole of the leased
premises; the lessor sued the as-
signee for the amount of the rent
reserved >in the lease. Held, that
the assignee was liable only for the
undivided half. Bake well, J., said:
"In the consideration of this case,
we have no aid from any direct au-
thority on the very point involved.
The precise question seems never to
have come up for judicial deter-
mination, except in a single in-
stance. In that case, the reported
opinion is deprived of the weight it
would otherwise have, from the un-
fortunate circumstance that the
premises of the learned judge who
delivered it being wholly untenable,
one is compelled to distrust the con-
clusion arrived at; which, of course,
can only be correct by accident, and
must be erroneous if arrived at by
any px-ocess of right reasoning.

"There can be no question that
the assignee of a lease is liable only
by the privity of etfcate between
himself and his landlord. Arch. L.
& Ten. 70; Smith L. & T. 392; Han-
nen v. Ewalt, 18 Pa. St. 9. But it
is assumed by the learned judge de-
livering the opinion in the case re-
ferred to (DamainvUle v. Mann, 33
N. Y. 197), that perhaps the assignee
is not liable by' rirtue of the privity
of estate-; and he puts the UabiLity
on the ground of actual possession.

It has not, we believe, ever been
held that an actual entry under the
assignment is necessary to make the
assignee liable in respect of assign-
ments by deed, which are regarded
as effecting a transfer, not only of
title, but also of the legal posses-
sion. The acceptance of the assign-
ment creates the liability, and the
legal possession which ownership
implies is all that is required.
Woodf. L. & T. 166, 389; Taylor L.
& T. 450-453; Smith v. Brinker, 17
Mo. 148. In Walker v. Reeves, 3
I Doug. 461, note, quoted in the New
York case, the question was dis-
cussed whether the assignment im-
posed the obligation to pay rent.
Lox'd Mansfield says that it does;
that the actual possession is imma-
terial; and that the ptossession in
law, by the assignment of the title
which passed the possessory right,
is sufficient. The case was that of
a mortgagee who had not taken
possession, and it was distinguished
from that of an absolute assignee,
who was assumed to be liable with-
out entry. Although the cases in
which the assignee in bankruptcy is
held not liable to pay rent are put
expressly upon the ground that an
assent to the assignment is neces-
sary to bind him, and the question
of actual possession is considered in
such cases only as it bears upon this
assent (Turner v. Richardson, 7
East, 335), the learned judge in the
New York case asserts that the true
grounds of the decision in these
cases is the question of possession,
which seems to be not the fact.
" After quoting a remark by Shep«

124

LAITOLOKD AND TENANT.

' pard, the well-known author of
the Touchstone, in an argument re-
ferred to the report of Webb v.
Russell, 3 T. E. 394, which he inter-
prets by the light of his peculiar
view of the law, the learned judge
boldly concludes that there is no
privity of estate between the lessor
and the assignee of the lease where
there is only constructive possession;
and, having found an imaginary
resting place for his feet, he pro-
ceeds to construct thereon a fabric
which can have no greater vajlue
than any other poetic fiction, be-
cause, like the Stags of Tityrus, it
rests on air. He proceeds to argue
that the owner of the other undi-
vided half of the lease in the- case
before him, who took by a separate
assignment, is under no obligation
to pay rent, not being in possession.
This, clearly, is not the law. Coote's
L. & T. and text-books and cases
passim. Yet, on the truth of this
proposition, he proceeds, mainly, to
rest the decision of the whole ques-
tion. It follows, he says, that de-
fendant in possession is taking the
property of the landlord without
any responsibility to him (as if the
lessor, before the determination of
the term, had any right to say who
should occupy the premises); and
this, he thinks, is manifestly unjust,
because the assignee in possession,
having all that is useful in the
premises, should pay the rent as the
condition of his enjoyment. But
why, it may be asked, should he pay
a rent which he has never agreed to
pay, and which may at the time of
his possession be ten times the
actual rental value? For, having
what is useful in the premises, it
would seem that he should only pay
what may be shown to be the rea-
sonable value of their use. But
that is not the theory of this action,

and is not what the lessor is seeking
to recover from the assignee. How-
ever, whilst holding that defendant
is liable, the learned judge says that
he adopts this conclusion not with-
out considerable hesitation. We can-
not adopt this conclusion at all; and
we think that this case, properly
considered, even tells against the
respondent in the ^pase at bar. It
seems to be admitted in the opinion,
that, but for an assumption which
we cannot but consider as wholly
unwarranted, the decision should
be the other way. The lessor looks
for his rent, not to the person in
possession, but to the les^e; and if
he rents to two, and by agreement
between themselves, or otherwise,
one of them has exclusive posses-
sion, or if they choose to keep the
premises vacant, this in no way
concerns the lessor. The relation of
landlord and tenant does not exist be-
tween the landlord and the mere oc-
cupier; nor can one merely occupy-
ing land be sued for rent in an action
of debt or covenant. On the other
hand, it is nowhere intimated in
the books that the assignee is Hable
on a quantum meruit, as for use and
occupation. He is liable at the rate
fixed by the lease of which he is the
assignee. If the rent is not paid,
the assignee in possession may be
put out; but we can see no reason
whatever why the assignee of an
undivided interest in a lease, though
in the actual possession of the whole
premises, should be made to pay the
whole rent reserved. Any such rule
might work very great hardship in
cases that may be easily supposed;
while there seems to be no hardship
in holding the assignee in possession
liable only according to his interest
as shown by the assignment itself.
His interest by virtue of the assign-
ment created his liability; and we

LANDLOED AGAINST TENANT.

125

liable for the rent of the whole, though only in possession of a
part.^ And if the assignee continues in the actual possession
and beneficial enjoyment of the premises, his liability as as-
signee will continue, though he may have assigned to another
person.^ The assignee of a separate part is Hable only for the
rent of that part.'

If several tenants in common, of land chargeable with rent,
make partition, each assuming the payment of his equitable
share of the rent, each will still be liable to the lessor for the
rent, but as between themselves each will be liable to the others
for any amount either may be compelled to pay beyond his pro-
portionate share.* A release by the lessor to one of the tenants
in common, given subsequent to the partition, discharging him
from the payment of rent on his divided part, will not extin-
guish the liabihty of the others. Such a release makes the lessor
a party to the partition and apportionment ; thereafter he can-
not claim from the others more than the portion of the rent

do not see why the assignee of an
undivided, and perhaps inflnitesi-
mally small, interest should, any
more than a stranger, be liable for
rent for the whole premises at the
rate reserved in the lease, and which,
obviously, may be no measure of
their actual rental value, merely be-
cause his possession is, as it may
well be, larger than his interest. If
the landlord does not get his rent,
he may forfeit the lease and put out
any one in possession, whether as-
signee or sub-tenant. The reason of
the case seems clear. Where a lease
is made to two, there is privity of
estate and privity of contract be-
tween lessor and lessee; by the
terms of the contract, and by virtue
of the contract and not of the priv-
ity of estate, each lessee is liable for
the whole rent, though each has
only an undivided half of the es-
tate. Where one of those two men
assigned his interest, there is now
no privity of contract between the
assignee and the landlord; but there

is privity of estate; and that privity
of estate, and that alone, creates the
liability for rent. The liability for
rent, in such a case, does not arise
from privity of contract, for that is
at an end; nor from possession, for
it is held in Missouri (17 Mo. 148) and
elsewhere, that possession can never
be material in establishing the lia-
bility of an assignee of a lease, ex-
cept so far as it may serve to deter-
mine the question of acceptance of
the assignment, — that is, the ques-
tion whether the defendant is in fact
the assignee. The ground of liabil-
ity is privity of estate alone. The
only question that remains, then, is
as to the extent of that privity; and
this, we think, is determined by the
extent of the estate."

1 Negley v. Morgan, 46 Pa. St. 381.

2 Id.

' Astor V. Miller, 3 Paige, 68.

*Van Rensselaer v. Chadwick, 84
Barb. 833; Graves v. Porter, 11 Barb.
593; Van Rensselaer v. Giflford, 24
Barb. 849.

126 LAlfDLOED AND TENANT.

fixed between the lessees by their contract of partition.^ In
making such apportionments the ratio of values and not of
quantities governs.^ If there is no proof of relative values the
whole premises will be presumed to be of equal value ; then an
apportionment made according to relative quantities will be
deemed prima facie right.' But in a case against the assignee
of part of the demised premises, where upon the trial the court
had apportioned the rent, as matter of law, according to the
number of acres, there being no evidence of value, it was held
to be error. Beardsley, C. J., said : " The amount due would
necessarily depend on the proportionate value of the part of
which the defendant was assignee, there being no evidence that
the amount to be paid on his part had been adjusted by agree-
ment between the parties in interest. I see no data in the case
before us upon which the defendant's share could be determined
as a matter of law, and very little to aid the jury in ascertain-
ing it as a matter of fact. Possibly there was enough to have
upheld a verdict if the amount had been determined by the
jury; but the judge refused to submit the question to their
decision, in which, I think, he clearly erred." *

No APPORTIONMENT OE ABATEMENT OF EENT ON AOCOTJNT OF BAD
CONDITION OE PAJBTIAL DESTEUCTION OF THE DEMISED PEOPEETT. A

tenant who has made an unconditional contract to pay rent for
a term cannot claim an apportionment or abatement of rent for
being deprived of any beneficial enjoyment of the premises by
their being out of repair, or untenantable, or unfit for the use
for which they were leased.' Nor if the buildings or premises
are destroyed or rendered useless by fire, tempest, flood, war or
other inevitable casualty * Moreover, there is no implied war-

1 Van Rensselaer v. GiflEord, 24 ♦ Van Rensselaer v. Bradley, "S
Barb. 349. Denio, 153.

2 Van Rensselaer v. Gallup, 5 ' Westlake v. De Graw, 25 Wend.
Denio, 454; Same v. Jones, 2 Barb. 669; Cleves v. Willoughby, 7 Hill,
648; Same v. Bradley, 3 Denio, 135; 83; Welles v. Castles, 3 Gray, 333;
Cathbert v. Kulin, 3 Whart. 357; Dalton v. Gerrish, 9 Gush. 89; Hart
Farley v. Craig, 11 N. J. L. 262; Mc- v. Windsor, 12 M. & W. 68; Sutton
Elderrey v. Flannagan, 1 Har. & G. v. Temple, 12 M, & W. 53.

308. sparadine v. Jane, Aleyn, 36;

9 Van Rensselaer v. Jones, supra. Wagner v. White, 4 Har. & J. 564;

LASDLOED AGAINST TENANT.

127

ranty by the landlord of the fitness of the premises for the use
the tenant has in view, or against accidental destruction ; nor is
there any implied undertaking to repair or rebuild.*

Entire destettction of demised peemises ends llabilitt foe
EENT. — But where the estate out of which the rent issues is
gone, and the demised tenement has ceased to exist, the rent
terminates, and the obligation to pay it is at an end. Thus, by
the lease of apartments in a building in a town for the purpose
of trade, the lessee takes only such interest in the subjacent land
as is dependent upon the enjoyment of the apartments rented
and necessary thereto; and if they are totally destroyed by fire
this interest ceases ; the relation of landlord and tenant, upon
such a lease, is dissolved by the destruction of the apartments
by fire, and thenceforth the lessee has no interest in or right to
the land.^

The lease is not terminated, nor the right to rent extin-
guished, where, by the operation of the lease, the tenant has,
after destruction of the building, an interest in the soil, and is

Richard Le Tavemer's Case, 1 Dyer,
56a; Hallett v. Wylie, 3 John. 44;
Belfeur v. Weston, 1 T. E. 310;
Monk V. Cooper, 2 Ld. Ray. 1477; 2
Str. 763; Fowler v. Bott, 6 Mass. 63;
Izon V. Gorton, 5 Bing. N. C. 501;
Arden v. PuBen, 10 M. & W. 331;
Helbam v. Moflord, 7 Barb. 169;
Robinson v. L'Engle, 13 Fla. 482;
Smith V. Ankrim, 13S. &R. 39; Gib-
son V. Perry, 29 Mo. 245; White v.
Molyneux, 2 Ga. 124; Gates v. Green,
4 Paige, 355; Patterson v. Ackerson,
1 Edw. 96; Peterson v. Edmonson, 5
Harr. (Del.) 378. A lease of mUl
property provided for an abatement
of rent in case any part of the prop-
erty should be damaged by fire dur-
ing the term; and a boarding house
on the premises, used by the mill
operatives, was destroyed by fire;
and it was held that the abatement
to be made was not limited to the
rental value of the building de-

stroyed, but included any depreci-
ation in the rental value of the
remainder of the premises, if caused
by the destruction of the boarding
house. Gary v. Whiting, 118 Mass.
363.

1 Tay. L. & T. § 373; Sheets v.
Selden, 7 Wall. 416; Johnson v. Op-
penheim, 43 How. Pr. 433; Westlake
V. De Graw, 25 Wend. 669; Mc-
Glashan v. Talmadge, 37 Barb. 313;
Sutton V. Temple, 13 M. & W. 52;
Hart V. Windsor, 12 M. & W. 68.
See Doupe v. Gennen, 37 How. Pr.
5; S. 0. 45 N. Y. 119.

2 McMillan v. Solomon, 43 Ala.
356; Graves v. Berdan, 26 N. Y. 498;
Austin V. Field, 7 Abb. N. S. 29;
Ainsworth v. Ritt, 38 Cal. 89; Kerr
V. Merchants' Exch. Co. 3 Edw. 315;
Winton. v. Cornish, 5 Ohio, 417;
Womaok v. McQuarry, 28 Ind. 103.
See Izon v. Gorton, 5 Bing. N. C.
501.

128

LAJSDLOED AND TENAHT.

authorized to rebuild, so that thereby or otherwise he may still
have some beneficial enjoyment of the premises.^ '

Same, when entire premises taken foe public itsb. — When-
ever the estate which a lessor had at the time of making the
lease is defeated or in any manner determined, the lease is ex-
tinguished with it.^ An instance is where a tenant for life is
the lessor having no power to make a lease to continue after his
death, and makes a lease for a term, and dies before that term
ends.' So, where the entire premises demised are taken for any
public use, the lease is thereby terminated ; the lease becomes
void when the proceedings have divested the lessor's title on
payment therefor to the lessor.* But where only a portion of
the demised premises is taken it has no effect upon the rights or
relations of lessor and lessee; each is entitled to compensa-
tion for his property taken for public use ; and the lessee is en-
titled to no abatement of the rent he has covenanted to pay,
unless by force of some provision of the lease or statutory
regulation.*

1 Graves v. Berdan, 36 N. Y. 498.
In South Carolina it has been held
that where a tenant has been dis-
possessed by an enemy he ought
to be thereafter relieved from pay-
ing rent; that his liability is sus-
pended when his enjoyxuent is inter-
rupted by the casualties of war.
Bayly v. Lawrence, 1 Bay, 499. So
where a hurricane rendered the
rented house untenantable. Eipley
V. Wightman, 4 McCord, 477. In
the later case of Coagan v. Parker, 3
Eioh. 255, it appeared that the ten-
ant, although his beneficial enjoy-
ment was impaired by the casualties
of war, had not surrendered or of-
fered to sun-ender the lease, or other-
wise to rescind the contract, and it
was held that his defense should not
be allowed. The authorities in that
state and elsewhere are reviewed,
and the true doctrine held to be,
that where there is a substantial de-

struction of the subject matter out
of which the rent is reserved, in a
lease for years, by an act of God or
the public enemy, the tenant may
elect to rescind, and on surrender-
ing all benefit from the lease shall
be discharged from the payment of
rent. It was also decided that if the
tenant be deprived of the beneficial
enjoyment of the leased premises
according to the intent of the lease,
that is a destruction of its subject,
of its subject matter, within the
meaning of these terms, whether
there be a physical destruction of
the premises or not.

2 Taylor's L. & T. §519.

3 Marshall v. Moseley, 21 N. T.
280.

1 Barclay v. Pickles, 38 Mo. 143;
Foote V. Cincinnati, 11 Ohio, 408;
Noyes v. Anderson, 1 Duer, 342.

5 Workman v. Mifflin, 30 Pa. St.
863; Parks v. Boston, 15 Pick. 198.

LANDLORD AGAINST TENANT.

129

TJpon such condemnation, the amount of compensation or
damages is the same whether one person owns the property en-
tirely, or several have distinct estates or interests therein.*
Where the division of interest is between a lessor holding the
reversion and the lessee of an unexpired term, the subsequent
liability of the latter for rent without abatement, notwithstand-
ing the curtailment of the demised premises, enhances his share
of the damages which are assessed on the taking for public use.*
But where, as in Missouri and 'New York — in the latter state
by statute, — the rent is apportioned, when a part of the leased
property is taken for public use,' the lessor's share of the dam-
ages is enhanced by the subsequent loss of rent on the part so
taken. He then gets in hand from the public an equivalent for
his rent, and the tenant's future liability is apportioned so as to
confine it ratably to the residue.^

Interest on rent in aiwear is, in this country, allowed upon the
same principles as upon other debts."

Although it was held in

'Edmunds v. Boston, 108 Mass.
535; Burt v. Merchants' Ins. Co. 115
Mass. 1; Burt v. Wigglesworth, 117
Mass. 303; Eoss v. Elizabeth to-w,i R.
R. 30 N. J. L. 330; Kohl v. United
States, 91 U. S. 367.

2 Id.

SBiddle v. Hossman, 33 Mo. 597;
Kingsland v. Clark, 34 Mo. 34; Gil-
lespie V. Thomas, 15 Wend. 464;
William and Anthony Sts. 19 Wend.
678.

*In the Matter of New York C. E.
R. Co. 49 N. Y. 414, a railroad com-
.pany leased its road and all its land
upon or across which, the road or any
part thereof, or its machine shops,
etc., were constructed. It was held
that the lease included all lands ac-
quired for use in operating the road,
and without which the use of the
road or any part of it would be less
convenient and valuable; and it was
also held that where the railroad
company had prior to the execution
of such a lease acquired title to a
piece of land for the purpose of use
Vol. Ill— 9

as a street in connection with its
road, which use would be highly-
beneficial to and convenient for its
business, the land was included, in
the lease, although such use had not
been actually obtained at the time of
the execution of the lease; and that
upon the subsequent condemnatitHi
of this land by another railroad, the
lessee was entitled to the use of the
money awarded as damages for such
taking during the conttnuance of the
lease.

5 Elkin V. Moore,., 6> B. Mon., 463;
Honore v. Murray,. 3 Dana, St;
Clark V. Barlow, 4 John. 183; Stock-
ton V. Guthrie, 5- Harr. (Del.) 204;
Walker v. Hadduck, 14, HL 399;
Naglee v. IngersoU, 7 Pa. St. 185;
Glover V. Wilson,. 6. Pa.. St. 390; Mc-
Quesneyv. Hiester,.33 Pa. St. 435
DorriU v. Stephens,. 4 McCord, 59
Dennison v. Lee, 6 Gill. & J, 383
Downing v. Palmateer, 1 T. B. .Mon.
64; Vance v. Evans, 11 W. Va. 343;
Stevenson v. Maxwell, 2 Sandf. Ch.
273; Crane v. Hardman, 4 E. D.

130 LANDLORD AND TENANT.

some old cases that interest should not be allowed upon rents,
because it would be making a profit on profit, the more modern
and reasonable doctrine seems to be that a certain sum due for
rent is similar to any other debt ; ' but it is said, in the Kentucky
case from which the foregoing is quoted, that when due by
verbal contract, interest shall be allowed or not according to
circumstances. In Mississippi it is said interest on rent is in the
discretion of the court.^ In ISTew York it seems to be settled,
that interest is not only allowed on rent payable in money, but
also when payable otherwise, as in wheat, fowls and services, if
not paid when due.' In a case in which the point was very fully
considered, Bronson, J., referring to the earlier cases, said:
"The principle to be extracted from these decisions may be
stated as follows: 'Whenever a debtor is in default for not
paying money, delivering property, or rendering services, in
pursuance of his contract, justice requires that he should indem-
nify the creditor for the wrong which has been done him ; and
a just indemnity, though it may sometimes be more, can never
be less, than the specified amount of money, or the value of the
property or services at the time they should have been paid or
rendered, with interest from the time of the default until the
obligation is discharged. And if the creditor is obliged to re-
sort to the courts for redress, he ought, in all cases, to recover
interest, in addition to the debt, by way of damages.' It is true
that on an agreement like the one under consideration, the
amount of the debt can only be ascertained by an inquiry con-
cerning the value of the property and services. But the value
can be ascertained; and when that has been done, the creditor,
as a question of principle, is just as plainly entitled to interest,
after the default, as he would be if the like sum had been pay-
able in money." * It is accordingly allowed also in an action
for use and occupation.*

Smith, 448; Binsse v. Wood, 47 ' Lush v. Druse, 4 "Wend. 313; Van

Barb. 624; Van Rensselaer v. Jones, Rensselaer v. Jones, 2 Barb. 643.

2 Barb. 643; Van Rensselaer v. Jew- ^ Van Rensselaer v. Jewett, 2 N.

ett, 2 N; Y. 135. Y. 135. See Livingston t. MiUer, 11

1 Burnham v. Best, 10 B. Mon. N. Y. 80.

227. 5 Ten Eyok v. Houghtaling, 13

, 2 Howcott V. Collins, 33 Miss. 398. How. Pr. 533.

LA,NDLOED AGAINST TENANT. 131

In Yirginia, however, it is not recoverable of course. In
an early case,^ Tucker, J., said : " This question depends partly
upon the nature of the thing demanded which is rent, and
partly upon the nature of the action which is brought for the
recovery of it. Some consideration is also due to the nature of
interest and damages according to the principles of the common
law." Because a summary remedy by distress was afforded to
the landlord for rent, it was deemed to be giving him advantage
from his own lashes to allow him interest, unless the tenant had
in some way obstructed that remedy. " Eent service, when it
consisted either in personal or manual operations, or in unpro-
ductive things, as capons, spars, bows, shafts, roses and other
articles enumerated by Sir Edward Coke, was not of a nature
to yield any profit growing out of the thing itself, in the nature
of interest.. And if they happened to be uncertain, the lord
could neither distrain nor recover damages for withholding
them. By the common law, interest, under the odious name of
usury, was altogether prohibited ; consequently it could not be
recovered in the common law courts for the mere detention
or delay of payment of a debt, however just, or how unreason-
ably soever the payment might have been delayed. And upon
this principle it seems to be that in actions of debt the' damages
are in general merely nominal ; and even in replevin, at common
law, it would seem that the rent is to be regarded as the certain
measure of damages." It seems to be considered in that state
that interest is allowable in the discretion of the chancellor or
jury, in view of particular facts, showing a delay in the land-
lord's remedies for rent, without any neglect on his part.^ It is
not allowed where it appears that there were always effects on
the premises liable to distress, suiflcient to have satisfied the
rents, even though such rents were demanded by the landlord.'

Covenants foe eepaies. — It 'has been the established rule of
the common law for ages, that an express covenant to repair
binds the covenantor to make good any injurv to the demised f

i

1 Newton v. "Wilson, 3 Hen. & 'Dow v. Adams, 5 Munf. SI. See

Munf. 470. Payne v. Graves, 5 Leigh, 561; Roper

2 Id.; Cooke v. "Wise, 3 Hen. & v. "Wren, 6 Leigh, 38; Buokmaster

Munf. 463; Wickie v. Lawrence, 5 v. Gi-undy, 8 111. 636; Malliday v.

Band. 571. Mackie, 4 Gratt. 1.

132 LANDLORD AND TENANT,

premises which human power can remedy, even if caused by
storm, flood, fire, inevitable accident, or the act of a stranger.'
It embraces not only the buMings on the demised premises at
the date of the demise and covenant, but any new buildings
erected during the term, unless the covenant expresses a differ-
ent intention ; as where it is a covenant to keep in repair the
demised buildings.*

Such a covenant, however, does not bind the tenant to insure
against natural wear and decay ; ' nor to give the landlord at
the end of the term new buildings in the place of old ones.*
Where a very old building is demised, it is not meant that it
should be restored in an improved state, nor that the con-
sequences of the elements should be averted ; it is to be repaired
as an old house ; but the tenant has the duty of keeping it as
nearly as may be in the state in which it was at the time of the
demise, by the timely expenditure of money and care.' The
terra "good repair" is to be construed with reference to
the subject matter, the age and class of the tenement, and must
differ, as that may be a palace or a cottage ; but to keep in good
repair presupposes a putting into good repair, and means that
during the whole term the premises shall be in good repair.*

1 Leavitt v. FletoEer, 10 Allen, 119; 139; Harris v. Jones, 1 Mood. & Bob.
Polack V. Pioohe, 35 Cal. 416; Nave 173.

V. Berry, 23 Ala. 383; Phillips v. 4 Belcher v. MTntosh, 8 C. & P.

Stevens, 16 Mass. 238; Paradine v. 720; Hart v. Windsor, 13 M. & W.

Jane, Aleyn, 26 Dyer, 33a; Earl of 68; Mantz v. Goring, 4 Bing. N. O.

Chesterfield v. Duke of Bolton, 451.

Comeyn, 637; Walton v. Water- 6 Grutheridge v. Manyard, 7 0. &

house, 3 Saund. 433a; Bullock v. P. 139; Payne v. Haine, 16 M. & W.

Dommitt, 6 T. R. 650; Compton v. 541.

Allen, Style, 163; Green v. Eales, 3 epayne v. Haine, 18 M. & W. 541;

Q. B. 235; Bigelow^ v. CoUamore, 5 3 Par. on Cont. 333; Burdett v.

Cush. 236; Allen v. CuUver, 3 Denio, Withers, 7 A. & E. 136; Walker y.

294; Bohannom v. Lewis, 3 T. B. Hatton, 10 M. & W. 249; Hart v.

Mon. 376; 3 Piatt on Leases, 186; Windsor, 12 M. & W. 68. But see

Parrott v. Barney, 1 Sawyer, 423. West v. Hart, 7 J. J. Marsh. 358, in

2 Doe d. Worcester School Trustees which, referring to Brashear v.
V. Rowlands, 9 0. & P. 734; Cornish Chandler, 6 T. B. Mon. 150, Nicholas,
V. Cleife, 3 Hurl. & Colt. 446. J., said: "It is said in that case that

s Harris v. Goslin, 3 Harr. (Del.) a covenant simply to repair may be
338; Ball v. Wyette, 8 Allen, 275; construed to embrace only the
Gutheridge v. Munyard, 7 C. & P. making good what may be dam-

LANDLOBD AGAINST TENANT. 133

And it is proper to show what was the age, class and general
state of repair of the premises when the tenant took them, in
order to measure the extent of the repairs to be done.^

The covenant to repair or to keep in good repair does not
mean merely that the premises are to be kept in as good a state
of repair as when the tenant took them ; for that may not be
good repair.^ Such covenants are to be construed according to
their particular words.' A covenant to put the premises into
habitable repair does not require the tenant to make a new
house ; but the word " put " implies that it is to be improved ;
regard being had to the state in which it was at the time of the
agreement, and also to the situation and class of persons who
are likely to inhabit it, the tenant is to put it into a condition
fit for a tenant to inhabit.''

Where the general covenant to repair excepts damages by the
elements or acts of providence, no damages are within the ex-
ception to which human agency has in any way contributed.'
A tenant holding over is impliedly bound by all the stipula-
tions in the lease which are applicable to his new situation, in-
cluding that for repairs, where there is nothing in the lease, or
any extrinsic fact, to destroy this implication.*

In a covenant to keep the outside premises in repair, the ex-
aged, ad interim, but that the stipu- and if the latter obliges only to
lation to deliver in good repair, in make good the damages, ad interim,
every respect, left no room for lim- no greater stress can be laid on the
iting it iato a covenant merely to promise to keep in repair." See
repair according to the original Sluttz v. Locke, 47 Md. 562.
condition of the farm. The word ' Payne v. Haine, supra; Burdett
keep seems to us to have direct refer- v. Withers, supra; Stanley v. To w-
ence to the condition of the premises good, 3 Bing. N. 0. 4; Mantz v.
at the time of the leasing, and that Goring, 4 Bing. N. C. 451.
the then state of repair must be ^ 3 Par. on Cont. 333.
taken to be what the parties meant ' Cornish v. Cleif e, 3 HurL & Colt,
by good repair. There is so broad 446.

and palpable a distinction between * Belcher v. Mcintosh, 8 C. & P.
a promise to put into repair and one 720.

to keep in repair, that it is almost 5 Polack v. Pioche, 35 Cal. 416.
impossible to believe that the parties *Digby v. Atkinson, 4 Camp. 375;
meant the former when they used Doe d. Riggs v. Bell, 5 T. R. 471;
the latter expression. A covenant Beavan v. Delahay, 1 H. Bl. 8; Beal
to keep in repair is certainly no v. Sanders, 8 Bing. N. C. 850.
broader than a covenant to repair,

134: LANDLOliD AND TENANT.

ternal parts are construed to be those which form the inclosure
of them, and beyond which no part of them extends; and it
has been held to be immaterial whether those parts are exposed
to the atmosphere, or rest upon and adjoin some other building
which forms no part of the premises let, as a wall dividing the
demised house from an adjoining one.' "Where a party to a
lease of a carriage house, consisting of a frame covered with
matched boards, a shingle roof, and having a plank floor, cove-
nanted to do the necessary repairs on the outside, and the other
those on the inside, it was held that the outside included the
whole outer shell of the building, or external inclosure of roof
and sides ; that the necessary repairs on the outside were those
which would make the building outwardly complete. The
building having been crushed without the fault of either party
by a heavy fall of snow upon the roof, it was held that the
party who undertook to make the outside repairs must first re-
build so as to make the building externally complete, before the
other party was bound to make the repairs inside. The fact
that rebuilding the outside would so far replace the whole
building as tp leave very little to be done on the inside, and
then make the performance of the other party's covenant very
easy, did not in any degree excuse the former from first per-
forming his contract.^

For a continuing breach of a covenant to repair, damages
may be recovered toties quoties? But a covenant by a lessee to
repair fences, on or before a certain day, is not a continuing
covenant, and, in an action for a breach, damages must be re-
covered once for all.* An action may be brought for breach of
a covenant to keep demised premises in repair, whenever such
breach occurs, even while the lessee is in possession and during
the term ; ^ and the recovery will be limited to compensation
for the injury to the plaintiff. Where the action is brought by

1 Green v. Eales, 2 Q. B. 225. Haven, etc. Co. 43 Conn. 420. See

^Leavitt v. Fletcher, 10 Allen, Cooke v. England, 37 Md. 14.

119. * Cole V. Buckle, 18 XJpp. Can. C.

3 Hill V. Barclay, 16 Ves. 402; King- P. 286.

donv. Nottle, 1 M. & Sel. 365; Tre- 5 Buck v. Pike, 37 Vt. 539; Lux-

meere v. Momson, 1 Bing. N. C. 89; more v. Robson, 1 B. & Aid. 584;

Beach v. Crain, 3 N. Y. 86; Shaffer Schiefelin v. Carpenter, 15 Wend.

T. Lee, 8 Barb. 420; Phelps r. New 400. See Atkins v. Chilson, 9 Met. 53.

LANDLORD AGAINST TENANT. 135

the owner of the reversion, and the term has not expired, the
measure of damages is the diminution in value of the reversion
in consequence of the want of repairs.^ This is manifestly a
just rule rather than that of the amount it would cost to put
the premises in repair, as was held in some early cases. ^ The
landlord is not bound to expend the moneys recovered in dam-
ages in repairs, and whatever he recovers beyond his rever-
sionary interest is in excess of due compensation. Alderson, B.,
said : ' " The damages for non-repair may surely be very different
if the reversion would come to the landlord in six months or
nine hundred years, and that Lord Holt's doctrine in Vivian v.
Campion would startle a man to whom the proposition was
stated."

Where the reversion is limited to one for hfe, with remainder
to another in tail, with remainder to a third in fee, and there is
a breach of covenant which gives the tenant for life a right to
sue, he can only recover damages according to the injury done
to his life estate, and not the daniages which may be sustained
by the reversioner.* The injury to the reversion, however, is
not universally the basis and measure of recovery ; the injury
which the plaintiff suffers, and for which the tenant is liable,
may not arise from depreciation of the reversion. Thus, a de-
fendant, an underlessee, who had covenanted with the plaintiif,
his lessor, as the latter had to his lessor, to keep, and, at the
expiration or sooner determination of the term, to leave and
deliver up the premises in repair, allowed them to become out
of repair. While they remained in this condition, the plaintiff
having committed a forfeiture by non-payment of rent, the
superior landlord ejected both the plaintiff and defendant;
and it was held that the plaintiff was entitled to recover sub-
stantial damages for the noin-repair of the premises. The lease
to the plaintiff was for a term of seventy-two years, only six-
teen of which had elapsed. Though the term had been for-

1 Doe d. "Worcester School Trustees 2 Vivian v. Campion, 3 Ld. Raym.

T. Rowland, 9 C. & P. 734; Smith v. 1125; 1 Salk. 141; Nixon v. Denham,

Peat, 9 Esch. 161; Mills v. East Lon- 1 Irish L. 100.

don Union, L. R. 8 C. P. 79; WUl- s Turner v. Lamb, 14 M. & W. 413.

iams V. Williams, L. R. 9 C. P. 659; < Evelyn v. Raddish, Holt, N. P.

A.tkinson v. Beall, 11 U. 0. C. P. 345. 543.

136 LAITOLOED AND TENAKT.

feited by the plaintiff's act, and not that of the defendant, it was
ended, and by the terms of the covenant the lessor was entitled
to have a surrender of the premises in repair ; hence the dam-
age to the reversion from the non-repair was necessarily what
it would cost to put the premises in repair. It was contended
for the defendant, that as the plaintiff had no reversion, and
had lost it by his own default, he was entitled only to nominal
damages; that it was as if the premises had been built on a
oUff which fell into the sea. But PoUock, C. B., said : " This
case is distinguishable from the supposed case of the demised
premises being destroyed by a convulsion of nature, or by fall-
ing into the sea, or being swallowed up and lost, because there
the original lessor could not maintain an action of covenant
against his tenant, and therefore such lessee would have no
right of action against his underlessee. That does not apply
here, because the superior landlord has a right of action on the
covenant to leave and deliver up in repair. . . . And as
the intermediate landlord is liable to make good the defects in
the premises, he may indemnifj' himself by this action before-
hand." In respect to the diminution in value of the reversion
being the measure of damages, Bramwell, B., said it " was a
very good test, but not the only test of the damages to be re-
covered. Then a case was suggested, of a man being under a
covenant to repair a house, but not to rebuild it if it should
be burnt down. If in such a case the house should be burnt
down when out of repair, I should say that no action could be
maintained by the lessor on the covenant to repair, because he
would have sustained no damage. Here, however, the premises
when delivered up to the ground landlord were worth 40Z. less
than they would have been if in proper repair." '

Where the tenant, under a lease containing a covenant to
repair, underlet the premises to one who entered into a similar
covenant, and the original lessor brought an action on this cov-
enant in the first lease, and recovered 101. damages, and 571.
costs, and the lessee therein incurred 48Z. costs in his defense ;
it was held that the damages and costs recovered in that action,
and also the costs of defending it, might be recovered as special
damages in an action against the undertenant for breach of

1 Davies v. Underwood, 2 Hurl. & N. 570.

LAiTDLOED AGAINST TENAJSTT. 137

his covenant to repair. The court say : " If he could not re-
coTer these damages and costs against this defendant, he would
be without redress for an injury sustained through the neglect
of the defendant, and not in consequence of his own default ;
for during the term he could not enter and repair the premises
without rendering himself liable to be treated as a trespasser." '
This case as to the allowance of the costs of the former action
has been overruled.^ In a case in which the plaintiff, after
having suffered judgment at the suit of his lessor for non- repair
of demised premises, sought to recover from his own lessee for
breach of the covenants for repairs contained in the sublease of
the same premises, including the costs to which he had been
subjected, the Queen's Bench held the covenants in the two
leases were materially different, and suggested that this con-
sideration had been overlooked in the decision of the preceding
case.' Parke, B., said the action was not on a contract of in-
demnity ; that the only true measure of damages was what it
would cost to put the premises in repair, and if the plaintiff
had expended more, that was his own fault, for which the de-
fendant was not liable.'' In a similar case which came before the
same court the following year,' these facts appeared: The
original lessors having brought an action against the plaintiff
for breaches of the covenant to repair, he applied to the de-
fendant to perform the repairs, and for instructions as to the
course he should pursue with respect to the defense of the
action. The defendant denied that any notice to repair had
been given ; insisted that the premises did not require it, and
even refused permission to the plaintiff to enter and execute
the repairs himself; the plaintiff thereupon offered to suffer
judgment by default, which the defendant refused to assent to.
The plaintiff then gave the defendant notice, that, as he had

1 Neale v. WyUie, 3 B. & C. 533. " Those cases would be applicable if

2 Walker \. Hatton, 10 M. & W. the [former] action had been de-
349; Penley v. "Watts, 7 M. & W. 601. fended in the belief that the prem-

3 Neale v.' Wyllie, supra. ises were in repair. The case of a
■•Penley v. Watts, 7 M. & W 610. warranty applies to an existing state

On the argument, the cases of Lewis of things, not to a thing to be done

V. Peake, 7 Taunt. 153, and Pennell in the future."

V. Woodburn, 7, C. & P. 117, were 5 Walker v. Hatton, 10 M. & W.

referred to, and Parke, B., said: 249.

138 LANDLOED AND TENANT.

denied that any notice had been served, and insisted that the
premises were not out of repair, he should traverse the breaches
of covenant assigned, and try the question, holding the de-
fendant responsible for the costs. This he accordingly did,
and the result was that the original lessor recovered 68Z. dam-
ages and 681. 12s. costs, and he himself incurred costs to 53Z. 14s.
4:d. in defending the action. Lord Abinger, 0. B., said : " I do
not think the covenant entered into by the defendant extended
to the payment of the whole of these damages, but only to that
portion of them which was necessarily incurred by the plaint-
iff. Now the real damage he sustained was the sum of 68Z.,
being the amount recovered by the plaintiff in the former
action. The costs were certainly incurred by the present plaint-
iff in his own wrong, for he could have put an end to the
present controversy between him and his lessor by the payment
of that sum in the first instance, or he might have subsequently
paid it into court. If we held that any more damages were
recoverable, there would be no limit ; the only safe rule is, to
confine the verdict to those which were the necessary result of
the act complained of, viz., the want of repairs ; and I cannot
see how it can be contended that the costs of both the plaintiff
and the defendant in the former action were the natural or
necessary consequences of that act. I think the case of Neale
V Wyllie is not law, and that it was decided on a mistaken
principle." While it was said in this case by Parke, B., that
the covenants in the two leases were not, in substance, identical,
since one was given two years after the other, and a general
covenant to repair must be construed to have reference to the
condition of the premises at the time when the covenant begins
to operate; still the amount of the damages recovered against
the plaintiff in the action on the covenants in the first lease
was adopted as the " real damage " for breach of the second,
on the motion of the defendant. On the whole, it is probable
that the costs were disallowed because unnecessarily incurred ;
on the ground of an improvident defense of the former action.'

J See Smith v. Oompton, 3 B. & Scott, 598; Smith v. Howell, 6 Exch.

Ad. 407; Short t. Kalloway, 11 A. &■• 730; Blyth \- Smith, 5 Man. & Gr.

El. 28; Tindall v. Bell, 11 M. & W. 405.
228; Wrightup v. Chamberlain, 7

LANDLORD A(5AINST TENANT. 139

A landlord cannot recover as part of his damages for the
failure of his lessee to repair, losses to which he himself has
contributed by his own acts. Thus, the plaintiff held the
demised premises subject to the performance of several cove-
nants, one of which was to repair; he sublet to the defendant
on a covenant by the latter to repair, which the defendant
failed to perform. The superior landlord ejected the plaintiff
for breach of all the covenants, including that broken by the
defendant. It was held that the plaintiff could not recover
from the defendant for the loss of the term, because there were
breaches of other than the defendant's covenant, and it did not
appear that the ejectment resulted alone from the breach of
the defendant's covenant ; and it was left undecided whether,
if the loss of the term had been solely caused by the defendant's
failure to perform his covenant, it could have been taken into
consideration in the assessment of damages.' Where the
.plaintiff, to save his lease from forfeiture, has entered during
his tenant's term, after default of the latter on his covenant to
make repairs, and has executed repairs which both covenants
required, the reasonable cost of the same is the measure of
damages against his tenant; and it is not necessary for the
plaintiff to prove that his lessee assented to his entry and to the
repairs being made by him, because, if there was no assent, the
plaintiff would be merely liable as a trespasser, and it would have
no effect on the measure of the tenant's liability for non-repair.^

As has been already incidentally mentioned, if a tenant
bound to repair, or under a covenant to leave and deliver up in
repair, leave the premises at the end of his tenancy in a state
of dilapidation, he is liable in damages for what it wiU. reason-
ably cost to put them in the state in which he was bound to
leave them,' and, also, to make compensation for loss of the use
while the premises are undergoing repairs.*

1 Clow V. Brogden, 2 M. & G. 39. Eutland v. Dayton, 60 111. 58. See

2 CoUey V. Streeton, 2 B. & C. 273. Myers v. Buina, 35 N. Y. 269; Cook
See Williams v. Williams, L. E. 9 v, Soule, 56 N. Y. 420; Penn. E. E.

, C. P. 659. V Co. V. Patterson, 73 Pa. St. 491;

sPenleyv. Watts, 7 M. &W 601; Phelps v. New Haven, etc. Co. 43

Eawlings v. Morgan, 18 C. B. N S. Conn. 453.

776; Keyesv. Western Vt. State Co. * Woods v. Pope, 6 C. & P 782,

34 Vt. 81; State v. Ingram, 5 Ired. Hexter v. Knox, 63 N, Y 561. See

441; Hays v. Moynihan, 60 HI. 409; Green v. Bales, 3 Q. B. 325.

140 LANDLOED AND TENANT.

If buildings fall to the ground by reason of the neglect of
the covenantor to repair them, or if they are blown down by
the wind, or burned by an accidental fire, the proper measure
of damages is the amount it will take to rebuild, deducting the
difference in value between old and new, as the landlord is not
entitled to be put in a better position on account of the de-
struction, and cannot have the value of a new house when the
one he lost was an old house.^ If there be both a covenant to
repair, and a covenant to insure against loss by fire for a specific
sum, the liability of the covenantor, on his covenant to repair,
in respect of the cost of rebuilding in case the premises are
burned down, is not limited to the amount of the sum cove-
nanted to be insured.^ Nor has the tenant any equity to compel
his landlord to expend money, received upon insurance, in re-
building the demised premises, on their being burnt down, or
to restrain the landlord from suing for rent, until after the
premises have been rebuilt.'

LiABiLrrT OF ASSIGNEE OF LEASE FOE EEPAiES. — An assign-
ment of a lease subject to the performance of the covenants,
does not import a covenant on the part of the assignee; but a
covenant to repair runs with the land, and he is liable whilst he
continues to hold the premises.* This covenant is divisible in
respect to the privity of estate, and may be apportioned when
the reversion or the land is severed.' In an action by an inter-
mediate lessor against his lessee, after the lease had passed
through several hands, and the premises had been surrendered,
out of repair, to the superior landlord, it appeared that the
premises were out of repair while held by the defendant, and
while in the possession of the subsequent assignees, and it was
held that, in the absence of proof to the contrary, the dilapi-
dations took place in the defendant's time. Pollock, C. B.,
observed : " It does not appear that the defendant made any
complaint about the state of the premises at the time he took

1 Yates V. Dunster, 11 Exch. 15; 346; Gordon v. George, 12 Incl.

1 Add. on Cont. § 767. 403.

2Digby V. Atkinson, 4 Camp. SBadeley v. Vigurs, 4 El. & Bt. '

275. 71, Lee v. Payne, 4 Mich. 106; Cox v

3 Leeds V Cheetham, 1 Sim. 146. Fenwick, 4 Bibb, 538; Congham v.

^Wolveridge -^ Steward, 1 Cr & King, Cro. Car, 322 McMurphy v.

M. 644, Hintze v. Thomas, 7 Md. Minot, 4 N. H. 251.

LAKDLOED AGAINST TENANT. 141

them, and if so, the- presumption is, either that the premises
were in a good state of repair, or that the person from whom
he took them paid him a sum of money to put them in repair." '

Damages for eepaies and non-eepaies in special oases. —
A person desired to erect a building adjoining the brick house
of another, and obtained permission to sink his foundation wall
below and partly under the'latter, agreeing to pay all damages
such house might thereby suffer ; in putting in that foundation
damage was done to the brick house ; the owner repaired it,
and, in a suit for the expense so incurred, called expert witnesses
who gave detailed estimates of the cost of repairs. Among
the items was one for "risk" in doing the work, and there was
conflicting testimony in respect to its being a usual charge in
such cases. Sheldon; J., delivering the opinion of the court,
thus referred to it : " It can »hardly be said that there was no
evidence tending to show that this charge of risk was not a
proper item of the expenses of the repairs of the building; and
so long as there was any such evidence, although it might be
weak, it was for the Jury to consider and weigh it ; and we
cannot say that the court erred in refusing to entirely exclude
it from the consideration of the jury. The court could not have
been required to do more than saj'' to the jury, that they should
hot make any allowance on account of that item, unless they
believed, from the evidence, that it was a usual and customary
charge in the making of such repairs. The item should not
have been allowed, as an item of damage, under the evidence.
. But there were four witnesses . . . each one of whose
estimate of the damages, exclusive of that item, exceeded the
amount of the verdict, so that we cannot say that that charge
must have entered into the verdict and formed a part of it." ^

By an act of the legislature, in 1857, for the sale of public
works, con^sting of a railroad and canal, it was required that
the purchaser should, immediately after taking possession,
" thereafter keep up, in good repair and operating condition,
the line of said railroad and canal," the same to be and remain
forever a public highway, and kept open and in,repair by the
purchaser for all parties desiring to use and enjoy the same.

1 Smith V. Peat, 9 Exch. 161. « Hayes v. Moynihan, 60 111. 409.

142 LANDLOIU) AiVJ TENANT.

By a subsequent act, it was declared that by the act of 1857
the commonwealth required the purchasers of the main line to
keep the canal " in a condition of repair and fitness for use,
which shall, at all times during seasons of navigation, be equal
and not inferior to the condition of repair and fitness for use
I in which they were at the time the commonwealth delivered
the same into the purchaser's possession." It was held that
under these acts the purchasers were bound to keep the canals
in good repair and operating condition, although they may not
have been in such repair when delivered to them ; that the duty
was immediate on taking possession as respects its obligation,
but not as to the time of its performance ; the purchasers were
entitled to a reasonable time commensurate with the magni-
tude of the work of making the repair ; and if the purchasers
did not commence the repair in a reasonable time, and pursue
it with diligence, they were liable for damages to the owner of
canal boats for such injuries as he thereby sustained, but not
for unavoidable accidents by sudden storms or floods. The fol-
lowing instructions on the measure of damages were approved
by the appellate court: "1st. In cases of detention, the loss
suffered by the expense of hands, horses, provisions consumed,
and loss of the use of the boats, during the period of detention,
would properly be allowed. 2d. In case of damage to the boats
and tackle, caused by defective locks, shallow water, or other
defect, producing unusual wear and tear, the damages thus sus-
tained would be properly allowed. 3d. In cases of injuries
caused by difficult and delayed navigation, owing to the negli-
gence of defendant, the loss of ability to carry freight, if
offered, and extra length of voyages, would be the subject of
just compensation. 4th. If by such detentions a trip, which
could, in a proper state of repair, be made in a certain time,
should be prolonged for some days, the expense of the boats,
horses, hands and provisions for this extra time would be prop-
erly allowed. 5th. If, in consequence of this difficulty of nav-
igation, caused by defendant's negligence, a boat was compelled
to forego a full load it had offered to it, or certainly could have
had, and had* to take so much less, the net amount of freight
thus lost would be a proper allowance. 6th. If, for the same
reason, the plaintiff was compelled to take two boats to carry

LANDLORD AGAINST TENANT. 143

a load, which otherwise he would have carried in one boat, the
expense of the extra boat, horses, hands and provisions, would
be properly allowed. 7th. If, for the same reason, the plaintiff
was compelled to hire extra teams of horses, and hands on his
boats, to enable them to make their trips, he is entitled to his
actual expenses and losses, and all other losses which he has
proved were the legal, natural and immediate consequences of
the neglect of the defendant. 8th. The plaintiff is entitled to
interest from the date of each loss which he has sustained up
to this date." '

Covenants not to sublet oe assign. — These covenants have *
not generally raised any question of damage, but one of
forfeiture.'' In a recent case in England the action was
brought on the covenants in a lease which bound the lessees
and their assigns to maintain and keep in repair the forge
and buildings demised, and all buildings which should be
erected during the demise, and all additions and improvements
thereto; and to maintain in good working order the fixtures,
steam engines, tools, utensils, and other articles demised ; also
others that might be brought or set up on the premises, and to
replace and make good all such fixtures, engines, tools, utensils
and other articles as should be broken or worn out ; and it was
also covenanted that neither the lessees nor their assigns would
assign or part with the possession of the demised premises
without the consent in writing of the lessor. It was held,
first, that so much of the covenant as to repairs as related to
buildings, and to machinery, tools and utensils which were ten-
ant's fixtures, ran with the land; second, that so much as
related to tools and utensils which were not fixtures did not
run with the land ; third, that the assignee was not liable for
breaches of the covenant after an assignment by him without
the consent of the lessor; fourth, that the covenant not to
assign without the lessor's consent ran with the land, and
bound an assignee to whom the premises had been assigned
with the consent of the lessor ; fifth, that the lessor could re-
cover damages indirectly in respect of those breaches which

1 Pennsylvania R. R. Co. v. Patter- 2 Taylor's L. & T. ch, IX.
son, 73 Pa. St. 491.

Hi LANDLOED AND TENANT.

had already occurred, and future breaches; that the measure of
damages was such sum as "would, so far as money could, put
the plaintiff in the same position as if he had retained the lia-
bility of the defendant, instead of having an inferior remedy
against a person less able to perform the covenants or to com-
pensate for the breach of them.'

Covenants to insuee. — The bare covenant to insure is merely
personal, extending only to the covenantor and his personal
representatives, without binding the assignee of the term, and
in general gives the landlord no right to receive the insurance
money from the insurers ; but when it contains a clause for re-
instating the premises with the insurance money, he may not
only require it to be so applied, but it becomes also a covenant
running with the land, enabling the assignee of the reversion
to maintain an action for its breach.^ In case of a breach of
such a covenant, the lessor is entitled to recover the value of
the premises lost to the plaintiff by the defendant's neglect to
insure, not exceeding the sum to which the defendant was by
his covenant to have insured.' And it will make no difference
that, on failure of the lessee to insure, the lessor was allowed
by the lease to do so, and charge the premiums as rent.*

Where the plaintiff has paid the insurance premium and the
covenant to insure has been brolien, he may recover it back,
no special loss having occurred.' The plaintiff being himself a
lessee and under like obligation, such payment of the premium
was not voluntary, but necessary for his own safety. And
doubtless if an ordinary lessor had, on his tenant's default, in-
sured for his own protection, he would be entitled to recover of
his lessee the amount so paid.^ This author says : " If, however,
he has not paid the premiums, then the question is how much is
the reversion the worse by reason of the lapse or non-existence
of such a policy ; no loss having as yet occurred ? The answer
to this would seem to be, that the loss to the reversion is meas-
ured by the amount which it would cost the plaintiff to put

1 Williams v. Earle, 9 B. & S. ' Douglass v. Murphy, supra.
741. *Id.

2 Taylor's L. & T. §400; Douglass ^Hey y. Wyche, 13 L. J. Q. B. 83.
V. Murphy, 16 U. C. Q. B. 113. « Mayne on Dam. Wood's ed. 374.

LANDLORD AGAINST TENANT.

145

himself into the same positioii as he would now be in, had the
defendant kept his contract. If no insurance has been effected,
this amount would be the cost of entering into one ; that is, all
the charges which a party has to incur at starting, before his
next premium falls due. If a policy has been effected, then the
arrears of premiums (if the office will accept them), or the cost
of a new policy, which ever is cheaper. It seems plain that this
is all to which the plaintiff is entitled ; he can claim nothing in
respect of the past risk, for this is over ; nor in respect of past
payments, for he has made none. The cost of commencing an
insurance will, at any moment, secure him against risk till de-
fault made in paying the premiums ; and when this takes place,
he may pay them himself, and recover their amount as
damages." ^ Where the covenant does not iix the amount of
insurance to be effected, but is general to insure against
loss by fire, it wiU be intended that there should be fuU in-
demnity, and the value of the property lost by the failure to
insure may be recovered.^ Where a defendant agreed'with the

iSee Charles v. Altin, 15 C. B. 46.

2 Ex Parte Bateman, 3 Jur. N. S.
365; Betteley v. Stainsby, IS C. B. N.
S. 477; Douglass v. Murphy, supra;
Beardsley v. Davis, 53 Barb. 159.
See Charles v. Altin, 15 C. B. 46. In
this case, by a charter-party, it was
agreed between the master and the
charterers, that one-third of the
stipulated freight should be paid be-
fore the sailing of the vessel, — the
same to be returned, if the cargo
was not delivered at the port of des-
tination,— the charterers to insure
the amount at the owners' expense,
and deduct the cost of doing so from
the first payment of freight. The
charterers paid one-third of the
freight, deducting the premium of
insurance. In an action by the
charterers to recover back the freight
so paid, the owner pleaded that the
loss of the freight to be returned
was such a loss as was by the char-
ter-party to be insured against by the
charterers at the owners' expense.
Vol. Ill — 10

and such insurance, if effected^
would have indemnified the defend-
ant against the loss of the freight
stipulated to be returned; that, al-
though the plaintiff might, with the-
use of reasonable care and diligence),
have effected an insurance whereby
the defendant and the owners. o£ the
ship would have been fully indemni-
fied against the loss of the one-third
of the freight so to be returned,, the
plaintiffs effected the insua-ance so
negligently and out tai the usual
course of business, that the same be-
came of no use or value, and the de-
fendant, by reason of such improper
conduct, had sustained damages to
the amount of said third freight so
insured, and the plaintiffs thereby
became liable to the defendant for
the same, and liable to make good to
the defendant such amount as he
should have to return to the plaint-
iffs under this charter-party; and any
sum paid or returned by the defend-
ant to the plaintiffs in respect of the

146 LANDLOKD AND TENANT.

l)lainti£f to have the building of the latter insured in some good
company, and had made arrangements with an insurance com-
pany for that purpose, but before the insurance was effected the
building was burned, and it appeared that the company so
selected, in consequence of the great Chicago fire, had become
insolvent, but was good when the arrangement was made, it
was held that the sum at which the insurance was agreed to be
made was not the proper measure of damages for breach of the
agreement, but only such dividend as the insurance company
would be able to pay in case the insurance had been perfected
before the loss.^

Section 2.

tenant against landlord.

Breach of landlord's obligation for tenant's quiet enjoynient — Special and
consequential damages — Lessor's covenant to repair, rebuild and im-
prove — Recoupment.

BeEACH of LANDLOEd's OBLIGATION FOE TENANt's QUIET ENJOY-
MENT.— Where a lease is made, there is either an express or
implied engagement on the part of the lessor that he has such
title to the premises as enables him to give the lease, and that
the lessee shall not be disturbed in his possession during the
term by the lessor, nor by a paramount title.^ If the lease
contains an express stipulation on this subject, although a
restricted one, none wiU. be implied.' A disturbance of posses-
freight, would be the damages sus- T. § 304; Mayor, etc. v. Maybie, 13 N.
tained by the defendant, by reason Y. 151; Tone v. Brace, 8 Paige, 597
of such improper conduct and devi- Vemam v. Smith, 15 N. Y. 337
ation^ and the defendant would be Graves v. Berdan, 26 N. Y. 498;
damnified to that extent. The plea Granger v. Collins, 6 M. & W. 458
was held bad on demurrer, inasmuch Maule v. Ashmead, 20 Pa. St. 483:
as the conclusion was not warranted Bandy v. Cartwright, 8 Exch. 913:
by the facts stated, for the liability Carson v. Godley, 26 Pa. St. 117
of the plaintiffs in respect of their Boss v. Dysart, 83 Pa. St. 453:
negligence in effecting the issuance, Baugher v. Wilkins, 16 Md. 35.
was 9, liability to damages, which ' Gardner v. Keteltas, 3 HUl, 380;
were not necessarily identical in HoweU v. Richards, 11 East, 643;
amount with the claim set up by the Burr v. Stenton, 43 N. Y. 463; Mer-
plaintiffs in the action. rfU v. Frame, 4 Taunt. 829; Line v.

1 Chicago Building Society v. Stephenson, 4 Bing. N. C. 578; S. C.
Crowell, 65 111. 453. 5 Bing. N. C. 183.

2 Smith's Li. & T, 306; Taylor's L. &

TEHANT AGAINST LANDLOED. 147

sion by a stranger, having no title, will not be a breach of
the covenant for quiet enjoyment; but any interference with
the possession of the lessee, more than a mere trespass, by the
lessor himself, will be a breach of his engagement.' Hence, if
a party accepts a lease and engages absolutely to pay rent for
premises which the lessor owns and has power to lease for the
term he undertakes to grant, the lessee will be bound to pay
the rent though kept out of possession by a former tenant
whose term has expired.^ But an entry by the lessor himself,
tortiously and without right or title, will amount to a breach.'
Every grant of any right, interest or benefit carries with it an
implied undertaking, on the part of the grantor, that the grant
is intended to be beneficial; and that, so far as he is concerned,
he will do no act to interrupt the free and peaceable enjoyment
of the thing granted.*

When the lessee is prevented from taking possession, or is
afterwards evicted by the lessor, or by any other person claim-
ing under a paramount title, ,the general rule of damages in
this country is the same as upon executory contracts for the
sale of real estate, and the covenants for title in conveyances.
In those states where the doctrine of Flureau v. ThornhilP
prevails, the purchaser recovers the consideration money and
interest, and not the value of the property ; he recovers noth-
ing for the loss of the bargain, where the sale is made in good
faith, and fails by the vendor's inability, without his fault, to
give a good title.* Following that analogy, the rents reserved
in a lease, where no other consideration is paid, is regarded as
a just compensation for the use of the premises.'' In case of
eviction, the rent ceases, and the lessee is relieved from a bur-
den which is treated as equal to the benefit which he would
derive from the enjoyment of the property. Having lost noth-
ing, he can recover no damages. He is, however, entitled to

1 Mayor, etc. v. Maybie, 13 N. T. 876; Levitsky v. Canning, 33 Cal.

151; Baugher V. WUkins, 16 Md. 85; 298; Bennet y. Bittle, 4 Rawle, 839.
Taylor's L. & T. § 305. * Dexter v. Manley, 4 Cush. 34.

3 Gardner v. Keteltas, 3 HiU, 330. sg w. Bl. 1078.
See Coe v. Clay, 5 Bing. 440; TruU 6 Vol. II, p. 207.
V. Granger, 8 N. Y. 115; Underwood 'Kelly v. Dutch Church, 3 Hill,

V. Birchard, 47 Vt. 305. , 105; Mack v. Patchin, 43 N. Y.

3 Sedgwick v. HoUenbaok, 7 John. 167.

lis LAIJDLOED AJS'D TENAIs^T.

the costs he has been put to in defending against the paramount
title ; and as he is answerable to the true owner for the naesuo
profits for a limited period, he may recover back the rent he
has paid for the same time, with interest thereon.^ Upon an
executory contract to give a lease, and a refusal to give one,
the rule of damages is the same, if the inability or refusal is
without fault or fraud on the part of the party promising to
execute one.^

In a late case in New York,' one of the two judges delivering
opinions, treated the rules adopted upon the analogy of those
governing between vendor and purchaser as settled in that state ;
but because the lessor was an actor in evicting the tenant, he was
held liable for compensatory damages, measured, not by the
rent, but the value of the lease. The judgment appealed from
was based upon that view, and it was aifirmed. Smith, J., in
an opinion in favor of affirmance, says the mild rule which, has
been stated has not been very satisfactory to the courts in this
country, and it has been modified more or less to meet the in-
justice done by it to lessees in particular cases. He refers to
two English cases ^ as repudiating that rule, and mentions a
ISTew York case ^ as based on the same doctrine. The English
cases do repudiate the rule except as between vendor and pur-
chaser. Earle, 0. J.,* said, " if there be a lease of land in posses-
sion, and the lessee enters under it, and is ousted or evicted by
one against whose acts the lessor covenants, . . . the lessee
is entitled to recover all he has lost, that is, the value of the
term." Byles, J., in the same case, said that the rule firmly
established between vendor and purchaser is that the purchaser

1 Id. ; Kinney v. Watts, 14 Wend. Dl. 306; McClowry v. Cloghan, 1
38. In this case the court also say, Grant's Gas. 307; Van Brocldin v.
in respect to improvements he may Brantford, 30 U. C. Q. B. 347; Chat-
have made upon the premises, and terton v. Fox, 5 Duer, 64; Ricketts
money expended upon them, he v. Lastetter, 19 Ind. 135.
stands upon precisely the same foot- ^Noyes v. Anderson, 1 Duer, 343.
ing with a purchaser who recovers ' Mack v. Patchin, supra,
nothing for improvements or ex- ^ Williams v. Burrell, 1 C. B. 403;
penditures, nor can a lessee, upon Loche v. Furze, 19 C. B. N. S. 96;
an ordinary covenant for quiet en- afBrmed, L. E. 1 C. P. 441.
joyment. McAlpin v. Woodruff, 11 ' Trull v. Granger, 8 N. Y. 115 ,
Ohio St. 130; Mack v. Patchin, 43 « Loche v. Furze, supra.
N. Y. 167; Green v. WiUiams, 45

TENAUT AGAINST LANDLOED. 1*9

is not to be placed in the position lie would have been in if the
vendor had performed his contract, but in the position he — the
purchaser — would have been in if the contract had never been
made ; that is, he is entitled to a return of his deposit, with in-
terest, and to any expenses he may legitimately have been put
to in investigating the title, and to nominal damages and no
more. " That," he adds, " is an anomalous rule, confined, for
the sake of general convenience, to the case of vendor and pur-
chaser. In all other cases of breach of contract, the measure of
damages is the loss the plaintiff has proximately sustained by
reason of the breach of the defendant's contract." ^

In several states of the Union the doctrine of Flureau v.
Thornhill has never been adopted between vendor and pur-
chaser, and has no influence upon the adjudications between
lessor and lessee.^ Where a lessor knows, or is chargeable with
notice, of such defect of his title that he cannot assure to his
lessee quiet enjoyment for the term which such lessor assumes to
grant; where he refuses in violation of his agreement to give a
lease, or possession pursuant to a lease, having the ability to
fulfil, as well as where the lessor evicts his tenant, he is charge-
able with full damages for compensation, and the doctrine of
Flureau v. Thornhill has no application. On this general prop-
osition the authorities agree. In such cases the difference be-
tween the rent to be paid and the actual value of the premises
at the time of the breach for the unexpired terra, is considered
the natural and proximate damages.' Where the lessee is de-

1 See Eolph v. Cranch, L. R. 3 Ex. 30; Trail v. Granger, 4 Seld. 115;
44. Driggs V. Bwight, 17 Wend. 71;

2 Gore V. Brazier, 3 Mass. 533; Tracy v. Albany Exp. Co. 3 Seld.
Dectav. Manly, 4Cusli. 14; Horsford 473; Chatterton v. Fox, 5 Duer, 64;
V. Wright, Kirby (Conn.), 3; Sterling Dean v. Eoesler, 1 Hilt. 430; Myers
V. Peat, 14 Conn. 245; Hardy v. Nel- v. Burns, 35 N. Y. 273; Porter v.
son, 37 Me. 535; Elder v. True, 33 Me. Bradley, 7 R. I. 538; De La Zerda v.
104; Doherty v. Dolan, 65 Me. 87; Kern, 25 Tex. Sup. 188: Dexter v.
OasweU v. Wendell, 4 Mass. 108; Manly, 4 Cusb. 14; Townsend v.
Sumner v. Williams, 8 Mass. 333; McKenon Wharf Co. 117 Mass. 501;
White Y. Whitney, 3 Met. 81; Giles v. O'Toole, 4 Barb. 261;yeager
Hertzog v. Hertzog, 34 Pa. St. 418; v. Weaver, 64 Pa. St. 435; WoM v.
McNair v. Compton, 85 Pa. St. 33. Studebaker, 65 Pa. St. 459; CiUey v.

3 Green v. Williams, 45 111. 306; Hawkins, 48 lU. 308; Newbrough y.
Dobbins v. Duquid, 65 111. 464; Mack Walker, 8 Gratt. 16.

V. Patchin, 43 N. Y. 167; 39 How. Pr.

150 LANDLOED AND TENANT.

prived of possession and enjoyment under such, circumstances,
the lessor is either guilty of intentional wrong, or he has made
the lease and assumed the obligation to assure the lessee's quiet
enjoyment with a culpable ignorance of defects in his title, or
on the chance of afterwards acquiring one. In neither case has
he any claim to favorable consideration, and he is not excused on
the doctrine of Flureau v. Thornhill from making good any loss
which the lessee may suffer from being deprived of the demised
premises for the whole or any part of the stipulated term, l^or
would a vendor, who had contracted for the sale and convey-
ance of land, and, being able to fulfil, refused, or was unable to
perform by reason of a known absence or defect of title, be held
liable to the purchaser for less damages than the value of his
bargain.' A lessee who is thus denied possession, or evicted,
may recover the difference between the agreed rent and the
actual rental value as general damages. It is not necessary to
state them as special damages in the declaration.^ A tenant at
will, evicted by his landlord, without notice, may recover dam-
ages until the time when the tenancy at will might have been
terminated by the landlord — even in an action brought before
the expiration of that time.'

Special and conseqttential damages. — If the lessee has been
put to costs in defending against the paramount title, he is enti-
tled to recover them, and his right to them is governed by the same
principles that apply when the action is brought upon other forms
o'f warranty. There is included an implied indemnity against
all such costs as have been properly and necessarily incurred.*
These include not only the costs recovered by the claimant of
the superior title, but also the costs incurred in the unsuccessful
defense, where the lessee is justified in making a defense.^ Such

1 Vol. II, p. 216. 598; Lewis v. Peake, 7 Taunt. 153

3 Green v. Williams, 45 111. 306. Mainwaring v. Brandon, 8 Taunt

3 Ashley v. Warner, 11 Gray, 43. PenneU v. Woodbum, 7 G. & P. 117

* Wynn v. Brooke, 5 Eawle, 106; Blyth v. Smith, 5 Man. & Gr. 405

Vol. I, p. 140; Vol. II, p. 303. LefflngweU v. ElUott, 10 Pick. 304

sWillson V. Willson, 25 K. H. 339; Reggio v. Braggiotti, 7 Gush.' 166

Williams v. Burrell, 1 C. B. 403; Ottuma v. Parks, 43 Iowa, 119; New

Howes V. Martin, 1 Esp. 163; Haven, etc. Co. v. Hayden, 117 Mass.

Wrightup V. Chamberlain, 7 Scott, 433; Rolpb v. Crouch, L. R. 8 Ex.

TENANT AGAINST LANDLORD.

151

costs must be specially claimed in the declaration; they are
items of special damage.^

If other damages have resulted as the direct and necessary
or natural consequence of the defendant's breach of the con-
tract, these are also recoverable. For example, if the plaintiff
in good faith, and relying on the contract, has made preparations
to take possession, and these have been rendered useless by the
defendant's refusal to comply with his contract, the authorities
hold that there may be a recovery for the loss thus sustained.^
Thus, where a party agrees to demise certain premises to
another, who breaks up his establishment and proceeds with his
family and furniture to the place where the premises are situate,
and the landlord refuses to give possession, the tenant is enti-^
tied to recover the damages sustained by such removal of his
family and furniture.' So where a defendant had leased a
farm to plaintiffs, and permitted them to enter and break ground
before the lease commenced, and afterwards when the lease
commenced refused to let them have possession, it was held

44; MoAlpin v. Woodbury, 11 Ohio
St. 130; Harding v. Larkin, 41 111.
413; Levitsky v. Canning, S3 Cal.
399; Adamson v. Eose, 80 Ind. 380;
Phipps V. Tarpley, 31 Miss. 433;
Fernander V. Dunn, 19 Ga. 497; Blake
V. Burnham, 39 Vt. 437; Baxter v.
Eyerss, 13 Barb. 367; Sterling v.
Peet, 14 Conn. 345; Welsh v. Kibler,
5 S., C. 405; Hardy v. Nelson, 37 Me.
535; Keeler v. Wood, 30 Vt. 343;
Ryerson v. Chapman, 66 Me. 557.

1 Green v. Williams, 45 111. 206.

2 Adair r. Bogle, 30 Iowa, 338;
Green v. Williams, supra. In Pratt
V. Paine, 119 Mass. 439, a lease of a
dwelling house for five years pro-
vided that the lessor might terminate
the lease by notice, and that if this
was done during the first three years
of the term, the lessee should be
paid such sum as a compensation
for the loss he might "by such
abridgnient of the term sustain in
consequence of expenditures in-

curred by the lessee in fitting up the
premises, and expense incurred in
removing." In an action by the
lessee to recover for expenses in-
curred in fitting up the premises,
the lease having been terminated by
notice within the three years, it
appeared that at the time the lease
was made the building was in thor-
ough repair, but the lessee made
changes in it, and furnished it; held,
that the term fitting up the premises
included not only the fiteng up the
building and premises for the uses
of the lessee, but also the fitting up
of the furniture to the building;
and that the measure of damages
was the loss sustained by reason of
his having incurred such expendi-
tures, the full benefit of which he
had lost by the abridgment of his
term, and not the entire cost of the
fitting up.

3 Driggs V. Dwight, 17 Wend. 71;
GUes V. O'Toole, 4 Barb. 361.

152 LANDLOED AND TENAJSfT.

that they Avere entitled to recover not only the market value
of this lease, but also for the worth of the labor they had
bestowed upon the premises, together with such other losses as
they had sustained by incurring expenses in preparing to carry
out their agreement under the lease.^

A defendant in New Hampshire proposed by letter to the
plaintiff residing in "Wisconsin, that if the latter would come to
the writer, he would give him and his wife a year's board, and
allow him to carry on the defendant's farm. The defendant
having refused, on the plamtifE complying with his proposition,
to fulfil his agreement, it was held that the expenses incurred
by the plaintiff in so removing his family, and compensation
for his necessary loss of time, as well as the loss of other advan-
tages offered him in the contract, might be recovered ; but not
his sacrifice in selling off his property with a view to such
removal.^

If the tenant has expended money in improvements, these will
not add to the damages a lessee is entitled to recover for eviction,
except as such expenditures enhance the rental value, or the
value of the premises for the particular use they may have
been rented for, unless the tenant has some property in the
improvements, and is entitled to be paid therefor, or to remove
them ; ^ in which latter case, to the extent to which the defend-
ant's act of disturbing his possession injures his rights in the
new erections, or entitles him to claim as for their destruction
or conversion, his damages for eviction will be increased.* In
an action for a tortious and illegal eviction, brought by a tenant
against his landlord, where the former with his family and
goods have been ejected from the premises demised to him, he
may recover in addition to other damages for injury to his
feelings; but not for injury to his health from exposure, in
going two days afterwards from the premises to another place,
or from attending his family when ill from the effects of the
eviction, or from grief at their illness.'

Where premises are let for a particular purpose, if the lessor

1 Cilley V. Hawkins, 49 lU. 30S. s Schlemmer v. North, 33 Mo. 306;

!! Woodbury v. Jones, 44 N. H. 306; Flagg v. Dow, 09 Mass. 18.

Adair V. Bogle, 30 Iowa, 338; Yeager ^Ricketts v. Lastetter, 19 Ind. 135.

V. Weaver, 64 Pa. St. 435. spiiiebrown v. Hoar, 134 Mass. 580,

TENAUT AGAINST LANDLOED. 153

withholds them, or any part, he will be liable for the rental
value of the premises for that pm-pose or the diminution of
value from the loss of the part withheld.' And if an established
business is suspended by eviction, or probably by refusal to
renew a lease pursuant to agreement, the injury suffered in the
breaking up of that business may be taken into consideration
in the assessment of damages. A lease for years was made of
real estate comprising a factory, water power, tools, machinery
and apparatus for carrying on the manufacture of pails. In an
action on the impMed covenant for quiet enjoyment, the plaint-
iff was permitted to introduce evidence on the question of dam-
ages for the interruption of his business, and on the value of
his lease ; to show the condition and capacity of his works, the
number of pails that could be made, the cost of making them,
and their price at the shop and in the market. He also called
a witness who had been engaged in making similar pails at a
place twenty-five miles distant from the plaintiff's works, who
was permitted to testify to the particular items of cost of the
manufacture, to the price of paUs at the shop and in the market,
and to the profits of the business. The appellate court held
there was no error in admitting such evidence, for it enabled the
judge to approximate to the actual damage.^

How far the lessee is entitled to have his damages increased
by including compensation for any loss he may suffer in having
a business, contemplated or being done on the demised premises,
thwarted or broken up, is not quite settled. The cases agree
that, where possession is withheld or interrupted by the land-
lord, the tenant is entitled to damages on the basis of the rental
value at the time of the breach. That is an element of dam-
age or measure of redress to which he is manifestly entitled,
because such value is the natural and direct product of the con-
tract. This value, however, may not be the special value the
premises may have for the lessee's use, but is the market value, —
the value for general use, or which might be realized by sub-
letting, or by assignment of the lease. It is not enhanced or
affected by consideration of any profits which the lessee has by

iHexter v. Knox, 63 N. Y. 561; 65 111. 464; Dexter v. Mauley, 4
Townsend v. Nickerson Wharf Co. Cush. 14.
117 Mass. 501; Dobbins v. Duquid, 2 Dexter v, Manley, 4 Cush. 14,

134 r.ANDLOED AND TENAITT.

his plans in prospect, or is actually realizing, in a business pro-
jected or being conducted on the demised premises, and for
which they are essential to him for the time being. The sus-
pension of a profitable business, even if it can be re-established
elsewhere, involves a loss of the gains which would be made
in the interval, the expense of the change, and if a good will
has been created, that will be in some measure, if not wholly,
lost by the removal to a different place. The objection usually
made to the allowance of damages for the loss of profits, when
they are disallowed, is that such damages are remote and uncer-
tain or speculative. They are not remote when the premises
were leased for the particular business, and the action is against
the lessor or his successor in interest, by the lessee or his as-
signee, whether the action is on the covenant for quiet enjoy-
ment or in tort; nor are they remote to a wrongdoer who
destroys or impairs a business open to his observation.^ The
objection that the damages are uncertain and speculative is in-
superable when they are incapable of estimation and proof with
that degree of certainty requisite to establish facts for the con-
sideration of a jury. There should be no distinction as to the
degree of certainty required in proof between this fact and any
other upon which either the right to damages or their amount

1 Townsend v. Nickerson Wharf he had a sum of money, in a box in

Co. 117 Mass. 501; Hexter v. Knox, that building, which was lost in the

63 N. Y. 561; Chapman V. Kerby, 49 removal. It was held that the

HI. 311; Smith v. XJnderlich, 70 III. plaintifiE was not bound to gather up

436; Dobbins v. Duquid, 65 lU. 464; the fragments of his scattered and

New York Academy of Music v. broken chattels, but was at liberty

Hackett, 3 HUt. 317; Allison v, to leave them where the defendant

Chandler, 11 Mich. 542; Seyfert v. placed them, and to look to him for

Bean, 83 Pa. St. 450; Park v. C. & their value; that the plaintiff was

S. W. R. Co. 43 Iowa, 636; Lacour entitled to recover for all losses oc-

V. Mayor, etc. 3 Duer, 406; St. John casioned by the trespass including

V. The Mayor, etc. 13 How. Pr. 537. the destruction of the building, the

In Eten v. Luyster, 60 N. Y. 352, loss of the money, and the value of

the purchaser of the reversion had the unexpired term; that although

evicted the tenant, and the latter the money was kept in an unusual

brought an action for the damages, place, and the defendant may not

The defendant had torn down and have suspected its presence, yet that

desti-oyed a building built by plaint- he was hable for its loss, such loss

iff on the premises; the plaintiff also being the direct result of his acts,
gave evidence tending to show that

TENANT AGAINST LANDLOED. 155

depends. A conservatism, however, pervades generally the law
of damages ; and it being the common experience that there is a
svide difference between theoretical or speculative profits esti-
mated in advance without any actual data, and the results usu-
ally achieved when the scheme is put in practice, it is necessary
that the law should discard what is merely fanciful, or possi-
ble, and only permit those profits to be considered which have
some basis of actual facts to support them.

In a ISTew York case which went to the court of appeals, a
tenant had been evicted by his landlord, by void summary
proceedings before a justice, which were annulled on certiorari,
and he brought an action for the damages resulting from such
expulsion. On the trial, the plaintiff was the only witness as
to the amount of damages. He estimated the damage to his
property in items amounting to $4,645, and also testified, with-
out objection, that he lost a large amount — four thousand
dollars — which he supposed or estimated he would have made,
if he had not been molested. This supposed loss, so stated, it
was held he was not entitled to recover. 'No facts were stated
which a jury could weigh; the profits claimed to have been
lost were, so far as appeared, wholly conjectural. In an earlier
case,^ suit was brought against a municipal corporation
for causing a nuisance in the street, by which the plaintiff,
as proprietor of a restaurant and lodging-house, lost custom
and the consequent profits. The plaintiff showed the actual
receipts of his hotel the year previous to the obstruction com-
plained of, the actual daily receipts during its continuance, and
also the actual daily receipts for some months after the ob-
struction was removed ; also that the expenses were in the same,
or in about the same, ratio to the receipts during the whole
period. On this state of facts. Woodruff, J., thus discussed
the right to damages and the proof of them: "When it is
bor;ie in mind that the plaintiff kept a refectory and boarding-
house for the resort of daily visitors for their various meals,
and of transient persons for their lodgings, it is difficult to
suggest any other mode of ascertaining the effect upon the
plaintiff's business than this. To say that he must prove what

1 St. John V. Mayor, etc. 13 How. Pr. 537.

156 LANDLOED AND TENANT.

persons were prevented from visiting his house, and what meals
they would have taken and paid for, is to suggest a mode of
proof obviously impracticable; and if it was done, it would
still leave the same inquiry, what would have been the profits
upon the meals they took and paid for, which is now objected
to. The loss of custom, and the consequent loss of profits, is
the very matter to be recompensed in this action, and the cases
to which we are referred are not analogous.

" In De Winte v. "Wiltse,' the plaintiff recovered for the loss
of the rent he had been accustomed to receive for a house he
erected to be let as an inn, or tavern, although, in general, in
actions for the breach of contract, loss of profits are not recov-
erable;^ and purely contingent or speculative profits, it is
sometimes said, are not the subject of recovery. This is a
somewhat loose statement of the proposition, which does not
exclude all reference to probable profits. It is undoubtedly
true [that profits are recoverable], under certain circumstances,
in every sense ; for example : A agrees to let a tavern-house to
B, and afterwards refuses to give a lease. The actual value of
the house, contrasted with the sum paid, or to be paid there-
for, is the damage sustained, and yet the elements of value
consist in location, good will, if any, the long habit of travelers
to resort to a well, and like circumstances, and the experience
of the past, must necessarily enter into the estimation of either
the witnesses or the jurors. On the other hand, if the house
be hired for a dwelling, the cost of another, having equal
advantages, is the only guide in determining the damages." '

There is no reason for applying a rule more favorable to a
party injuring another's business by an act which is both a tort
and a breach of contract, as is the case when a landlord dis-
turbs the possession of his tenant, than to one who so disturbs
a possession and impairs a business merely as a tortfeasor;
though in many cases of tort the jury is permitted to award
compensation upon less certain proof than that ordinarily re-
quired in actions upon contracts. Hence, when the action for

1 9 Wend. 335. 3 WUkes v. Hungerford Market

2 See Blanchard V. Ely, 31 Wend. Co. 3 Bing. N. C. 381; Lacour v.

350; Downie v. Potter, 5 Denio, 306; Mayor, etc. 3 Duer, 406; Marquart

GUes V. O'Toole, 4 Barb. 361. v. La Farge, 5 Duer, 559.

TENANT AGAINST LANDLOED. 157

disturbance of possession is based upon the tort, as it must be
when brought against one standing in no privity to the plaint-
iff, and as it may be even against the landlord, the form of the
action may have some influence on the required quantity of
proof. But where there is a legal standard of damages, and
this equally measures the compensation due to the injured
party, whether the act complained of is a tort or a breach of
contract, any evidence which would suffice in the one form of
action to prove that act and its consequences ought to be
accepted as sufficient in the other for the same purpose. If
there be any such rule as that loss of profits constitutes no
ground or element of damages, it is not a universal rule, nor a
general rule. There are numerous cases, even for breach of
contract, in which profits have been properly held to constitute
not only an element, but the measure of damages.^ When it
is advisedly said that profits are uncertain and speculative and
cannot be recovered, when there is an alleged loss of them, it is
not meant that profits are not recoverable merely because they
are such, nor because profits are necessarily speculative, con-
tingent and too uncertain to be proved ; but they are rejected
when they are so; and it is probable that the inquiry for
them has been generally proposed when it must end in fruitless
uncertainty; and, therefore, it .is more a general truth than a
general principle, that a loss of profits is no ground on which
damages can be given. In an early case,'* a defendant agreed
to let the plaintiff have the use of certain mills for six months
for 101., which was shown to be the full rental value ; but dam-
ages for being deprived of the use to the amount of 500Z. were
given with the sanction of the court, by reason of the stock
laid in by the plaintiff.*

1 Allison V. Chandler, 11 Mich. 658. The court said the plaintiff is enti-

2 Nurse v. Barns, T. Raym. 77. tied to 'recover all expenses necessa-

3 In Green v. Williams, 45 111, 206, rUy incurred by her in consequence
the defendant had rented a store to of the defendant's refusal to give
the plaintiff for a year, in which the possession, so far as said expenses
plaintiff intended to carry on busi- are declared for; but she is not enti-
ness as a milliner. Before the term . tied to recover profits that she might
commenced, the defendant leased have made by conducting her busi-
and gave possession to another, ness upon the demised premises.

158

LANDLORD KSB TENAJUT:

A landlord ousted his tenant during his term, and the latter
brought trespass. Not having re-entered, it was held .he could
recover damages for the ouster, and all the necessary or natural
consequences thereof, including those resulting from breaking
up the plaintiff's business, but not for the value of the unexpired
term or the mesne profits.'

Damages on the basis of the excess of the rental value above
the stipulated rent is wholly independent of the consideration
of any special use of the premises, the rental value being merely
the actual or market value. Hence, if the lessee is prevented
by' the lessor from taking possession, and has incurred any ex-
penses for that purpose, they are an additional item of dam-
ages ; and for the same reason, if, after taking possession, the
lessee establishes a profitable business, which is broken up by
eviction, or impaired by enforced suspension or transfer to an-
other place, any damage resulting therefrom which can be es-
tablished with the requisite certainty, may be recovered, in
addition to those computed on the basis of the rental value.

Such damages are remote, speciila-
tive and incapable of ascertainment.
Besides, it does not appear that the
plaintiff was not able to find another
store equally favorable to her busi-
ness. Olmstead v. Burke, 35 111. 86;
G-Ues V. O'Toole, 4 Barb. 261.

" If, however, it had appeared
that her business was unavoidably-
suspended in consequence of the de-
fendant's breach of his contract, we
are of opinion she should receive,
not speculative profits, but interest,
during such suspension, on the
amount of capital invested in her
business, and, for the time being,
lying idle. Freeman v. Clute, 3
Barb. 434." See De LaZerda v. Korn,
25 Tex. Sup. 188; Rhodes v. Baird,
16 Ohio St. 573.

In Dobbins v. Duquid, 65 111. 464,
the lessor of premises used by the
lessees in carrying on the business
of dealers in wood and coal, after
this destruction of the buildings

thereon by the great Chicago fire in
1871, and before the expiration of
the term, leased the premises to
other parties and put them in pos-
session. This was supposed to be
•done by some forgetfulness or mis-
take. The court held that the lessor
w^as liable to the prior lessees, in any
event, for the difference between the
rent to be paid, and the actual rental
value of the property, and also for
any loss to their business which
could not reasonably have been
avoided. The plaintiff was pre-
vented from recovering anything
under this last ruling, by having
refused the defendant's offer of other
premises near to those which had
been demised, the court holding that
it was the plaintiff's duty to make
ordinary and reasonable effort to
prevent any loss to their business^
By declining the defendant's offer
they failed in that duty.
'Smith V. Wunderlioh, 70 111. 436.

TENANT AGAINST LANDLOKD.

159

The recovery of the value of the lease has sometimes been sup-
posed to include any damage done to the lessee's business. ^ This

I In Smith v. Wunderlich, 70111.
426, McAllister, J., thus discusses
this question : ' ' There is no evidence
tending to show that after the ouster
was consummated, they (the plaint-
iffs) made any lawful re-entry, or
brought any action for forcible entry
and detainer to recover possession;
but, on the contrary, they brought
this action to recover for the ouster,
before the term expired, and, by the
instructions now in question, the
jury were directed, in assessing dam-
ages, to first allow plaintiffs the
rental value of the premises above
the rent they were paying, for the
residue of the term, and then, any
loss sustained in their business as a
necessary consequence of the ouster,
after the time it occurred. The
words any loss would, of course, in-
clude the loss of profits which they
would have realized, if they had not
been ousted, by the use of the prem-
ises, in carrying on their business.
The jury could not understand it
otherwise, because the basis was laid
for estimating prospective profits, by
showing what had been the net prof-
its of the business for the month
next previous to the ouster, which
included not only their own time
and labor, but the use of the prem-
ises in producing them. It is obvi-
ous that the plaintiffs could not
realize the advanced rental value
over and above what they had to pay
for rent, as an income independent
of the profits derived from using the
premises in conducting their busi-
ness, without renting or otherwise
disposing of them to another party;
and common experience teaches us
that they could not do that, and still
retain them, to be used for carrying
on their business.

" There may be cases where, from
the peculiar circumstances of the
disseizee's business, and the actual
rental value of the premises, the dif-
ference between the actual rental
value and what it was paying as
rent would not be full compensation
for the loss in having his business
broken up by the disseizin. "When
such is the case, the plaintiff has
been permitted to naake his election,
and instead of recovering the rental
value, demand compensation for the
loss of profits in his business, occa-
sioned by the ouster. The case of
Chapman et al. v. Kirby, 49 HI. 211,
though an action on the case, and
not trespass, was decided upon that
principle; but it seems to us that to
allow as a measure of damages both
the advanced rental value, and pros-
pective profits, which could be real-
ized only by the use of the premises
by the plaintiffs themselves, would
be to establish mere arbitrary rules
of damage, devoid of sense or justice
either in their basis or application.
But aside from improperly uniting
the two grounds of damage, is the
rule as to the rental value, under the
circumstances of this case, a correct
one ? It is laid down by the instrucr
tion under consideration, without
qualification, and is in effect, that
where a tenant for years is ousted
by strangers — we say strangers, be-
cause there is no allegation in the
declaration about the tenancy, or
one of the defendants being lessor, —
the disseizee, without subsequent re-
entry, may bring trespass for the
disseizin immediately after it is ef-
fected, and recover as one species of
damage the value of the unexpired
term. Suppose the term has five,
ten or twenty years to run. Surely

160

LANDLORD AHD TENAITT.

is obviously a mistake where the rental value rather than the
special value to the lessee is estimated.^

there can be no sucli rule as that;
because, if there were, as applicable
to terms for years, why not upon the
same principle extend it to any
greater estate ? Suppose, again, that
the plaintiffs' unexpired term had
five years to run, and, without any
re-entry, they had waited four years
before bringing this suit, and then
another year had elapsed before
trial, the statute of limitations would
not have been transcended; but
could they recover mesne profits, or
the rental value for that entire
period ? If for five months, why not
for five years ? The answer to these
queries is the established rules of the
common law." . . .

" In the case at bar the plaintiffs'
time had not expired, and did not
expire until several months after this
suit was brought. There was ample
time for them to have brought an
action of forcible entry and detainer,
and thus have regained possession.
That done, the law, by a kind of
Jus postliminii, or right of reprisal,
would regard the possession as hav-
ing been all along in them (3 Black.
Com. 310); and then after the expi-
ration of their term, they would be
entitled to recover, as mesne profits,
the value of their lease or term; for,
as a general rule, the annual value
of land is the measure of mesne
profits. Adams on Eject. 391; Sedg.
on Dam. 124. The theory on which
such recovery could be had would
be, that the trespass had continued
to the end of the term." See Ash-
ley V. Warner, 11 Gray, 43.

1 Dobbin v. Duquid, 65 lU. 464. In
Rhodes v. Baird, 16 Ohio St. 473, the
action was brought upon a contract
made January 1, 1858, between the
parties, by which the defendant

agreed to furnish twenty-seven acres
of land to the plaintiff, on which to
plant a peach orchard; also a dwell-
ing house, certain pasturage, fuel,
and about thirty acres of tillable
land. In consideration of this agree-
ment on the part of the defendant,
the plaintiff agreed to set out two
thousand peach trees on the tract of
twenty-seven acres, and to assist in
the cultivation of a peach orchard
thereon, and in the business of rais-
ing and selling fruit therefrom. Ifc
was further agreed that the expenses
were to be borne by the parties in
equal portions, and that the number
of trees should be increased until
the entire twenty-seven acres
should be planted. The agreement
was to continue for ten years, or
longer, if the orchard should con-
tinue to bear fruit and prove profit-
able. A lease was to be made to the
plaintiff embodying these terms.
After the plaintiff had been in pos-
session and planted two thousand
peach trees, defendant refused to
execute the lease, and he was evicted
by the defendant from a part of the
premises when the peach trees were
about two years old. On the trial a
witness who had the special knowl-
edge to qualify him to testify as an
expert, was asked the following
questions:

"First. What is the average life
of a peach orchard in this county ?

" Secpnd. Taking the average of
crops for the last ten or fifteen years
in this county, how many crops may
be reasonably expected from a peach
orchard during its life ?

" Third. Taking the average of
prices for the last ten or fifteen
years, what would be the future
profits of a peach orchard of budded

TENANT AGAINBT LANDLOED.

161

trees in this county upon an average
crop?

' ' Fourth. Taking the probabilities
of crops in the future, and the aver-
age price of peaches for the last ten
or fifteen years, what would be the
value per tree of such a peach or-
chard, two years old, with the priv-
ilege of having them stand on the
land for the life of the orchard ? "

The witness testified, under objec-
tion, in answer to these questions,
"that the average life of peach or-
chards in this county, in ordinary
good locations, is about twelve to
fifteen years, and that taking the
average of peach crops for the last
ten or fifteen years in this county,
he was of opinion that a peach crop
might reasonably be expected, from
an orchard in this county, about
once in three or four years, after it
began bearing and during its life.
• And that taking the average of
prices for the last ten or fifteen years
in this county, the future profits of
a peach orchard of budded trees in
this county, upon an average crop,
would be probably, at a low esti-
mate, about one dollar and fifty
cents per tree in the orchard for each
crop; that he knew no market value
for peach trees about two years old
in such an orchard; that he never
knew or heard of one selling at that
age, and that judging from what a
peach orchard would probably pro-
duce, and the probable price of
peaches, he would be of the opinion
that such an orchard would be worth
about one dollar and fifty cents per
tree."

There was testimony tending to
show that the plaintiff was to have
a certain house to live in, and past-
urage for five or six head of horses
and cattle, and about thirty acres of
other land of the defendant to tiU
during the continuance of said oon-
VOL. III-ll

tract, and that he had been pre-
vented from the use thereof by the
defendant. The plaintiff as a wit-
ness, being a farmer, gave evidence
tending to show the yearly value of
the rent of the house, the profits he
might probably have realized from
said thirty acres of land during the
ten years which he said the contract
was to continue, and the value of
the pasturage to him for the same
time. A judgment having been re-
covered of $1,000 by the plaintiff, it
was reversed on error by reason of
the admission of the foregoing tes-
timony. White, J., delivering the
unanimous opinion of the ; court,
said: " The testimony excepted to
by the plaintiflE in error related to
the probable future profits of a peach
orchard not yet grown, to the profits
the plaintiff would probably have
made from the thirty acres; and to
the value of the pasturage to him
during the time. The testimony
was offered in chief by the plaintiff,
as furnishing the basis on which his
damages were to be assessed by the
jury. It was uncertain and specu-
lative in its nature, and must have
been, in a great degree, conjectux-al.

" The general rules as to the meas-
ure of damages are well understood.
The diflSculty lies in making a proper
application of them to particular
cases.

" It is a well established rule that
the damages to be recovered for a
breach of a contract mtist be shown
with certainty, and not left to spec-
ulation or conjecture. In the prac-
tical application of this general rule,
others have been adopted as guides
in ascertaining the required cer-
tainty; as (l)that the damage must
fiow naturally and directly from the
breach of the contract; that is, must
be such as might be presumed to
flow from its violation; and (3) must

162

LAITOLOIJD AND TENANT.

be not the remote, but the proxi-
mate consequence of such breach.

" In cases where the damages may
be estimated in a variety of ways,
that mode should be adopted which
is most definite and certain.

"In the pi-esent case, as respects
the property, the immediate and
proximate consequence of the breach
of the contract by the eviction was
the loss of the use of the premises
for the term. To the extent that the
damages depended on the loss of the
use of the property, its market value,
at the time of the eviction, subject
to the performance of the contract
on the part of the plaintiff, fui'-
nished the standard for assessing the
damages. If it had no general mar-
ket value, it should have been ascer-
tained from witnesses whose skill
and experience enabled them to tes-
tify directly to such value, in view
of the hazards and chances of the
business to which the land was to be
devoted. Griffin v. Colver, 16 N.
Y. 489; Giles v. O'Toole, 4 Barb. 361;
Newbrough v. Walker, 8 Gratt. 16.

" This would only be applying the
same principle for ascertaining the
value of property which, by reason
of its limited use, had no general
market value, which is adopted with
reference to proving the present
worth of the future use of property,
which, by reason of its being in
greater demand, has such market
value.

"In the case of property of the
former description, the range for ob-
taining testimony as to the value is,
of course, moi-e circumscribed than
it is in the case of property of the
latter description. But in either
case, the proving the value of the
property by witnesses having com-
petent knowledge of the subject, is
more certain and direct than to un-
dertake to do so by submitting to

the jury, as the grounds on which
to make up their verdict, the sup-
posed future profits.

"The profits testified to in the
present case were remote and con-
tingent, depending on the character
of the future seasons and markets,
and a variety of other causes of no
certain or uniform operation.

"Neither did the amount of the
plaintiff's expenditures, made in ob-
taining or performing the contract,
furnish the measure of his damages,
or constitute the fact to which his
evidence in chief, on the question of
damages, ought to have been di-
rected. For this would be to allow
the plaintiff, in case he had made a
bad bargain, to charge liis losses re-
sulting therefrom upon his adver-
sary; and, on the other hand, if his
contract had been a profitable one,
to deprive him of its benefits.

" In regard to the question ob-
jected to, and kindred inquiries, it
may also be remarked, that we do
not doubt it would be the right of a
party, on cross-examination, to pro-
pound such questions to the wit-
nesses, who might have testified to
the value of the property in ques-
tion. This could be done in order
to ascertain the grounds of their
judgment and as tending to test its
correctness."

This opinion seems to sanction the
admission of the opinions of expert
witnesses to prove the value of prop-
erty having no market value; and
yet that the statement in chief of
the material facts on which the opin-
ions are based is error; that such
facts are only to be elicited on cross-
examination.

If the damages for the loss of the
use of the property is its value at the
time of the eviction, subject to
the performance of the contract on
the part of the plaintiff in error, as

TENAJTT AGAINST LANDLORD.

163

the opinion asserts, the meaning
must be the vahie enhanced by con-
sidering the benefits which would
have accrued from the performance
of the contract by the party who
has in fact abandoned it. How
shall the value of those benefits he
ascertained? Undot^btedly by con-
sideration of all the facts pro and
con which show what are the proba-
bilities or certainties as well as
hazards and chances of the business.
It is believed to be the province of
the jury to consider these, and that
opinions derive their chief value,
when sound, from them.

In AUison v. Chandler, 11 Mich.
o42, trespass was brought against the
landlord to recover damages for
ousting his tenant from the demised
premises. In the opinion of Chris-
tiancy, J., is an interesting discus-
sion of the elements of damage as
well as of the proper modes of pi'oof .
He says: " The law does not require
impossibilities, and cannot therefore
require a higher degree of certainty
than the nature of the case admits.
And we can see no good reason for
requiring any higher degree of cer-
tainty in respect to the amount of
damages, than in respect to any
other branch of the cause. Juries
are allowed to act upon probable and
inferential, as well as direct and
positive proof. And when, from the
nature of the case, the amount of
the damages cannot be estimated
with certainty, or only a part of
them can be so estimated, we can
see no objection to placing before
the jury all the facts and circum-
stances of the case, having any tend-
ency to show damages, or their
probable amount; so as to enable
them to make the most intelligible
and , probable estimate which the
nature of the case will permit.
This should, of course, be done with

such instructions and advice from
the court as the circumstances of
the case may require, and as may
tend to prevent the allowance of
such as may be merely possible, or
too remote or fanciful in their char-
acter to be safely considered as the
result of the injury. . . .

" The justice of the principles we
have endeavored to explain wiU, we
think, be sufficiently manifest in
their application to the present case.
The evidence strongly tended to
show an ouster of the plaintiff for
the balance of the term by the de-
fendant's act. This term was the
property of the plaintiff; and, as
proprietor, he was entitled to all the
benefits he could derive from it. He
could not by law be compelled to
sell it for such sum as it might be
worth to others; and, when tor-
tiously taken from him, against his
will, he cannot justly be limited to
such a sum, or the difference be-
tween the rent he was paying and
the fair rental value of the prem-
ises, if the premises were of much
greater and peculiar value to him, on
account of the business he had es-
tablished in the store, and the resort
of customers to that particular place,
or the good will of the place, in his
trade or business. His right to the
full enjoyment of the use of the
premises, in any manner not forbid-
den by the lease, was as clear as
that to sell or dispose of it, and was
as much his property as the term it-
self, and entitled to the same protec-
tion from tlfe laws. He had used
the premises as a jewelry store and
place of business for the repairing
of watches, making gold pens, etc.
This business must be broken up by
the ouster, unless the plaintiflE could
obtain another fit place for it; and
if the only place he could obtain
was less fitted and less valuable to

164

LANBLOED AND TENANT.

An injury to business must consist mainly of a loss of
profits, though it often involves other incidental losses. In
an Iowa case,' where a lessee was refused possession of a
fai'm to be worked on shares for a year, the court said: "By
the contract, the plaintiff not only secured, a place in which
to live, but also employment for himself during a year's time.
If the defendant, without cause, refused to let the plaintiff into
possession, what is the direct consequence? It is that he may
be deprived of employment, as well as a home in which to
reside. Therefore, a reasonable allowance might, in proper
cases, be made to the lessee of a farm for necessary loss of time
in looking for another place, or seeking other employment,
where such lessee sustains such loss as the direct result of the
lessor's wrongful act, and uses due diligence and reasonable

him for that purpose, then such
business would be injured to the ex-
tent of this difference; and this
would be the natural, direct and im-
mediate consequence of the injury.
To confine the plaintiff to the differ-
ence between the rent paid and the
fair rental value of the premises to
others, for the balance of the term,
would be but a mockery of justice.
To test this, suppose the plaintiff is
actually paying that fuU rental
value, and has established a^business
upon the premises, the clear gains
or profits of which have been an
average of $1,000 per year; and he
is ousted from the premises and this
business entirely broken up for the
balance of the time; can ho be al-
lowed to i-eoover nothing but six
cents for his loss? To ask such a
question is to answer it. The rule
which could confine the plaintiff to
the difference between such rental
value and the stipulated rent can
rest only upon the assumption that
the plaintiff might (as in case of
personal property) go at once into
the market-and obtain anothei buUd-
ing equally well fitted for his busi-

ness, and that for the same rent;
and to justify such a rule of dam-
ages, this rule must be taken as a
conclusive presumption of law. . .
The plaintiff in this case did hire
another store, the best he could ob-
tain, but not nearly so good for his
business; his customers did not come
to the new store, and there was not
so much of a thoroughfare by it,
not one quarter of the travel, and he
relied much upon chance custom,
especially in the watch repairing
and other mechanical business. This
injury to the plaintiff's business was
as clearly a part of his damages as

the loss of the term itself

Now if the plaintiff is to be allowed
to recover for this injury to ihis
business, it would seem to follow, as
a necessary consequence, that the
value of that business, before the
injury as well as after, not only
might but should be shown, as an
indispensable means of showing the
amount of loss from the injury."
Shafer v. WUson, 44 Md. 268. See
Glass V. Garber, 55 Ind. 336.
1 Adair v. Bogle, 20 Iowa, 338.

TBNAHT AGAINST LANDLOKD. 165

exertions to prevent the loss or to reduce the amount.' The
last proposition, as to loss of time, is quite near the liti e (often
difficult to trace, if not mysterious) which divides direct and
proximate from remote and consequential damages ; but, quali-
fied as above stated, we deem it correct. Damages claimed
to result from failure to get another farm would, in ordinary-
cases, if not, indeed, in all cases, be beyond the boundary line
which separates recoverable damages from those which are not
recoverable." ^ In such a case, if the lessee finds other employ-
ment, it merely answers the claim for such loss, and will not
otherwise reduce or mitigate the damages recoverable for
breach of the contract. Where a defendant leased her farm to
the plaintiff on shares for a year, and refused him possession,
in an action for breach of the contract it was proved that the
plaintiff, during the year, earned, in a different business, $1,000,
and the trial court allowed this fact to go to the jury in mitiga-
tion of damages. This was held to be erroneous. Thompson,
C. J., said: "The logic seemed to be, that because he was an
industrious man he was not within the same rule of compensa-
tion that one not so would be. There are undoubtedly cases
in which such facts do mitigate damages. Such commonly
occur in cases of the employment of clerks, agents, laborers
and domestic servants for a year or a shorter determinate
period. But I have found no case where a disappointed party
to a contract for a specific thing or work, who, taking the risk
from necessity of a different business from that which his
contract, if complied with, would have furnished, and shifting
for himself and family for employment for them and his teams,
is to be regarded as doing it for the benefit of a faithless con-
tractor." After alluding to the rule which confines the plaint-
iff's recovery to damages which are the proximate consequence
of the defendant's wrongful act, the learned judge added inter-
rogatively : " Is it not, therefore, equally just and logical that
whatever shall have the effect to mitigate damages shall have
some proximate relation to the contract ? " ^ It has been held

1 See Attix & Co. v. Pelan, 5 Iowa, See Yeager v. Weaver, 64 Pa. St.
336, arguendo, and cases there 435.

cited. 3 "Wolf V. Studebaker, 65 Pa. St.

2 WiUiam v. Oliphant, 3 Ind. 371. 459,

166 LAUDLOED AND TENANT.

to be the duty of a plaintiff who sues for compensation for
injury to his business by eviction, to make reasonable efforts to
moderate or prevent such loss by obtaining other premises on
which to carry on the business.' And it has also been held
that whether he is obliged to exert himself for that purpose or
not, if he does, in fact, obtain other premises, and thus prevent
an entire loss of the business, the damages wiU be mitigated
accordingly.^

Lessoe's covenant to eepaie, eebuild and impeove. — The
obligation of the landlord to repair rests solely npon express
contract; an undertaking to repair Avill not be implied, nor
enlarged by construction.' It is the same in respect to rebuild-
ing after destruction by any casualty, and as to improvements
or additions.* Where, however, there is an undertaking by the
lessor to erect and complete a building for the use and occupa-
tion of a tenant, the liability of the former in respect to dam-
ages for a breach is not distinguishable from that which arises
from a contract to give possession of one already erected. An
omission to repair, however, is not an eviction.' The lessor
will be chargeable with the difference between the rent to be
paid and the rental value ; and if the contract be made for a
particular use by the lessee, the rental value for that use will
be the standard of rental value.^

In a late case in N"ew York, the defendant let to the plaintiff
a hotel and certain adjoining premises, covenanting to tear
down the old building and erect a new one on the adjoining
premises, to be used in connection with the hotel ; the new build-
ing to be completed and the plaintiff put in possession by a
specified time. The i plaintiff was then occupying the hotel

1 Dobbins v. Duquid, 65 lU. 464; Estep, 23 Ind. 114; Kahn v. Love,
.Green v. WiUiams, 45 111. 306. 3 Oregon, 206.

2 Chandler v. Allison, 10 Mich. 460. * Id. ; Vanderpool v. Smith, 3 Daly,

3 Witty V. Matthews, 52 N. Y. 413; 135; Loader v. Kemp, 2 C. & P. 375.
Doupe T. Genin, 45 N. "Y. 119; Post 5 gpeckler v. Sax, 1 E. D. Smith,
V. Vetter, 2 E. D. Smith, 248; Clark 253.

V. Baboock, 33 Mich. 164; Sherwpod 6 Myers v. Burns, 85 N. Y. 269;

V. Seaman, 2 Bosw. 127; Brown v. Berrian v. Olmstead, 4 E. D. Smith,

Barrington, 86 Vt. 40; Brewster v. 279.
De Fremery, 33 Cal. 341; Estep v.

TENANT AGAINST LANDLOED. 167

and a building upon a portion of the adjoining premises, under
a former lease ; he removed the furniture from the rooms in
that building, and stored it while the new building was being
erected. The defendant failed to complete the new building
within the specified time ; and in an action for breach of the
covenant the court say: "The rent of the whole premises
embraced in the lease was to commence with the term, although
the plaintiff would necessarily be required to await the erection
and completion of the new structure before he could have the
beneficial enjoyment of that part of the demised premises.
The lease was made with reference to these circumstances, and
an allowance to the plaintiff of the rental value of the rooms
in the new building during the time he was deprived of them
by the defendant's default, based upon the consideration of the
use to which they were to be applied, and which was contem-
plated by both parties when the lease was executed, affords to
the plaintiff only a just indemnity, and subjects the defendant
to no greater liability than it may fairly be supposed he int?ended
to assume when the covenant was made." '

If the lessor undertakes to keep the premises in repair, the
damages for breach will, in general, be the decrease in rental
value resulting from the non-repair ; ^ and in ascertaining this
decrease it is proper to take into consideration the special use
of the premises which was contemplated by the parties when
the lease was made; and this consideration will also have a
controlling influence in fixing the standard of repair." He may
recover for the loss of the use of certain rooms rendered un-
tenantable for want of repair.^ The damages recoverable are
only such as can be ascertained and fixed with reasonable
certainty; but the profits anticipated from the future public
performance of a vocalist is not of that character.'

The lessee must give the landlord notice to make repairs when
needed, unless the lease shows an intention that the lessor shall
take notice from his own observation. This intention will not
be implied where the lease does not give him the right to enter

iHexter v. Knox, 63 N. Y. 561. 3 id.; Ward v. Kelsey, 38 N. Y. SO.

Compare Prescott v. Otterslatter, 79 *Id.

Pa. St. 462. 5 New York Academy of Music v.

2 Myers v. Burns, 85 N. Y. 269. Hackett, 3 Hilt. 317.

168

LAITOLOED AND TENANT.

and view the premises.* The rule is that notice to perform is
necessary whenever the fact on the occurrence of which the right
to claim performance depends lies more peculiarly within the
knowledge of the party claiming such rigM.^

If the landlord refuses to repair on receiving notice, the tenant
is entitled to make the repairs at the landlord's expense, and it
is held to be his duty to do so where they may be made at
trifling expense ; he cannot neglect to make them and recover
greater damages, suffered in consequence of the premises re-
maining out of repair, than the repairs would cost.' But if the
landlord prevents the tenant from making the repairs, by
repeated promises to make them himself ; that is, if the tenant
in good faith delays to make repairs, for that reason, he is not
prejudiced in his claim to such damages as he may suffer from
the continuance of a want of repair.*

1 Gerzebek v. Lord, 33 N. J. L. 240;
"Wolcott V. SuUivan, 6 Paige, 117;
Norfleet v. Cromwell, 64 N. 0. 1.

2 Id.; Chittyon Cont. 733; Hayden
V. Bradley, 6 Gray, 435.

3 Cook V. Soule, 56 N. Y. 430;
Indiana Cent. E'y Co. v. Moore, 33
Ind. 14; Andrews v. Jones, 36 Tex.
169; Nicholson v. Munigle, 6 AUen,
315; Miller v. Mariners' Church, 7
Greenl. 51; Fort v. Andoflf, 7 Heisk.
167; Hamilton v. McPherson, 38 N.
Y. 73. See TeTry v. Mayor, 8 Bosw.
504; Cole v. Buckle, 18 U. C. 0. P.
386; Darwin v. Potter, 5 Denio, 306.

4 In Keyes v. Western Vt. Slate
Co. 34 Vt. 81, Poland, C. J., said:
" If, when the plaintiff requested the
defendants to repair the drain, they
had refused to do so, it would have
been the duty of the plaintiff himself
to have done it, and all he could
have recovered would have been the
costs of the repair. He could not in
such case lie by and incur loss for
want of the repairs, far beyond the
cost of fixing it, and make the de-
fendants liable. If the defendants
wrongfully refused to repair, still it

was the duty of the plaintiff to con-
duct like a reasonable and prudent
man, and take the course that would
be the least detrimental to himself
and to the defendants. But if the
defendants, on having notice to re-
pair the drain, admitted their liabil-
ity to repair it, and promised to do
BO, and thus kept the plaintiff from
making the repairs himself, and thus
prolonged the period of loss to the
plaintiff, so that it exceeded the cost
of the repairs, that loss should justly
fall on the defendants. It was
rather a question whether the
plaintiff acted in good faith, and
with fair and reasonable prudence,
in the course he took in waiting for
the defendants to repair, under their
assurance, instead of proceeding to
make them himself. The defendants
when caUed on should have immedi-
ately proceeded to make the repairs
themselves, or else have refused, so
that the plaintiff could have made
them himself. If they omitted to
make them, on boing caUed on, and
kept the plaintiff from doing it, by
false and delusive promises, they

TENiJJT AGAINST LANDLOED. X69

In an action by a tenant against his landlord, who has cov-
enanted to keep the premises in repair, for damages for breach
of that covenant, the defendant cannot excuse the non-perform-
ance of his contract by proof of the plaintiff's neghgence and
want of dae care. Contributory negligence on the part of the
plaintiff does not go to the cause of action upon contract;
there is a right of action where the defendant is guilty of a
'breach by his negligence ; but upon the question of damages,
in reduction of them, the conduct of the plaintiff, in failing to
exercise due care to prevent injury to himself by the defend-
ant's failure to perform his contract, is proper for the considera-
tion of the jury.i In New York, where the landlord agrees to
repair and fails to do so, the tenant is held to have two different
remedies, either of which he may pursue at his election. Hunt,
J., said : " He could have made the repairs himself, and have
called upon the plaintiff to refund the expense ; . . . or he
could have called upon . . (the lessor) . . to take the
ordinary responsibility of a party failing to perform his con-
tract, to wit, to pay the damages caused by such failure. . . .
In the first case, the rule confines the damages to the actual
expense, if no special damage is shown; but in the other, the
cost of the repair is not an element in the case. It. is as if there
was no such right to repair on the part of the lessee, but the claim
rested solely in damages." ^ This right of election to repair or to
claim damages was declared in a case where the repairs actually
made and damages recovered from the landlord for not making
others were but a trifle in excess of the rent due. This decision
was subsequently affirmed ^ in a case in which the trial court had
refused a request to charge that the plaintiff could not re-
cover for the use of rooms except for the time it would neces-
sarily take to repair them ; and that if the plaintiff knew of
the defect which caused damage, he was bound to have it re-
paired as soon as it could reasonably have been done ; and that
if he did not do so, and damage subsequently occurred, he could
not recover therefor. On this refusal the court of appeals

cannot complain of being made i Mynn v. Nash, 11 AUen, 550.

liable for the loss occasioned by the 2 Myers v. Burns, 35 N. Y. 269.

delay." Buck v. Eodgers, 39 Ind. 3 Hester v. Knox, 63 N. Y. 561.
233.

170 LANDLORD AlfD TENANT.

remarked that : " It is oonceded that it was the duty of the
defendant to repair the ceilings. Upon his failure to perform, it,
it was the right of the tenant to make the repairs and charge
the expense to the landlord. But he was not bound to make
the repairs. He (the lessor) had no right to cast upon the
plaintiff the responsibility and the burden of repairs which he
was bound to make. The plaintiff removed his furniture from
these rooms ; and so far as he could, short of making the repairs*
himself, limited the injurious consequence of the defendant's
neglect." ^

The tenant in making repairs, after default of the landlord to
make them in pursuance of his contract, is not bound to
make them in such manner as to restore the premises by the
same materials and workmanship, literally, to their former state ;
he may exercise a prudent judgment to render the repairs more
permanent and useful by substituting better material or work-
manship.^

Special and consequential damages may be recovered against
a lessor for breach of his contract to repair, where they are not
remote and are shown with sufficient certainty. Loss of custom
to a mill kept idle by the lessor's failure to repair the dam was
held to be uncertain and speculative.' So of profits anticipated
from the future public performance of a vocalist.* Where a
landlord negligently suffered a chimney to remain in a ruinous
condition upon the demised premises, and by its fall caused injury
to his tenant's property, he was held liable for the resulting
damage ; * and also for a lessee's goods in a leased store, injured
in consequence of gutters being obstructed.* In such a case,
wool belonging to the tenant was alleged to have suffered injury
from water escaping from a waste pipe by negligence of the
landlord. The trial court ih an action therefor gave these in-
structions, to which exceptions were overruled : that the evi-
dence must be such that the jury may be able to decide thereon
as to the amount of damages ; that guesses of witnesses were

1 Martin v. Hill, 43 Ala. 275; * New York Academy of Music v.
Hinckley v. Beokwith, 13 Wis. 31. Hackett, 2 Hilt. 317. See McHenry

2 Myers v. Brown, 35 N. Y. 269. v. Marr, 39 Md. 510.
SMiddlekauff v. Smith, 1 Md. 329; 5 Eagle v. Swaze, 2 Daly, 140.

Fort V. Orndoflf, 7 Heisk. 167. 6 Center v. Davis, 39 Ga. 210.

TENAJSfT AGAINST LANDLOED. 171

not sufficient to found a verdict upon; that the judgment of
persons having sufficient knowledge and opportunity of judging
as to the amount of the wool injui^ed, and as to the extent of
the injury, is competent ; that exact accuracy in testimony is
not required, but that the jury could not give damages exceed-
ing what they are satisfied of on the evidence. That when the
damage was occasioned by different causes, from each of which
there was more or less damage to plaintiff's wool, if a portion
of the damage was from causes for which the defendants were
not liable, as from the tide water, the burden of proof was
upon the plaintiff to show the damage to the wool from causes
for which the defendants were liable, as distinguished from the
other causes; and for this damage only could the plaintiff
recover.' In an action against the lessors of a saw-mUl for
breach of their contract to, repair, whereby the mill was ren-
dered useless to the lessees during the latter portion of their
term, it appeared that the lessees, at the time of the stoppage,
had logs of their own in the mill yard sufficient to stock the
mill for one-half of the balance of their term, which they were
compelled to haul to another mill to be sawed. It was held
that the lessees were entitled to recover as damages the amount
paid by them for hauling their logs to such other mill, and the
cost of getting them sawed there, above what it would have
cost to saw them at their own mill, and also the profits which
they would have made from manufacturing lumber in that
portion of their term during which they lost the use of the mUl
through the fault of the defendants, deducting the time which
it would have required to saw their own logs so hauled to
another mill; and that to these damages interest might be
added at the discretion of the jury.^ The profits here held to
be recoverable were the special rental value of the mill to the
plaintiffs.^

1 Priest V. Nichols, 116 Mass. 401. qualifications hereafter mentioned.

3 Hinckley v. Beckwith, 13 Wis. The mill was of no sort of use to

31; S. C. 17 Wis. 413. them except to manufacture lumber.

^Cole, J., said: " In the first place, And when the motive power gave

we can see no objection to giving out, nothing further could be done

the respondents tlie fair value of the with it. One of the respondents

use of the mill for the unexpired testified that it was worth for the

portion of the term, subject to the residue of the term $10.50 per day

172

LANDLORD AND TENANT.

Recoupment. — la actions by either party against the other
upon stipulations in a lease, the defendant is generally allowed
to set up by way of recoupment any cross claim he may have
against the plaintiff arising upon the same contract.' In an

to manufacture lumber. This being
so, why ought they not to recover
damages at that rate during the
continuance of the lease, excepting
therefrom the time they would
use it to saw their own logs? We
know of no sound principle of law
or reason which would be violated
in permitting them to do so. It is
said that this would be allowing
damages on iihe basis of a calcula-
tion of profits, which, it is said, is
inadmissible. But the case of
Griffin V. Colver, 16 N. Y. 489, to
which we are referred by counsel
for the appellants, fully sustains the
rule we have laid down." After
stating the rule laid down in that
case, the learned Judge continues:
"In the present case, it was very
easy to ascertain the profits which
were the direct and immediate
results of operating the mill for sixty
days. The respondents had logs
enough on hand to stock the mill for
about one-half of that time, and
timber standing near the mill suffi-
cient to supply it for the rest of the
time. What, therefore, could be
made in running the null, per day,
over and above aU expenses of rent,
labor, etc., was susceptible of exact
and definite proof. It is not like
profits anticipated from being able
to perform some dependant and col-
lateral undertaking to the principal
business of running the mill, but re-
lated to gains or profits arising from
the business itself, and constituting
a portion of the contract. The re-
spondents, when they rented the
mill, considered what it would be
worth to them per year or month.

The profits upon the manufacture
of lumber were so much per thoii-
sand, and it was therefore an easy
matter to ascertain the gross earn-
ings of the miU. We therefore sup-
pose the profits or earnings of the
mill would constitute a proper item
in estimating the damages resulting
from the breach of the agreement
to repair. Masterton v. The Mayor,
etc. 7 Hill, 61; Blanchard v. Ely, 81
Wend. 343."

See Jolly v. Single, 16 Wis. 280,
where the lessor of a saw-mill re-
moved part of the miU, and thereby
made it impossible to run it. It was
held that the damages were not
confined to the cost of replacing it,
leaving the lessee to pay his men
out of employ, and lose the use of the
miU during the time it necessarily

lay idle by reason of the trespass.
See Boynton v. Chase, 3 Wis. 45 j;
Buck V. Eodgers, 39 Ind. 233. Sge
also Crane v. Hardman, 4 E. D.

Smith, 448; Chatterton v. Fox, 5

Duer, 64.
1 Haven v. Wakefield, 89 Dl. 509;

Nichols V. Dusenbury, 3 N. Y. 283;

Mayor, etc. v. Mabie, 13 N. Y. 151:

Darwin v. Potter, 5 Denio, 306;

Thomas v. Wiggers, 41 lU. 470;

ShaUies v. Wilcox, 4 Thomp. & C.

591; Cook v. Soule, 56 N. Y. 430; S.

O. 45 How. Pr. 340; Wade v. Halli-

gan, 16 111. 507; S. C. 31 111. 479;

Commonwealth v. Todd, 9 Bush,

708; Lindley v. MiUer, 67 111. 244;

Fairman v. Flack, 5 Watts, 516;

Blair v. Claxton, 18 N. Y. 529;

Myers v. Burns, 35 N. Y. 369; Gath-

man v. Cattleberry, 49 Ga. 373;

Westlake v. DeGraw, 25 Wend. 669;

TENANT AGAINST LANDLOED.

173

action, to recover rent the lessee has a right to set up as a
counterclaim damages arising from breach of an agreement in
the lease on the part of the lessor, to keep the premises in
repair.^ "Whei;e the lease is for a year, the fact that the lessee has
paid the rent except for the last quarter does not deprive him
of the right to counterclaim his damages for the entire year.^
So if there has been a breach of the covenant for quiet enjoy-
ment, the damages therefor may be recouped or counterclaimed
in an action by the landlord for rent.' In an action by an
underlessor, who was a tenant at will for rent, his lessee may

Wright V. Latten, 38 lU. 393; Mur-
ray V. Pennington, 8 Gratt. 91;
Benkard v. Babcock, 2 Eobt. 175.

1 Myers v. Burns, 35 N. Y. 269;
■ Lunn V. Gage, 37 III. 19; Coleman

V. Bunce, 87 Tex. 171; Crane v.
Hardman, 4 E. D. Smith, 339; Gath-
man v. CattlebeiTy, 49 Ga. 272; Mor-
gan V. Smith, 5 Han. 220.

2 Cook V. Soule, 56 N. Y. 420.

3 Mack V. Patohin, 42 N. Y. 167;
Eldred v. Leahy, 31 Wis. 546; Mayor,
etc. V. Mabie, 18 N. Y. 151 ; Chat-
terton v. Fox, 5 Duer, 64. In
Mason v. Mayers, 2 Rob. (Va.) 606,
pending a suit in chancery by cred-
itors for the sale of their debtor's
land, the heirs of the latter leased
it for three years from the first of
AprU, unless there should in the
meantime be a decree of sale; in
which case the tenant was to give
possession on the first of April after
tlie decree. A rent was reserved of
$300, to be paid at the end of each
year of the tenancy; and according
to the true construction of the lease,
the tenant had a right to the crops
growing on the land at the end of
6very year for which rent should be
received. In June of the third year
the land was sold under a decree in
the creditor's suit, and the tenant
applied to the purchaser for per-
mission to proceed with the cultiva-
tion of the land; but one of them

in the presence of the other (who
was one of the lessors) refused, de-
claring that if the tenant should
sow the land, the purchasers would
reap the crop; and in consequence
of this refusal the tenant proceeded
no farther with his preparations for
a fall crop, though he remained in
possession the third year. A few
days before the expiration of that
year, the purchasers sued out an
attachment against the tenant for
$300 rent to become due the first of
April, upon the levy of which the
tenant gave the sheriff bond and
security for the rent. Judgment
having been obtained on this bond,
it was enjoined as to |200, upon a
bill filed by the tenant praying an
abatement of the rent according to
equity. It was held by a majority '
of the court: 1, that under the cir-
cumstances the purchasers were not
warranted in assuming the relation
of landlord for the purpose of
coercing the payment of $300; 2, that
there not having been an actual
eviction, there was no remedy at
law, and it was competent for the
tenant to come into equity upon the
ground that he was entitled to an
abatement; and 8, the evidence jus-
tifying the allowance of $300, as
a fair abatement, the injunction
should be made perpetual.

174: LANDLORD ASTD TENANT.

recoup as for breach of covenant, for rent paid to the plaintiff's
lessor to save himself from eviction.* But in other cases an
interference by the owner or chief landlord with the possession
of a sub-tenant, is not an eviction for which the intermediate
landlord is responsible, and does not, as between him and the
sub-tenant, suspend the rent.^

If there was fraud or misrepresentation by the landlord in
making the lease, by which the lessee 'suffered damage, He may
recoup therefor in an action for rent ; ' but a mere trespass or
tort of any character, not amounting to an eviction, in whole
or in part, it has been held in New York, cannot be set up in
defense to an action for rent.*

The right of recoupment does not appear to be as liberally
recognized in that state, in actions for rent, as it is in. favor
of other defendants. In such actions there is, there, a restric-
tion upon the right of recoupment inconsistent with the general
principles which govern that defense in other cases, in that
state as well as elsewhere. Unless there is such a disturbance
of the tenant's possession as amounts to an eviction, and there-
fore to a full defense, the disturbance, although it may greatly
impair the tenant's beneficial enjoyment, is no defense at
all — is Avholly excluded. The reasons which sustain the de-
fense of eviction as a bar will equally entitle the tenant to an

1 Holbrook v. Young, 108 Mass. 83. How. Pr. 305; GleaBon v. Moen, 7

2 Lucky V. Frantzkee, 1 E. D. Duer, 639; Edgerton v. Page, 10
Smith, 47; Lansing v. Van Alstyne, Abb. 119; S. C. 20 N. T. 281. See
2 Wend. 563. See Ogilvie v. Hull, Benkard v. Babcock, 2 Kobt. 175;
5 HiU, 53. McFadin v. Rippey, 18 Mo. 738.

'Allaire t. Whitney, 1 HiU, 484; In Cram v. Dresser, 3 Sandf. 130,
Cage T. Phillips, 38 Ala. 383; Avery an action was brought for rent upon
V. Brown, 31 Conn. 398; Staples v. a lease which provided for the land-
Anderson, 3 Robt. 327; Moberly v. lord's entering on the premises to
Alexander, 19 Iowa, 163; Wallace make repairs during the term; it was
V. Lent, 1 Daly, 481. See Meeks v. held that the tenant could not re-
Bowerman, 1 Daly, 99; Minor v. coup his damages occasioned by the
Sharon, 112 Mass. 477. negligent and tortious behavior of

< Walker v. Shoemaker, 4 Hun, the landlord and his servants in

579; Drake v. Cockroft, 4 E. D. making such repairs; that the injury

Smith, 34; McKenzie v. Fan-ell, 4 in such case does not arise from the

Bosw. 202; Campbell v. Shields, 11 breach of any covenant or stipula-

How. Pr. 565; Valet v. Horner, 1 tion of the landlord, but is a distinct

Hilt. 149; Bogardus v. Parker, 7 and independent wrong. A wrong-

TENANT AGAINST LANDLOED.

175

abatement of the rent or recoupment where the landlord, by
unjustifiable acts, lessens the value of the demised premises to
his tenant, though the landlord's interference does not amount
to eviction; and whether such acts arp confined to a brief
period of time or are continuous, and whether they are acts for
which an action of tort would lie or not. Ey the lease the ten-
ant is vested with an estate which entitles him to sue his
landlord as well as any stranger interfering with his rightful
enjoyment, or evicting him. But in case of eviction, the ten-
ant is not confined to his remedy by ejectment or other action
of tort, but he may set up the eviction as a bar to an action by
the landlord for rent ; it is held to be a violation of the implied
covenant for quiet enjoyment. The implied obligation of the
lessor, however, is not simply that he wiU not evict his tenant,
and that no other person shall do so under a superior title, but
equally that he will do no act to prevent or impair the enjoy-
ment of what he has granted by his lease.' This defense is

ful act of the landlord, causing
great inconvenience and trouble to
the tenant's family, and keeping the
demised tenement in confusion and
disorder for a long time, is not an
eviction where the tenant has con-
tinued in possession for a year after
the injury has ceased.

1 Dexter v. Manley, 4 Cush. 14;
Leadbeater v. Eoth, 35 111. 587; Com-
monwealth V. Todd, 9 Bush, 708; El-
dred v. Leahy, 31 Wis. 546; Sigmund
\: Howard Bank, 29 Md. 334; Mack
V. Patchin, 29 How. Pr. 20. See
Morgan v. Smith, 5 Hun, 320. In
Mayor v. Mabie, 13 N. Y. 151, a
lease was made of the franchise or
privilege of collecting wharfage,
and an action was brought for the
stipulated rent. The lease conveyed
the right to collect such wharfage
upon all vessels of over five tons.
TJie answer set up as a defense
that the agents of the jilaintiff dis-
turbed the defendant in the enjoy-
ment of the right conveyed; that
they entered upon the premises and

assumed the entire control of all
vessels coming to the slip and pier,
etc., and gave preferences for com-
pensation paid to plaintiff, by which
the defendant suffered great losses.
The defendant continued to act
under the lease, and to collect wharf-
age during his term. Proof of the
matters stated in the answer being
excluded, the plaintiff appealed.
Denio, J., said: "It is not denied
but that the acts imputed to the
plaintiffs in the answer would, if
estabhshed, be an infringement of
the rights of Mabie, under the grant
from the coi-poration." The court
held that there was an implied cov-
enant for quiet enjoyment, and that
the acts complained of in the an-
swer were a violation of that cove-
nant; that it was available by way of
recoupment. "The main object,"
say the court, "of a covenant for
quiet enjoyment is to protect the
lessee from the lawful claims of
third persons having a title para-
mount to the lessor; but such a cov-

.176

LANDLOED AlTD TENANT.

enant, when freely written out,
provides also for the protection of
the lessee against the unlawful entry
of the lessor himself. 3 Piatt on
Gov. 313. ... It is .not, how-
ever, every mere trespass by the
lessor upon the demised premises
which will amount to a breach of
this covenant. Although the cov-
enantor cannot avail himself of the
subterfuge that his entry was un-
lawful, and he therefore a tres-
passer, to avoid the consequences of
his own wrong, still, to support the
action of covenant, the entry must
be made under the assumption of
title." Id. 319, 330.

In Tinsley v. Tinsley, 15 B. Mon.
458, Marshall, C. J., said: "This ac-
tion is brought by Samuel Tinsley
against Nancy Tinsley and John
A. McClure, her surety, to recover
damages upon an injunction bond,
in the penalty of §300, executed by
them for procuring an injunction
against the execution of a judgment
for restitution, rendered by the
Shelby circuit court in favor of
Samuel Tinsley against Nancy Tins-
ley upon a warrant for forcible
entry and detainer. The petition al-
leges the dismissal of the biU and
dissolution of the injunction, and
claims damages for the costs in-
curred in defending the injunction
suit, and for being kept out of the
possession of the land from AprU,
1850, to September, 1851, alleging the
rent for that period to have been
worth $600. The defendants in their
answers, besides certain denials, . .
set up a defense and counterclaim
on behalf of the defendant Tinsley,
first, on the ground that during the
pendency of the injunction, the
plaintiff had, by his threats, pre-
vented her from renting the land to
solvent men for $150, and thus mak-
ing the rent for which he sues; and

second, upon the ground that since
the injunction was obtained, the
plaintiff had taken and disposed of
the crop of corn growing thereon,
and raised by said defendant, wliile
the injunction was pending, of the
value of at least |350. . . . Sec.
153 of the code authorizes a counter-
claim in behalf of one of several de-
fendants to be set up in answer to
the action, and the only restriction
which it makes as to the nature of
such counterclaim is that jt shall be
a cause of action arising out of the
contract or transaction set forth in
the petition (as the foundation of the
plaintiff's demand), or that it be con-
nected with the subject of the action.
It, is not required that the counter-
claim itself shall be founded in con-
tract, or arise out of the conlTact set
forth in the petition, but it is suffi-
cient that it arises out of the trans-
actions set forth in the petition, or
be connected with the subject of the
action. As the petition states the
occupation of the land by Mrs. Tins-
ley during the pendency of the
injunction, and claims damages
therefor, any interference by the
plaintiff which rendered such occu-
pation less profitable, or less valuable
to the occupant, constituted a cause
of action arising out of the trans-
action set forth in the petition, and
is connected with the plaintiff's
cause of action; and although it
amount to a trespass or other tort, it
may constitute the groimd of a
counterclaim. If the crop growing
on the land w^hen the plaintiff was
restored to the possession was his, to
do with as he pleased, his taking and
disposing of it would not constitute
a cause of action or a counterclaim,
but would surely be a good defense,
partial or general, to the demand for
the rent of that year, or should go
in reduction of damages claimed for

TENANT AGAINST LANDLORD.

177

available not only in actions for rent, but also in replevin or
proceedings for recovery of property distrained.^

the withholding of the possession
for that year. But as the injunction
gave the protection of the law to the
occupant during its pendency, and
as the bond secures the other party
in the rent during such occupancy,
such occupant, when his original
entry is lawful, and under a lease or
permission of uncertain duration,
may be regarded as in effect a ten-
ant, or quasi tenant, under rent dur-
ing the pendency of the injunction;
and although the defendant may
rightfully take the possession on the
dissolution of the injunction, it does
not f oUow that he is absolutely en-
titled to the crop then growing on
the land. But as the duration of the
occupancy, as dependent on the in-
junction, is uncertain, it would seem
to be just and reasonable that, al-
VOL. lU — 13 )

though, by improvidence or inad-
vertence, the decree directing im-
mediate restitution, the possession
of the land may be rightfully taken,
the party turned out before the crop
is gathered has the right to the em-
blements. In this view, which wo
think is correct, a cause of action
arose upon the taking and disposing
of the crop by the plaintiff when
he obtained possession. This was,
therefore, a good counterclaim under
the code."

1 Nichols V. Dusenbury, 2 N. Y.
283; Wade v. Halligan, 16 Dl. 507;
Hatfield v. FuUerton, 24 Vl. 278;
Lindley v. MiUer, 67 HI. 344; Fair-
man V. Mack, 5 Wall. 516; West-
lake V. DeGraw, 25 Wend. 669. See
Anderson v. Reynolds, 14 S. & B.
439.

178 CAEEIEES.

OHAPTEE XL

CARRIERS.

. Section 1.

actions by caeeiees.

For breach of contract to furnish goods for shipment — Measure of dam-
ages on charter-parties — Same, on charters to load with enumerated
articles — Carrier's action for freight and other charges — Discrimina-
tions unlawful when the conditions the same — When freight due and.
earned — When pro rata freight may he demanded — Charges and ex-
penses incurred where delivery hindered or prevented — Adjustment of
freight under charters to load with enumerated articles — Recoupment
against freight — Damages for detention of vessel.

Foe beeach of conteact to fuenisu 'goods foe shipment. —
Contracts of affreightment are sometimes made for the trans-
portation of property generally, without reference to any partic-
ular route or mode of conveyance ; this is a contract for partic-
ular work ; other contracts are more specific, and consist of an
undertaking on the part of the freighter to furnish cargo for a
particular vessel for a voyage or a stated period of time ; this
is a contract to employ the vessel, and is like a contract of
service.

On breach of the former by the party agreeing to provide
goods for carriage, the measure of damages is the same as upon
other contracts for particular works, the contract price less the
expense and cost of earning it, or the profits of the contract,
shown with the requisite certainty, lost by reason of the defend-
ant's non-performance of its requirements.^

iWolf V. Studebaker, 65 Pa. St. thus stated in the opinion of tha
459. In Utter v. Chapman, 38 Cal. court, by Barrows, J.: "Theplaint-
659, the contract appears to have iff, having been engaged since
been a general one, but the court 1868 in running a stage between
say, "The case is argued upon the Dexter and Greenville, carrying rail-
theory that the grain was to be trans- road passengers on through tickets
ported by the plaintiff's steamer," as well as local passengers, and hav-
and it was decided upon that theory, ing a contract for carrying the mail
See S. C. 43 Cal. 279. An interesting which was to expire July 1, 1873,
case has lately been decided in Maine, and being agent of the Eastern Ex-
The leading facts of the case are press Co., from which business and

ACTIONS BY CAEEIEE8.

179

Measure of damages on ohaetee-paeties. — "Where, however,
the action is against the charterer of a ship for not loading a
cargo, or for not loading any particular vehicle, the measure of

the transportation of freight he real-
ized considerable sums annually,
and being the owner of stage prop-
erty on the line to a considerable
amount, and having purchased in
the faJl of 1871 a steamboat to run
on the lake between Greenville and
Mt. Kineo, on the 18th of June, 1873,
made a written contract with the
defendants whereby he agreed 'to
run a first class stage line from Dex-
ter to Greenville by the most direct
line, for the conveyance of travel
coming from or going to ' the de-
fendants' railroad, according to a
certain time-table, the details of
which were inserted in the contract
and made subject to changes in th%
time-table of the R. R. Co. ; in con-
sideration of w^hich the defendants
agreed to give him ' the exclusive
right of ticketing between Dexter
and Greenville for the term of five
years from the first day of July,
1873,' at a fixed rate. The time-
table provided that he should leave
Dexter at a certain hour, arrive at
Greenville at a certain time, and
leave Greenville for Kineo and arrive
at Kineo at the times mentioned in
the schedule. Round trip tickets
were issued by the defendants from
Boston and points east of Boston to
Kineo and return by Frye's stages
from Dexter and by steamboat. The
plaintiff was to receive |3.50 per pas-
senger each way for passengers car-
ried on through tickets. Dissatis-
fiiction arose between the parties.
Defendants claimed that there was
a failure to perform on the part of
the plaintiff (which was negatived
by the verdict), and notified him
May S, 1873, that for that reason they
had contracted with other parties to

do the work from July l,prox., and
that he must discontinue operations
under the contract at that time. His
contract for carrying the mail ex-
pired at the same date. Another
party secured it for the next four
years; and he lost the express busi-
ness because by the rule of the ex-
press company that was always given
to those who had the mail contract,
to whom also the defendants, under
the contract bearing a general simi-
larity to the one previously made
with the plaintiff, gave the exclusive
right of ticketing between Dexter
and Greenville. . . . The de-
fendants claimed that the measure
of damages was the difference be-
tween what plaintiflE was to receive,
which was $3.50 each tor carrying
the through passengers, and what it
would actually or probably cost to
carry each passenger, and this with-
out reference to any other contracts
or any other business. The judge
ruled pro forma that the contract
did cover the distance betweeij
Greenville and Kineo, and instructed
the jury to find specially what
amount of damages, if any, the
plaintiff had sustained between
Greenville and Kineo, if the defend-
ants had wrongfully and without
sufficient cause terminated the con-
tract, and include it with the other
damages in their general verdict."
The trial court instructed the jury
as to the second position: "What
was the plaintiff to do? Of what
was the plaintiff deprived? The
plaintiff is deprived of the exclusive
right of ticketing from Dexter to
Greenville at a specified rate, for the
term of four years from July 1 , 1873.
The plaintiff had the exclusive right

ISO

CAEEIEKS.

damages is the amount of freight which would have been earned
if the charter-party or other agreement to furnish loading had
been performed, deducting the expense of earning it, and also

to transport passengers from Dexter
to Greenville at a specified rate of
compensation. Now the loss the
plaintifE has sustained is the profits
upon the cax-riage of passengers be-
tween the points indicated." Refer-
ring to the situation of the plaintifE
in regard to his pi'eparation and
equipment for the transaction of this
business, the jury were instructed
that "the plaintiff had obviously the
right and the expectation of passen-
gers from other sources, such as way
passengers, express profits, etc. Now,
bearing this in mind, what are the
elements of damage? The number
of passengers; the pi;jce of carriage;
the cost of carriage; if profits, the
gains which would have been made
are the losses which have been sus-
tained. If Frye was so situated that
he, in connection with other busi-
ness, at little relative cost could
carry passengers cheaply, — more
cheaply than anybody else,— it is
his good fortune, of which he is en-
titled to reap the benefits. The
measure of damages, then, is the loss
of profits which would have been
made by carrying the passengers
under the contract, as stipulated in
the contract." . . . The jury
were informed that " while the bar-
gain itself might not be valuable to
him, yet it might be of value to him
in connection with his other busi-
ness, situated as he was; " that upou
the evidence produced, " loss upon
the coaches and horses, if sold, would
not be an element of damage; " nor
could the loss of the plaintiff in at-
tempting to carry on the contract
after notice from the defendants that
they had terminated it; nor the loss
of the way travel by means of the

competing line to which the defend-
ants transferred their contract.
"The only loss is his being deprived
of the carriage of passengers from
Dexter to Greenville and back. That
is all the company agreed to give
him; it is all he has lost. . . .
The measure of damages is just what
he has lost by not being permitted
to perform the contract which he
made; that is, what the gains would
have been after deducting the ex-
penses. Whatever the cost was, that
should be deducted from the receipts,
whatever they were, and the balance
is the gain; and the gain only is that
to which he is entitled. He is like-
■vtise entitled to interest, not aa in-
terest, but by way of damages, from
the date of the writ." In reviewing
exceptions to the instructions. Bar-
rows, J., said: "We think the de-
fendants have no just cause to
complain of the substantial overrul-
ing of the second position which they
took. If by reason of its connection
with other business in which he was
engaged, the plaintiff could trans-
port passengers to and from the de-
fendants' cars without largely in-
creasing his outlay, the legitimate
profits of the contract to him were
proportionately increased, and the
wrongful termination of it by
the defendants, which the jury
have found, necessarily occasioned
to him a greater loss; and the
matters to which reference was
made by the presiding judge were
so obvious in their nature that it
cannot but be supposed that both
parties entered into the contract
with an eye to them as existing facts.
The contract did not contemplate the
exclusive devotion of the plaintiff's

ACTIONS BY CAEEIEES. 181

any profit which the ship or vehicle earned during the period
over which the charter extends.^ A charge in such a case to
the jury, which was affirmed, limited the deduction for the
freight earned by the ship to the time " between the expiration
of the lay days and the time when the employment of the ship
under the charter would have ended." In a similar case in
Ifew York the instruction, which was affirmed, was, that " the
defendant should be charged with the full amount of the freight
which he had agreed to pay under the charter, and for the
purpose of determining it the jury must find how much cargo
the vessel could safely have carried. The defendant should
then be credited with the amount of the schooner's earnings
during the time that an average passage . . with the lay
days would have occupied.'

Where the ship is described in the charter-party to be of a
certain tonnage, the description is not a warranty, and an agree-
ment to furnish a cargo wiU be construed to require the
freighter to put on board as much goods as the ship was capable
of carrying with safety.' The stipulation is not that the owner
should receive and the freighter put on board a cargo equiva-
lent to the tonnage described in the charter-party, but that the
one should receive a fuU and complete cargo, not exceeding
what the ship was capable of receiving with safety, and that
the other should put such a cargo on board.* Abbott, C. J.,
said : " It is, indeed, quite impossible that the burden of a ship —
as described in the charter-party — should, in every case, be

time and property to the transporta- other contracts or any other husi-

tion of the defendants' passengers, ness,' cannot be sustained." Fryev.

nor would there be any propriety in Slaine Central, 67 Me. 414. See

measuring the plaintifiPs profits in Richmond v. Dubuque, etc. E. R. Co.

the performance of the contract, and 40 Iowa, 264.

his consequent loss in being deprived i Smith v. McGuire, 3 H. & N. 554.
of it, by the standard that the ,de- 2 Ashbumer v. Balcher, 7 X. Y.

fendants claimed to set up. The nat- 263; Dean v. Ritter, 18 Mo. 183; Brad-

nre of the contract was such that ley v. Denton, 3 Wis. 557; Heil-

its terms would inevitably be af- broner v. Hancock, 83 Tex. 714;

fected by the other contracts and Loud v. Campbell, 36 Mich. 239.
business to be carried on in connec- 'Hunter v. Fry, 3 B. & Aid. 431;

tion with it; and the claim that dam- Ashbumer v. Balcher, 7 N. Y. 363.
ages for its breach should be esti- * Hunter v. Fry, supra,
mated 'without reference to any

182 CAEEIEES.

the measure of the precise number of tons which the ship is
capable of carrying. That must depend upon the specific
gravity of the particular goods; for a ship of given dimensions
would be able to carry a larger number of tons, of a given
species of goods, that were of a great specific gravity, than she
would of another of less specific gravity, and the freighter
would therefore pay freight in proportion to the specific gravity
of the goods.'" ^

The same rule applies as to the measure of damages where
there is only a partial breach of the contract to furnish cargo.
The controlling principle, whether the breach is total or partial,
is full indemnity for all the carrier has lost through the ship-
per's default.^ The mode of ascertaining the amount of dam-
ages for the breach of an executory agreement must, of course,
differ in different classes of cases. If it were a contract to
employ the plaintiff to build a house, and pay him an agreed
price for the entire work, and the defendant had prevented the
performance, the proper rule is the difference between the sum
agreed to be paid and the sum that it would have cost the
plaintiff to perform the contract. That rule does not meet the
cases of contracts for freight as they are generally made. It
does not meet the case of a vessel engaged in carrying mer-

ild. InBulkley V. IJnited States, by the contractor against the gov-
19 Wall. 37, A contracted with the eminent for profits which he would
government to transport a large have made had the supplies been fur-
quantity of army supplies, the gov- nished as he received notice that they
ernment agreeing that in order that would be, it was held that the notice
he should be in readiness to meet its did not amount to an agreenjent to
demands for transportation due no- furnish the supplies specified, and
tice should be given to him of the therefore that the contractor could
quantity to be transported at any not recover the profits which he
one time. The government gave would have made had the freights
him notice that transportation would withheld been furnished him. But
be required at a time mentioned for it was also held, that the govern-
a certain large amount of svipplies ment having thrown upon him need-
specified, and inquired if he would less expense by requiring him to
get ready. He replied afiQrmatively, make ready for the transportation of
and did get ready. The government freights under the contract, which
at the time named furnished a small they did not in the end require to bo
part of the supplies of which they transported, he was entitled to re-
had given notice, but not needing cover for the expense to which he
transportation for the much larger was thus subjected,
residue did not furnish it. On suit 2 Bailey v. Damon, 3 Gray, 93.

ACTIONS BY CAEEIEE3. 1S3

chandise generally for all who may apply, and making up her
cargo from various owners of goods. Such ship usually must
sail on or about a given day to fulfil her other contracts, thus
having no time or opportunity to fill up a deficient cargo, and
also unnecessarily incurring all the expenses that would have
been . incident to the voyage, had the shipper fulfilled his par-
ticular contract to furnish a certain amount of goods for the
voyage. On the other hand, if the shipper's contract were to
fill the entire ship with his goods at a certain freight, upon his
refusal or neglect to fulfil his contract, the carrier might aban-
don the whole voyage, and engage in some new adventure
equally or more profitable, and thus all future expenses inci-
dent to the first voyage be saved. Here it is quite obvious the
damages would be much less than in the case of a voyage that
must be performed notwithstanding the failure of a single in-
dividual customer to ship his goods according to his contract.
So, too, if under no obligation to other shippers to sail at a
given day, or if that day is so remote, and the demand for
transportation of goods such as to afford full opportunity to fill
up the ship before the day of sailing, these circumstances would
materially affect the amount required to be paid by the shipper
to the carrier, to indemnify him for the non-performance of the
contract by such shipper. It seems, therefore, proper that all
the attendant circumstances be brought before the jury in each
particular case, to enable them to estimate the proper sum to
be awarded as damages f br a breach of a contract of this nature.
The carrier is to receive full indemnity for the breach of con-
tract on the part of the shipper. He is to be made as good, in
a pecuniary point of view, as if the shipper had furnished the
goods according to his contract, if the carrier has been guilty cJf
no laches as to substituting other freight, or adopting other
available arrangements to mitigate the loss, or to avoid the ex-
penditure incident to the proposed voyage. But if by proper
and reasonable efforts he can substitute other goods, he is bound
to do so, and, to the extent of the freight thus received, this
should go in reduction of the damages. Nor is the reduction
necessarily confined to his receipts from goods actually substi-
tuted. The carrier may have been remiss in his attempts to
fill up his ship, or have neglected to avail himself of oppor-

184; CUllJIEKS.

tunities presented by other offers of goods, and if guilty of
negligence in these respects, this may be a ground for a deduction
from the entire sum stipulated to be paid by a shipper for
freight of certain articles, which were not furnished to the car-
rier. It may be also that the carrier was under no obligation
to others to prosecute the proposed voyage, and might have
abandoned it for another and more profitable employment of
his ship ; and in such a case he should not pursue the original
voyage for the mere purpose of charging the defaulting shipper
with the gross sum he stipulated to pay for transporting his
goods to a distant port.^

Upon a contract to furnish three cargoes at a distant port,
if/ the piaster pursues his voyage, but the freighter has no
freight at the designated port, he is not bound to go to another
port in search of freight, but is bound to seek for freight at the
port designated, and obtain it if possible, and if after such en-
deavor he is compelled to return empty, the rule of damages is
the contract price.^ So when a party contracts to load a ship
to a given amount of tons, at a stipulated price per ton, and
falls short in shipping the whole number of tons, the owner or
master of the vessel is entitled to recover, in th^ nature of dam-
ages, freight for deficiency ; but where, in such case, goods are
offered by a third person, to be shipped to an amount sufficient
to make up the deficiency, though at a reduced rate of com-
pensation, but still at current prices, the owner or master of the
vessel is bound to receive such goods, and place to the credit of
the original charterer the net earnings in respect to such sub-
stituted cargo, after making aU reasonable deductions resulting
from the circumstances of the case.^

1 Id. ; Bradley v. Denton, 3 Wis. earned during the time a perf orm-

S57; litter v. Chapman, 38 Cal. 659; ance of the contract would have oc-

a C. 43 id. 279; Heckscher v. Mc- cupied $341.24, but in earning this,

Crea, 24 Wend. 304; Harries v. and in a reasonable effort to earn

Edmonds, 1 C. & K. 686; Murrell v. other sums, and which efforts the

Whiting, 33 Ala. 54. court had decided it was the car-

" Bradley v. Denton, supra; Daffe rier's duty to make, he incurred an

T. Hayes, 15 John. 327. expense of $777. This net loss of

3 Heckscher V. McCrea, supra. In $435.16 he claimed as part of his

TJtter V. Chapman, 43 Cal. 279, the damages to be added to the net

freighter made a total breach of the profit he would have made by per-

eontract on bis part, and the carrier forming the contract. The court

ACTIONS BY CAEEIEES.

185

The carrier is not bound to anticipate a failure on the part of
the shipper to furnish full cargo, and accept in advance an offer
of other goods; but after a breach of his contract, it is the
duty of the carrier to accept the offer of even the same goods
the shipper had contracted to furnish, though offered at a re-
duced freight, to save the defendant from damages to that
extent.^

It was covenanted in a charter-party providing for an out-
ward and return cargo at a given freight per ton, on a voyage
from London to St. Petersburgh, that if political or other cir-

said: " The correct interpretation of
our decision on the former appeal is
that the plaintifiEs are entitled to re-
cover only the actual loss which
they suffered from the breach of the
contract; and if it appeared that
during the space of time which
would have been requisite for the
performance of the contract by
them they had, or by the use of rea-
sonable diligence might have real-
ized a profit from the use of the
boat or barge equal to or exceeding
the profit which they would have
made by performing the contract,
in that event they would have suf-
fered no loss, and would have been
entitled to nominal damages only.
The burden of proof was on the de-
fendant to show that the boat and
barge had or might have realized a
profit. And if the net earnings did
not equal or exceed the profit which
the plaintiff would have made by
performing the contract, then such
net earnings would reduce, pro
tanto, the amount of the plaintiffs'
loss. But we did not decide nor in-
tend to estimate that the defendant
stood in the relation of a guaran-
tor, incurring the hazard of what-
ever loss the plaintiff might sus-
tain by reason of a fruitless effort
to obtain a profitable employment
for the boat and barge. It was in-
cumbent on the defendant to show,

if he could, that a profit had been
or might have been realized by the
boat and barge; and, failing in this,
the only result would have been
that the plaintiffs would have re-
covered the difference between the
contract price and the cost of per-
forming the contract. But if a per-
son should charter a ship for a num-
ber of months, or for a long voyage,
and should immediately thereafter
repudiate the contract, and refuse
to perform it, no one, I apprehend,
would seriously contend that the
owner could send the vessel on a
long and expensive voyage, in a
fruitless effort to obtain profitable
employment for her during the
term of the charter-party without
the consent of the charterer, and
thereby fasten upon the latter the
whole expense of the voyage. In
such case the proper measure of
damages would be the difference
between the contract price and the
cost which the owner would have
incurred if the contract had been
performed, subject only to such re-
duction as the charterer would have
been entitled to on his proving af-
firmatively that the ship had, or
might by a reasonable effort have
earned a profit during the term of
the charter-party."

1 Harries v. Edmonds, 1 C. & K.
686.

1 S6 CAERIEHS-

cumstances should prevent the shipping of a return cargo or
discharging the outward cargo, after waiting a specified time,
the master should be at liberty to return, and the freighters
should at once pay him 3,500?. The freighters procured a pol-
icy of insurance by which the underwriters agreed to pay a
total loss in case the ship was not allowed to load a cargo at
St. Petersburgh on the chartered voyage. The contingency of
not being permitted to unload, and consequently of reloading,
happened; thereupon, the master judging for the best, instead
of returning immediately to London, proceeded to Stockholm,
where, after disposing of the outward cargo to disadvantage, he
brought home a Swedish cargo and earned freight thereon. In
an action by the freighters on the policy of insurance, it was
held that, as the freighters would be entitled to deduct from
the sum payable to the master for dead freight the amount of
the freight received by him on the return cargo from Stock-
holm, though such intermediate voyage were not originally con-
templated by the contracting parties, but was undertaken upon
the emergency, therefore the underwriters were entitled to
make the same deduction from the total loss stipulated for by
the policy, every contract of insurance being in its nature a
contract of indemnity.^

In a subsequent case, under a similar charter, the master re-
turned direct, bringing back the outward cargo, but took in other
goods as freight, and the court beld that he was entitled to
receive the gross sum stipulated, and also to retain the freight
which the ship had earned. Lord Mansfield said : " Since the
homeward cargo could not be obtained, the defendants were, I
suppose, to have their load brought back, though it is not so
expressed ; and it may be conjectured that the reason why the
deed is so inaccurately drawn, was that the parties inferred that
if the load should not be unloaded it would come back to Lon-
don on the same terms on which the ship would return empty
in case there was no return cargo ; but that is inconsistent with
the other clause, which makes the dead freight payable on the
ship's arrival at any port in England ; for certainly the charter-
party imposes on the plaintiff no obligations to bring back the

1 Puller V. Stainforth, 11 East, 333.

ACTIONS BY CAEEIEES. 1S7

t

load to London. This makes a very extraordinary case ; and
none of the cases mentioned by Mr. Abbott, or elsewhere,
apply to afford a rule for the present case. Because, even sup-
posing that the captain is bound by his covenant to bring back
the load for the 2,700^., it is nothing more than a contract to
bring back a certain quantity of goods, not according to a rate
of freight proportioned to any certain bulk or weight, but
merely as a wagoner might agree for a gross sum to carry goods
in his own wagon from London to Exeter, or elsewhere. Now
considering this as a mere contract to bring certain goods to
England, I see no reason why the captain may not earn what
else he can by taking other goods on board for his own benefit.
In common cases of charter-parties, there usually is a covenant
that the freighter will supply a certain quantity of homeward
freight at the freight port, and if he does not, the plaintiff has
his action on the covenant against him. But suppose, instead
of leaving the damages open, he stipulates, if I bannot provide
a cargo for you, I will pay you so much ; would not the owner
in that case have a right to take goods on board for his own
account. His ship is at full liberty for him to make any other
profit of, and in such a case he doubtless would insist on more
or less liquidated damages, according to the chance he foresaw
of getting freight home from the place where he was going ;
and in such a case I see no reason why the person who had
stipulated to pay such liquidated damages, should be discharged
from any part thereof on account of the profit which the
plaintiff might make by the cargo supplied by any other person.
I was at first much staggered by the case in the court of king's
bench, which is very similar ; • but there the captain did not
bring home the load, but instead thereof went to Stockholm,
and there sold the load and got other goods and brought them
home. . . . This strong difference subsists between the two
cases: there the load was the property of . . . (the
freighter), but the load was not brought back ; it was sold at
Stockholm ; and for aught that appears, the means which the
captain had of obtaining any freight at Stockholm might arise
from the use he made of the load there ; and on that account,

1 Puller T. Stainf orth, supra.

188 CAEKIEBS.

perhaps, the court of king's bench might think that the captain,
who had not been authorized or directed to act thus, but had
done all this for his own benefit, should not be entitled to that
profit, leaving the underwriters to pay the whole 2,5001. But
in this case, on the best consideration, we think that the defend-
ants are not entitled to deduct frpm the 2,1001. the profit which
the captain made." ^

The burden of proof as to the carrier having obtained or
having it in his power to obtain other cargo or employment for
his ship or other vehicle, is on the defaulting freighter.^

Same, on chabtee to load with: enumerated articles. — In
an action for not supplying a cargo under a charter-party, ac-
cording to the terms of which different articles of freight are
to be paid for at different rates by weight, and the freighter is
at liberty to supply which articles he pleases, the average value
of freight, calculated upon the various rates of freight in the
proportions of the articles usually carried on such a voyage,
is the proper measure of damage.' If the freighter under a
charter-party loads the vessel with commodities whoUy or in
great part different from those enumerated in the charter-party,
he will be liable to damages as though he had performed the
contract in the way most favorable to himself and least favor-
able to the ship owners ; * that is, at the lowest amount of
freight to which they would have been entitled for a full cargo
of enumerated articles, taken in the proportions provided by
the charter-party.'

1 Bell V. Pullen, 2 Taunt. 385. merated articles; there may have

2 Utter V. Chapman, 43 Cal. 379; been goods at the port of loading
Murrett v. Whiting, 33 Ala. 54; Dean which he might have shipped, but
V. Eitter, 18 Mo. 183. none of the enumerated goods; there

3 Thomas v. Clarke, 3 Stark. 450. may have been goods the loading of

4 Capper v. Forster, 3 Bing. N. C. which would have been the most
988. profitable to the owner, and the

5 Cockbum v. Alexander, 6 C. B. most onerous to the charterer, or the
791, per Williams, J. Maule, J., said: converse may have been the case.
"Suppose there were goods, which Again, suppose there were no
the charterer might have put on goods at all at the place ready for
board if he had chosen to do so, and shipment, that would present a
did not, — it may be that he had the totally different state of things;
optionof shipping any one of the enu- there the non-shipment of a cargo

ACTIONS BY CAltElEES. 189

Careiee's actions foe niEiQHT AND oTHEE cHAEGEs. — Service
may be performed in the transportation of goods on request
without any express or tacit agreement fixing the rate of
freight. It is then a quantum meruit demand,^ to be ascer-
tained by the usage of the trade and the reason of the case.^
Such transactions, however, are rare, and comparatively unim-
portant. Since the adoption of modern improved methods of
transportation, the business has assumed large proportions, and
it has been minutely systematized ; fixed and detailed rates of
through and local freight are generally scheduled and pub-
lished. Even in the absence of an actual contract, the circum-
stances afford evidence of an implied agreement for specific
freights, conformable to the published rates of the carrier.
Sometimes questions arise in respect to them when there are
discriminations inimical to the public interest or in conflict with
statutory regulations. On common law principles, a reasonable
compensation may be charged and recovered. The common-
ness of the duty of a common carrier to carry for all, it has
been held, does not necessitate a commonness of compensation.
The tariff of rates, or what is charged to one party, is but
matter of evidence to determine whether a particular charge to
another is reasonable.'

would result from the charterer's as more probable than the obtaining
inability to ship a cargo. If you of any of the others; and, taking
coiild show that there were goods an average, and assuming that to be
which the charterer might have ob- the way in which the contract, if
tained, then the proper measure of performed at all, would probably
damages would be the non-shipment have been performed, you are to
of that cargo. But, if there were none, make that the basis of the calcula-
it may be that, in ascertaining the tion of freight."
damages, an average is to be taken i Bastard v. Bastard, 3 Show. 81;
of aU possible kinds of goods. It is Simmes v. Marine Ins. Co. 3 Cranch
in that way, I think, that Lord Ten- C. C. 618; Hollister v. Nowlen, 19
terden arrived at the opinion he ex- Wend. 338; Citizens' Bank v. Nan-
pressed in Thomas v. Clarke, viz.: tucket S. B. Co. 3 Story, 35.
that where there is no cargo at all to 23 Kent's Com. 303, 319; Harris v.
be had, the average is to be taken of Packwood, 8 Taunt. 364; Wallace v.
aU possible kinds of cargo; that is, Matthews, 89 Ga. 617; Halford v.
that you are to assume, contrary to Adams, 3.Duer, 471.
the fact, that there are goods of each ' Johnson v. Pensacola, etc. E. R.
of the kinds enumerated,— because Co. 16 Fla. 633; Gaston v. Bristol &
the obtaining of goods of any one E. R'y Co. 1 B. & S. 113, 154; Baxen-
kind, where none are in truth ob- dale v. Eastern, etc. R'y Co. 4 C. B.
tained, cannot a ^iori be considered N, S. 63.

190 CAEEIEXtS.

DlSCEIMINATIONS UNLAWFUL WHEN CONniTIONa THE SAME. — But

the duty to serve all who apply for the carriage of goods is
founded in the consideration that the calling is a public employ-
ment, as the right to accept or reject an offer of business is neces-
sarily incident to all private traflSc.^ " Eecognizing this as the

f settled doctrine," says Beardsley, C. J., " I am not able to see how
it can be admissible for a common carrier to demand a different
hire from various persons, for the identical kind of service,
under identical conditions. Such partiality is legitimate in pri-
vate business, but how can it square with the obligations of a
public employment? A person having a public duty to dis-
charge, is undoubtedly bound to exercise such ofHce for the
equal benefit of all ; and therefore to permit the common car-
rier to charge various prices, according to the person with
whom he deals, for the same services, is to forget that he owes
a duty to the community. . . . The law that forbids him
to make any discrimination in favor of the goods of A, over
the goods of B, when the goods of both are tendered for car-
riage, must, it seems to me, necessarily forbid any discrimina-
tion with respect to the rate of pay for the carriage. I can
see no reason why, under legal rules, perfect equality to all
persons should be exacted in the dealings of the common car-
rier, except with regard to the amount of compensation for his
services. The rule that the carrier shall receive all the goods

' tendered, loses half its value, as a politic regulation, if the cost
of transportation can be graduated by special agreement so as
to favor one party, at the expense of others. E"or would this
defect in the law, if it existed, be remedied by the principle
which compels the carrier to take a reasonable hire for his
labor, because, if the rate charged by him to one person might
be deemed reasonable, by charging a lesser price to another for
similar services, hfe disturbs that equality of rights among his
emploj^ers which it is the endeavor of the law to effect.
Indeed, when a charge is made to one person, and a lesser
charge, for precisely the same offices, to another, I think it
should be held that the higher charge is not reasonable." - In
the case in which this opinion was given, it was held that an

1 Messenger v. Penn. R. R. Co. 36 2 H,
N. J. L. 407, 410.

ACTIONS BT OAEEIEES. 191

agreement by a railroad company to carry for certain persons at
a cheaper rate than they will carry under the same conditions for
others, is void for creating an illegal preference.^

The commonness of the right necessarilj'' implies an equality
of right, in the sense of freedom from unreasonable discrimi-
nation; and statutes which require of carrying corporations
equality in terms, facilities and accommodations, are held to be
declaratory of the common law.^

A carrier may make a valid contract for conveying property
at less than his usual rate, and for less than a reasonable com-
pensation.

It is settled that when the carrier has not given notice that
he would not be answerable beyond a specified sum, unless in-
formed of the value, or has made a special acceptance, it is not
the duty of the shipper to state the quality or value.' It is
the duty of the carrier to make inquiry if he wishes to have a
reward proportionate to the value, or to know whether the
goods are of that quality for which he has a sufficiently secure
conveyance.^ If inquiry is made, the shipper must answer
truly at his peril; and if such inquiry is not made, and the
parcel is received at such price for transportation as is asked
with reference to its bulk, weight or external appearance, the
carrier is responsible for its loss whatever may be its value.^

If a carrier has, without inquiry, unwittingly received a pack-
age of great value and charged a disproportionately low freight,
and on payment of it undertakes to transport it, he cannot, on
discovering its true value, exact additional payment, where no
fraud has been practiced to conceal the value.'

1 Sandford v. Catawissa, etc. E. R. LeVois v. Gale, 17 La. Ann. 303;
Co. 34 Pa. St. 378; Palmer v. Grand Story on Bailm. § 567.

Junction E'y, 4 M. & W. 749 ; Parker * Id.

V. Great W. R'y Co. 7 M. & G. 253; 5 Orange Co. Bank v. Brown, 9

New England Express Co. v. Maine Wend. 85; Walker v. Jackson, 10 M.

C. E. E. Co. 57 Me. 188; Chicago, & W. 168; Phillips v. Earle, 8 Pick,

etc. R. E. Co. V. Parks, 18 111. 460. 183; Eelf v. Eapp, 3 W. & S. 31; Lit-

2 Sandford v. Catawissa, etc. E. E. tie v. Boston, etc. E. E. Co. 66 Me.
Co. 34 Pa. St. 378; New England 339; HoUister v. Nowlen, 19 Wend,
Exp. Co. V. Maine 0. E. E. Co. 57 Me. 334.

188; McDaffee v. Portland E. E. Co. i* Baldwin v. Liverpool, etc. Co. 74

53 N. H. 430. N. Y. 135. See Magnin v Dinsmore,

s^atson V, Donovan, 4 B. & Aid. 63 N. Y. 35.
29; Magnin v. Dinsmore, 63 N. Y. S5;

192 CAEEIEEB.

When feeigiit due and eaened. — 'No freight is due before
the commencement of the voyage or. transportation, although
the goods may have been put in possession of the carrier and
placed on board of his vessel or other vehicle ; ' but if the ship-
per retake his goods after delivery and acceptance for trans-
portation, the carrier is entitled to compensation for any
expense or trouble he has been put to, as well as damages for
breach of any contract to furnish such goods for transporta-
tion.2 A carrier may require prepayment of freight ; but if
he does not, and receives the goods, he can maintain no action
for their carriage until the goods are delivered at their destina-
tion.'

Freight is not earned until the delivery, or what is equivalent
thereto, to the consignee or owner at the place of destination,*
unless delivery is prevented by the act or default of the ship-
per.* If it becomes impossible to deliver the cargo for a cause
not attributable to the fault of either the shipper or the carrier,
no freight can be demanded.^

Where some portion of a perishable cargo has been lost by
decay, without the fault of the master, and was for that rea-
son left behind on the voyage, the ship owners are entitled to
recover freight on the residue duly transported and delivered,^

' Bailey v. Damon, 3 Gray, 92-94; this the foundation of a lien. Ang.

Culing v. Long, 1 Bos. & Pul. 634; on Car. § 356.

Clemson v. Davidson, 5 Binn. 393, < Lorillard v. Palmer, 15 John. 12;

401; Burgess v. Gan, 3 Har. & J. Brown v. Ralston, 4 Rand. 504;

225; 3 Kent's Com. 223. But see Price v. Hartshorn, 44 Barb. 655;

3 Par. on Cont. 287; Bartlett v. Clendaniel v. Tuckerman, 17 Barb.

Camley, 6 Duer, 194. 184; Stevens v. Sagvrard, 8 Gray,

2 Id. 215; Harris v. Rand, 4 N. H. 555;

3 Barnes v. MarshaU, 18 Q. B. 785. S. C. id. 361; Adams v. Haught, 14
If common carriers undertake to Tex. 243; The Ship Hooper, 3 Sumn.
carry goods vrithout having been 542; Brittain v. Barnaby, 31 How.
previously paid, the law presumes U. S. 537; The Ann D. Richardson
that they consider the possession of 1 Abb. Adm. 499.

the goods as a sufficient security for 5 id.

their expected remuneration; and SThibault v. RusseU, 5 Harr.

in conformity with this presump- (Del.) 293; Hal wenon v. Cole, 1 Spear,

tion, it authorizes them to retain 331; Crawford v. WiUiams, 1 Sneed,

their possession at the end of the 305; Withers v. Macon, etc. R. R.

transit, until they have received Co. 35 Ga. 373; McKibbin v. Peck,

satisfaction for their labor, etc. ; and 89 N. Y. 363, 270.

7 The Brig Collenberg, 1 Black, 170.

AOTIONS BY 0AEEIEE8. 193

but no freight is payable in respect to the part not carried. ^
So, if molasses or liquids have wasted in bulk during the voy-
age, or live animals die, no freight on such part, not delivered,
is earned.^ So if a voyage be broken up by an interdiction of
commerce with the port of destination, after its commence-
ment, no freight is payable.' But where the cargo is taken at
a lump freight, the whole may be recovered on right delivery
of part, if the other part be lost without the carrier's fault.^
Freight has been well defined to be the price payable for the
carriage of goods from the port of loading to their port of
discharge.'

If the cargo increase in bulk on the voyage, as by the birth
of infants,* or the swelling of grain by heating, freight is pay-
able only on the quantity shipped rather than on that deliv-
ered.' And if the property is delivered in specie, although in
a damaged condition, and even if worthless, whether the dam-
age be accidental or by the carrier's fault, freight is earned,
subject in the latter case, in this country, to the right of re-
coupment for such damage.' But in the case of an actual loss
or destruction by sea damage of so much of the cargo that no
substantial part of it remains ; as, if sugar in mats, shipped as
sugar, and on freight to be paid at so much per ton, is washed
away, so that only a few ounces remain, and the mats are
worthless ; or a valuable picture has arrived as a piece of spoilt
canvas, cloth in rags, or crockery in broken sherds, it may be
questioned that any freight would be due. In such instances
the proper course seems to be to ascertain from the terms of the
contract, construed by mercantile usage, if any, what was

1 Dakin v. Oxley, 15 C. B. N. S. 5 Gibson v. Sturge, 10 Exch. CSZ.
per WiUes, J. « MaUey, Bk. 3, oh. 4, § 8.

2 Frith V. Barker, 3 John. 837; The ' Gibson v. Sturge, supra.

Cuba, 3 Ware, 260; Dathie v. Hil- s McGaw v. Ocean Ins. CO'. 33

ton, L. R. 4 C. P. 138; Nelson v. Pick. 405; Lord v. Neptune Ins. Co.

Stephenson, 5 Duer, 538; Ang. on 10 Gray, 109; Hugg v. Augusta Ins.

Carr. § 311. & B. Co. 7 How. 595; Ogden v. Oen-

5 The Saratoga, 3 Gall. 164; Lid- eral Ins. Co. 2 Buer, 304; Stedman

dard v. Loper, 10 East, 536. v. Taylor, 3 Ware, 53; Nelson t.

* Merchants' Shipping Co. V. Arm- Woodruff, 1 Black, 156; Nelson t.

itage, L. R. 9 Q. B. 99; 43 L. J. Q. Stephenson, 5 Duer, 538; Griswold

B. 34; Gait v. Archer, 7 Gratt. 307; v. New York Ins. Co. 1 John. 205;

Leckie v. Sears, 109 Mass. 434.. S. C. 3 John. 321. See post, p. 303

Vol. Ill — 13

194 CABEIEES.

the thing for the carriage of which freight was to be paid, and
by the aid of a jury to determine whether that thing, or any
and how much of it, has substantially arrived.^

After the transportation commences, under a contract for a
specified freight, if the shipper prevents the delivery at the
place of destination, he is nevertheless liable for full freight on
receiving the goods at an intermediate point.^ When the goods
are shipped and the voyage commenced, the right of the ship
owner to full freight has attached ; and in case of accident and
detention, either by putting back to the port of departure, or
by stopping at an intermediate port, more or less distant from
the port of destination, the shipper has no right, without the
consent of the ship owner, to demand and obtain the goods
without paying full freight, in case the ship owner, or the mas-
ter in his behalf, can either refit his own ship within a reason-
able time, and proceeds to do so, or within a like reasonable
time, will transport the goods in another vessel.'

If the master, without sufficient cause, refuse to repair his ship
at the intermediate port, and to send on the goods, or to procure
another vessel for that purpose, he can recover no freight.^

1 Dakin v. Oxley, 15 C. B. N. S. 665. s McGaw v. Ocean Ins. Co. 23

2 Palmer v. Lorillard, 16 John. 347; Pick. 405. In Hadley v. Clarke, 8
Ellis V. WiUard, 9 N. Y. 529; Jor- T. R. 259, the defendants contracted
dan V. "Warren Ins. Co. 1 Story, 343; to carry the plaintiff's goods from
Nelson v. Stephenson, 5 Duer, 538; Liverpool to Leghorn. On the ves-
Merchants', etc. Ins. Co. v. Butler, sel arriving at Falmouth, in the
20 Md. 41; Violett v. Stettinius, 5 course of her voyage, an embargo
Cranch C. C. 559; Bradhurst v. was laid on her until the further or-
Columbian Ins. Co. 9 John. 17; ders of council; it was held that
Bradstreet v. Baldwin, 11 Mass. 229; such embargo only suspended but
Murray v. JEtna, Ins. Co. 4 Biss. 417. did not dissolve the contract be-
A railroad company having no in- tween the parties; and that even
terest in a contract for through after two years, when the embargo
transportation, made between other was taken off, the defendants were
parties, cannot prevent the con- answerable to the plaintiff in dam-
signee from stopping the goods be- ages for the non-performance of tlie
fore reaching their line of road; and contract.

if they carry the goods over their * Welch v. Hicks, 6 Cow. 504, In

line, in spite of the consignee's ob- Pahner v. Lorillard, 16 John. 348,

jection, they have no right to col- the bill of lading was for trans-

leot any f i-eight or expenses. With- portation from Richmond to New

ers V. Macon & W. R. R. Co. 35 Ga. York. The jury found that theves-

373. sel, in the beginning of February,

ACTIONS BY OAUEIEES. 195

In Bork v. Norton.^ an action was brought for freight,
and it appeared that the defendant shipped on the plaintiff's
vessel at Buffalo merchandise consigned to Chicago. The
vessel left Chicago in October, and having reached Detroit waft.
prevented by ice from proceeding farther until navigation
opened in the spring following. On reaching Detroit the cargo,
being somewhat injured, was unladen. During the winter the
defendant had the greater part of his goods conveyed to Chicago
by land at a heavy expense. So soon as navigation opened in
the spring, the vessel, with that part of the cargo which remained
at Detroit, sailed for Chicago, and delivery was there made
some time in March. The question was whether the plaintiff
was entitled to full freight. The court say : " It may well be
matter of doubt whether all* the principles of maritime con-
tracts of this nature can apply to the navigation of our lakes
and rivers. The facts of this case may test this principle. The
defendant is a merchant, and the cargo in question consisted of
merchandise. It was important that his goods should be con-
veyed to Chicago expeditiously, as the fall and winter sales
were of the utmost importance to him. This was known to the
master of the vessel. Under such circumstances, was it incum-
bent on the defendant to wait some four or five months, until
the navigation of the upper lakes opened, for the delivery of
his goods ? The vessel arrived at Chicago some time in March.
This would have been very injurious to the defendant, and,
indeed, might have been ruinous to him. Such a delay was not
within the contemplation of the parties, nor any reasonable
construction which can be given to the contract. ... A

proceeded from Richmond, in the but the master refused to deliver

prosecution of the voyage, and came them unless he was paid half freight,

to Hampton Roads, but finding the The court held that the contract of

Chesapeake blockaded by a hostile affreightment was not discharged by

squadron, and that it would be im- the blockade, and the carriers had a

possible to put to sea without being right to retain the goods until they

captured, went into Norfolk, and could, prosecute the voyage, unless

finally returned to Richmond; that the shipper tendered them the whole

in September following the plaintiffs freight to which they would have

demanded their goods in order to been entitled on its completion,

transport them to New York by land, 1 2 McLean, 433. i

196 CAEEIEES.

distinction, it seems to me, may well be drawn between a con-
tract for the transportation of goods upon the high seas and
over lakes of but limited extent. In the former case the risks
are numerous, and, being well understood, may, to some extent,
at least, be protected by an insurance. In the latter, if the
risks are of the same nature, they are more limited. But the
main difference is, the transportation by sea is the only means
of conveyance in the one case, while in the other, if obstructions
on the water occur by ice or otherwise, a land transportation
may be adopted ; and the contract is made in reference to this
fact. It must be an extraordinary case, indeed, where there is
an obstruction of the navigation of the lakes by ice for four
months, that the owner of the goods should be bound to wait
this period for their delivery." •

Yarious circumstances will entitle the shipper to demand and
take possession of the goods at a place short of the port or
place of destination, without subjecting him to the payment of
full ov pro rata freight. He may do so, for example, when the
carrier refuses or is unable to carry them further ; ^ when neces-
sary to save the property from destruction, or when it has been
wrongfully disposed of by the carrier.^ If a ship be disabled
from completing her voyage, the ship owner may stiU entitle
himself to the whole freight by forwarding the goods by some
other means to the port of destination ; but he has no right to
any freight if they be not so forwarded, unless the forwarding
them be dispensed witb, or unless there bs some new bargain
upon the subject. If the ship owner will not forward them,
the freighter is entitled to them without paying anything. One
party, therefore, if he forward them, or be prevented or dis-
charged from so doing, is entitled to his whole freight ; and the
other, if there be a refusal to forward them, is entitled to have
them without paying any freight at all. The general property
in the goods is in the freighter ; the ship owner has no right to
withhold the possession from him, unless he has earned his
freight or is going on to earn it.'

) Portland Bank v. Stubbs, 6 Mass. 236; Hunter v. Prinsep, 10 East,
433; Welch v. Hicks, 6 Cow. 504 378.

2 Western T. Co. v. Hoyt, 69 N. Y. 8 Hunter v. Prinsep, 10 East, 378.

ACTIONS BY CAEEIEES. 107

When peo eata feei&ht mat be demanded. — The principle
that an entire contract cannot be apportioned, and that full per-
formance of conditions precedent is necessary to a right of ac-
tion on the contract, applies to contracts of affreightment as
well as to others.! And so does the principle that if the party
entitled to such full performance waive it and voluntarily ac-
cept the benefit of partial performance, a promise will be im-
plied to make compensation fro tanto. Therefore, where the
owner voluntarily accepts thfe goods before the transportation is
completed, and in fact discharges the carrier from further
transportation, withodt being compelled thereto by any wrong
done by or default or inability of the carrier, a contract to pay
tvei^t pro rata will be implied.^ To justify a claim for pro
rata freight there must be a voluntary acceptance of the goods
at an intermediate place in such mode as to raise a fair infer-
ence that the further carriage of the goods is intentionally
dispensed with ; ' mere acceptance at a place short of the des-
tination without regard to other circumstances is not a decisive
fact.^

The ground on which the right to receive pro rata freight
rests is that the owner who receives the goods at an intermedi-

1 Western Transp. Co. v. Hoyt, v. Baltimore Ins. Ca 7 Cranch, 358;
supra. Herbert v. Hallett,. 3 John. Ca. 98;

2 Harris v. Eand, 4 N. H. 261; Whitney v. N. Y. Ins. Co. 18 John,
Rand v. Harris, id. 555; Liddard v. 208; MoGaw v. Ocean Ins. Co. 33
Lopes, 10 East, 536; Cook v. Jen- Pick. 405; Hove v. Mason, 1 Wash,
nings, 7 T. B. 381; Shields v. Davis, (Va.) 364; The Mohawk, 8 Wall. 153;
6 Taunt. 65; Malloy v. Backer, 5 Whitney v. Rogers, 3 Disney (O.),
East, 316; Christy v. Row, 1 Taunt. 431.

300; Vlierboom v. Chapman, 13 M. 3 Viierboom v. Chapman, 13 M. &

& W. 239; Luke v. Lyde, 3 Burr. W. 338.

883; Post V. Robertson, 1 John. 24; 4 See Hurtin v. Union Ins. Co. 1

Scott V. Libby, 3 John. 336; Parsons Wash. Cir. Ct. 530; Marine Ins. Co.

v. Hardy, 14 Wend. 315; Welch v. v. United Ins. Co. 9 John. 186;

Hicks, 6 Cow. 504; Griswold v. N. Penoyer v. Hallett, 15 John. 333;

Y. Ins. Co. 1 John. 305; 3 id. 321; Bradhurst v. Columbian Ins. Co. 9

Western T. Co. v. Hoyt, 69 N. Y. John. 17; Armroyd v. Union Ins.

230; Hunt v. Haskell, 24 Me. 339; Co. 3 Binn. 445; Escopenicke v,

Crawford v. Williams, 1 Sneed, 205; Stewart, 3 Conn. 391; Brown v.

Rossiter v. Chester, 1 Doug. (Mich.) Ralston, 4 Rand. 504; Christy v.

154; Law v. Davy, 3 S. & R. 553; Row, 1 Taunt. 300. •
Gray v. Wain, 3 S. & R. 239; Gaze

198 OAEEIEES.

ate port nas tne benefit of their transportation to that place ;
this benefit is the foundation of an implied promise.^ The
original contract is not executed, and the stipulated freight is
not earned ; but by the consent of both parties the original
contract is relinquished, and then from the beneficial service
performed by the one party for the benefit of the other, the
law raises a promise, upon equitable considerations, to pay a
part of the stipulated freight, in the proportion that the service
actually done bears to that undertaken to be done.^ In case
the vessel puts back to the port of departure, freights remain-
ing as high as when the shipment was made ; or if the deten-
tion be at a place from which to the port of destination freights
are as high as the freight stipulated to be paid, then no benefit
has been conferred on the shipper, no equitable obligation arises
to pay freight pro rata itiri^ris; and if the shipper consents to
take back his goods, and the ship owner to surrender them, no
freight is earned.^ A mere agreement to accept goods at an
intermediate port is not, for the purpose of ])ro rata freight,
tantamount to an actual acceptance. To raise an implied
promise to pay such freight, the goods must be actually deliv-
ered and actually received. Until this is done, the owner cari-
not be considered as having received any benefit from the
transportation.''

If the vessel under charter is lost after the commencement
of the voyage by one of the causes excepted in the charter,
the master is required, in respect to the cargo, to do the best
he can for all concerned. It is his duty to the ship owner, if
freight can be saved, to send on the goods by another vessel,
where it is practicable to do so ; but where the cost of trans-
shipment admits of no such saving, he seems to have no author-
ity as agent of the ship owner to hire anotlier vessel to forward
the goods; but in such an emergency he owes a duty to the
owner of the cargo to forward or otherwise dispose of it accord-
ing to his interest, and the master may reasonably forward the
goods at an enhanced freight where the interest of the freighter

1 Harris v. Rand, 4 N. H. 261. a Id.

i McGaw V. . Ocean Ins. Co. 33 « Hams v. Rand, 4 N. H. 261.
Pick. 411.

ACTIONS BY 0AEEIEE8. , 109

will justify it. "Where the goods are transshipped by the master
in the performance of this duty, the increased freight for such
transshipment is chargeable on the cargo and to the freighter.^
And to ascertain the extra freight, the proper rule has been held
to be to determine what would be the difference between the
amount of freight under the original charter-party for the por-
tion of the goods delivered at the port of destination, and the
amount of a ratable freight to the port of necessity for the
goods saved, added to the freight of the new ship.^ This ap-
pears to be the rule where the freight is adjusted on the assump-
tion that the master at the port of necessity was entitled to
freight, jpro rata itineris, on the goods being sent forward in
the interest of the shipper. But where the delivery at the port
of destination is a necessary condition, the authority of the
master to transship as the agent of the ship owner depends on
whether there can be any saving of freight. If the master must
pay for the freight onwards more than the w^hole freight the
owners are to receive for the whole voyage, he no longer acts,
or has authority to act as their agent, because they have no in-
terest in the transshipment, but as the agent of the shippers
whose goods he forwards.^ If he transship the goods, in case
of necessity, at less than the original freight, the shipper will
derive no advantage from it, but on the right delivery of the
goods at the destination, he will be liable for the stipulated
freight.^

The carrier cannot recover freight for goods lost merely be-
cause the owner insured them and collected insurance on the
value at the place of delivery.' But where the loss in such
case was not such as to absolve the carrier from the duty of
making effort for the preservation of the property; nor so
imminent as to preclude all hope of such preservation so as to

1 Searle v. Scovell, 4 John. Ch. 218; limit the powers of the master; the
2 Par. on Con. 298. former, as agent of the ship owner,

2 Id. and tlie other, as agent of the owner

3 3 Par. on Con. 298; Crawford v, of the cargo. See Cofan v. Storer,
Williams, 1 Sneed, 295; Thwing v. 5 Mass. 251; Featherston v. Wilkin-
Washington Ins. Co. 10 Gray, 443. son, L. E. 8 Exch. 133.

The cases of Lemont v. Lord, 53 * Shipton v. Thornton, 9 Ad. & El.

Me. 365, and Gibbs v. Grey, 3 H. & 314.

N. 33, discuss the principles which 5 McKibbin v. Peck, 39 N. Y. 363.

200 OAJJEIEES.

continue the transportatioQ, and thus of earning the stipulated
freight ; and the owner interrupts such efforts by settling with
the insurance company as for a total loss, thereby vesting in
such company the spes recujperamdA, and whatever could be
saved, such settlement will be an acceptance of the propertj'^,
and entitle the carrier toj^o rata freight.'

OhAEGES and expenses mCUKEED WHBEB DELIVEET HINDEEED

OE PEEVENTED. — It is established that when a ship reaches the
port of destination, and has waited a reasonable time to deliver
goods from her side, the master may land and warehouse them
at the charge of the merchant ; this he should do rather than
throw them overboard. Where the goods cannot be landed,
nor remain where they are, it seems to be a legitimate exten-
sion of the implied agency of the master to hold that, in the
absence of aU advice, he has a right to carry or send them on
to such other place as in his judgment, prudently exercised,
appears to be most convenient for their owner ; and that the
expenses properly incurred in so doing may be charged to him.
And if, in the exercise of such judgment, he carries the freight
bapk to the place of shipment, he is entitled to freight, back
freight and expenses.^ The demurrage, and the expenses in-
curred in the ineffectual attempt to land at neighboring ports,
are not allowable : but are looked upon as part of the expenses
of the voyage.'

Adjustment of eeeight undee chaetee to load with enu-
MEEATED AETicLEs. — Where a ship is chartered to bring home
a cargo of enumerated articles, at rates of freight specified for
each, and the articles are not provided by the charterer, freight
must be paid upon average quantities of all the articles,
whether the ship return empty or laden with a cargo of articles
different from those enumerated.^ The ship owner, under such
a charter, is entitled to earn the stipulated freight ; the amount
cannot be reduced either by total failure to load the vessel,

iMcKibbin v. Peck, 39 N. Y. 262. 455. See Burrill v. Clegman, 17

2 Gandet v. Brown, L. R. 5 P. C. John. 72; Scott v. Libby, 3 John.
134; 3 Kent's Com. 223. 836.

3 Id. ; Bennett v. Byram, 38 Miss. * Capper v. Forster, 8 Bing. N. C.
17; Morgan V. Insurance Co. 4 Ball. 938.

ACTIONS BY CAEEIEES.

201

nor by loading her with goods of a different description.^ If
the charter-party limits the quantity of some'of the enumerated
articles, and these are loaded up to the limit, and there is
a substitution as to the residue of the cargo, the above rule ,
applies to the latter.^ To effectuate the obvious intention in ■
respect to certainty of the amount of freight, while the charterer
takes a wide latitude in selecting cargo according to- circum-
stances not foreseen, arbitrary rules of measurement will be
adopted when necessary to conform the cargo to the standard
of the contract. By a charter-party it was agreed that a
ship should proceed to Baltimore, and there load a full cargo
of produce, and proceed therewith to the United Kingdom, and
deliver the same on being paid freight, " at and after the rate
of 5s. &d. per barrel of flour, meal and naval stores, and lis. per
quarter of four hundred and eighty pounds for Indian corn or
other grainy " that the cargo was not to consist of less than
three thousand barrels of flour, meal and naval stores; and
that not less flour or meal than naval stores was to be shipped.
The vessel arrived with a cargo consisting of seven hundred
and sixty-nine hogsheads of tobacco, six thousand and forty-seven
bushels of bran, two thousand bushels of oats, five thousand
oak staves and three barrels of flour. The evidence showed
that a quarter of Indian corn or wheat weighing four hundred
and eighty pounds would occupy a space of ten and a half
cubic feet, and that a quarter of American oats, which weighed,
upon an average, two hundred and seventy-two pounds, would
occupy a space of sixteen cubic feet. It also appeared that
oats were not a usual shipment from America. Maule, J.,
said : " The ship arrived at her destination without a f uU
cargo, the freighter being unable to furnish a full cargo. The
owner, no doubt, is entitled to compensation for this breach of
contract. The cargo the freighter engaged to furnish was a
full and complete cargo of produce, which would be satisfied
by a shipment of any article of commerce which was usually
shipped from the loading port. That being what the parties
contemplate and describe, they proceed to stipulate for the
rate of compensation which the owner is to receive, which they

1 See Thomas v. Clarke, 2 Stark. 2 Cockbum v. Alexander, 6 C. B.
450. 791.

202 CAKEIKES. /

say is to be as mejitioned above. 'Now, that enumerates and
specifies certain articles of produce, and the respective prices
to be paid for them; it applies the rate in terms to all prod-
uce. . . I . . think that the clause in question pro-
vides a rate of freight which is to be paid for any description
of produce shipped under this charter-party. It is manifest
that the intention of the parties was, that the cargo should be
delivered only on payment of some freight; and unless the
•construction I have mentioned is put upon the charter-party, no
freight at all would be provided for in respect to any but the actu-
ally enumerated articles. Taking it, then, to be a clause by
which the parties intended to regulate the amount of freight to
be paid for aU descriptions of goods coming within the general
term ' produce,' it helps us towards the construction of another
part of the instrument, which depends upon the nature of the
trade of the loading port. We think — not without some
doubts crossing the minds of some members of the court —
that the clause, when speaking of 'Indian corn or other
grain,' must be construed to mean other grain, exclusive of oats,
which are a description of grain but recently the subject of
exportation from America to England. But as this clause was
intended to regulate the freight, not for grain only, but for
every description of goods — for which purpose it was necessary
that it should ascertain a precise, or reasonably precise, rate of
payment, — we think there is sufficient reason for excluding
oats, as not being within the probable intention of the parties
when speaking of ' other grain.' The relation in which oats,
according to the evidence given in the cause, stand to other
produce, confirm us in this view. "With respect to Indian corn,
which weighs about four hundred and eighty pounds per
quarter, and wheat, 11*. per quarter is to be paid. But oats
being a grain to which that is not applicable, and not having
long been imported from that place, we think they are like any
other produce to be brought, the freight of which is not regu-
lated by that stipulation, but that they are to be paid for after
a rate to be deduced from the rate of 5s. &d. per barrel of meal,
and lis. per quarter of Indian corn or other grain of the
average weight of four hundred and eighty pounds per quarter.
The proper mode, therefore, of estimating the damages will be

ACTIONS BY CAEEIEES. 203

to assume that the stipulated number of barrels of flour was
put on board, and the residue of the vessel filled up with other
goods, at an amount of freight calculated upon the rule which
the parties have laid down, viz. : 55. 6d. per barrel of flour, and
lis. for every four hundred and eighty pounds of Indian corn
or other grain." '

Keooupment against freight. — The shipper or consignee may
recoup against freight any cross claim against the carrier for
any negligence or violation of . his contract of affreightment by
which the former has suffered damage.^ It is otherwise in Eng-
land. An exceptional rule there prevails, and where there is an
agreement for a specific freight, no evidence can be given of a
deficient performance of contract not amounting to breach of a
condition precedent, with a view to a reduction of damages.'
But where the master had sold part of the cargo without author-
ity. Lord Ellenborough held that the owner of the goods was
entitled to set off the value against the freight, notwithstanding
the freight had been assigned to a stranger.* And it seems also
td be settled in England that advances made on freight can-
not be recovered, although the ship be lost before coming to a
dehvery port, and the freight therefore not becoming payable.^
But in this country the doctrine is settled the other way.^

1 Warren v. Peabody, 8 0. B. 800. 193; Dyer v. R. E. Co. 42 Vt. 441.

2 Bancroft v. Peters, 4 Mich. 619; See Lowenburg v. Jones, 56 Miss.
Dedekam v. Vose, 3 Blatchf. 44; 688.

Byrne v. Weeks, 7 Bosw. 373; S. C. 4 ' Mayne on Dam. 353; Bomman v.

Abb. App. Dec. 657; Relyea v. New Tooke, 1 Camp. 377; Davidson v.

H. R. M. Co. 43 Conn. 579; Kennedy Gwynne, 13 East, 381.

V. Dodge, 1 Bene. 315; Nichols v. * Campbell v. Thompson, 1 Stark.

Tremlett, 1 Sprague, 367; Leech v. 490.

Baldwin, 5 Watts, 446; Edwards v. * Byrne v. SchOler, L. R. 6 Ex. 335,

Todd, 3 111. 463; Ewart v. Kerr, 3 per Lord Cockburn, C. J. ; Hicks v.

McMull. 141; Sears v. Wingate, 3 Shield, 7 El. & Bl. 633; 3 Shower,

Allen, 103; Davis v. Patterson, 37 N. 383; De Caudra v. Swann, 16 C. B.

Y. 317; Merrick v. Gordon, 30 N. Y. N. S. 772; Jackson v. Isaac, 3 H. &

93; Glendell v. Thomas, 56 N. Y. 194; N. 405.

Snow v, Carruth, 1 Sprague, 334; «Riena v. Cross, 6 Cal. 29; Lawson

Ilensdell v. Weed, 5 Denio, 172; Ed- v. Worms, 6 Cal. 365; Phelps v. Will-

mundson v. Baxter, 4 Hayw. 112; iamson, 5 . Sandf . 578; Emery v.

Hill V. Leadbetter, 42 Me. 573; Kas- Dunbar, 1 Daly, 408; The Kimball, 3

kaskia Bridge Co. v. Shannon, 6 111. Wall. 37; Lee v. Bereda, 16 Md. 190;

15; Schwinger v. Raymond, 83 N. Y. Griggs v. Austin, 3 Pick. 30; Chase

204: CAEEIEES.

Damages for detention of vessel. — Demurrage, in the strict
sense of the term, means a sum of money due by express con-
tract for the detention of a vessel in loading or unloading, one
or more days beyond the time allowed for that purpose in the
charter-party.^ Charter-parties usually fix the sum to be paid
per day for such delays ; sometimes it is fixed by reference to
the custom of the port.^ Wherever payment of freight is the
condition of the delivery of goods, and a consignee accepts them,
he thereby becomes a party to the contract, and incurs not only
the obligation to pay the freight, but also the demui-rage for
detention in unloading beyond the lay days.'

Damages in the nature of demurrage are recoverable for de-
tention beyond reasonable time in unloading where there is no
express stipulation to pay demurrage. They are in the nature
of demurrage, because they are for the detention of the vessel,
and measured by the day like demurrage ; they are damages
because they are recovered for breach of the implied contract
of the shipper that he will receive the goods in a reasonable time.*
"What is a reasonable time will be determined upon the particu-
lar facts of each case. In one case,* the master was directed to
deliver to a railroad company, but the bill of lading which
contained the contract did not provide for such delivery ; and
after arrival of the vessel there was a detention for eight days
for twenty other vessels which had arrived earlier to unload
in their turn, and the court held that was no unreasonable de-
tention. Butler, J., said : " Influenced by the equity of the case,
I had at first some doubt whether the finding in respect to the
excuse came up to the necessities of their defense. It is not

V. Alliance Ins. Co. 9 Allen, 311; At- '2 Morse v. Pesant, 2 Keyes, 16.

well V. Miller, 11 Md. 348; Hagedorn 3 id.; Dobbin v. Thornton, 6 Esp.

V. St. Louis Ins. Co. 2 La. Ann. 16; Jesson v. Sally, 4 Taunt. 52. See

1005; Watson V. Duykinck, 8 John. Chappel v. Comfort, 10 C. B. N. S.

335; Pitman v. Hooper, 3 Sumn, 66. 802; Wegener v. Smith, 15 C. B. 285;

See Mashiter v. Buller, 1 Camp. 84; Cawthorn v. Trickett, 15 C. B. N. S.

3 Kent's Com. 226-228. 753.

1 Abb. on Shipping, 5 Am. ed. pt. ■* Wordin v. Bemis, 33 Conn. 273;

4, c. 1; Wordin v. Bemis, 32 Conn. Esseltyne v. Elmore, 7 Biss. 69;

273; Clendaniel v. Tuokerman, 17 Clendaniel v. Tuckerman, 17 Barb.

Barb. 184; Bleck v. Balleras, 3 EU. & 184.

Ell. 203; Sprague v. West, 1 Abb. 5 Wordin v. Bemis, supra.
Adm. 548.

ACTIONS BY CAEEIEES. 205

found that the accumulation was owing to any unexpected cause,
or that it might not have been foreseen and provided against by
proper foresight and diligence. In several cases cited the vessels
were detained by a storm or storms, and all arrived together
when the weather cleared up. There the elements were the
cause. Here the cause is not found, nor is it found that the ac-
cumulation was not the result of a previous want of diligence
or other fault on the part of*the company. Still, it is expressly
found that the company did all they could do to hasten the dis-
charge of the vessel after the arrival of the plaintiff, and there
is no presumption that they or the defendants expected or could
have foreseen the arrival of so many vessels, or were in any way
the cause of the accumulation, and we are constrained to hold
the excuse sufficient." A somewhat stricter rule was laid down
by Judge Drummond in a case of detention from a similar cause.
It was held that the plaintiff, the master, was not responsible
for the arrival of vessels consigned to the defendants about the
same time ; that was a risk which the defendants themselves
took. The plaintiff reported his arrival on the morning of the
18th of November, and was detained to the 22d of that month
to commence unloading, on account of other vessels being there
first ; but it was held that the charterer of a vessel takes all the
risks of delay from unforeseen circumstances, and only one day
was allowed as reasonable time for commencing to unload.'

If a ship is detained beyond the days of demurrage allowed
by the charter-party, the stipulated demurrage is prima facie
the measure of compensation for the further time; but it is
competent to the owner or the freighter to show that this
would be more or less than fair compensation.'* And in fixing
the amount of demurrage to be paid for detention of a vessel
during repairs, a deduction should be made from the gross
freight of so much as would, in ordinary cases, be disbursed on
account of the ship's expenses in the earning of the freight.''

1 Esseltyne v. Elmore, 7 Biss. 69. son v. Ede, 8 B. & S. 631; 36 L. J. Q.

See on the general subject of excus- B. 373; 8 B. & S, 640; L. R. 8 Q. B.

ing detention, Farwell v. Thomas, 5 413; Erechsen v. Barkworth, 3 H. &

Bing. 188; Hill v. Idle, 4 Camp. 837; N. 601; 37 L. J. Exch. 473; 38 L. J.

Randall v. Lynch, 3 Camp. 353; Exch. 95.

Burmster v. Hodgson, 3 Camp. 488; ^Moorsom v. Bell, 2 Camp. 616.

Robertson v. Jackson, 3 C. B. 413; 3 The Gazelle, 3 W. Rob. Adm. 379,
Barrett v. Button, 4 Camp. 883; Hud-

203 oabbiebs.

Section 2.

actions against caebiebs.

For refusal to receive goods offered for shipment — For negligent delay of
transportation — Loss by fall in the inarket, or decrease of quantity or
quality, during negligent delay of transportation — Vindication of the
principle on which such items allowed — Increased expense of obtain-
ing delivery of the property in consequence of such delay — Expense of
further transportation for sale — Damages for delay in respect to a
known special use of the property — Damages for injury to or loss of
the property intrusted to a carrier — Interest on damages — Owner
entitled to compensation for his proper acts to prevent damages — Cir-
cumstances may reduce damages below the value at the place of des-
tination — Qualification of carrier's liability by notice — For what
losses the carrier responsible — Destination for the purpose of dam-
ages where there are several successive carriers — Proof of value.

FoK REFUSAL TO RECEIVE PROPERTY OFFERED FOE SHIPMENl'. —

Common carriers, by holding themselves out as such, assume to
do, and' are bound to do, what is required of them in the course
of their employment, if they have the requisite vessels or vehi-
cles to carry, and are offered a reasonable and customary price ;
and if they refuse, without some just ground, equally as when
they have contracted to carry, they are liable to an action.^ For
breach of this duty or contract, compensation to the injured
party may involve the consideration of an increased expense of
transportation otherwise, or an advance in rates of freight, as
well as injury from delay or deprivation of transportation.

The object of all transportation being to have the use or op-
portunity to sell the property at the place of destination, the
elements and amount of the loss will depend on the circum-
stances of each case. If, on the refusal of the carrier to receive
the goods, another carrier can be found without trouble or
delay who will take and convey the goods at the same or less
expense or hire, only nominal damages could be recovered, for
there would be no actual injury. If the subject to be trans-
ported be merchandise, and the purpose of the transportation
is merely to obtain a better net price than it will sell for with-
out transportation, then a refusal of the carrier to fulfil his
contract or duty to convey the property will not wholly
deprive the owner of that profit, if he can procure the convey-

12 Kent's Com. 599; Piokford v. Grand J. E'y Co. 8 M. & W. 373.

ACTIONS AGAINST CAEKIEES. 207

ance otherwise, at a price that enables him to make the trans-
portation profitable; if the substituted conveyance, by being
more expensive, reduces that profit, the increased expense of
the transportation is the measure of damages ; but if no other
conveyance is available, that is, if none can be had at all, or if
any which is attainable would be so expensive as to leave no
margin of profit, then the owner suffers injury to the extent of
the difference between the value of the property where it is,
and the value it would have at the place of destination, less
the expenses of shipment under the contract to that place.

In an action for the refusal by the defendant to perform an
agreement to transport corn from New York to Liverpool in
his ship, at a certain price, the plaintiff was held entitled to re-
cover for his damages the difference between the contract price
and what he would be, compelled to pay for the same services.
When a refusal is shown, and it appears that the price of trans-
portation has risen before the sailing of the ship, the plaintiff
is entitled to damages measured by the rise in the price, with-
out showing that he had the corn to ship.^ If sent by another
route or conveyance, at a greater expense not unreasonably in-
curred, the excess of such expense is obviously a proper item of
damage.- But if the subject to be transported is mere mer-
chandise contracted to be shipped to a better market, the
owner has not an absolute right to ship by another carrier at
such greater expense as such shipment may involve. He has
no right to send the gdods forward for the mere purpose
of charging the increased expense to the defaulting carrier,
or where that will be the sole effect. Where the defendant
had contracted to carry salt by vessel, and broke his contract,
it was held that the owner had no right to send the salt by rail,
and recover the difference between the expense agreed on with
the defendant, and what was paid for transportation by rail.' ,
The court say it is not an article of specific utility for preser-
vation, but an article of merchandise, and only valuable as

> Ogden V. MarshaU, 8 N. Y. 340. Exch. 742; Grand v. Pendergast, 58

See Nelson v. Plimpton Fire P. E. Barb. 316.

Co. 55 N. Y. 480. See also Bohn v. s Ward's C. & P. L. Co. v. Elkms,

Cleaver, 35 La. Ann. 419. 34 Mich. 439.

2 Crouch V. Great N. R'y Co. 11

308 CAEEIEE8.

such. The only advantage he could have gained by atimely
shipment, according to contract, "would have been the excess of
the value of salt in the Chicago market at the date when it
should have arrived, beyond what it was worth in Bay City,
and the expense of loading, shipment and delivery at Ms ware-
house in Chicago. If there was no such excess in value at that
time, then he was not damaged. If there was such an excess,
then he was entitled to that and nothing more. He would not
have been justified in procuring shipment by rail, if the rail-
road prices would have rendered it unprofitable. There are, no
doubt, cases where property is of such a nature, or where the
necessity of having it at a certain point is so imperative, that
the circumstances may justify employing any transportation
which is accessible, and may render the difference in cost of trans-
portation a proper measure of damages. But this can never
be proper in regard to ordinary articles of consumption, always
to be found in the market, and only valuable to the owner for
their merchantable qualities. A person has no right to put
others to an expense of such a nature as he would not, as a
reasonable man, incur on his own account.'

A contract to carry at a specified price gives a vested right
to each party, and the value of it when performance is due
should be the basis of recovery. It is not necessary, in analo-
gous cases, to go into the market for, or to procure from another,
what had been contracted for, in order to be entitled to have
its value determined, and to recover damages accordingly.

But the difference between the agreed price and the actual
cost or value of the service, is not the only measure or item of
damages recoverable in such cases. The carrier's refusal to re-
ceive and convey the property may deprive the owner of an
opportunity to market it at an advanced price, subject him to
a loss by a decline, or consequential damage in ulterior transac-
tions of which the carrier had notice at the time of making his
contract. An important case in Iowa ^ is an instance of the
allowance of such damages, The action was brought to re-
cover damages on account of the failure and refusal of the

1 Ward's C. & P. L. Co. v. Elkins, 2 Cobb v. 111. Cent. R. R. Co. 38
34 Mich. 439; Le Blanche v. London Iowa, 601.
& N. W. R'y Co. 1 C. P. Div. 286.

ACTIONS AGAINST CAEEIEES. 209

defendant to carry a large quE^ntity of oats from Dubuque and
other points on the defendant's railroad, to Cairo. The plaint-
iffs were government contractors, and engaged in the business
of supplying forage for the United States armies during the
late rebellion. The court say : " The measure of damages
against a carrier for violation of his duty or contract in respect
to the transportation of property, should be such as to do jus-
tice and award full compensation, and no more, to the party in-
jured.i Plaintiffs must be compensated for the profit they
would have realized, which is the difference between the price
they paid, or contracted to pay, for the oats, and the price under
their contract with the government, less the freight to Cairo.
They must also recover for the sum they paid, or are liable to
pay, for the oats purchased by them, or agreed to be delivered
by the various parties with whom they contracted. If the oats
were actually received by them, or were not, and only con-
tracted to be delivered, in either case they must recover the
sum paid by them on account of the oats, or on account of their
liability upon their several contracts to purchase oats. They
must be made whole on account of these outlays, and also, as
we have seen, must recover the profits that would have accrued)
to them." The court also held that " interest on the sums lost
by plaintiffs, and for which compensation in this action can b&-
recovered," was also an element of damage.^

iBridgman v. Steamboat Emily, tion the jury were not informed.-.

18 Iowa, 509. That they allowed more than mere

2 In Toledo, W. & W. E'y Co. v. compensation is faiiV inferable
Roberts, 71 El. 540, the company Cioia the remittitur. Plaintiflf stated '
agreed to furnish fifty cars a week his loss to be $3,175, but explains:
to ship 50,000 bushels of com from ' That is what I would have made on .
Springfield to Baltimore, at sixty the grain,' without counting hia ,
cents per hundred pounds, and failed time lost. There is no proof in the
to perform. On appeal the court record that the plaintiflf had 'bought'
say: "Upon the question of dam- and paid for any of this corn, except
ages, it does not appear that the $200 on a lot of 5,000 bushels, bought
court was asked to give the jury any of W. . . We are compelled to in-
rule by which to measure them, and fer, from the testimony, that on the
We are at a loss to perceive what receipt of advices from,, Baltimore
rule they did adopt. In cases like that sixty cents per bushel would be
this, compensatory damages only paid for corn delivered'there, plaint-
can De given, but what elements iflf, when he ascertained the rate for
seemed to enter into the compensa- shipping, went, the- same day,
Vol. Ill— 14

2 10 0ABKIEE8.

In a late Massachusetts case, in an action against a carrier
for breach of an executory contract to carry goods, it was held
that the measure of damages is the market value of the goods
at the place to which they should have been carried, less the
value at the place where the carrier agreed to receive them, and
less freight.' But it was also held that the fact that the owner
of the goods informed the carrier, at the time of making the
contract, that he made it because he wished to make, contracts
with third persons for the sale of goods to them, and that he
did make such contracts afterwards, do not entitle him to re-
cover of the carrier the profiits he would have made by such
contracts but for the breach of the contract of carriage.
Endicott, J., said: " The damages for which a carrier is liable
upon failure to perform his contract, are those which result
from the natural and ordinary consequences contemplated at
the time of making the contract of transportation, and a larger
liability can be imposed upon him only when it is in the con-
templation of the parties that the carrier is to respond, in case
of breach, for special and exceptional damages. In such case,
the extent and chai'acter of the obligation he assumes should
be known to the carrier, which in this case was impossible, as
the contracts were not then made. The mere knowledge on
the part of the defendant, that the plaintiff intended to make
contracts for the sale of the ties to be transported, cannot im-
pose a liability upon the defendant for loss of profits on such
contracts. Whether there would be a loss of profits, it was of

among the holders o£ corn, and bar- or that he was obliged to pay, and
gained for the desired quantity, did pay, damages to those with
thereby getting the control of 50,000 whom he had bargained for corn,
bushels, but there is no proof that for failing to take it, if such was
he ever shipped any of it, except the fact. As we have said, we can-
fifteen car loads, under his contract, not perceive on what ground, the
by 'The Globe Line,' and a small jury based their estimate of dam-
lot he sent to Pittsburgh. He fur- ages — what elements composed it.
nishes no proof what portion of this This being so, the case must go to
50,000 bushels was delivered to him, another jury, on proper instructions
and that he was obliged to, and did, from the court as to the true meas-
store it, or that he incuiTed any ex- ure of damages."
pense whatever in regard to it, or i Bracket v. McNair, 14 John. 170;
that he was compelled to sell at O'Connor v. Forster, 10 Watts, 418;
home, and did there sell, at a loss, Cowley v. Davidson, 13 Minn. 93.

ACTIONS AGAINST OAEEIEES. 211

course then impossible to determine, and probable profits would
be incapable of estimation." ^

The defendants, by charter party, agreed with the plaintiff
that their ship should, at a specified time, load 1,300 tons of
coal in the river Tyne to be carried to Havre for the plaintiff.
They broke their contract, and the plaintiff had in consequence,
first, to hire other vessels at an advanced freight, and also to
buy 1,300 tons of coal at an enhanced price. He was unable,
according to the custom of the colliery trade in the Tyne, to
secure a cargo until he had chartered vessels to carry it. The
plaintiff having sued the defendants in respect of both these
heads of damage, the defendants admitted their liability to pay
the advanced freight, but denied that they were liable for the
enhanced price of the coal. At the trial, the rise in price at
the pit's mouth was not disputed ; but it was not directly proved
that there had been an equivalent rise at Havre, and it was
held that the fact of the plaintiff having paid the additional
price was prima faoie evidence of damage to that extent, and
entitled him, in the absence of evidence to the contrary, to re-
cover.'^ In a late case, decided in the House of Lords, it was
held that damages were recoverable for loss of customers re-
sulting from such a default of a carrier. The lord chancellor
thus affirmed hypothetioally that item of damage : " There may
have been two or three collieries supplying with coal one of the
towns or places mentioned in the case, the owner of one of these
collieries being Mr. G., and the other collieries belonging to
other persons ; the restrictions and the impediments placed in
the way of the carriage of coal for Mr. Q. may have been such
as to supplant him in the supply of coal to that particular
place, and to give the supply of coal virtually into the hands
of his rival or competitor in trade. That would clearlj'^ be a
loss of customers, and the loss occasioned by that circumstance,
among others, would be a head under which damages might be
awarded." '

As is true in other cases, the plaintiff can recover only such

1 Harvey v. Conn. & Passumpsio ' Lancashire & Yorkshire R'y Co.
E. R. Co. 134 Mass. 421. v. Gidlow, L. R. 7 App. Cases, 577.

2 Featherston v. Wilkinson, L. E. See Eichmond v. D. & S. C. E. Co.
8 Exch. 133. 40 Iowa, 364.

212 0AKEIEE8.

damages as are the natural and proximate consequence of the
defendant's breach of his contract. A ship's husband cove-
nanted that his ship should at one port take in a quantity of
brandy and convey it to another port and there receive a cargo
of freight, etc., which the freighters of the ship covenanted to
supply. The ship did not take the brandy, and the freighters
did not furnish a full homeward cargo. In an action on the
charter-party by the freighters for not taking the brandy, it
was alleged that the failure to furnish the homeward cargo was
the consequence, and that *in an action by the ship's husband
therefor he had recovered damages to a stated amount, and they
were put to costs to a stated amount. On the trial Tindal, C. J.,
interrupted counsel, intimating that these sums could not be
recovered, and said the breach of contract for not shipping the
brandy should have been set up by the freighters in the former
action. He held that the law will not allow so idle a ceremony
as for one party to recover a sum that it might be recovered
back by the other. In answer to the contention that though
the damages were not the precise sum recovered before, still
that recovery could be considered as a mode of showing the
amount to which the plaintiff was entitled, the chief justice
added: "The damages will be the loss in consequence of not
shipping the brandy, and all such damages as are the natural
and necessary consequences. Might you not have bought
brandy yourselves, and charged the difference in the price. No
man would be safe if your rule were to prevail. If I contract
to transfer stock, and do not, the party with whom I contracted
has no right to tell me a month afterwards that if I had trans-
ferred the stock he could have bought an estate with the money.
There was a case of a man who brought an action against the
keeper of a ferry-boat for refusing to carry him across a
river, in consequence of which he sustained loss by not being
able to keep an appointment. But it was held that he could
not recover damages on any such ground." The damages were
held to be too remote.*

In an action against a common carrier for refusing to receive
and transport grain properly stored for transportation, it is

1 Walter v. FothergiU, 7 C. & P. 393.

ACTIONS AGAINST CAEEIEES. 213

competent for the plaintiff to give evidence that because of
such refusal his grain became heated and spoUed, notwithstand-
ing the fact that such damage resulted from something inherent
in the nature of the grain itself.'

A carrier who deviates from his agreement by dispatching
the goods from the terminus of his route by a different convey-
ance or carrier, and thereby subjects the property to increased
freight, is liable for the difference.^

Foe delay in teanspoetation. — A carrier is liable for dam-
ages resulting from delay in transportation where he fails to
convey and deliver within the time fixed by his agreement.'
In the absence of any special contract, the law implies an agree-
ment on the part of the common carrier tx) transport merchan-
dise within a reasonable time.^ The actual cause of delay, in
the latter case, is open to inquiry and explanation, and unless
the carrier be at fault he is not liable for the damages which
ensue. He is bound to reasonable diligence, and accident or
misfortune wiU excuse him.'

A common carrier by river navigation, who, owing to the low
water, is unable to proceed to the end of the voyage, may un-
load and store the goods at an intermediate point during the
existence of the obstruction, but he is liable for the expenses
thereof, and is bound to take care of the goods whilst so de-
tained.^

When a carrier is liable for a negligent delay in the trans-

1 Pittsburgh, etc. R. B. Co. v. Mor- sWibert v. N. Y. &' E. R. R. Co.

ton, 61 Ind. 539. 13 N. Y. 245; Pittsburg, etc. R. R. Co.

^Proctor V. Eastern R. R. Co. 105 v. Hazon, 84 HI. 36; Conger v. Hud-
Mass. 513. son R. B. R. Co. 6 Duer, 375; Parsons

3 Harmony v. Bingbam, 1 Duer, v. Hardy, 14 Weni 315; Steadman

209; Wilson v. Newcastle & Ben. R. v. Western Transp. Co. 48 Barb. 97;

Co. 18 E. L. & Eq. 523; Cowley v. Dar Blackstook v. N. Y. & E. R. R. Co.

vidson, 13 Minn. 92; Sangamon, etc. 20 Iv. Y. 48; Nashville, etc. R. R. Co.

R. R. Co. V. Henry, 14 111. 156. v. Jackson, 6 Heisk. 271; East Ten-

* Story on Bailments, § 554a; Ward nessee & C. Co. v. Nelson, 1 Cold.

V. N. Y. Cent. R. R. Co. 47 N. Y. 39:
Parsons v. Hardy, 14 Wend. 315
Bowman v. Teal, 23 Wend. 306

272; Leppard v. R. R. Co. 7 Rich. 409;
Faulkner v. South Pacific R. R. Co.
51 Mo. 311.

Vicksburg, etc. R. R. Co. v. Rags- * Bennett v. Byram, 38 Miss. 17.
dale, 46 Miss. 458.

214

CAKEIEES.

portation and delivery of goods intrusted to him, he is liable
for such proximate damages as naturally result therefrom.'
Carriers may limit their common law liability by contract, but
by the general current of authority not so as to exempt them
from the consequences of their own negligence or misconduct,
or that of their agents or servants.^

In New York, West Virginia, and to some extent in Ilhnois,
contracts limiting the liability of carriers for negligence or
misconduct of servants and agents are held valid and effectual.'
In New York it has been held that when general words in the
contract of a common carrier, limiting his liability, may operate
without including the negligence of the carrier or his servants,
it will not be presumed that they were intended to include it ;
■every presumption is against such an intention, and the contract
will not be construed as exempting from liability for negligence,
unless it is expressed in unequivocal terms. Accordingly, when

iColvin V. Jones, 3 Dana, 576;
Briggs V. N. Y. C. R. E. Co. 38 Barb.
515; fladlf-y v. Baxendale, 9 Exch.
341.

2Eeno V. Hogan, 12 B. Mon. 63;
Hawkins v. Great W. E. E. Co. 17
Mien. 57; Louisville, etc. E. E. Co.
V. Hodges, 9 Bush, 645; Ehodes v.
Louisville, etc. R. R. Co. 9 Bush, 688;
Welsh Y. Pittsburg, etc. E. E. Co. 10
Ohio St. 05; PoweU v. Penn. E. E.
Co. 32 Pa. St. 414; Camden, etc. R.
E. Co. V. Baldaaf, 16 Pa. St. 67;
Goldey v. Penn. E. E. Co. 30 Pa. St.
242; Empire T. Co. v. Wamsutta O.
E. & M. Co. 63 Pa. St. 14; Farnham
V. Camden, etc. Co. 55 Pa. St. 53;
Am. Express Co. v. Sands, 55 Pa. St.
140; Adams Exp. Co. v. Stettaness,
61 111. 184; The Pacific, Deady, 17;
York M. Co. v. lUinois C. E. E. Co.
1 Biss. 377; EaUroad Co. v. Lock-
wood, 17 Wall. 357; Michigan, etc.
R. R. Co. v. Heaton, 37 Ind. 448;
Bank of Kentucky v. Adams Exp.
Co. 93 U. S. 174; Welch v. Boston,
etc. R. R. Co. 41 Conn. 333; Jacobus
V. St. Paul, etc. E. R. Co. 20 Minn.

125; Moses v. Boston, etc. E. E. Co.
24 N. H. 71; Bodenham v. Bennett,
4 Price, 31; Fish v. Chapman, 2 Ga.
349; Jones v. Voorhees, 10 Ohio, 145;
Lee V. Ealeigh, etc. E. E. Co. 73 N.
C. 336; Ashmore v. Penn. S. T. Co.
28 N. J. L. 180; Atchison, etc. R. R.
Co. V. Washburn, 5 Neb. 117;
Ketchum v. Am. etc. Exp. Co. 52
Mo. 390; Lupe v. Atlantic, etc. E. E.
3 Mo. App. 77; School District v.
Boston, etc. E. E. Co. 103 Mass. 552;
Sager v. Portsmouth, etc. E. R. Co.
31 Me. 228; Fillebrown v. Grand
Trunk E'y Co. 55 Me. 462; Little v.
Boston, etc. E. R. Co. 66 Me. 339;
Goggin V. Kansas, etc. E. E. Co. 13
Kan. 416; Eailroad Company v.
Pratt, 32 Wall. 132.'

8 Westcott V. Fargo, 63 Barb. 349;
61 N. Y. 543; Magnin v. Dinsmore,
56 N. Y. 163; Baltimore, etc. R. E.
Co. v. Rathbone, 1 W. Va. 87; Balti-
more, etc. E. E. Co. V. Skeels, 3 W.
Va. 556; Arnold v. Illinois C. E. E.
Co. 83 ni. 273; Erie R'y Co. v. Wil-
cox, 84 m. 389.

ACTI0X8 AGAINST OAEEIEEB. ^ 215

by a contract of shipment, the carrier, or railroad company, in
consideration of a reduced rate, was released for any damage
or injury, " from whatsoever cause arising," it was held that
the exemption did not include a loss arising from the carrier's
negligence.' "Where cattle were delivered to a railroad com-
pany for immediate shipment, but a written contract was
exacted two days afterwards; in an action for damages for
unreasonable delay, it was held that the contract would be the
measure of the obligations of the parties from the time it was
made, but that it would not merge any liability the company
might have incurred previously, there being nothing in its terms
to indicate such an intention.^

Common carriers of goods and passengers have a public em-
ployment, and owe the public a general duty, independent of
any contract. They are bound to carry for all persons who
apply, unless they have a reasonable excuse for the refusal to
do so. They are bound to deliver goods at their destination, or
at the end of their route to the next carrier, in a reasonable
time, according to the usual course of business, with all con-
venient speed.' A carrier who has no notice that it is impor-
tant that delivery of the goods be made at a certain time, is not
liable for the value of any special use prevented by an unrea-
sonable delay in delivery.''

The mere omission to transport and deliver property within
a reasonable time does not necessarily make the carrier liable
for its value. He is liable for the damages caused by such
omission, but the owner cannot, on the sole ground of unreason-
able delay in the conveyance and delivery of the property, re-
fuse to receive it, and recover against the carrier as for its
conversion.** The carrier is chargeable in all cases of negligent
delay with the value of the ordinary use of the property hav-
ing a usable value, after the time when he should have made the
delivery at the place of destination. "When the property is not

1 Mynard v. Syracuse, etc. E. R. * Hales v. London & N. W. E'y Co.
Co. 71 N. Y. 180. 4 B. & S. 56.

2 Cleveland, etc. R. R. Co. v. Per- sgcoviU v. Griffeth, 13 N. Y. 509^
kins, 17 Mich. 396. Nettles v. R. R. Co. 7 Rich. 190. See

3 Bast T. etc. R. E. Co. v. Nelson, Hackett v. Railroad, 35 N. H. 390,
1 Cold. 372. 400.

316 CABEIEES.

of a perishable nature, and is not a common or ordinary object
of sale in market, and subject to its fluctuations, but is designed
for a special purpose in a special business, the rule of damages
is very different from that applicable to merchandise. For
delay in the transportation of machinery, the value of its use for
the time it was detained is the measure of damages.^ In the
absence of special damage, interest may be recovered durino-
the period of neghgent delay in the transportation of money/
So where there is no change in the market value during a negli-
gent delay of delivery, it has been held that interest may be
recovered on the market value from the time when delivery
ought to have been made.'

Loss BY FALL IN THE MARKET OK DECREASE IN QUANTITY OE QUAL-
ITY DURING NEGLIGENT DELAY OF TRANSPORTATION. — ■ The Carrier is

also liable for any loss on the value of the property, pending
his negligent delay of transportation, whether the diminution
of value results from a decline in the market price or from in-
trinsic deterioration.'' This is a damage that the parties are
deemed to have contemplated when they made the contract,
and are the direct and immediate consequence of the defend-
ant's breach. . As to the decline in market value, Peckham, J.,
said : ' " Where a carrier from mere negligence, from plain vio-
lation of duty, omits to transport merchandise beyond a rea-
sonable time, and its market value falls in the meantime, the
true rule of damages, in my judgment, both upon principle and
authority, is the difference in its value at the time and place it
ought to have been delivered and the time of its actual deliver}'-.
The rule is simple, and, though it may sometimes operate
harshly, easily applied. Sagacious business men rely upon their
ability to judge of the market in undertaking large commer-
cial projects. According to their views of the market they send
the merchandise by a quick or a slow carrier, and make com-
pensation accordingly. A contrary rule would deprive them

1 Priestly v. N. I. & C. R. R. Co. 26 i 111. Cent. R. R. Co. v. MoClellan,
DL 305. 54 lU. 58.

2 United States Exp. Co. v. Haines, ' Ward v. N. Y. C. R. R. Co. 47 N.
67 lU. 137. Y. 29.

' Cramer v. Am. etc. Express Co.
06 Mo. 524.

ACTIONS AGAINST OAEKIEES. 217

of all benefit of a rapid transit. It would be left to the
caprice of the carrier when to transport, and the owner could
hare no relief. It would be no answer to say that the ow^ner
might make a special contract for the transportation at a given
time. The contract would have to contain a special provision
to pay these damages or the carrier's liability would not be
altered. If a special contract be needed, I think it falls upon
the defendant to make it, or the company will be liable for not
delivering in a reasonable time. If the carrier would be liable
for these damages upon a special contract to transport by a
given time, he clearly would be for a violation' of his duty. In
the absence of any special agreement, the law implies that the
carrier agrees to transport in a reasonable time. That is his
duty. In failing to do so, he not only violates his duty, but
also the contract upon which it is based. . . . It is well
settled law that a carrier, on an entire failure to deliver, is lia-
ble to the market price of the goods at the time and place for
delivery.! So as to a sale of goods. For all damages to the
property while in the custody of the carrier, the measure
thereof is to be settled by the market at the place for delivery.
This is clearly so as to all inland carriage.^ If liable for the
market price at the time and place for delivery when not de-
livered at aU, it would seem equally rational that if, by reason
of the inexcusably negligent delay of the carrier, the value of
the goods has depreciated in market, he should be liable to the
owner to the extent of that depreciation. The purpose of the
law is to make the owner whole in each case. . . . Had
the goods been injured by improper exposure by the carrier,
and thus had become depreciated in their market value, it is
clear that the carrier would be liable for the loss. It was his
negligence that caused it. Here his negligent delay caused the
loss. It did not cause the decline in the general market, but it
deprived the owner of his right to the higher market price.
The defendant's negligent violation of duty thus deprived the
plaintiff of his right, and placed this loss upon him. In sub-
stance, this loss is the same to the plaintiff as if the injury had

1 0'Hanlan v. Great Western E'y Nair, 14 John. 170; Sands v. Lilien-
Co. 6 B. & S. 484; Bracket v. Mc- thai, 46 N, Y. 541.

2 Bracket v. McNair, supra.

218 CAHEIEES.

been done to the property itself, and thus diminished its market
value. The injury also is natural and direct. There is no se c
ond step ; no action of the owner with a third person by con-
tract or otherwise." ^

Vindication of the principle on which such items allowed.
This rule is based on the general principle upon which damages
generally are to be assessed for breach of a contract to deliver
goods. It is compensation for the injury for not having the
very thing, propter rem ipsa/m non habitam, at the time and
place at which it should have been delivered, including the
damages resulting naturally, or according to the usual course
of things, from the breach of the contract itself, as well as such
as may reasonably be supposed to have been in the contempla-
tion of both parties when they made the contract, as the prob-
able result of a breach of it.^

When there is a negligent delay in transportation, the thing
which the owner does not receive when he is entitled to it is
goods of their value at that time. The thing which he after-
wards receives is goods of a value at a different time, which is
not necessarily the same value. The general price of such
goods in the market is the appropriate, if not the only legal
evidence of the value of the goods at any time in question. If

1 Sherman V. Hudson E. R. R. Co. 594; Newell v. Smith, 49 Vt. 25o;

64 N. Y. 354; Ingledew v. Northern Sturgeon v. St. Louis, etc. Co. 6-5

R. R. 7 Gray, 88; Kent v. Hudson R. Mo. 569; 111. Cent. R. R. v. Cobb, 64

R. R. Co. 32 Barb. 378; Medbury v. lU. 128; Plummer v. Pen. L. Assc.

N. Y. & E. R. R. 26 Barb. 564; Grif- 67 Me. 363; Sisson v. Cleveland &

fin V. Colver, 16 N. Y. 489; Scott v. Toledo R. R. Co. 14 Mich. 489; Bai-es

Boston, etc. Co. 106 Mass. 468; Smith v. Steamship Co. 3 Wall. Jr. 339:

V. N. H. & N. R. R. Co. 13 Allen, 531; Deming v. Railroad, 48 N. H. 469;

Cowley V. Davidson, 13 Minn. 93; Hackett v. B. C. & M. R. 35 N. H.

Weston V. R. R. Co. 54 Me. 376; King 390, 400; Faulkner v. South P. R. E.

V. Woodbridge, 34 Vt. 565; CoUard Co. 51Mo. 811;Devereauxv.Buckley,

V. South E. R'y Co. 7 H. & N. 79; 34 Ohio St. 16; Kansas P. R. R. Co.

Wilson V. Lancashu-e, etc. Co. 9 C. v. Reynolds, 8 Kans. 633.
B. N. S. 633; Wilson v. York, New- '■' Cuttmg v. Grand Ti-unk R'y Co.

castle & B. R. 18 E. L. & E. 557; 13 Allen, 381; Hadley v. Baxendale,

Smith V. N. H. & N. Y. R. E. Co. 13 9 Exch. 351; 1 Pothier on Obliga-

Allen, 531; New Orleans, etc. R. R. tions, 163, 163; 3 Kent's Com. (6th

Co. V. Tyson, 46 Miss. 739; Peet v. ed.) 480.
Chicago & N. W. E. R. Co. 30 Wis.

ACTIONS AGAINST CAEEIEES. 219

the market value of the goods is less when, they are actually
delivered than it was when they ought to have been de-
livered, the fall in the market value is not a cause, but an
incident, or consequence, of the diminution in the intrinsic or
merchantable value of the goods, and evidence of the degree
of the injury which the owner has suffered by wrongful act of
the carrier. A diminution in the market value of goods by the
operation of general laws is a real and actual loss of a portion
of the real and intrinsic value, as much as a change for the
worse in the quality of the goods.^ A fall in the market is no
more a cause of the diminished value of the goods than a fall
in the thermometer or barometer is the cause of a change in
the weather.^ If a common carrier unreasonably delays to
transport and deliver goods intrusted to him for carriage, and
their value meanwhile falls, the measure of damages in an
action against him is the difference between their market value
at the time when and the place where they ought to have been
deUvered and their market value at that place on the day when
they were delivered; although there was no contract to deUver
them within any certain time, and the goods were not intended
to be used for any special purpose at any certain time, and the
carrier finally delivered them in the same condition as when
they were received by him.^

The principle is the same and the measure of damages is the
same when the diminished value at the time of the delayed
delivery has resulted from the perishable nature of the property.^
In case of shipping live animals, the losses for negligent delay
may include not only such as arise from fall in the market, but
shrinkage or injury to the animals occasioned by detention, and
care and expense bestowed upon them.^

1 Stone V. Codmaa, 15 Pict. 801. Sturgeon v. St. Louis, etc. R. E. Co.

2 Cutting V. Grand Trunk R'y Co. 65 Mo. 569; Chicago, etc. R. R. Co.
supra. V. Erickson, 91 III. 613; Cutting v.

3 Id. Grand Trunk R'y Co. 13 Allen, 381;
« Wilson V. Lancashire, etc. Co. 9 Welsh v. R. E. Co. 10 Ohio St. 65;

■ C. B. N. S. 633; Ingledew v. North- Porterfleld v. Humphreys, 8 Humph.
pru R. E. 7 Gray, 86; Illinois Cent. 497; Black v. Camden, etc. R. E. Co.
R. E. Co. V. Ow,ens, 53 111. 391. 45 Barb. 40; Kansas P. E. E. Co. v.
■'Sangamon, etc. R. E. Co. v. Nichols, 9 Kan. 235; Wilson v. Ham-
Henry, 14 ni. 156; Smith v. New ilton, 4 Ohio St. 733.
Haven, etc. E. E. Co. 13 AUen, 531;

220 CAEEIEE8.

The damages measured and recoverable by this rule are not
consequential damages requiring notice to the carrier that the
goods were contracted to be shipped for the purpose of sale/
nor are they special damages. This is very clearly illustrated
in an English case. A cap manufacturer at C bought cloth at
H, for the purpose of making it up into caps which he was in
the habit of selling through the country by means of travelers.
The cloth was delivered to the defendants on the 15th of March
to be carried by their railway to M ; but through the negligence
of the company's servants it was sent to another station, and
did not reach the plaintiff until the 12th of April, which was
too late for the plaintiff's purpose ; that is, he did not receive
the cloth in time to manufacture it into caps, "the season having
passed before he could execute the orders obtained by his trav-
elers. According to his evidence, which stood without contra-
diction, the cloth thereby became of less value to him by lOOZ.
He also claimed by way of damages the loss of the profits he
would have made by the sale of caps that season if the cloth
which could not be procured at 0, had arrived in due time.
On the trial, the jury appealed to the judge for information as
to how they were to assess the damages, and were informed by
him that they were at liberty to take into consideration the
fact that the plaintiff had lost the season in consequence of the
non-arrival of the cloth in due time. Acting upon that informa-
tion the jury found a verdict for the plaintiff, the cap manu-
facturer, for 801. damages.

The expression, " loss of the season," being ambiguous, on a
rule nisi to reduce the verdict to a nominal sum, "Williams, J.,
said : " If by the expression, ' loss of the season,' the jury were
induced, in assessing the damages, to take into their consider-
ation the profits which the plaintiff might have made by the
manufacture and sale of caps if the material had reached his
hands in due time, we are aU of opinion that they would have
misconceived the proper principle on which the damages were

1 Devereaux v. Buckley, 34 Ohio decided in accordance with the text

St. 16, is opposed to this view. This in Cutting v. Grand Trunk E'y Co.

point was mentioned but not decided 13 Allen, 381; Deming v. R. R. Co

in Smith v. New Haven, etc. R. R. 48 N. H. 455.
Co, 13 AUen, 531, but was expressly

ACTIONS AGAINST CAEEIEE3. 221

to be estimated, and that there would be a failure of justice if
the verdict were allowed to stand. But if we are to assume the
meaning of 'loss of the season' to be that the goods, by reason
of their not having been delivered in due time, had become
lessened in value, that is, if, in consequence of the delay, they
had become of less value to the plaintiff, because the articles to
be made up would be less marketable as the time for finding
customers had gone by, and so the goods were left on the
plaintiff's hands, deteriorated or diminished in value, then we do
not think there was any mistake in point of law in the direction
of the learned judge," On the question whether the plaintiff
was entitled to recover the difference between the value of the
goods to him if they had been delivered in proper time, and
their value at the time when they were actually delivered, he
said: "I am of opinion that the consignee is entitled to recover
such difference in value. If it were otherwise, great injustice
would be done ; for instance, — to put a familiar case, — suppose
a tradesman at a fashionable watering place sends an order to a
warehouseman in London for a quantity of ribbons or other
fancy goods, and they are delivered to a carrier so that they
ought to reach him at the beginning of the season, and through
the negligence of the carrier their delivery is delayed until the
season is over, so that the opportunity for offering them for
sale is lost, and, as their novelty or fashion is gone, they remain
on hand materially diminished in value, would it not be unjust
if the carrier were not made liable in damages for the loss which
thus resulted from his negligence ? . . It was evidence for
jL the jury that the defendants, by reason of their negligence,
delivered the cloth to the plaintiff at a time when its value was
less by 1001. than it would have been if they had been guilty
of no negligence. But it is contended on the part of the
defendants, that whatever may be the dictates of justice in the
matter, such damages cannot be awarded to the plaintiff
without violating the rule laid down by the court of exchequer
in Hadley v. Baxendale.^ It seems to me, however, that we
shall not violate that rule if we hold that the plaintiff is entitled
to recover damages in respect to such deterioration in value.

lOExoh. 341.

222 CAEEIEES.

It is a damage which fairly and naturally, in the usual course of
things, may be said to arise from the defendant's negligence ;
for if the goods are not delivered at the time they are expected,
the delay must necessarily superinduce a considerable diminu-
tion in their value in the plaintiff's hands." Byles, J., concurred
in the foregoing opinion, and added, referring to Hadley v.
Baxendale, which he said must decide the case in hand: "It is
there said that, ' where two parties have made a contract which
one of them has broken, the damages Avhich the other party
ought to receive in respect of such breach of contract should
be such as may fairly and reasonably be considered either as
arising naturally, *. e., according to the usual course of things,
from such breach of contract itself, or such as may reasonably
be supposed to have been in the centemplation of both parties
at the time they made the contract, as the probable result of
the breach of it.' I agree . . that, as the defendants here
knew nothing about the nature of the goods, er of the plaintiff's
occupation, profits which might have accrued from making up
the cloth into caps and selling them, clearly were not within
the contemplation of both parties at the time they made the
contract, as the probable result of the breach of it; and there-
fore loss of profits could not properly enter into the considera-
tion of the jury in assessing the damages here. The difficulty,
however, is to distinguish between loss of profits and the
difference between the exchangeable value of the goods when
received by the carriers, or rather when they ought to have
been delivered, and when they were actually delivered. Profits
include the increased value arising from the purpose to which
the plaintiff intended to apply the goods ; whereas, diminution
in exchangeable value is only something subtracted from the
inherent value of the articles themselves. "When thoroughly
considered, this, I think, will be found to be a sound distinction.
It is admitted that deterioration in quality is to be taken into
account in estimating the damage the plaintiff has sustained ;
it is admitted, also, that loss; or diminution in the quantity is to
be taken into account; and I do not see why a loss in the
exchangeable value should not also be taken into account." '

1 Wilson V. L. & Y. R'y Co. 9 C. B. N. 8. 633; Cutting v. Grand Trunt
E'y Co. 13 AUen, 381.

ACTION'S AGAINST CAEEIEES. 223

A similar decision was made in the court of exchequer about
the same time. The plaintiff, a hop grower in Kent, sent to
London by the defendant's railway some pockets of hops con-
signed to a purchaser. The defendants kept the hops for some
days on their premises in an open vat, whereby a small portion
was stained by wet, and the purchaser rejected the whole, as he
was entitled to do by the custom of the market. The plaintiff
dried the stained hops, and they were rendered as good as ever
for actual use, but the staining had depreciated the market
value of the bulk. The plaintiff sent the hops to a factor for
sale, but at that time the market price of hops had consider-
ably fallen from what it was at the time the hops ought to have
been delivered. Martin, B., said : " It was proved that if they had
been brought to market on the proper day they would have
fetched a certain price, but, not being brought until a later day,
the market price in the meantime fell, and the value of the
hops was diminished by the amount of 65Z. If that be not a
direct, immediate and necessary consequence of the defendants'
breach of duty, it is diiHcult to understand what would be. It
is said that the defendants had no notice of the purpose for
which the hops were sent to London, but I think they must
have known that they were sent for one of two purposes, either
for consumption by the person to whom they were sent, or, as
was more likely to be the case, to be sold for profit." ^

In a later case in the probate division, the question came up
whether a diminution of market value during the time delivery
of a cargo shipped in India for London was delayed by defect
of the ship's engine, could be allowed as an item of damages, as
well as a diminution of quantity by leakage of sugar. The
latter only was allowed. The question upon the other item as
stated by the court was whether, if there is undue delay on a
long voyage by sea, it follows as a matter of course that, if
between the time when the goods ought to have arrived and
the time when they did arrive, there has been a fall in the price
of such goods, damages can be recovered by the consignee. It
was answered in the negative.^

1 Collard v. G. E. R. Co. 7 H. & N. iag on this question the decision of
79. Sir Robert Phillmore in the Adml-

2 The Parana, 2 P. D, 118, revers- ralty Division, 1 P. D.453. Hellish,

224

OAEEIEES.

Damages measured by the depceoiation of the value of the
property may be recovered for negligent delay of delivery

L. J., said: " There is no case, I be-
lieve, in which it has ever been held
that damages can be recovered for
delay in the carriage of goods on a
long sea voyage, where there has
been what may be called a merely
accidental fall in price between the
time when the goods ought to have
arrived and the time when they did
arrive, — no case that I can discover
where such damages have been
recovered; and the question is,
whether we ought to hold that they
ought to be recovered.

" If goods are sent by a carrier to
be sold at a particular market; if,
for instance, beasts are sent by rail-
way to be sold at Smithfield, or fish
is sent to be sold at Billingsgate, and,
by reason of delay on the part of the
carrier, they have not arrived in
time for the market, no doubt dam-
ages for the loss of market may be
recovered. So, if goods are sent for
the pni-pose of being sold in a par-
ticular season when they are sold at
a higher price than they are at other
times, and if, by reason of breach of
contract, they do not arrive in time,
damages for loss of market may be
recovered. Or if it is known to
both parties that the goods will sell
at a better price if they arrive at one
time, than if they arrive at a later
time, that may be a ground for giv-
ing damages for their arriving too
late and selling for a lower sum.
But there is in this case no evidence
of anything of that kind. As far as
I can discover, it is merely said that
when the goods arrived in Novem-
ber they were likely to sell for less
than if they had arrived in October,
for the market was lower.

"But besides the cases of con-
signments of goods to be sold at a

particular market, cases were cited —
and it was on them that the couit
below proceeded — of the carriage
of goods by railway, where damages
on account of a fall in the market
have been recovered. It is said that
there can be no difference between
the carriage of goods by railway and
the carriage of goods by sea, but it
appears to me there may be a very
material difference between the two
cases. When goods are conveyed
by railway, if they are conveyed for
the purpose of sale, it is usually for
the purpose of immediate sale; and
if the cases are examined, I think it
will be found that the courts treated
them as if the goods were consigned
for the purpose of immediate sale.
No doubt if goods are consigned to
a railway company under such cir-
cumstances, the railway company
may be reasonably supposed to know
that they are consigned for the pur-
pose of immediate sale, and if by
breach of contract on the part of
the company they do not arrive in
time to be sold when the owner in-
tends them to be sold, that may pos-
sibly be a ground for giving damages
for what is called ' loss of market.'
" The strongest case in favor of the
decision of the court below is that
of CoUard v. South Eastern Railway
Co. (7 H. & N. 79), but there was a
good deal of doubt about that case.
The goods in that case were hops,
and were consigned to a hop mer-
chajit, in fulfilment of an actual
contract. The damages arising from
the non-fulfilment of that particu-
lar contract could not be recovered,
because, of course, the railway com-
pany would know nothing about it;
but the court came to the conclusion
that the case must be treated as if

ACTIONS AGAINST CAEEIEES.

225

after its arrival at the place of destination ; as where the delay-
is occasioned by the carrier's neglect to give the consignee

the goods were consigned for the
purpose of immediate sale. There
were apparently very violent fluctu-
ations going on in the hop market
at that time, and it might be taken
that the owner had selected his own
time for selling his hops, when he
thought the price was at its best,
and by reason of a breach of con-
tract on the part of the railway
company — which consisted, it is to
be observed, not in delay in deliver-
ing the hops, but in actual damage
to the hops (the hops were damaged
and had to be dried), — it might be
considered that there was a loss of
market." The same comment was
made on the case of Ward v. N. Y.
Cent. R. R. Co. 47 N. Y. 29. And
the opinion continues: " The differ-
ence between cases of that kind and
cases of the carriage of goods for a
long distance by sea seems to me to
be very obvious. In order that dam-
ages may be recovered we must come
to two conclusions*- first, that it
was reasonably certain that the
goods would not be sold untU they
did arrive; and, secondly, that it was
reasonably certain that they would
be sold immediately after they ar-
rived, and that that was known to
the carrier at the time when the
bills of lading were signed. It ap-
pears to me that nothing could be
more uncertain than either of these
two assumptions in this case. Goods
imported by sea may be, and are
every day, sold whilst they are at
sea. If the man who is importing
the goods finds the market high, and
is afraid that the price may fall, he
is not usually prevented from sell-
ing his goods because they are at
sea. The sale of goods to arrive, the
sale of goods on transfer of bill of
Vol. Ill— 15

lading, with cost bills, and insur-
ances, is a common mercantile con-
tract, made every day. It may be
that from not having samples of the
goods, or from not knowing what is
the particular quality of the goods,
the consignee may have difiiculty in
selling them until they arrive, but
that would not affect the question.
Nor would it signify that the goods
no longer belonged to the original ,
consignee, but to a man who had ac-
quired them by the assignment of
the biU of lading whilst the goods
were at sea. We were told that in
this case the plaintiff was a person
who had advanced money on the se-
curity of the bills of lading. That
possibly may be the case; but
whether he has done that, or is the
purchaser, would make no differ-
ence. It was said that the goods,
were sold, and that if the person,
who sells them does not suffer thos
damage, then the purchaser would
suffer the damage. But that is pure-
speculation. If a man puicbases,
goods while they are at sea^ no. per^
son can say for what purpose he pur-
chases them. He may parohase
them because he tliioka that if he
keeps them for six months they wUl
sell for abetter sam, or he may want
to use them in his traKfe. It is pure
speculation to enter into the ques-
tion for what purpose he purchases
them. In this particular case the
plaintiff did not sell the goods when
they arrived, for he sold them sonae
months afterwards, when a further
fall had taken place in the market.
Of course, he does seek to recover
from the defendant that additional
loss, but this serves to illustrate' how
uncertain it is whether he would
have sold them. If he did not seU

226

CASRTERS.

notice of the arrival, when necessary,* or when he there
exposes it to actual injury, and thereby necessitates delay to
prepare it for market.^

Inceeased expenses of obtaining dbliveet of the peop-

EETT IN CONSEQUENCE OP NEGLIGENT DELAY. It being the duty

of the carrier to deliver the property to the consignee upon
application, and payment o£ freight, if he wrongfully refuses to
so deliver it, and obliges the consignee to repeat his application
for it, he is entitled to be compensated for the time and expense
of the extra journey to remove the property.' "Where expenses
have been incurred, and time and trouble taken in looking for
property, the delivery of which has been delayed, under cir-
cumstances justifying such search, they may be recovered for, if
the delay has been caused by the carrier's negligence.* The

them when they did arrive, but kept
them because he thought the mar-
ket would rise, how can we tell that
he would not have done exactly the
same thing if the goods had arrived
in time. Therefore it seems to me
that to give these damages would be
to give speculative damages — to
give damages when we cannot be
certain that the plaintiff would not
have suffered just as much if the
goods had arrived in time. Accord-
ing to the principles on which the
courts have acted in all such specu-
lative and uncertain cases, damages
ought not to be recovered." See
The Success, 7 Blatchf. 551.

The preceding English and Amer-
ican cases which have been cited do
not appear to proceed on the princi-
ple that damages are given "for
loss of market " when the market
price d^lines during the delay of
delivery; but on the principle that
if the property is worth less when
it is delivered, after a negligent de-
lay, the owner suffers a loss propor-
tioned to the diminution of market
value whether he sells or not; that
he sustains an injury as real as

though the quality had been dete-
riorated, or the quantity reduced;
in the language of Byles, J., already
quoted, "diminution in exchange-
able value is only something sub-
tracted from the inherent value of
the articles themselves." A sale is
no more necessary to make the latter
loss manifest than it is to sell the
residue when a part has been lost in
consequence of the delay, in order
to demonstrate that a portion is less
valuable than the whole. The quali-
fication of the rule laid down in the
text in Peet v. Chicago & N. W. E.
E. Co. 30 Wis. 624, appears to be a
departure from the general course
of decision in requiring the prop-
erty to be sold at the depreciated
price.

1 Linn v. N. J. S. B. Co. 49 N. Y.
442; New Orleans, etc. R. E. Co. v.
Tyson, 46 Miss. 739.

2 CoUard v. S. E. E. E. Co. 7 H. &
N. 79. ,

3 Waite V. Gilbert, 10 Cush. 177.

* Deming v. Eailroad Co., 48 N. H.
455. In Davis v. Cincinnati, etc.
,E. R. Co. 1 Disney (Ohio), 33, the
action was brought for damages for

' ACTIONS AGAINST OAEEIEES. 227

shipper or consignee can, however, recover only for such
trouble and expenses as result directly and necessarily from
the delay and negligence of the carrier. These he may recover
in addition to the loss by depreciation during such delay.'
"Where the defendant had failed to carry and deliver iron
according to agreement, the plaintiff was held entitled to
recover the expenses incurred in searching for the iron, and the
charges he had to pay a railroad company to get it from their
depot.^ He cannot recover for the time and expenses of going
to the place of delivery and waiting there, without showing
that the carrier had notice at the time of contracting that such
journey would be made to receive the goods.'

The principle of compensation is flexible, and can be readily
applied to do justice according to the varying circumstances of
particular cases. A carrier, having undertaken the transporta-
tion of peas, shipped in Canada for I^ew York, by his negligent
delay was stopped on his way by the freezing of the lakes, and
would be detained through the season ; he refused to forward
the peas by rail or deliver them to the owner, except on pay-
ment of freight ; the owner replevied them and judiciously sent
them to the Boston market, and he was held entitled to recover
the difference between the net proceeds of the sale at Boston
and their market value at 'Hew York at the time they should
have been delivered.*

the carrier's faUure to deliver, within acter of the construction of the
a reasonable time, a boiler con- boiler, and the point of its destina-
structed to be used in a steam saw- tion, that it was intended for use,
milL It was admitted that there and not for sale in the market,
had been a breach of the contract for i Deming v. EaUroad Co. 48 N. H.
the delivery, and the contest was as 455; Benson v. N. J. E'y & T. Co.
to the proper measure of damages. 9 Bosw. 413; Eankin v. Pacific E. E.
The plaintifiE claimed, and was held Co. 55 Mo. 167; Eichmond v. Union
entitled to recover, first, for the St. B. Co. 87 N. Y. 240. See Simp-
trouble and expense incurred in son v. London & N. W. E'y Co. 1
traveling to ascertain what had Q. B. D. 374.

become of the boiler, which had ZFarwell v. Davis, 66 Barb. 73;

been detained about a month beyond Chicago & N. W. E'y Co. v. Stanbro,

the period when it should have been 87 lU. 195.

delivered; second, the expenses in- 3 Briggs v. N. Y. Cent. E. E, Co.

curred in the preparations for con- 38 Barb. 515; Woodger v. Great W.

necting the boUer with the fixtures E'y Co. L. E. 3 C. P. 318; Ingledew

and machinery of the saw-mill, it v. Northern E. E. Co. 7 Gray, 86.

appearing obvious, from the char- * Laurent v. Vaughn, 30 Vt. 90.

228 CABEIEES.

If the goods are being transported for an illegal traffic, and
the carrier is guilty of unnecessary delay or tardiness, he is not
liable for damages resulting from their being thereby exposed
to seizure, and actually seized by the government by reason of
such illegality.! But where a carrier contracted to transport
wheat from Canada to the United States by a certain day, when,
as he knew, the reciprocity treaty would expire, and he failed
to deliver it at that time, he was held liable to the owner for
the duty which the plaintiff had afterwards to pay ; that it was
immaterial that prices rose soon after the day fixed for the de-
liverj', so that the plaintiff actually received more after paying
the duty, than he could have done by selling it on that day.^

•Expense of puethee TRAiq^sPOETATioN foe sale. — Goods were
delivered by the plaintiff to a carrier on Thursday, to be con-
veyed to B. It was expected by the plaintiff that the goods
would arrive on the Saturday following, but no notice was
given to the defendant, the carrier, of such expectation, that
the goods might be ready for the market. On Saturday the
plaintiff's clerk proceeded to B, and owing to the non-arrival
of the goods until Monday, he was obliged to remove them to
S to sell them there. The delay in delivering the goods being
unreasonable, the jury were directed that they were at liberty
to give as damages the expense of removal of the goods from
B to S, and the expenses and wages of the clerk, if they
thought fit. It was a question for the jury whether it was
reasonable and proper to send a man to B to look after goods.
If he went down unnecessarily, or remained there an unreason-
able time, the defendants ought not to pay the expenses.'

Damages foe delay in eespect to a known special use of
THE peopeety. — Damages are given against a carrier with ref-
erence to a particular use for which property is delivered to
him for transportation, when that intended use is brought to his
notice at the time of contracting. In a late English case the
principle is stated, and said to be settled, that whenever either
the object of the sender is specially brought to the notice of

1 Gerhard V. Neese, 36 Tex. 635. 'Black v. Baxendale, 1 Excb.

2 Gibbs V. Gildersleeve, 36 U. C. Q. 410.
B. 471.

ACXioifS AGAINST OABEIEES. 229

the carrier, or circumstances are known to the carrier, from
which the object ought in reason to be inferred, so that the
object may be taken to have been within the contemplation of
both parties, damages may be recovered for the natural conse-
quences of the failure of that object.^ ^n this case, the plaint-
iff, a manufacturer, who was in the habit of attending
agricultural shows to exhibit samples of his goods, and made a
proiit by the practice, delivered them upon a show ground,
where he had been exhibiting them, to the receiving agent of
the defendants, a railway company, to be carried by a particu-
lar day to a show ground at another place, when and where a
similar show, at which he intended to exhibit, was to be held ;
but nothing was expressly said about this intention of the
plaintiff. The samples did not arrive till after the day stipu-
lated and when the show was over ; and the plaintiff lost sev-
eral days in going to meet them, and waiting for them. In an
action for the breach of contract, a verdict was given for dam-
ages which included a sum for loss of time or loss of profit.
The court inferred, as matter of fact, that the purpose of the
plaintiff to exhibit was within the contemplation of the parties
to the contract ^ and held that the plaintiff was entitled to dam-
ages, on the ground that loss of profit was a batural and probable
result of the failure of that purpose ; and that no evidence was
necessary of his prospect of making profit at the particular
show in question.^

The plaintiff is entitled to recover for damages naturally fol-
lowing under circumstances known when the contract is made
to both parties. If the special circumstances under which the
contract was actually made were communicated by the plaintiff
to the defendant, and thus known to both parties, the damages re-
sulting from the breach of such a contract, are those which they
would reasonably contemplate would be the amount of injury
which would ordinarily follow from a breach of contract under
these special circumstances so known and communicated. But,
on the other hand, if these special circumstances were wholly un-

1 Simpson V. Londou & N. W. R'y Veagh, 75 III. 81; Vicksburgh, etc.

Co. 1 Q. B. D. 274. R. E. v. Eagsdale, 46 Miss. 458; Uli-

^See Booth v. Spuyten Duyvil R. nois Cen. R. R. Co. v. Cobb, 64 lU.

M. Co. 60 N. Y. 487; Thorne v. Mc- 128.

230

CABBIEBS.

known to the party breaking the contract, he, at the most, could
only be supposed to have had in his contemplation the amount of
injury which would arise generally, and in the great multitude
of cases not affected by any special circumstances, from such a
breach of contract.^ Where a broken part of the machinery
of a mill was sent by a carrier to serve as a model for making
a new one, and the mill in the meantime was stopped, but these
circumstances were not made known to the carrier; the carrier
was held not liable for unreasonable delay in the conveyance of
the property for damages resulting from the stoppage of the
mill.2

When a carrier undertakes to convey machinery necessary to
the running of a mill, or material necessary to its working, and
has notice at the time of making the contract, of these facts, the
injury from the mill standing idle, as well as for loss of wages
of operatives necessarily idle, may be recovered as damages
resulting from unreasonable delay on the part of the carrier.'

iHadley v. Baxendale, 9 Exch.
341.

2 Id. ; Cooper v. Young, 32 Ga. S69.

3 Vicksburg, etc. E. R. Co. v. Rags-
dale, 46 Miss. 458; Cincinnati Chron-
icle Co. y. White Line T. Co. 1 Cine.
(Ohio) 300; Cooper v. Young, 22 Gta.
269. In Gee v. L. & Y. R'y Co. 6 H.
& N. 311, this subject came before
the court of exchequer. The plaint-
i£Es delivered to the defendants, who
were cai-riers, ten tons of cotton to
be carried from Liverpool to Old-
ham. In the usual course the cotton
should have been received on the
following day, but did not iu fact
arrive until four days afterwards.
In consequence of the delay a new
miU of the plaintiffs' was stopped
for want of cotton to go on with.
At the time of the deUvery of the
cotton to the defendant, nothing was
said as to the particular inconven-
ience likely to result from delay in
f orwai'ding it. But on the day be-
fore it wa« delivered to the defend-
ants, and repeatedly on each succeed-

ing day, untU it arrived at Oldham,
one of the plaintiffs called to inquire
about it; and on each occasion told
the manager of the goods depart-
ment at the Oldham station, that
the miU was at a stand, solely on ac-
count of the non-delivery of the
cotton. The plaintiffs proved that
during the time the miU was at a
stand, they had paid in wages V.;
and that the profit which would
have been made, if the mill had been
at work, was 7i. 10s. It was held a
misdirection to instruct the jury to
allow these damages as matter of
law. Pollock, C. B.: "He (the judge
below) assumes this loss to hare
been sustained in consequence of the
non-arrival of the cotton, while in
fact it was not in consequence of the
non-an'ival of the cotton alone, but
in consequence of that fact, and of
the plaintiffs having no other cotton
in stoolc. If it had been estabhshed
that such is the practice amongst
cotton spinners, so that every car-
rier must have known that the miU

ACTIONS AaAraST CAEBIEBB.

231

In order to impose on the defaulting party a further liability
than for damages arising naturally and directly, that is, in the
ordinary course of things from a breach of contract, such un-
usual or extraordinary damages must have been brought within
the contemplation of the parties, as the probable result of a
breach, at the time of entering into the contract. Generally,
notice then given of any special circumstances which would
show that the damages to be anticipated from a breach would

■would be at a stand-still Tintil the
cotton arrived, the damages would
have been properly assessed. And
that would be so whether the carrier
had notice of the fact, or notice
from the weU understood course of
business. But the business of life
is conducted with reference to the
necessity of guarding against certain
accidents, and owners of cotton
miUs may fairly be expected to guard
against the risk of being delayed, by
having something in stock. Is a
raijway company bound to take no-
tice that in a particular case a mill
would be at a stand if goods were
not delivered on a particular day? I
think not. I think a carrier is not
responsible for such consequences,
unless distinct notice is given at the
time of the sending of the goods to
be carried. If the plaintiffs had said,
'Now, there must be no mistake,
the cotton must be delivered imme-
diately; it is required for a mill
which is actually at a stand for want
of it, and if it is not delivered in
due time, you wiU be responsible for
aU. the consequences,' probably the
railroad company would not have
taken it except at a high rate. Com-
mon carriers are bound to carry
goods at a reasonable rate, but not
to incur such responsibility as would
be imposed upon them if the direc-
tion of the judge in this case were
correct. I think that the rale as to
da.mages of this sort was correctly

laid down iu Hadley v. Baxendale,
9 Exch. 341." ChanneU, B.: "It
cannot be said, as a matter of law,
that these were damages jvhioh nat-
urally flowed from the breach of the
contract; or that anything had
passed to show that they were in the
contemplation of the parties when
the contract was entered into."
Bramwell, B. : " The law on this sub-
ject is laid down correctly in. Had-
ley V. Baxendale. To ascertain the
damage, it is necessary to find out
how much better off the plaintiffs
would have been if the contract had
not been broken. The plaintiffs are
not necessarily entitled to recover
the whole amount given. Hadley
V. Baxendale decides that a defend-
ant is not liable except for such
damages ' as may fairly and reason-
ably be considered, either arising
naturally, i. e., according to the
usual course of things from the
breach of contract itself, or such as
may reasonably be supposed to have
been in the contemplation of both
parties at the time they made the
contract as the probable result of the
breach of it.' I am not sure that
another qualification might not be
added which would be in favor of
the plaintiffs in this case, viz., that
in the course, of the performance of
the contract, one party may give no-
tice to the other of any particular
consequences which vnll result from
the breaking of the contract, and

232

CABKIBBS.

be enhanced, has been held sufficient for this effect/ It has
been held sufficient to affect carriers equally with other parties;^
though they are bound, by reason of their public employment,
to serve all who apply. They may doubtless refuse to under-
take the carriage of goods in contemplation of increased re-
sponsibility, unless their demand is acceded to of reasonable
compensation, increased beyond their ordinary rates, according
to the enlargement of their liability.'

then have a right to say: ' If, after
that notice, yon persist in breaking
the contract, I shall claim the dam-
ages which will result from the
breach.' But in any case, you must
first find out the loss sustained by
the plaintiff, and afterwards give it
him minus any damages excluded
by these rales. And I cannot but
think that if the judge had left it to
the jury to determine the damages
in that way, they would probably
have given the same sum which
they have already given. . . .
If the judge had said, as a proposi-
tion of fact, ' I think that you will
consider that the plaintiffs are enti-
tled to claim for wages,' I doubt if
there would have been any objection
to the summing up. But he says,
'Where, under circumstances suoh
as exist in the present case, by the
neglect of a carrier, a manufacturer
has no material to carry on his busi-
ness, he has a right, in my opinion, to
charge as legal damage such loss as
naturally and immediately arose
from the stopping of his mill.' He
should have added, ' If the jury are
of opinion that the stoppage was the
natural consequence of the non-
delivery of the goods.' I say this in
order that the county court may not
suppose, on the next trial, that we
think that these two sums are not
recoverable; for I do not say so; and
I do not understand that the other
members of the court think so."

iHadley v. Baxendale, 9 Exch.
341; Gee v. Lancashire & T. E'y Co.
6 H. & N. 211; Baldwin v. U. S.
Telegraph Co. 45 N. Y. 744; S. C.
Allen's Tel. Cases, 613; Deming v.
EaUroad, 48 N. H. 455; Converse v.
Burrows, 3 Minn. 191; Paine v. Sher-
wood, 19 Minn. 315; Sisson v. Cleve-
land & Q. E. E. Co. 14 Mich. 489.

2 Id.

3 Gee V. Lancashire & Y. E. Co..
6H. & N. 317, per Pollock, C. B.;
Eiley v. Home, 5 Bing. 317. In
Home V. Midland E'y Co. L. E. 8
C. P. 131, this obligation of carriers
to serve aU was supposed to neutral-
ize the effect of mere notice. In
that case, the plaintiffs being shoe
manufacturers at K were under a,
contract to supply a quantity of
military shoes to a firm in London
for the use of the French army at
4s. per pair, an unusually high price.
The shoes were to be dehvered by the
3d of February, 1871, and the plaint-
iffs accordingly sent them to the de-
fendant's station at K for carriage
to London in time to be delivered
there in the usual course in the
evening of that day, when they
would have been accepted and paid
for by the consignees. Notice was
given to the station master, — which
for the purpose of the case was as-
sumed to be notice to the company —
at the time, that the plaintiffs were
under a contract to deliver the shoes
by the 8d, and that unless they were

AOnOHS AGAnrSt CAIiBUBBS.

233

Where goods are contracted to be sold at a price fixed, to be
delivered at a particular place, and a carrier promises to trans-
port and deliver them in due time, or receives the goods sea-
sonably to be so delivered if there is no negligent delay ; and

so delivered they would be thrown
on their hands, but he was not in-
formed that there was anything ex-
ceptional in the character of the
contract. The shoes were not deliv-
ered in London tiU the 4th of Febru-
ary, and were consequently not
accepted by the consignees, and the
plaintiffs were obliged to sell them
for 3s. 9d a pair. Kelly, O. B. : "A
question of very great importance
has been raised in the course of the
argument, to which it is proper to
refer, though, for reasons I shall
presently state, I do not think it will
ultimately become necessary to de-
cide it — that is to say, the question
what the position of a railway com-
pany is when goods are intrusted to
it for carriage with an intimation of
the consequences of non-delivery,
such as it was argued on behalf of
the plaintiffs existed in the present
case. The goods with which we
have to deal are not the subject of
any express statutory enactment;
the case with respect to them de-
pends on the common law taken in
connection with the acts relating to
the defendant's railway company.
Now, it is clear, in the first place,
that a railway company is bound, in
general, to accept goods such as
these, and to carry them as directed
to the place of delivery, and there
deliver them. But now, suppose
that an intimation is made to the
railway company, ... in ex-
press terms, stating that they have
entered into such and such a con-
tract, and will lose so many pounds if
they cannot fulfil it, what is then the
position of the company? Are they

the less bound to receive the goods ?
I apprehend not. If; then, they are
bound to receive, and do so without
more, what is the effect of the
notice ? Can it be to impose upon
them a liability to damages of any
amount, however large, in respect of
goods which they have no option
but to receive? I cannot find any
authority for the proposition that
the notice, without more, could have
any such effect. It does not appear
to me that the railway company haa
any power, such as was suggested,
to decline to receive goods after such
a notice, unless an extraordinary
rate of carriage be paid. Of course,
they may enter into a contract, if
they wiU, to pay any amount of
damages for non-performance of
their contract in consideration of an
increased rate of carriage, if the
consignors be willing to pay it; but
in the absence of any such contract
expressly entered into, there being
no power on the part of the com-
pany to refuse to accept the goods,
or to compel payment of an extra-
ordinary rate . of carriage, by the
consignor, it does not appear to me
any contract to be liable to more
than the ordinary amount of dam-
ages can be implied from mere
receipt of the goods after such a
notice as before mentioned." These
views did not receive the sanction
of the entire court, and the case was
decided on the point that the notice
was insufficient; it did not inform
the carrier of the unusual price of the
shoes. See Booth v. Spuyten Duy-
vil E. M. Co. 60 N. Y. 496.

234 oABsmss.

the carrier so contracts or receives the goods, with full notice
that they are to be forwarded for delivery on such contract,
and of the importance of having them at their destination for
a seasonable delivery to the purchaser, the measure of damages
for breach of the carrier's contract, by which the consignor
loses the sale, is the difference between the contract price, and
the value of the goods when actually delivered.^

"While the loss of another's money received for transportation
by a carrier, without reasonable knowledge of the purpose for
which it is sent, wiU lay the carrier under obligation merely to
refund the principal sum with interest ; stiU, when it is season-
ably sent for the specific purpose of paying the sender's premium
on his life policy which will lapse if the money be not paid at
the particular time, and the carrier is reasonably informed in
relation to the premises, and has a reasonable time to perform
the duty undertaken, but negligently fails to perform it, the law
wiU justly hold him primarily, at least, for the net value of the
policy which lapsed in consequence of his negligence. Under
such circumstance, both parties must be presumed to have con-
templated such consequence, when the money was deposited
with the carrier; but these damages may be reduced so far as
it was in the plaintiff's power and knowledge to prevent loss
by reinstatement or reinsurance.^ And where in consequence
of the carrier's unreasonable delay in the delivery of the plaint-
ifPs account against a third person, it became barred by the
statute of limitations, the carrier was held liable for the amount
of the account.' The hability of the carrier in such an instance
is analogous to that which attaches to him when he carries per-
ishable property ; he is liable for it if it becomes worthless by
its inherent qualities in consequence of the carrier's negligent
delay in its transportation.* It has been held that a dentist

1 Deming v. Bailroad, 48 N. H. etc. R. R. Co. v. Ragsdale, 46 Miss.
455. ' 458, Simrall, J., concludes a masterly

2 Grindle v. Eastern Express Co. review of the cases on the measure
67 Me. 317. of damages against carriers by say-

s Favor v. PhUbrick, 5 N. H. 858. ing, "We are constrained to concur

« See Knapp v. U. S. & C. Exp. in the observations of BB. Martin

Co. 55 N. H. 348; Parks v. Alta Oal. and Wilde, that a splendid effect

Tel. Co. 13 Cal. 432; Bryant v. Am. was made in Hadley v. Baxendale,

Tel. Co. 1 Daly, 585. In Vicksburg, to state the principle in such form

ACTIONS AaiJNST OAEfilEES.

235

canuot recover earnings prevented by the loss of Ms dentist
tools.^

Damages fob injuey to oe loss of peopeett inteusted to
GAEEiEES. — A common carrier is responsible for the safety of
the goods intrusted to him ; and bound for their delivery in as
gobd condition as he received them, at the place to which he
undertook to carry them, against all hazards, excepting losses
caused by the act of God, or the public enemy. So the excep-
tion is often stated for brevity ; but these others are also well
settled : he is not liable for losses or injuries from any inherent

as to provide for the more difficult
cases, but subsequent experience
and discussions have tended to
demonstrate that it is not possible,
in the nature of things, to declare a
fixed rule for many contracts. This
much may be accepted as well set-
tled: 1. The proximate and natural •
consequences of the breach must
always be considered; 3. Such con-
sequences as from the nature and
subject matter of the contract may
be reasonably deemed to have been
in the contemplation of the parties
at the time it was entered into;
3. Damages which fairly may be
supposed not to have been the nec-
essary and natural sequence of the
breach, shall not be recovered, un-
less by the terms of the agreement,
or by direct notice, they are brought
vtdthin the expectation of the par-
ties; 4. Losses of profits in a busi-
ness cannot be allowed, unles the
data of estimation are so definite
and certain that they can be ascer-
tained reasonably by calculation,
and then the party in fault must
have had notice, either from the
nature of the contract itself, or by
explanation of the circumstances,
at the time the contract was made,
that such damages would ensue
from non-performance; 5. If the
contract is made with reference to

embarking in a new business (such
as sawing lumber for market), the
speculative profits which might be
supposed to arise, but which were
defeated because of a breach of con-
tract, which delayed the business,
cannot be looked to as an element of
damages. These are dependent
largely upon other contingencies,
skill, industry, energy, the market,
supply of material, keeping machin-
ery in order, loss of time by weather
or breakage of machinery; 6. If the
delay is in the transportation of
machinery, to be applied to a special
use, and that is known to the car-
rier, he is responsible for such dam-
ages as are fairly attributable to the
delay, such as the value of the use
of the machinery, to be tested by its
rental price, or other approximate
means; the expenses of idle hands,
the loss of gain on work contracted
to be done if the machinery had
been delivered, and the gain thereby
definitely ascertained in proper
time; 7. The party injured by the
delay must not remain supine and
Inactive, but should make reasonable
exertions to help himself, and
thereby reduce his losses, and dimin-
ish the responsibility of the party in
default to him."
1 Brock V. Gale, 14 Ha. 533. '

236 OAEEIEES.

defect of quality or vice of the thing carried ; nor for those
caused by the seizure of the goods in his hands under legal proc-
ess ; nor for those caused by gome act or omission of the owner
of the goods.' His liabiUty is not affected by the kind of
motive power he employs.^ That liability does not depend
upon contract, but is imposed by law.' He is bound to carry
for all persons who apply, and to carry on the common law
liability ; * though he may, as has been stated, contract with the
shipper to abate in some degree its rigor.*

"Where goods are delivered to a common carrier to be trans-
ported, a promise to pay freights will be implied, and it is not
necessary to prove payment or tender of the charges in order
to hold him liable. And in case of loss of the property, or
injury to it, the burden is on the carrier to exonerate himself by
proof that it happened by one of the causes for which he was
not answerable. Proof of the. delivery of the goods and their
loss, or injuiy to them, while in the carrier's hands, makes out a
prima facie case against him.* But when it appears in a suit
against the carrier that the loss or injury proceeded from one of
the excepted causes, then the burden is on the plaintiff to show
that the injury or loss resulted nevertheless from the negligence
or fault of the carrier.' It has. however, been held by respeot-

1 Lawson on Car. ch. I. 184; The Mollie Mobler, 3 Biss.

2 Hall v. N. J. S. N. Co. 15 Conn. 505.

539. ' Lamb v. Camden, etc. R. R. Co.

SThurman v. WeUs, 18 Barb. 500; 46 N. Y. 211; Read v. St. Louis, etc.

Burkle v. EUs, 4 How. Pr. 288. R. R. 60 Mo. 199; American Exp.

^Southern Exp. Co. v. Moon, 39 Co. v. Second Nat. Bank, 69 Pa. St.

Miss. 832. 394; Empire T. Co. v. Wamsutta,

5 See ante, p. 189. etc. Co. 63 Pa. St. 14; New Bruns-

6 Winne v. HI. Cent. E. R. Co. 31 wick St. Nav. Co. v. Tiers, 24 N. J. L.
Iowa, 583; Mitchell v. U. S. Exp. Co. 697; The Pereire, 8 Ben. 301; Six
46 Iowa, 314; Ewart v. Street, 2 Hundred and Thirty Casks, 14
Bailey, 157; Jackson v. Sacramento, Blatchf. 517; Forbes v. Daclett, 9
etc. Co. R. R. 33 Cal. 368; Davidson Phil. (Pa.) 515; The Invincible, 1
V. Graham, 2 Ohio St. 131; Western Lowell, 235; Van Schaack v. North-
T. Co. V. N^whall, 24 111. 466; West- ern T. Co. 3 Biss. 394; Alden v. Peai--
cott V. Fargo, 63 Barb. 349; Union son, 3 Gray, 343; Brauer v. The
Exp. Co. v. Graham, 36 Ohio St. 595; Almoner, 18 La. Ann. 366; French v.
Drew V. Red L. T. Co. 3 Mo. App. Buffalo, etc. R. R. Co. 4 Keyes, 108;
495; Grey v. Mobile T. Co. 55 Ala. Hays v. Millar, 77 Pa. St. 338; Hub-
387; Ohoate v. Crovminshield, 3 Cliff, bard v. Harnden Exp. Co. 10 R. I.

ACTIONS AGAINST OAEEtEES.

237

able authorities, that the burden is on the carrier, not only to
' show that the loss happened by one of the excepted causes, but
also that it proceeded from that cause without any negligence
on his part.^

In case of injury to the property, or loss of it, by the carrier's
fault, he is required to make compensation on the basis of its
value at the place of destination. In the former case, the
measure of damages is the difference between the value of the
goods as, or in the condition when, delivered, and what their
value would have been if they had not been damaged in the
course of transportation ; ^ and for goods lost, their value at the
place of destination. The owner is entitled to have the equiv-
alent of the goods at the place of destination, in the condition
in which the carrier undertook to deliver them, less the charges
for transportation and delivery.'

251; Clark V. St. Louis, etc. E. R. Co.
64 Mo. 440; Clark v. Bam-well, 13
How. U. S. 273; Transportation Co.
V. Downer, 11 Wall. 129; Lawrence
V. N. Y. etc. E. E. Co. 36 Conn. 63.

1 Davidson v. Graham, 3 Ohio St.
131; Graliam v. Davis, 4 Ohio St.
362; United St. Exp. Co. v. Back-
man, 3 Cin. 351; 38 Ohio St. 144; Erie
R. E. Co. V. Lockwood, 28 Ohio St.
358; Union Exp. Co. v. Graham, 36
Ohio St. 595; Berry v. Cooper, 38
Ga. 543; Southern Exp, Co. v.
Newby, 36 Ga. 635; Swindler v. Hill-
iard, 2 Eich. 216; Baker v. Brinson,
9 Eich. 201; Cameron v. Eich, 4
Strobh. 168; Steele v. Townsend, 37
Ala. 247; Gray v. Mobile Trade Co.
55 Ala. 387.

2 Smith V. New H. etc. E. E. Co.
13 Allen, 531; Cutting v. Grand T.
E'y Co. 13 Allen, 381; McGregor v.
Kilgore, 6 Ohio, 359; Colonel Led-
yard, 1 Sprague, 580; Henderson v.
Maid of Orleans, 13 La. Ann. 353;
Black V. Camden, etc. E. E. Co. 45
Barb. 40; Ingledew v. Northern R.
E. Co. 7 Gray, 86; Lewis v. Sliip
Success, 18 La. Ann. 1. See Mar-

quette, etc. E. E. Co. V. Langton, 33
Mich. 251.

'Gray v. Mo. E. P. Co. 64 Mo. 47;
Sturgess v. Bissell, 46 N. Y. 462;
MarehaU v. N. Y. Cent. E. E. Co. 45
Barb. 502; Spring v. Haskell, 4 AUen,
112; Whitney v. Chicago &N. W. E.
Co. 37 Wis. 337; Chapman v. Chicago
& N.W. E. Co. 26 Wis. 295; McGregor
V. Kilgore, 6 Ohio, 358; Laurent v.
Vaughn, 30 Vt. 90; GiUingham v.
Dempsey, 12 S. & E. 183; Louis v. S.
B. Buckeye, 1 Handy (Cincinnati
Sup. Co.), 150; Warden v. Green, 6
Watts, 424; Eice v. Ind. & St. L. E. E.
Co. 3 Mo. App. 27; Farwell v. Price,
30 Mo. 587; Nourse v. Snow, 6
Greenlf. 208; Shaw v. S. C. E. E.
Co. 5 Eich. L. 462; Union E. R. &
T. Co. V. Traube, 59;Mo. 855; Atkisson
V. S. B. Castle Garden, 38 Mo. 134;
Michigan S. etc. E. E. Co. v. Caster,
13 Ind. 164; Taylor v. Cottier, 26 Ga.
123; Arthur v. Ship Cassius, 3 Story,
81; Wallis v. Cook, 10 Mass. 510; Win-
chester V. Patterson, 17 Mass. 63;
Harris v. Panama E. E. Co. 5 Bosw.
312; Sherman v. Wells, 38 Barb. 403;
Van Winkle V. U. S. Mail Steam

238 CAEErEES.

Where goods are lost by the negligence of the carrier on the
last part of the route, the owner is allowed to recover the value
at the place of destination, less the freight. He cannot, how-
ever, recover, in addition, the freight paid to another carrier
who carried the goods over the first part of the route.^ ISov is
the carrier entitled to an abatement from the value of cotton
consigned, to a factor, of the factor's commissions.' If a debt
is lost by the carrier's default in the performance of his under-
taking, the amount of the debt is prima faoie the measure of
damages.'

Where the carrier delivers the goods contrary to the instrue-
tions of the consignee as to place, at the destination, such car-
rier is liable for the value if the consignee does not obtain the
goods; but the amount of freight for transportation from the
place of shipment should be deducted from the value, though
not earned. And if the consignee obtain the goods by means
of a replevin, it has been held he cannot include in his dam-
ages the counsel fees incurred in the replevin suit.*

Inteeest on damages. — Interest is generally added, in this
country, to the amount allowed as damages, and on the gener-
ally accepted principles which govern the allowance of interest,
it should be added as a necessary part of the indemnity the
shipper or owner is entitled to for the loss of or injury to his
goods.^ But in some instances, under the influence of some

Ship Co. 37 Barb. 133; Northern T. 2 Kyle v. Laurens E. E. Co. 10^

Co. V. McClary, 66 111. 233; Little v. Rich. 383.

Boston, etc. E. E. Co. 66 Me. 239; 3 Ziegler v. "Wells, Fargo & Co. 23
Gushing v. WeUs, Fargo & Co. 93 Cal. 179; Knapp v. XJ. S. & C. Ex-
Mass. 550; Bailey v. Show, 24 N. H. press Co. 55 N. H. 348; Whitney v.
397; Einggold v. Haven, 1 Cal. 108; M. U. Exp. Co. 10 Mass. 153.
Hart V. Spalding, 1 Cal. 313; * The Boston, 1 Lowell, 464.
Wolf's Adm'r v. Lacy, 30 Tex. 349; 5 Mote v. Chicago, etc. E. E. Co.
Eichmond v. Bronson, 5 Denio, 27 Iowa, 23; Spring v. Allen, 4 Al-
55; S. B. Emily v. Carney, 5 Kans. len, 112; Cowley v. Davidson, 13
645; Dean v. Vaccaro, 3 Head, 488; Minn. 93; Woodward v. lU. Cent E.
Blumenthal v. Brainerd, 38 Vt. 403; E. Co. 1 Biss. 403; Blumenthal v.
Sisson V. Cleveland, etc. E. R. Co. Brainerd, 38 Vt. 403; Ludwig v.
14 Mich. 489; Ward C. & P. L. Co. Meyre, 5 W. & S. 435; Hand v.
V. Elkins, 34 Mich. 439. Bumes, 4 Whart. 204; Whitney
1 Northern T. Ck>. v. McQary, 68 v. C. & N. W. E. Co. 37 Wis. 337;
UL 233. Kellogg v. Chi. & N. W. R. Co. 36

ACTIONS AGAINST OAEKIEES.

239

early decisions and the reasons upon which they proceeded, the
allowance or withholding of interest is left to the discretion of
the jury.^

Wis. 223; Robinson v. Merchants' D.
T. Co. 45 Iowa, 470; Barton v.
Steamship C!o., 3 "WaU. Jr. 229; Erie
R'y Co. V. Lockwood, 28 Ohio St.
358; Chapman v. Chicago, etc. R. R.
Co. 26 Wis. 295; Cushing v. WeUs,
Fargo & Co. 98 Mass. 550; Sherman
V. Wells, 28 Barb. 408. See Magnin
V. Dmsmore, 63 N. Y. 35, 45.

'See Wolf's Adm'r v. Lacy, 30
Tex. 349. In the early case, in Now
York, of Smith v. Richardson, 3
Caines, 221, the court say without
qualification that interest ought not
to be allowed. In subsequent cases
the question of interest is treated as
one for the jury; and they to be
guided in their discretion by the cir-
cumstances of the case, allowing it
where the carrier has been guilty of
fraud or other improper conduct,
and denying it when he becomes lia-
ble for the property without actual
fault. Watkinson v. Laughton, 8
John. 213; Amory v. McGregor, 15
Jdbn. 24; Richmond v. Bronson,
5 Denio, 55. In Lakeman v. Grin-
neU, 5 Bosw. 625, the court say:
" In most cases, interest, when al-
lowed, is given in part, at least,
upon some idea of an equivalent al-
ready received by the defendant, in
the use of the money or property
withholden. Hence, it is allowable,
even ia trover; but as against a car-
rier, in whose hands goods have
been lost, or . . whoUy destroyed
without any fault whatever on his
part, no such principle can be in-
voked. It is impossible that he
should have received any advantage
whatever from the possession of the
goods." It is to be observed that in
trove^, the consideration of the de-

fendant's benefit from the conver-
sion does not control the right to
interest. It is allowed as part of
the compensation due to the plaint-
iff. The decision in Van Rensselaer
V. Jewett, 2 N. Y. 135, has been ad-
hered to: " Whenever a debtor is in
default for not paying money, deliv-
ering property, or rendering serv-
ices, in pursuance of his contract,
justice requires that he should in-
demnify the creditor for the wrong
which has been done him; and a
just indemnity, though it may some-
times be more, can never be less,
than the specified amount of money,
or the value of the property or serv-
ices, at the time they should have
paid or rendered, with interest from
the time of the default until the ob-
ligation is discharged." In Dana v.
Fiedler, 12 N. Y. 40, which was an
action for the non-delivery of prop-
erty, the court said: "Interest is a
necessary item in the estimate of
damages in this class of cases. The
party is entitled on the day of per-
formance to the property agreed to
be dehvered; if it is not delivered,
the law gives, as the measure of
compensation then due, the differ-
ence between the contract and mar-
ket prices. If he is not also entitled
to interest from that time as a mat-
ter of law, this contradictory result
follows, that while an indemnity is
professedly given, the law adopts
such a mode of ascertaining its
amount, that the longer the party is
delayed in obtaining it, the greater
shall its inadequacy become. It is,
however, conceded to be law, that in
these cases the jury may give inter-
est, by way of damages, in their

240

OAEEIEES.

Owner entitlbd to compensation eok his peopek acts to
PEEVENT DAMAGES. — The owner being bound to exert himself to
prevent damage, and to render the injury as light as possible
where he is so situated in respect to the subject in question as
to raise that duty, for his reasonable and necessary labor or ex-
pense for that object he may recover.' Thus, in an action against
a railroad company for damages to a lot of flour, it was held
that a judicious expense incurred by the plaintiif, after the
flour had been delivered to him, in rendering it fit for market,
might be recovered as damages, as it appeared that such
expense was for the defendant's benefit, and lessened the amount
for which the carrier would otherwise have been chargeable.-
So the reasonable cost of recovering mules which the carrier
had suffered to escape was held recoverable.'

discretion. Now, in ail cases, unless
this be an exception, the measure of
damages in an action upon a con-
tract relating to money or property,
is a question of law, and does not
at all rest in the discretion of the
jury. . . . The case of Van
Eensselaer v. Jewett establishes a
principle broad enough to include
this case, and has freed the law from
this as well as other apparent incon-
sistencies in which it was supposed
to be involved; The right to inter-
est in actions upon contract de-
pends not upon discretion, but upon
legal right; and in actions like the
present is as much a part of the in-
demnity to which the party is en-
titled as the difference between the
market value and the contract
price." The case of Andrews v.
Durant, 18 N. Y. 496, was trover, and
the court said: "It is as necessary a
part of complete indemnity as the
value itself. There is no sense in
the idea that interest is any more in
the discretion of the jury than the
value." In McCormick v. Penn.
Cent. R. E. Co. 49 N. Y. 303, the
plaintiff's baggage was retained and

carried off on defendant's train of
cars after he decided not to become
a passenger and he had demanded
that such baggage be delivered to
him. If liable for a conversion,
the court held that interest on the
value was recoverable, and as neces-
sary a part of a complete indemnity
as the value itself; and that in fix-
ing the damages, it was no more in
the discretion of the jury than the
value. In Woodward v. lU. Cent.
R. R. Co. 1 Biss. 408, which was an
action against a carrier for goods
which had been lost by fire. Judge
Davis charged the jury to add inter-
est to the value. The jury failing
to agree, the case was tried a second
time (1 Biss. 447), and Judge Drum-
mond instructed the jury that they
might, if they chose to do so, allow
additional damages by way of in-
terest.

1 Hamilton v. McPherson, 28 N. Y.
72.

2 Winne v. 111. Cent. R. R. Co. 31
Iowa, 583.

3 North M. E. R. Co. v. Akers,
4 Kan. 453. See King v. Shepherd,
8 Story, 349.

actions against caeeiees. 241

Circumstances mat reduce the damages below the value
AT the place of DESTINATION. — Circumstaiices may have the
effect to modify and lessen the liability of a common carrier
for the full value of lost goods which had been confided to him
for transportation. Such circumstances may show that the
plaintiff's actual loss was less than the actual value at the place
of destination ; they may show a loss of compensation due for
carriage, by some artifice of the consignor ; may show that the
plaintiff has induced a want of the care necessary to the safety
of the goods. "Where the plaintiff sent by an express company
from New York to Memphis, a package of watches and watch
keys, giving the consignor the option to take and pay for them
at a price fixed, or return them, the carrier was held liable for
that price on a loss of the goods, though it was largely below
the market price at the place of destination.^ Folger, J., said:
" It seems clear that the plaintiffs could not demand from the
defendant more than would have resulted to them had the de-
fendant made safe carriage, and prompt and correct delivery.
In that case, the plaintiffs would, at the farthest, have had fromi
their coifeignees payment for all the goods sent at the price^,
to the consignees, fixed upon them by the plaintiffs. The smn
of that price, with interest thereon from the day when the goods,
should, in the usual course of carriage, have reached the coa-
signees, and been accepted by them, will make the diamiag;©
which would naturally and proximately result to the plaintiflsi
Though a rule is sometimes stated thus : that the damages, are
the value of the goods agreed to be carried and delivered at
the place and time of delivery, — thatrule is but a braneh of the
more general one, that the damages for a failure ta perform are
a sum equal to the benefit which would have resulted from a
performance of a contract.^ When the owner andl shipper of
the goods is himself to take the goods at the plaee^ of destina-
tion, and there sell them for his own account far what they
will there bring, the market value there is the measure of • his
damages, because that would have been his benefit from per-
formance of the contract. But every case is to be governed. by
its own facts ; and here the price of the goods at the place of

1 Magnin v. Dinsmore, 63 N. Y. 35. 2 sturgess v. Kssell, 46 N. Y. 463.
Vol. Ill — 16

242 OAEEIEES.

destination was fixed by the plaintiffs before they were com-
mitted to the carrier. Either that price was to be paid by the
consignees, or the goods were to have been returned to the
plaintiffs at New York, where they would have been worth to
them the market price of them there. No other value could
have been in the contemplation of bith the contracting parties,
nor any other damages than such as would result from a failure
to obtain that value." This opinion is open to some criticism.
It is true, as a general rule, that " the damages for a failure to
perform are a sum equal to the benefit which would have re-
sulted from a performance of the contract ; " that is, the benefit
which would result independent' of any special use, of which
the defaulting party had no notice. This rule does not apply
to the benefit, in excess of market price, derivable from another
contract not known to the carrier, when his contract was made.^
The performance of the carrier's contract will give the con-
signee, whether lie be the consignor or not, the benefit of the
property at the place of destination, after paying the cost of
transportation. The carrier can be charged with no more than
the market value there, unless he has contracted to carry it
there to fulfil a contract of sale at a greater price. Why, then,
should he be entitled to reduce damages below the market
value, when the subcontract, of which he had no notice, happens
to provide for sale for less than the true value ? Besides, the
consignor's action exhausts also the remedy of the consignee,
and the damages are, in effect, measured by the price at the
place of shipment.^ Looking at the possibility of the consignee
exercising the option not to purchase, the consignor could have
countermanded the direction to return the goods, and offered
them for sale at the place of destination.'

Where the goods, after delivery to the carrier, are lost or
destroyed at the port or place of shipment, the value at that
place governs, instead of the price at the place of destination.''

A shipper may estop himself from claiming the full value by

1 Caledonian E. Co. v. Colt, SL. J. v. "Western R. R. Corp. 113 Ma,3s.
N. S. 252; Chicago, etc. R. R. Co. v. 534.

Hale, 83 111. 360. 3 See Smith v. Griffith, 3 HiU, 333.

2 Thompson v. Fargo, 58 Barb. 575; ^Dusar v. Murgatroyd, 1 Wash. C.
Blanohard v. Page, 8 Gray, 331 ; Fenn C. 13.

A.CTIONS AGAINST OAEEIEES. 24:3

his conduct when he offers his property for transportation, as
where it amounts to a representation of value.^ Thus, where a
bag, sealed up, was dehvered to the carrier, the servant of the
latter giving a receipt for 200Z., which the sender stated it
contained, while in fact it contained 4501., the court limited
the recovery, the bag having been lost, to 200Z^ and said:
" There was a particular undertaking by the carrier for the car-
riage of 200?. only ; and his reward was to extend no further
than that sum, and . 'tis the reward that makes the carrier
answerable; and since the plaintiffs had taken this course to
defraud the carrier of his reward, they had thereby barred
themselves of that remedy which is founded only on the
reward." ^ The shipper is bound to deal fairly with the carrier,
and, if required, must give true information of the value of a
parcel offered for transportation ; if he states the quality and
value untruly, either in words or by the manner of marking
the package, he will be guilty of a fraud, and if entitled to
recover at all in case of an accidental loss, he will be allowed
to recover only according to the value he gave out at the time
of shipment.'

The carrier has the right to demand from the employer such
information as will enable him to decide on the proper amount
of compensation for his services and risk, and the degree of
care which he ought to bestow in discharging his trust ; and if
the owner give an answer which is untrue in a material point,
the carrier will undoubtedly be absolved, on general principles,
from the consequences of any loss not occasioned by negligence
or misconduct.*

Qualification of caeeieb's liabilitt by notice. — A carrier
may quahfy his liability by a general notice to all who may

1 EUdns V. Empire T. Co. 81 Pa. Wend. 116; Gibbon v. Paynton, 4

St. 315. Burr. 2398; Pardee v. Drew, 25

2Tyly V. Morrice, Cartken, 485. Wend. 459; Batson v. Donovan, 4 B.

'Belger v. Dinsmore, 51 N. Y. 166; & Aid. 31; Everett v. Southern Exp.

Hayes v. Wells, Fargo & Co. 23 Cal. Co. 46 Ga, 308; Earnest v. Express

185; Magnin v. Dinsmore, 63 N. Y. Co. 1 Wood, 573; Cincinnati, etc. R.

35. See Eice v. Indianapolis, etc. R. Co. v. Marcus, 38 111. 319; Magnin

R. R. Co. 3 Mo. App. 27. v. Dinsmore, supra; Phillips v. Earle,

iHoUister v. Nowlen, 19 Wend. 8 Pick. 183; Xittle v. Boston, etc. R.

334; Orange Co. BTi v. Brown, 9 R. Co. 66 Me. 239.

24:1 CAEEIEES.

employ him, among other things, that he will not be responsi-
ble for goods above the value of a certain sum, unless they are
entered as such, and paid for accordingly.' To effect the
employer by such notice, it must be brought home to him ; ^
but slight evidence beyond its publication is necessary to war-
rant the inference that it was known to the shipper.'

Where the carrier is guilty of negligence or misconduct,
resulting in the loss of goods intrusted to him, his liability is
not limited by the valuation upon them at the time of the
shipment.* A defendant company received at N'ew York, for
transportation to plaintiffs at St. Louis, one package, containing
three gross of cases of " Shallenberger Pills," worth $113.50
per gross. The receipt or bill of lading contained a clause that
the holder should not demand more than $50 for any loss or
damage, at which " the article forwarded " is valued, and
which shall constitute the limit of the liability of the company.
The three cases were each separately addressed to plaintiffs,
and were then wrapped up with a cover in a single package
similarly addressed. But one of the cases reached plaintiffs.
In an action to recover for the -loss, it was held that the
" article forwarded " was the single package, and that plaintiffs
were not entitled to recover $50 upon each of the missing
cases. ^

' Foe what losses the oaeeibe eesponsible. — The carrier is
hable for the goods which he delivers by mistake to the wrong
person.^ So is he liable for any damages resulting from a depart-
ure from the contract, or from the consignor's instructions as to
the route, or mode of conveyance, or the condition of delivery;
in other words, when a carrier accepts goods to be carried, with

13 Greenlf. Ev. § 315; McMillan v. ■'Harvey v. Terra Haute, etc. R.

Michigan, etc. R. R. Co. 16 Mich. 79; R. Co. 6 Mo. App. 585.

Moses V. Boston, etc. R. R. Co. 34 N. ^ Wetzell v. Dinsmore, 54 N. Y.

H. 71; Fish v. Chapman, 3 Ga. 349; 496.

Judson V. Western R. R. Corp. 6 « Price v. Oswego, etc. R. R. Co.

Allen, 486; Cole v. Goodwin, 19 50 N. Y. 213; 58 Barb. 599; Adams v.

Wend. 351. Blankinsten, 3 Cal. 413; Winslow v.

''Id. Vermont, etc. R. R. Co. 43 Vt.

' Oppenheimer v. U. 8. Exp, Co. 700.
69 m. 63.

AOTIOHS AGAINST OAEEIIKS. -i^'o

4

a direction on the part of the owner to carry them in a partic-
ular way, or by a particular route, he is bound to obey such
directions ; and if he attempts to perform his contract , in a
manner diiferent from his undertaking, he becomes an insurer,
and cannot avail himself of any exception in the contract.'
But if it should be shown in such a case that the loss must
certainly have occurred from the same causes, if there had been
no default or deviation, the carrier should be excused. The
burden of proof of this fact, however,'is on the carrier.^ "Where
the carrier was instructed to collect money from the consignee
before delivery, and he delivered the goods without exacting
a compliance with this condition, the carrier was held liable
for the amount which he was instructed to collect.' A carrier
was instructed to deliver to a factor, at a certain market, who
had been instructed not to sell until he received an order to do so ;
the carrier delivered to a factor at a different market, who had
no instructions concerning the article, and who sold it immedi-
ately. It appearing that the article rose in price from that day
until the suit was brought against the«carrier, it was held that
the plaintiff was entitled to recover the highest price reached
within that period, the suit having been brought within a reason-
able time ; and receipt of the proceeds from the factor making
the sale was held to be no bar.*

Where a carrier conveys the property only for part of the
way to its destination, and is instructed how to forward it from
the end of his route, he acts as the shipper's agent in forward-
ing it. If without the happening of any exigency making it
necessary to deviate from the instructions, he does so, he
becomes an insurer; if a loss happens, he must make it good.^

iMagheev. Camden, etc. R.E. Co. Whitney v. M. TS. Exp. Co. 104

4S N. Y. 514; Hinckley v. N. Y. C. Mass. 153. See Bills v. N. Y. C. R.

R. R. Co. 56 N. Y. 429; Goddard v. Co. 84 N. Y. 5.

Mallory, 53 Barb. 87; Hastings v. 2Maghee v. Camden, etc. R. R.

Pepper, 11 Pick. 41; Persse v. Cole, Co. supra.

1 Cal. 369; Steamboat John Owen v. 3 id.

Johnson, 3 Ohio St. 143; The Bos- *Arrington v. Wilmingtoni etc.

ton, 1 Lowell, 464; American Exp. R. R. Co. 6 Jones' L. 68.

Co. V. Lesem, 39 111. 313; U. S. Exp. SAckley v. Kellogg, 8 Cow. 333;

Co. v.Keefer, 59 Iml. 303; Merrick V. Wilcox v. Parmlee, 3 Sandf. 610;

Webster, 8 Midi. 308; Johnson v. N. Forrestier v. Bordman, 1 Story, 45;

Y. C. R. E. Co. 33 N. Y. 610; Wil- Johnson v. N. Y. Cent. E. R. Co. 33

cox V. Parmelee, 3 Sandf. 610; N. Y. 610.

24:6 cAJtsxERa,

DESTINATIOIf FOE THE PUEPOSE OF DAMAGES WHERE THERE ARE

SEVERAL SUCCESSIVE CARRIERS. — If goods are marked and known
to the carrier to be destined to a point beyond the terminus of
his route, and he becomes liable for a loss of them, or for dam-
ages for a negligent delay, there is some diversity as to whether
the damages should be estimated with reference to the market
value at the end of his route, or at the ultimate destination.
On principle, the value at the latter place should be the crite-
rion. The value in one case and the depreciation in the other
according to the market at the ultimate desti.iation, less the cost
of transportation, is the actual loss to the owner ; and it is as
direct and proximate where there are several carriers, as where
the whole transportation is let to one person. The intermedi-
ate carrier who is liable has undertaken the carriage of the
goods with a knowledge of their intended destination ; there-
fore the benefit to the shipper of their delivery at that place,
and the disadvantage to him of a failure to so deliver them,
are within the contemplation of both parties. The damages
recoverable from such ^ carrier should be estimated on the basis
of the net value at the place where he knows the owner of the
goods intends them to go, for the same reason, thait, in other
cases, damages are recoverable with reference to the value for
any special use which was known to both parties at the time of
making the contract. In this view, it is immaterial whether
the through transportation is undertaken by one carrier, or the
goods will be carried by several in a connected line, or by sev-
eral not connected. In a well considered Michigan case,^ the
contract of the defendant was to transport cattle from Toledo
to Buffalo. Their ultimate destination was Albany or ISTew
York, but this fact was not stated in the contract. The trial
court charged the jury that the plaintiffs could not recover
damages for loss by depreciation, on account of negligent
delay, except by reference to the market at Buffalo. Cooley, J.,
dehvering the opinion of the appellate court, said : " If the
judge meant the jury to understand by this charge that the
damages which the plaintiffs could recover must be confined to
the fall in the market at Buffalo, between the time when the
cattle should have reached that point, and that of their actual

1 Sisson V. Cleveland & T. R. R. Co. 14 Mich. 489.

ACTIONS AGAINST CAEEIEES.

2i7

arrival, we think lie erred. The defendants were informed,
when they entered into the contract, that the ultimate destina-
tion was to an Albany or a New York market ; and they must
be held to have assumed their obligations in reference to that
fact. If in fact there was no fall of prices before the cattle
had reached Buffalo, but afterwards, and before they could be
delivered at Albany, a loss had occurred as the direct conse-
quence of defendants' delay, it would be both illogical and un-
just to hold that defendants shall be discharged because the
injurious consequence of their act did not result until the cattle
\YBTe out of their hands. The consequences of delay would at-
tend the cattle to their final destination, just as the consequences
of a fatal injury to one of them would attend the animal until
his death ; and in neither case could the party responsible ex-
cuse himself by showing that the actual loss, or death, did not
occur while the property was retained in his possession."

It has been held in some cases that the destination as regards
the carrier on one of the several routes over which the goods
are successively carried is the terminus of his particular route ;
that if he is liable for a loss, the valiie is to be taken at that
point and not at the ultimate place of destination.^

Peoof of value. — The value must be ascertained by a money
standard from evidence, and cannot be taken upon conjecture.^
If by the acts of the carrier the plaintiff is prevented from
showing the value, the jury may allow the value of the best
quality of such goods." In a Georgia case it was held presum-
able, in the absence of positive evidence, that a commodity is
worth as much at the place of destination as at that of ship-
ment.* So, if there be no market for the goods in question at
the place of delivery, the jury, it is said, must ascertain their
value by taking the price at the place of shipment, adding the
cost of carriage, and allowing a reasonable sum for the im-

1 See Lewis v. Steam B. Buckeye, 3 Olark v. Miller, 4 Wend. 628; Van
1 Handy (Ohio), 150; Harris v. Pan- Winkle v. U. S. Sjeamship Co. 37
ama E. E. Co. 6 Bosworth, 312; Mar- Barb. 122; Bailey v. Shaw, 2i N. H.
shaU V. N. Y. Cent. E. E. Co. 45 397.

Barb. 502. ' ^Eome E. E. Co. v. Sloan, 39 Ga.

2 Tralofl V. N. Y. etc. E E. Co. 686.
lOBlatchf. 16.

248 CAEEIEES.

porter's profit.^ In cases where the market value of goods is
the test of damages, the law contemplates a range of the entire
market and the average of prices as thus found, running
through a reasonable period of time; not any sudden and
transient inflation or depression of prices, resulting from causes
independent of the operations of lawful commerce.^

The injured party is entitled to recover with reference to the
market value at the time of the injury, though subsequent ex-
periments in the use of such goods have resulted in showing
that the market price was based on no intrinsic worth. Ac-
cordingly, in an action against common carriers for a negligent
injury to a quantity of mulberry trees which had been delivered
to them for transportation, after the plaintiff had given evi-
dence of the market value of the trees" at the time the injury
occurred, the defendants offered to prove that trees of the same
species have since been ascertained, from actual experiment, to
be of no real value ; that their market value, at the time of the
injury, was factitious; that they were not worth cultivating
with a view to the raising of the silk worm; that those in
question were purchased by the plaintiff for the purpose of
growing seedlings for sale, and that they were of no value for
such purpose the next year after the purchase ; and it was held
that such evidence was inadmissible.' The purpose of the
plaintiff in purchasing the trees to reproduce the article for the
market the next year, was but an unexecuted intention; it
bound nobody ; and the plaintiff had a right to change it, and
to turn the property to better account, if in his judgment the
opportunity offered.*

Where goods damaged in the course of transportation were
received by the consignee with the understanding that the de-
preciation should be made good to him, and the goods were
sold at auction with the consent of the carrier, it was held that,
for the purpose of ascertaining the amount due for such dam-
ages, the amount realized from their sale should be treated as the

1 0'Hanlan v. Great Western R. 2 Smith v. GrifSth, 3 HUl, 333.
Co. 6 B. & S. 484; 34 L. J. (N. S.) Q. 3 Id.
B. 154; Richmond v. Bronson, 5 ild.
Denio, 55; Vroman v. Am. M. U.
Exp. Co. 3 Hun, 513.

CAEKIEE8 OF PASSENGERS. 249

value of the goods in the damaged state.^ And in an action
against a railway company for damages arising from failure to
deliver a certain quantity of whisky, as it had undertaken to
doj the defendants were held entitled to prove that the whisky
had been shipped by the plaintiffs in fraud of the United States
revenue laws, and no tax had been paid thereon, for the pur-
pose of determining the value ; if the tax of two dollars per
gallon had been paid, it was said, the value of the raw material
would be enhanced to that extent, and if not paid, it would be
decreased that amount.^ The owner of a family portrait is en-
titled to recover its value to him.'

Section 3.

caeriees of passbngbks.

Damages for refusal to receive, and for breaches of duty or contract to
carry passengers, and to carry them safely — Mitigations of damages —
Exemplary damages — Injury to wife, child or servant — Where tlie
injury causes death — Excessive verdicts — Law of baggage — Measure
of damages.

The obligations or responsibilities of public carriers do not
arise altogether nor principally out of contracts; they are
mostly imposed by law. The total refusal to undertake the
conveyance of a passenger, without excuse, or when actionable,
is merely a violation of a carrier's duty ; he has refused to con-
tract ; so his duty to carry with care, though it may, to some
extent, be regulated and restricted by contract, is imposed by
law, and cannot, as is generally held, be contracted away;
hence actions against these carriers are generally actions of tort
for negligence, or for misconduct of some kind, involving a
breach of duty. Contracts, however, are usually made, fixing
the extent of the route, the mode of conveyance, the kind of
accommodations, the time, etc. ; and, therefore, actions founded
upon such contracts may be maintained. Whether the action
be upon the breach of duty or for violation of contract, to the
extent that they involve the same acts and omissions, the dam-
ages, as measured by law, are substantially the same.

1 The Columbus, 1 Abb. Adm. 97; 2 Toledo, etc. R. E. Co. v. Kichler,
JeUingham v. N. Y. Ins. Co. 4 Sandf . 48 111. 438.

18. 8 Green v. Boston, etc. E. E. Co.

128 Mass. 331.

250 CAEEIEE8.

-Damages foe eefusal to eeceive, aito foe eeeaches of dtttt

oe conteaot to oaeet passengbes, altd to caeet them safely.

A refusal to take a party who applies in accordance with a
carrier's regulations, is willing and offers to pay, or has done so
in compliance with the carrier's rates; or a refusal, after a pas-
senger has been carried over a part of the stipulated voyage or
route, to carry him to the end, may entitle him to general,
special or consequential damages, for a great variety of losses
and injuries.

If the journey is delayed there wiU be a loss of time, and the
passenger is entitled to compensation for it,^ and also for any
increased expense reasonably incurred during the delay, or to
procure other conveyance when necessary. Where a book-
keeper, on his way to California, was detained by the fault of
the carrier at New Orleans and Panama for an unreasonable
time, it was held admissible to prove the rate of wages at the
place of destination for the consideration of the jury in fixing
the damages, but not as the measure of them; and that it
should be left to the jury to weigh the probabilities that he
would have immediate ani continued . employment had he
arrived without such detention.^ And it has been held in such
an action, that the fact there is no evidence of the value of
the plaintiff's time does not prevent the jury giving him such
compensation as they think reasonable.'

In an action against a carrier for failure to carry the plaintiff
from New York to San Francisco, via Nicaragua, according to his
agreement; for neglect to furnish suitable accommodations, and
for negligent detention on the way, and consequent unnecessary
exposure to an unhealthy climate, it was held entirely proper
to receive evidence as to how much the plaintiff was exposed'
to the sun and rains while crossing the isthmus, and to show
that the climate there was bad, so that the jury could determine
whether the plaintiff's sickness was caused by the defendant's
negligence or breach of duty. It was also held that the time
the plaintiff lost by reason of his detention on the isthmus, his
expenses there and on his return to New York, the time he lost

iPenn. E. E. Co. v. Books, 57 Pa. a Ward v. Vanderbilt, 34 How. Pr.

St. 339. 144; 4 Abb. App. Deo. 531.

^Yonge V. Pacific M. Steamship
Co. 1 Cal. 353.

C^UIEIEES OF PASSENGERS. 251

by reason of his sickness after he returned, and the expenses of
such sickness, so far as it was occasioned by the defendant's
negligence or breach of duty, were legitimate and legal dam-
ages, which the plaintiff was entitled to recover. And the de-
I'endant having refused to convey the plaintiff from the isthmus
to his destination, he was entitled also to recover back the
money he had paid for his passage on the stipulated voyage.^

In another case the plaintiff was allowed to show, in aggra-
vation of damages, his physical condition unfitting him to bear
the exposure to which he was subjected in consequence of the
carrier's neglect to stop his boat according to his advertisement
and take him on board ; and that exemplary damages might
be recovered in such a case, if the carrier's conduct in such
neglect were wilful or capricious.^
^ The right to recover back the passage money or fare paid in
advance, where, by the carrier's fault, the plaintiff is not carried;
his right to be compensated for loss of time while delayed by
such fault ; to have refunded any personal expenses reasonably
incurred during such a detention, and any extra expense reason-
ably incurred to procure other conveyance to make or continue
the journey, or to return when it has been interrupted and
must be abandoned, is clear, and rests upon the most obvious
]:)rinciples of justice.'

If a carrier engages to put a person down at a given place,
and does not put him down there, but puts him down some-
where else, it must be in the contemplation of everybody that
the passenger put down at the wrong place must get to the
place of his destination, or to his starting place, somehow or
other. If there are means of conveyance for getting there, he
may take those means and make the carrier responsible for the
expense ; but if there are no means, the carrier must compensate
him for personal inconvenience, and other actual injurious con-

1 Williams v. Vanderbilt, 38 N. Y. R'y Co. 1 H. & N. 408; Porter v. St
317; Bonsteelv. Vanderbilt, 31 Barb. B. New England, 17 Mo. 290; Hobbs
36. V. London, etc. E. Co. L. R. 10 Q. B.

2 Hiern v. McCoughan, 33 Miss. 17. Ill; Denton v. G. N. E'y Co. 5 B. &

3 The Zenobia, 1 Abb. Adm, 80; La B. 860; Cranston v. Marshall, 5 Exch.
Blanche v. London, etc. R. Co. 1 C. 395; Brown v. The Chicago, etc. E.
P. D. 286; Hamlin v. Great Northern R. Co. 54 "Wis. 343.

252 OABEIEKS.

comitants of such a predicament ; and of any available method
of extrication.! "W'here a passenger has bought a ticket and is
carried beyond the station for which he is ticketed without any
fault on his part, he has a right of action for at least nominal
damages, though he suffers no actual injury, and for such actual
injury as he may in fact suffer." The immediate purpose of a
traveler is to reach some given destination ; but a journey is
generally taken for some ulterior object. The carrier under-
takes that the former shall be accomplished so far as his route
is concerned ; and if he is advised of the latter when his con-
tract is made, he is held to contract with reference to it, and
damages for a violation of his agreement or duty will be given
accordingly. The same tests apply which govern generally,
and by which remote, uncertain and speculative consequences
are excluded from consideration. Each case must, therefore, be
determined on its peouhar facts. An exceptional case was
finally decided by the federal supreme court on appeal from a
decree in admiralty.' The libellant took passage in 1856 on
the respondent's vessel at Acapulco for San Francisco ; he ten-
dered his fare, and while on this vessel demeaned himself prop-
erly. On the voyage, the respondent transferred him against
his will to another vessel, which took him back to Acapulco.
The libellant was unable to obtain passage on any other vessel
from that place to his intended destination. He went thence
to Aspinwall, in the republic of New Grenada, to try and get
a passage thence to San Francisco, but a line of steamers pre-
viously existing there, and on which he expected to go, had
been discontinued, its last vessel having set off two or three
days before his arrival. Finally, through charity, he obtained
a passage to ISTew York, in which city he was without means
and dependent on charity for subsistence. He was confined in
a hospital there for several months, and physically unable to
attempt a voyage to San Francisco until 1860. The special cir-
cumstances which induced the respondent to put him off his

1 Brown v. E. B. C!o. 54 Wis. 342. Mo. 290; Sunday v. Gordon, 1

2 Thompson v. New Orleans, etc. Blatchf. & H. 569; Pittsburgh, etc.
E. E. Co. 50 Miss. 315; New Orleans, E. E. Co. v. Nuzam, 00 Ind. 141;
etc. E. R. Co. V. Hunt, 36 Miss. 660; Thompson's Car. Pass. 66.

Porter v. St. B. New England, 17 3 Pearson v. Duane, 4 Wall. 605.

CAEEIEE8 OF PAS8ENGEE8. 253

vessel and send him back, and which made it impossible for him
to get other transportation to his intended destination, were not
known to the respondent when he received him as a passenger,
but were made known to him on the voyage. Those circum-
stances were the previous forcible expulsion of the libellant
from San Francisco by the vigilance committee, and a certainty
that if he returned by the respondent's vessel, or any other,
while the vigilance committee held control of San Francisco,
he would be killed. Four thousand dollars damages had been
awarded to him in the court below, and on the basis and amount
of damages, the supreme court say that this amount is excess-
ive, bearing no proportion to the injury received ; that he is
entitled to compensation for the injury done him by being put
on board the other vessel, so far as that injury rose from the
act of the respondent in putting him there. But the outrages
which he suffered at the hands of the vigilance committee ; his
forcible abduction from California and transportation to Aca-
pulco ; the difficulties experienced in getting to New York, and
his inability to procure a passage from either Acapulco or
Panama to San Francisco, cannot be compensated in this action.
The obstructions he met with in returning to California were
wholly due to the circumstances surrounding him, and were not
caused by the respondent. Every one, doubtless, to whom he
applied for passage, knew the power of the vigilance commit-
tee, and were afraid to encounter it by returning an exile
against whom the sentence of death had been pronounced.
The respondent had no malice or illwill towards the libellant,
and, as the evidence clearly shows, excluded him from his boat
in the fear that, if returned to San Francisco, he would be put
to death. It was sheer madness for the libellant to seek to go .
there. Common prudence required that he should wait until
the violence of the storm blew over and law and order were
restored. That court reduced the recovery to $50.

If the object of a passenger's journey is known to the carrier
when he undertakes his transportation, damages for delay or
defeat of that object by the fault of the carrier may be recov-
ered. A master of a schooner who had taken passage on a
steamer to rejoin his vessel, and. was carried past his destination,
was held entitled to recover not only his personal expenses and

254 CAEEIEES.

loss of time, but damages in the nature of demurrage for the de-
tention of his vessel which was awaiting his return.' Such dam-
ages must be shown with certainty to have resulted necessarily
and solely from the carrier's default. Thus, a carrier who failed
to carry a passenger within the appointed time to the place for
which he had taken passage, was held not liable for the passen-
ger not being able to do an errand there, nor his expenses and
the injury of absence from his business during a sojourn of sev-
eral days, without some evidence that if he had seasonably ar-
rived he might have performed his errand, and thereupon would
have promptly returned, and that he could not with proper
effort accomplish his errand by reason of such delay.^

If a carrier advertise to leave at particular times and to arrive
at given places at stated times, or so as to make specified con-
nections with carriers beyond, such advertisements are guaran-
ties to persons acting upon them, and on his failure to fulfil he
is hable for personal expenses at hotels, and those of substituted
conveyances when necessary to the passengers' purposes, and
loss of time, consequent on not leaving or arriving in accordance
with the advertisement.'

Mere inconvenience will be ground of damages if it is capable
of being stated in tangible form ; the difference between what
he ought to have and did have; the difference between the
contracted conveyance and the necessity to go on foot or by
such other means as were available.* And where the action is
for a tort, the breach of duty, and sickness is the natural and
proximate result, damages therefor may be recovered.'

It has been held that where the damages are produced by
other age icies than those causing the injury, or even by agen-
cies remotely connected with those causing the injury, they
cannot be awarded as proximate or proper compensation, but
only where the injury flows from the wrongful act as its nat-

1 The Canadian, 1 Brown, Adm. 11. ^Hobbs v. L. & S. W. R'y Co. L.

2 Benson v. New Jersey, etc. T. R. 10 Q. B. 111. ,

Co. 9 Bosw. 412. 5 Id.; Francis v. St. Louis T. Co. 5

3 Cranston v. Marshall, 5 Exch. Mo. App. 7; Walsh v. Chicago, etc.
395; Denton v. G. N. R'y Co. 5 E. & R. R. Co. 42 "Wis. 23; Brown v. C.
B. 860; Hamlin v. G. N. R'y Co. 1 H. M. & St. P. R. R. Co. 54 Wis.
&N. 408; Le Blanche v. London, etc. ,343.

E?y Co. 1 C. P. D. 286.

CABEIBES OF PA88ENGEES. 255

ural concomitant, or as the direct result. Where speculation or
conjecture has to be resorted to for the purpose of determining
whether the damages result from the wrongful act or from
some other cause, then the law rejects them for that reason.'
This was declared in a case where a train failed to stop at a
station where a passenger was waiting for it, to be carried to
another station ; he thereupon walked to his place of destination,
in very cold weather, and in consequence became sick ; it was
held the sickness, and the loss which such sickness caused to him,
did not result directly from the defendant's breach of duty. If
his business required it, he was at liberty to hire another con-
veyance, and the company would have been liable for such loss
or injury as he suffered in waiting or procuring other convey-
ance, and such as his business might suffer on account of the
delay, but he had no right to inflict injury on himself to enhance
the amount of his damages.

y- There is an obvious difference between the predicaments in
which a carrier's breach of duty or contract may leave his cus-
tomer; in one, the carrier refuses to receive him at a home
station, or at an intermediate station where he can remain to
choose between other modes of conveyance to pursue his jour-
ney or return ; in another, he may be set down where there is
no shelter and consequently where he cannot remain, whence
there is no conveyance, and he is obliged to pursue his journey
or seek the nearest shelter da foot in such weather as may hap-
pen at the time. In the former, there is no warrant to incur
any personal hazard on the carrier's responsibility. In the lat-
ter, he has placed the passenger in a situation where he cannot
remain and from which there is but one mode of escape. The
iUs incident to that situation, and the dangers incident to that
mode of extrication, whether inevitable or fortuitous, the carrier
is responsible for ; if injury happens without contributory negli-
gence of the plaintiff, it is an injury resulting from the earner's
fault and breach of contract by natural and necessary sequence.^

1 Indianapolis, etc. E. R. Co. v. age in Hobbs v. L. & S. W. R'y Co.
Birney, 71 111. 391. supra, were rejected, which, on the

2 Williams v. Vanderbilt, 28 N. Y. principle stated in the test, should
217; Brown v. Chicago, etc. E. E. Co. have been allowed, unless the form
54 Wis. 342. Certain items of dam- of the action was such as to exclude

256

CAEEIEES.

them. Plaintiff, with his wife and
two children, five and seven years
old respectively, took tickets on the
defendant's railway from Wimble-
don to Hampton Court by the mid-
night train. They got into the train,
but it did not go to Hampton Court,
but went along another branch to
Esher, where the party were com-
pelled to get out. It being so late at
night, plaintiff was unable to get a
conveyance, or accommodation at
an inn, and the party walked to the
plaintiff's house, a distance of be-
tween four and five miles, where
they arrived at about three in the
morning. It was a drizzling night,
and the wife caught cold, and waa
laid up for some time, being unable
to assist her husband in his business,
as before, and expenses were in-
curred for medical attendance. In
an action to recover damages for
the breach of contract, the jury
gave 2QI. damages, viz., 81. for the
inconvenience of being obliged to
walk home, and 201. for the wife's
iUness and its consequences. It was
held that as to the 81., that the
plaintiff was entitled to damages for
the inconvenience suffered in con-
sequence of being obliged to walk
home; but as to the 20Z., that the
illness and its co'nsequences were too
remote from the breach of contract
to be given as damages naturally re-
sulting from it. Cockbum, C. J.,
said: "The plaintiffs did their best
to diminish the inconvenience to
themselves by having recourse to
such iri'^'-^D as they hoped to find at
hand; they tried to get into an inn,
which they were unable to do; they
tried to get a conveyance, they were
informed none was to be had; and
they had no alternative but to walk;
and, therefore, it was from no de-
fault on their part, and it cannot be
doubted that the inconvenience was

the immediate and necessary conse-
quence of the breach o£ the defend-
ant's contract to convey them to
Hampton Court. Now, inasmuch
as there was manifest personal in-
convenience, I am at a loss to see
why that inconvenience should not
be compensated by damages in such
an action as this. It has been
endeavored to be argued, upon prin-
ciple and upon authority, that this
was a kind of damage which could
not be supported. . . . The case
of Hamlin v. Great Northern Rail-
way Company, 1 H. & N. 408, 36 L.
J. Ex. 20, was cited as an authority
to show that for personal inconven-
ience damages ought not to be
awarded. . That case appeared to me
to fall far short of any such propo-
sition. . . . With regard to the
second head of damage, the case
assumes a very different aspect. I
see very great difficulty, indeed, in
coming to any other conclusion than
that the 30?. is not recoverable; and
when we are asked to lay down some
principle as a guiding rule in all
such cases, I quite agree with my
brother Blackburn in the infinite
difficulty there would be in attempt-
ing to lay down any principle or rule
which shall cover aU such cases; but
I think that the nearest approach
to anything like a fixed rule is this:
that to entitle a person to damages
by reason of a breach of contract,
the injury for which compensation
is asked should be one that may be
fairly taken to have been contem-
plated by the parties as the possible
result of the breach of contract.
Therefore you must have something
immediately fiowing out of the
breach of contract complained of,
something immediately connected
with it, and not merely connected
with it through a series of causes
intervening between the immediate

CAEKIEKS <>"K PA.SSENGEES.

257

In a recent case/which received very thorough consideration,
it wds held that " The carrier's obligation is to carry his pas-
senger safely and properly, and to treat him respectfully, and,
if he intrusts the performance of this duty to his servants, the
law holds him responsible for the manner in which they execute
the trust. The law seems to be now well settled that the carrier
is obliged to protect his passenger from violence and insult,

consequence of the breach of con-
tract and the damage or injury com-
plained of. To illustrate that, I
cannot take a better case than the
one before us. Suppose that a pas-
senger is put out at a wrong station
on a wet night, and obliged to walk
a considerable distance in the rain,
catching a violent cold, which ends
in a fever, and the passenger is laid
up for a couple of months, and loses
through his illness the offer of an
employment which would have
brought him a handsome salary. No
one, I think, who understood the
law, would say that the loss so oc-
casioned is so connected with the
breach of contract as that the carrier
breaking the contract could be held
hable. Here, I think, it cannot be
said the catching cold by the plaint-
iff's wife is the immediate and neces-
sary effect of the breach of contract,
or was one which could be fairly
said to have been in the contempla-
tion of the parties. . . . The
wife's cold and its consequences can-
not stand upon the same footing as
the personal inconvenience arising
from the additional distance which
the plaintiffs had to go. It is an
effect of the breach of contract in a
certain sense, but removed one stage;
it is not the primary but the second-
ary consequence of it. . . . The
party is entitled to take a carriage
to his home. Suppose the carriage
overturns or breaks down, and the
party sustains bodily injury from
either of these causes, it might be
Vol. Ill— 17

said, ' If you had put me down at
my proper place of destination,
where by your contract you engaged
to put me down, I should not have
had to walk or go from Esher to
Hampton in a carriage, and should
not have met with the accident in
the walk or the carriage. In either
of these cases, the injury is too re-
mote, and I think that is the case
here. It is not the necessary con-
sequence, it is not even the proba-
ble consequence of a person being
put down at an improper place, and
having to walk home, that he should
sustain either a personal injury or
catch a cold. That cannot be said
to be within the contemplation erf
the parties, so as to entitle the plaint-
iff to recover, and to make the de-
fendants hable to pay damages for
the consequences." See.Thompsoin's
Car. Pass. 566-7. In a similar case
very recently decided in Wisconsin,
where the action was for the tortious
breach of duty, the injuries of the
wife from the exposure were heldito
be the natural and proximate con-
sequence of leaving her three miles
short of her destination at night,
under such circumstances that she
had to walk that distance. She was
made sick and had a miscarriage by
reason of it. The verdict was for
$3,500, and was sustained.. Brown
V. Chicago, etc. R. R. Co.. 54 Wis.
843.

1 Goddard v. Grand Trunk Rail-
way, 57 Me. 203, 313.

258 CAKllIEES.

from whatever source arising.' He is not regarded as an in-
surer of his passenger's safety against every possible source of
danger ; but he is bound to use all such reasonable precautions
as human judgment and foresight are capable of, to make his
passenger's journey safe and comfortable.^ He must not only
protect his passenger against the violence and insults of
strangers and co-passengers, but, a fortiori, against the violence
and insults of his own servants. . . . The law requires the
common carrier of passengers to exercise the highest degree of
care that human judgment and foresight are capable of, to
make his journey safe. "Whoever engages in the business im-
pliedly promises that his passenger shall have this degree of
care. In other words, the carrier is conclusively presumed to
do what, under the circumstances, the law requires him to do.
"We say conclusively presumed, for the law will not allow the
carrier by notice or special contract even to deprive his pas-
senger of this degree of care. If the passenger does not have
such care, but on the contrary is unlawfully assaulted and in-
sulted by one of the very persons to whom his conveyance is
intrusted, the carrier's implied promise is broken, and his legal
duty is left unperformed, and he is necessarily responsible to
the passenger for the damages he thereby sustains. The pas-
senger's remedy may be either in assumpsit or tort, at his elec-
tion. In the one case, he relies upon a breach of the carrier's
common-law duty to support his action; in the other, upon the
breach of his implied promise. The form of the action is im-
portant only upon the question of damages. In actions of as-
sumpsit, the damages are generally limited to compensation.
In actions of tort, the jury are allowed greater latitude, and, in
proper cases, may give exemplary damage."

1 Pittsburgh, et«. Railway v. N. Y. 126; Johnson v. Winona, etc.
Hinds, 53 Pa. St. 513; Flint v. Nor- E. R. Co. 11 Minn. 296; New Orleans,
wich, etc. Transportation C». 34 etc. R. R. Co. v. Allbritton, 38 Miss.
Cenn. 554; Chamberlain v. Chand- 243; Bryant v. Rich, 106 Mass. 180;
ler, 3 Mason, 342; Nieto v. Clark, 1 Bowen v. N. Y. Cent. R. R. Co. 18
ClifE. 145; Baltimore, etc. R. R. C». N. Y. 408; Craker v. Ch. & N. W.
V. Blocher, 27 Md. 277. R. R. Co. 36 Wis. 657; Memphis, etc.

2 McElroy v. Nashua, etc. R. R. C«. R. R. Co. v. WMtfield, 44 Miss. 466;
4 Cush. 400; Du Laurens v. First Caldwell v. N. J. Steamboat Co. 47
Div. etc. R. E. Co. 15 Minn. 49; N. Y. 283; Baltimore, etc. R. R. Co.
Carroll v. Staten Island E. R. Co. 58 v. Breinig, 35 Md. 378.

CAEEIEES OF PASSENGEES. 259

The carrier must make compensation according to the nature
of the injury when the proper action is brought ; such injury
may consist of personal inconvenience/ sickness,^ loss of time,'
bodily and mental suffering, loss of capacity to earn money
from personal injury, pecuniary expenses, disfigurement, or
permanent physical or mental impairment. There is no precise
rule by which the extent of recovery for pain and suffering can
be measured ; but it is well estabUshed they are to be compen-
sated when they result from injuries received by the party suing
from the wrongful acts or culpable negligence of the defendant. ^
The determination of the amount is committed to the judgment
and good sense of jurors, subject to practical revision by the
court to correct and relieve from manifest excess ; * and it seems
to be now established, that not only bodily pain, but connected
with bodily injury, mental suffering — anxiety, suspense, fright,
sense of wrong from insult or indignity, — may be treated, when
the facts will justify it, as an element of tlie injury for which
damages, for compensation, should be allowed.'

1 Hobbs V. London, etc. E'y Co. v. Wells, Fargo & Co. 6 Nev. 234;
L. B. 10 Q. B. 111. FairohUd v. California Stage Co. 13

2 Brown v. Chicago, etc. R. R. Co. Cal. 599; Illinois Central E. R. Co. v.*^
54 Wis. 343. Barron, 5 WalL 90; Merrill v. ilinot,

3 WiUiams v. VanderbEt, 28 N. Y. 31 Me. 299; Laing v. Colder, 8 Pa. St. •
217; Ward v. Vanderbilt, 34 How. 479; Penn. R. R. Co. v. Kelly, 31 Pa.
Pr. 144; S. C. 4 Abb. App. Dec. 531; St. 379; Penn. R. E. Co. v. AUen, 53
Penn. R.^R. Co. v. Books, 57 Pa. Pa. St. 276.

St. 339. ° Canning v. Williamstown, 1

* Walker v. Erie R'y Co. 63 Barb. Cush.'451; Penn. & Ohio Canal Co.

269; Ransom v. N. Y. & E. R. R. Co. v. Graham, 93 Pa. St. 390; Smith v.

15 N. Y. 415; Blake v. Midland R'y Pittsbungh, etc. R. R Co. 33 Ohio St.

Co. 10 B. L. & E. 437; S. C. 18 Q. B. 10; Chicago,- etc. E. R. Co. v. Flagg, .

93; Linsley v. Bushnell, 15 Conn. 43 111. 365; Muldowney v. Illinois

225; Lincoln v. Saratoga, etc. R. R. Cent. R. R. Co. 36 Iowa, 463;

Co. 33 Wend. 435; Canning v. Will- ^agher v. Driscoll, 99 Mass. 281;
iamstown, 1 Cush. 451; Klein v. ^--^aker v. C. & N. W. R. R. Co. 36

Jewitt, 26 N. J. Eq. 474; McKinley Wis. 657; Ripon v. Bittel, 30 Wis.

V. Chicago, etc. R. R. Co. 44 Iowa, 614; Ransom v. N. Y. etc. R. R.

314; Ohio, etc. R. R. Co. v. Dicker- Co. 5 N. Y.- 415; Quigley v. C.

son, 59 Ind. 317; Whalen v. St. Louis, P. R. R. Co. 11 Nev. 350; McKinley

etc. R. R. Co. 60 Mo. 323; Morse v. v. C. & N. W. R. E. Co. 44 Iowa,

Auburn, etc. E. R. Co. 10 Barb. 631; 814; Seger v. Barkhamsted, 23 Conn.

Curtiss V. Rochester, etc. R. R. Co. 290; Masten v. Warren, 27 Conn.

20 Barb. 383; 18 N. Y. 534; Johnson 293; Lawrence v. Housatonic R. R.

260 CAEEIEE8.

The mind is no less a part of the person than the body, and
the sufPerings of the former are sometimes more acute and last-
ing than those of the latter.* Indeed, the sufiferings of each
frequently, if not usually, act reciprocally on the other. The
dismay, and the consequent shock to the feelings, which is pro-
duced by the danger attending a personal injury, not only
aggravate, but are frequently so appalling as to suspend the
reason and disable a person from warding it off.^ Where a
conductor on the defendant's railroad, by the use of some force,
kissed the plaintiff, a female passenger, the jury assessed the
damages at one thousand dollars, and the verdict was sustained
on the ground that it was right and proper to take into consid-
eration, and give liberal damages for, her terror and anxiety,
her outraged feelings and insulted virtue, for all her mental
humiliation and suffering, although exemplary damages was
held not recoverable.'

In an Iowa case, an action was brought against a railroad
compan\'^ for personal injury caused by a brakeman beating the
plaintiff while he was attempting to enter a car, and an instruc-
tion that the jury might allow the plaintiff damages, among
other things, " for the outrage and indignity put upon him,"
was approved. The court say, " Mental anguish arising from
the injury, that is, pain caused by the wound or broken arm,
constitutes an element of compensatory damages, and we, on
principle, are unable to see why mental pain arising from or
caused by the nature and character of the assault whereby the
wound was inflicted or the arm broken, should not also be an
element of such damages. The one is as easily estimated and
determined as the other, and practically the two cannot be sep-
arated or distinguished. The party injured cannot tell where
one ends and the other begins. The . . damage arising from
either or both cannot be accurately computed, and, from the

Co. 29 Conn. 390; Taber v. Hutson, Northouse, 46 Vt. 587; 3 Greenlf.

5 Ind. 333; Cox v. Vunderklad, 31 Ev. § 367.

Ind. 164; Fairchild v. California * Seger v. Barkhamsted, supra ;

Stage Co. 13 Cal. 599; Hlinois, etc. McKinley v. C. & N. W. E. E. Co.

E. E. Co. V. Barron, 5 Wall. 90; supra.

Hamilton v. Third Ave. E. E. Co. ^id.

53 N. Y. 35; Baltimore, etc. E. E. Cc 3 Craker v. C. & N. W. E'y Co. 86

V. Blocher, 27 Md. 277; Nones v. Wis. 657.

CAEEIEKS OF PASSENGEES. 261

nature of things, they are so blended together they cannot be
separated or distinguished. The attempt, therefore, to draw a
line or make a distinction between the two, and to assign one
to the class of exemplary, and the other to compensatory, is
futile. The distinction is too fine to serve any practical pur-
pose in the determination of causes by courts and juries.^

The damages recoverable for bodily pain and suffering are
not limited to that which is past, where the proof renders it
reasonably certain that the injured party must suffer in the
.future. In estimating the pecuniary loss in such cases, all the
consequences of the injury, future as well as past, are to be
taken into consideration, including bodily pain which is shown
by the proof to be reasonably certain will necessarily result
from the injury.* Such injured party is entitled to recover one
compensation for all his injuries, past and prospective; these
are presumed to embrace indemnity for actual nursing and
medical expenses, also loss of time, or loss from inability to
perform ordinary labor, or capacity to earn money ; he is to
have a reasonable satisfaction for loss of both bodily and men-
tal powers.'

Evidence of the loss sustained by the plaintiff in his business in
consequence of the injury received, is proper, not as furnishing
the measure of damages, but to aid the jury in estimating them;
and for this purpose the nature of the plaintiff's business, its ex-
tent, and the importance of his personal oversight and superin-
tendence in conducting it, may be shown.'' The jury are to

iMcKinley v. C. & N. W. R'y Co. Truni R. R. 48 N. H. 541; Filer

supra; Smith v. Pittsburgh, etc. R. v. N. Y. Cent. R. R. Co. 49 N. Y. 42;

R. Co. 23 Ohio St. 10; Hamilton v. Drew v. Sixth Avenue R. Co. 26 N.

Third Avenue R. R. Co. 53 N. Y. 35; Y. 49; Aaron v. Second Avenue R.

Quigley v. C. P. R. R. Co. 11 Nev. Co. 2 Daly, 137.

350, 370. , ^ Id. ; Donaldson v. Mississippi, etc.

2Curtiss V. Rochester, etc. R. R. R. R. Co. 18 Iowa, 380; Walker v.

Co. 18 N. Y. 534; Memphis, etc. R. Erie R. R. Co. 63 Barb. 260; Penn.

R. Co. V. Whitfield, 44 Miss. 466; R. R. Co. v. Books, 57 Pa. St. 339.

Caldwell V. Murphy, 1 Duer, 333; 11 * Lincoln v. Saratoga, etc. R. R.

N. Y. 416; Klein v. Jewett, 36 N. J. Co. 23 Wend. 435; Hurt v. Southern

Eq. 474; Matteson v. N. Y. etc. R. R. R. Co. 40 Miss. 391; The Ori-

R. Co. 63 Barb. 364; Fink v. Schroyer, flamme, 3 Sawyer, 397; New Jersey

18 111. 416; Black v. CarroUton R. R. Exp. Co. v. Nichols, 33 N. J. L. 437;

Co. 10 La. Ann. 33; Holyoke v. Grand Taylor v. Dustin, 43 N. H. 493.

203

CAEEIEKS.

consider what, before the injury, was the health and physical and
mental ability of the plaintiflF to maintain his fainily or to earn
money, as compared with his condition in these particulars
afterwards, and up to the institution of the suit, in consequence
of the injury complained of, and how far it is permanent in its
results, as well as the physical and mental suffering he has
endured, and will endure, from such injury as a cause, and
should allow such damages as, in their judgment, will fairly
compensate the plaintiff therefor.'

1 Stockton V. Frey,4 GiU, 406; Cur-
tiss Y. Rochester, etc. R. R. Co. 20
Barb. 283; Kinney v. Crocker, 18
Wis. 74; Ripon v. Bittel, 30 Wis.
614; Penn. & Ohio Canal Co. v. Gra-
ham, 63 Pa. St. 290; McLaughton v.
Coi-ry, 77 Pa. St. 109; Indianapolis
V. Gastou, 58 Ind. 234; Shear. & Redf .
on Neg. § 606. See Joch v. Dank-
wardt, 85 III. 331.

In Caldwell v. Murphy, 11 N. Y.
416, the plaintiff brought an action
against a carrier of passengers for
injuries received in consequence of
a negligent upsetting of a stage or
omnibus. The plaintiff was proved
to have been considerably injured
by the upsetting of the stage, but
whether he was permanently dis-
abled or not, was a matter earnestly
litigated. To show that he contin-
ued to suffer from the effects of the
injury down to the time of the trial,
the plaintiff proved that he was a
ship carpenter, and that he had not
been able to work constantly more
than a few weeks after the injury
occurred. On cross-examination,
the defendant raised the question
whether his being without work
was not occasioned by his not at-
tempting to procure employment.
The witness was made to answer,
that he was never present when the
plaintiff applied for work, and that
what he knew about his inability to
labor was founded principally on

what the plaintiff had told him.
After several other questions by the
counsel and the court, the object of
which was to ascertaia whether he
was voluntarily idle, whether his
being witliout work was on account
of his not being able to get employ-
ment at his trade, or whether it was,
as the plaintiff contended, on ac-
count of his inability to labor, by
reason of his injuries, the plaintiff's
counsel put this question: ''Had he
the means of support for himself
and famUy, except his labor?" It
was objected to. The objection be-
ing overruled, he answered: "He
had no means of support except
what he got from the charity of his
friends." The defendant's view of
the matter was stUl pressed by a
further cross-examination of the
same witness, and then the judge
put some questions to ascertain the
number of persons in the plaintiff's
family, and in what manner they
were supported after the injury, it
having been shown that before that
he had constant employment. It
was held on appeal that this evidence
was admissible. Denio, J.,said: "I
think the evidence was admissible
to show that the plaintiff's circum-
stances were such that he would
probably have been engaged in
laboring in his calling if he had not
been disabled by his injuries, and
that he was in a considerable degree

CAEEIEES OF PASSENGEKS. 263

In a case which came before the supreme court of the United
States,' the declaration charged that the plaintiff was wounded
on the head by a blow from a piece of iron that had been
broken off the boat on which he was a passenger, in a collision,
and thrown against him. That in consequence of the wound,
his brain was affected and injured, so that his understanding
was impaired ; that for some time he was insensible, and his
life dispaired of; and before his recovery he suffered much
mental and bodily pain ; that he was detained in New York at
a distance from his home, and subjected to much expense alSout
his care, support and maintenance, and had been hindered and
prevented for a long period from transacting and attending to
his necessary and lawful affairs by him during all that time to
be performed and transacted ; and lost and was deprived of
great gains, profits and advantages, which he miglit and other-
wise would have derived and acquired. Under this general
declaration, the question decided was whether the plaintiff was
entitled to prove that before, and up to the time of the alleged
injury, the particular business in which he was engaged was
that of a distiller and manufacturer of turpentine, and that he
was largely and extensively engaged in that business ; and by
the physician who attended him in New York, that when the
plaintiff after his convaiescence left New York to return to
North Carolina, he could not safely attend to any business or
occupation. The evidence was held admissible. Campbell, J.,
delivering the opinion of the court, thus cautiously remarks
upon the proof so offered : " The precise object for which this
evidence was adduced is not stated in the certificate of the
judges ; but if the evidence tends to support any issue between
the parties, or has a direct connection with other evidence com-
petent to maintain the averments of the declaration, either to
illustrate its meaning, or to ascertain its probative effect, it can-

imable to labor. Had he been a per- charity of his friends, his omission
son of pecuniary means, his being to employ himself, m connection
out of employment would have been with the other evidence of his in-
slight if any evidence of disability; juries, had a bearing upon the ex-
but having a family dependent upon tent to which he had been disabled
him, and being without means of by the occurrence in question."
support except his labor and the ' Wade v. Leroy, SO How. 34.

264: CAEEIEES.

not be rejented as impertinent, or as founded upon matter that
does not appear in tiie pleadings in the cause. The evidence
objected to conduces to prove that the plaintiff was seriously
iajured; that he had been confined in New York, at a distance
from' his home, and had incurred expense in consequence.
That, before that time, he had been concerned in conducting a
business that required a degree of mental and bodily vigor, and
tiiat his time was of some pecuniary value ; or, that he had
suffered a loss of some profit ; and that after some detention in
J^ew York, he had returned to his home in an infirm condi-
tion — so infirm that his medical attendant and adviser deemed
Mm incapable of pursuing, any ordinary business or occupation,
and had advised him to abstain from personal exertion. This
evidence would certainly assist the jury to determine that the
plaintiff had sustained an injury of no slight character — an
injury to' his person, and which was followed by expense, suf-
fering and loss of time, which had for, him a pecuniary value.
These were the direct and necessary consequences of the injury,
and sustained strictly and almost exclusively as an effect from
it. This evidence may have an application without any inquiry
into any remote or contingent consequences, which could not
have been foreseen, or which were peculiar to the circumstances
or condition of the plaintiff. The record does not inform us
tliat the evidence was designed to aid in such irrelevant in-
quiries." ^

In a subsequent case in Massachusetts where the declara-
tion alleged the plaintiff's business, and his impaired capacity,
after the injury, to pursue it, the court held that the plaintiff
might introduce evidence to show the kind and amount of
physical and mental labor which he was accustomed to do before
receiving the injury, as compared with that which he was able
to do afterwards, for the purpose of aiding the jury to deter-
mine the compensation he should receive for his loss of mental
and physical capacity.^ The declaration alleged that by defend-
ant's act in question, he was hurt, and being before able to earn

1 It was insisted that damages for of the loss should be particidarly set

the injury to the particular business forth in the declaration. See Laing

esf the plaintiff were special, and v. Colder, 8 Pa. St. 497.
flierefore the business and the fact ^ Ballou v. Farnum, 11 Allen, 73.

CAEEIEES OF PASSENGEE8. 265

large' sums by his business, was rendered unable to labor in and
conduct his business, and deprived of the earnings which he
would otherwise have made. He had been allowed to show on
the trial, in order to prove his bodily and mental capacity before
the accident, and the extent of his injury, that before the acci-
dent he owned and carried on a large mill for the manufacture
of fancy cassimeres; used to select the patterns and colors,
which required constant attention and thought; bought part of
the stock, hired the workmen and agreed with them for their
wages; superintended the patting in of machinery; conducted
an extensive correspondence, and twice a year took an account
of stock ; and that since the accident he had been able to do
very little that required mental application or physical labor.
It was contended for the defendant that Ihe law makes no dis-
tinction between men ; that evidence of the plaintiffs wealth in
owning and carrying on a large mill afforded no evidence of
the amount of damages sustained. Evidence that he was
skilled in his occupation, and able to perform a large amount of
work therein, does not prove any special damages therein, with-
out evidence that his occupation was profitable ; that damages
estimated upon the ground of loss of peculiar skill and business
capacity must in their nature be conjectural and uncertain;
that if different passengers are entitled to different amounts of
damages for similar injuries, railroad companies must charge a
higher rate of fare for those whose occupation or capacity will
entitle them to heavy damages. Colt, J., said : " In general,
the profits of a future business are indeed too remote and un-
certain to be relied on as an element in the estimate of damages.
It does not follow that superior education, experience or abilitj''
in the management of business, insures pecuniary success. The
uncertainty of the continuance of health and life, with the taste
and disposition for such pursuits, and especially the proverbial
uncertainty of trade, preclude the making of any estimate
which can have weight beyond the merest conjecture. If this
evidence had been offered by the plaintiff with a view of in-
creasing the damages on account of his wealth, or peculiar skill
as a manufacturer, or the large profits he would be able to
realize in his future business, and it had been admitted for that
purpose, the argument of the defendant would be entitled to

266

CAEEIEES.

further consideratiou. But it was offered to show the extent of
the personal injury by reason of the loss of mental vigor and
endurance thereby occasioned. The diminution, whatever it was,
could only be shown by evidence of strength before the weak-
ness, afterwards as manifested in the ordinary pursuits of the
plaintiff. The presiding judge admitted it only for this re-
stricted purpose, and carefully instructed the jury that it was
admissible to enable them to judge of the injury to his capacity,
and that the action was for an injury to the man, and not for
interfering with his business.^ In all actions of this description,
and particularly in those in which damages for mental suffering
or loss of mental capacity are sought to be recovered, the dilfi-
culty of furnishing by evidence the means of measuring the
extent of the injury, so that the jury may be able to award
with any certainty a pecuniary equivalent therefor, is at once
apparent ; and in this difficulty, the defendants find arguments
for the support of their objection. But the answer is, that the
law does not refuse to take notice of such injury on account of
the difficulty of ascertaining its degree. In a variety of actions
founded on personal torts, and in many where no positive bodily
harm has been inflicted, the plaintiff is permitted to recover
for injury to the feelings and affections, for mental anxiety,
personal insult, and that wounded sensibility which follows the
invasion of a large class of personal rights. The impossibility,
in all such cases, of precisely appreciating in money mental
suffering of this description, is certainly as great as is suggested,
as where the question is what shall be allowed for a permanent
injury to mental capacity.

" The compensation for personal injury occasioned by the neg-

1 In Kinney v. Crocker, 18 "Wis. 74, for speculations that he might be

the plaintiff was allowed to give evi- engaged in; but that if a man had

dance of the character and extent an ordinary business, yielding ordi-

of his business, and of the effect of nary receipts, he would be entitled

his inability to attend to it by reason to recover the diminution of these

of the injury; and not only was this receipts resulting from his inability

held proper, but also this instruction to attend to his business, occasioned

to the jury, that'" he would been- by the injury." Nebraska City v.

titled to recover, in addition to other Campbell, 2 Black, 590; Indianapolis

damages sustained, for all damages v. Gaston, 58 Ind, 334.
to his legitimate business, but not

CAKEIEE8 OF PASSENGEES. 267

ligeuce or misconduct of others, which the law promises, is in-
demnity, so far as it may be afforded in money, for the loss and
damage which the man has suffered as a man. Some of its ele'
ments may be bodily pain, mutilation, loss of time and outlay of
money ; but of the more important consideration oftentimes is
the mental suffering and loss of capacity which ensues. Of these
several items of injury, if compensation is to be confined to those
capable of accurate estimate, it will include but a small part,
and must exclude all those injuries commonly regarded as purely
physical ; for the difficulty in ascertaining a pecuniary equiva-
lent for the last named is precisely the same and quite as great
as any that have been suggested. In fact, it will be found im-
possible to fix a limit to injuries of a physical nature so as to
exclude from consideration their effect on the mental organiza-
tion of the sufferer. The intimate union of the mental and
physical, the mutual dependence of each organization, — if, in-
deed, for any practical purpose, in this regard, they can be
considered as distinct — the direct and mysterious sympathy
whenever the sound and healthy condi,tion of either is disturbed,
render useless any attempt to separate them for the purpose in-
dicated. It is obvious, upon a moment's reflection, that the pow-
ers and usefulness of the limbs and senses in ministering to the
necessities and pleasures of the individual are in a great extent
to be measured by the knowledge, experience and taste which
he possesses, and which are purely qualities of the mind. Take
the case of an injury to the right arm of a skilful painter or
musician, for example. To show the extent of his injury, the
plaintiff produces evidence of the use he was able to make of
the arm before and after the accident. From such evidence
alone could the jury judge of the plaintiff's loss. Such proof is
constantly resorted to without objection in those cases. And
still the chief value of the limb to its possessor consists in its
skilful use, as controlled and directed by the cultivated taste
and education of the plaintiff ; and the chief loss to him is the
loss of the power to make these purely intellectual endowments
available for his pleasure or benefit. Or suppose the injury be
to one of the five senses. Can any rule be adopted which shall
limit the damages to that portion of the injury which may be
called only bodily ? There is a class of injuries, especially those

2G8 CAEEIBES.

which affect the brain and nervous system, to which this case
seems to have belonged, where, by common observation, the
most satisfactory symptom and proof of the physical injury is
to be found in the weakness and derangement of the intellectual
faculties. Upon the whole, then, upon principle we can see no
error in the admission of the evidence, with the accompanying
instructions. In the main it must always be left to the discre-
tion of the jury to give such reasonable damages in those cases
as in their opinion will afford compensation for the entire injury
which the plaintiff proves he has sustained, subject to that power
which remains in the court to set aside the verdict in those cases
where the damages awarded are so excessive as to warrant the
inference that some passion or prejudice or other improper con-
siderations influenced them." ^ If there be a loss of employment,
a provable loss in business, or any other special loss resulting
from the injury, although' it occur in consequence of the pecul-
iar circumstances in which the injured party is placed at the
time, it may be taken into consideration in the estimate of
damages, if specially claimed in the declaration.^

1 Ransom v. N. Y. & E. R. R. Co. lasting, they were at liberty to con-
15 N. Y. 415; Collins v. Council sider whether the prospects for be- «
Bluffs, 33 Iowa, 334; Russ v. Steam- ing well maiTied would not thereby
boat War Eagle, 14 Iowa, 363; Laing be impaired; and if so, they were at
V. Colder, 8 Pa. St. 497; Pa. R. R. Co. liberty to allow such damages in this
V. Books, 57 Pa. St. 339; McEZinley respect as they were satisfied would
V. C. & N. W. R. R. Co. 44 Iowa, 314; arise from this cause, if any. On
Whalen v. St. Louis, etc. R. R. Co. exception to this instruction the
60 Mo. 333; Pittsburgh, etc. R. R. court said: "Now, the loss of mar-
Co. V. Andrews, 39 Md. 339. riage may be of itself a special

2 Laing v. Colder, 8 Pa. St. 497; ground of action. In the present
Walker v. Erie R'y Company, 63 case it was not alleged in the declara-
Barb. 360; Caldwell v. Murphy, 11 tion, nor sustained by the proof. It
N. Y. 416; Chicago v. O'Brennan, 65 does not necessarily arise from a
111. 160; Kinney v. Crocker, 18 Wis. bodily injury, though it might be
74; Hunter v. Stewart, 47 Me. 419. consequent thereupon. The defend-
In this case there is an implication ant had no notice that damages
that an unmarried female might would be claimed for any such
recover damages on account of her cause, and, therefore, could not be
prospect of marriage being impaired prepared to prove or disprove its
by the injury, if declared specially existence. As damages have been
for and proved. The charge was given for a special injury, having
that if the jury should be satisfied no necessary connection with the
that the injury sustained would be wrongful acts of the defendant, and

CAEEIEE8 OF PAS8ENGEE8.

269

Mitigations of damages.— The damages recoverable by the
injured party cannot be abated or mitigated by showing that he
has received money on account of the injury from an insurance
company on an accident policy ; ^ nor because he has received
gra,tmtous nursing or medical attendance or benefactions from
friends in any form.^ And it has been held «that the value of
gratuitous nursing may be allowed as an item of damage.'
"Where a passenger is injured bj'" the violence of the carrier or
his servants, his liability is not subject to mitigation by proof
that the injured party was suffering from a disease which ag-
gravated his injuries, and rendered their cure more diflBicult.*
But if the plaintiil's action is for expulsion from the carrier's
vehicle, any fraudulent conduct on the part of the plaintiff con-

neither set forth in the declaration
nor established by the evidence, the
exceptions must be sustained."

In The Oriflamme, 3 Sawy. 397,
404, Deady, J., said of the female
libellant who had been injured while
a passenger on board the vessel: " I
find that she is entitled to recover
for expenses of her sickness and in-
jury to her clothing, $100; for loss
of time and labor on account of the
injury, $100; for the expense of em-
ploying counsel to maintain this
suit to recover the damages to which
she is entitled, $300; for the phys-
ical and mental pain and suffering
caused by the injury and treatment
of the libellant while on board the
vessel after the accident. $1,000; and
for the permanent disfigurement of
the libellant's face from the wound
on the forehead, $500. It may be
that the sum of $500 is an insufli-
cient compensation for such a blem-
ish upon the personal appearance of
the libellant. But it does not ap-
pear that the scar will affect her
personal appearance, so as to make
her presence offensive or painful to
others. For this reason it is not
likely to interfere with or prevent
her from obtaining employment in

her calling and sphere of life. It will
in no way affect her abiUty to labor
and earn her' living. In manners
and appearance she is a plain girl,
moving in an humble walk in life,
and not like many others, dependent
upon her beauty for her dowry or
support.

"Still the scar will be a perma-
nent disfigurement of her person, for
which she is entitled to some com-
pensation. Karr v. Parks, 44 Cal.
49. In this country, at least, it is
open to every woman, however poor
or humble, to obtain a secure and
independent position in the commu-
nity by marriage. In that matter,
which is said to be the chief end of
her existence, personal appearance,
comeliness — is a consideration of
comparative importance in the case
of every daughter of Eve."

i Pittsburgh, etc. R. R. Co. v.
Thompson, 56 111. 138; Bradburn v.
Great Western R'y Co. L. R. 10
Bxch. 1.

2 Indianapolis v. Gaston, 58 Ind.
334; Ohio, etc. R. R. Co. v. Dicker-
son, 59 Ind. 317.

3 The D. S. Gregory, 2 Ben. 326.

* Brown v. Hannibal, etc. R. R. Co.
66 Mo. 588.

270 CAEEIBRS.

nected with tho cause of such expulsion, or the pretext therefor,
may be sliown as part of the res gestce, and in mitigation of
damages.^ So, his declarations may be given in evidence, tend-
ing to show that his object in taking passage on the defendant's
cars was to make money by suing the railroad company for de-
' manding more tban the statutory rate of fare. An article sub-
sequently to the injury, published by the plaintiff, was held
admissible, because it tended to show, as the court remarked,
the quo animo of the plaintiff, and that the case was not one in
which he should recover damages for supposed injury to his
" feelings." It tended to show that he entered the car expect-
ing to be ejected, as he was ejected, and for the purpose of
making money out of the transaction. So far as injury to
" feelings " is concerned, it tended to show that it was a fair
case for the application of the maxim that to the willing mind
there is no injury.^

Exemplary damages. — A carrier's conduct may be so cu Ipa-
ble in causing the injury or in connection with it, as to subject
him to exemplary damages, as a punishment to him and as an
example to others.^ To justify such damages, however, there
must be fraud, malice, oppression, insult, or other wilful mis-
conduct, or that entire want of care which would raise the pre-
sumption of conscious indifference to consequences.^

Private business corporations may be sued in trespass for the

1 Terra Haute, etc. R. B. Co. v. Citizens' R. R. Co. 42 Mo. 79; Ken-
Vanatta, 31 lU. 188. tucky, etc. R. R. Co. y. DiUs, 4 Barb.

2 Cincinnati, etc. R. :p. Co. V. Cole, 593; Western Union Tel. Co. v.
29 Ohio St. 126. Eyser, 91 U. S. 495, note; Thompson

3 New Orleans, etc. R. R. Co. v. v. New Orleans, etc. R. R. Co. 50
Hurst, 36 Miss. 660; New Orleans, Miss. 315; Caldwell v. N. J. Steam-
etc. R. R. Co. V. Statham, 42 Miss, boat Co. 47 N. Y. 383; Hamilton t.
607; Caldwell v. New J. Steamboat Third Ave. R. Co. 53 N. Y. 35; Du
Co. 47 N. Y. 383; Graham v. Pacific Laurans v. St. Paul R. R. Co. 15
R. R. Co. 66 Mo. 536; Penn. R. R. Minn. 49; Pullman, etc. Co. v. Reed,
Co. V. Books, 57 Pa. St. 339; God- 75 111. 135; Toledo, etc. R. R. Co. v.
dard v. Grand Trunk R. R. Co. 57 Patterson, 63 111. 304; Paine v. Chi-
Me. 317; Quigley v. C. P. R. R. Co. cago, etc. R. R. Co. 45 Iowa, 569;
11 Nev. 350. Seymour v. Chicago, etc. R. R. Co.

« Milwaukee, etc. R. R. Co. v. 3 Blss. 43; Pittsburgh, etc. R. R, Co.
Arms, 91 U. S. 489; Doss v. Missouri, v. Slusser, 19 Ohio St. 157.
etc. R. R. Co. 59 Mo. 37; McKeon v.

OAEEIEKS OF PAS8ENGEE8. 271

authorized acts of their servants; and if a trespass or -other
wrong is committed by their authority, wit^ circumstances of
violence and outrage, such as would authorize exemplary dam-
ages against a natural person, it is now settled that the same
rule would apply to such a corporation. If a corporation, like
a railroad company, is guilty of an act or default, such as in the
case of an individual would subject him to exemplary damages,
tliey would be equally liable to such damages.^ Where the
servants of a corporation, engaged in the carriage of passengers,
are guilty of such acts or conduct in the performance of their
duties in the transportation of the injured party as a passenger,
as would subject them to damages of this nature, there are
authorities which hold the corporation is also liable to punitive
damages, without proof that they directed or ratified such acts
or conduct.^ As the corporation can only act through natural
persons, its officers and servants, and as it of necessity commits
its trains or vehicles absolutely to the charge of persons of its
own appointment, passengers of necessity commit to them their
safety and comfort in trcmsihc, the whole power and authority
of the corporation, pro hao vice, is vested in such employes ;
and as to such passengers, they are the corporation.'

1 Hopkins v. Atlantic, etc. R. E. juries to passengers carried by their

Co. 36 N. H. 9; Pittsburgh, etc. R. agents without direct authorization

R. Co. V. Slusser, 19 Ohio St. 157; or subsequent ratification of the act

Atlantic, etc. R. R. Co. v. Dunn, 19 complained of (p. 575). Atlantic, etc.

Ohio St. 162; Graham v. Pacific R. R. R. Co. v. Dunn, 19 Ohio St. 163;

R. Co. 66 Mo. 536; New Orleans, etc. New Orleans, etc. R. R. Co. v. Bailey,

R. R. Co. V. Bailey, 40 Miss. 395; 40 Miss. 453; Quigley v. C. P. R. R.

New Orleans, etc. R. R. Co. v. Hurst, Co. 11 Nev. 350; Goddard v. Grand

88 Miss. 660; Vicksburgh, etc. R. R. Trunk R. R. Co. 57 Me. 203; Hopkins

Co. V. Patton, 31 Miss. 156; Illinois, v. Atlantic, etc. E. R. Co. 36 N. H.

etc. R. R. Co. V. Hammer, 73 111. 353; 9; Sherley v. BiUings, 8 Bush, 147;

Hamilton v. Third Ave. R. R. Co. 53 Milwaukee, etc. R. R. Co. v. Arms,

N. Y. 35; Cleghorn v. New York, 91 U. S. 489; Baltimore, etc. R. R.

etc. R. R. Co. 56 N. Y. 44; Western Co. v. Blooher, 37 Md. 277. See Redf.

Union Tel. Co. t. Eyser, 3 Col. 141. on R. 331, note.

3 Mr. Thompson, in his work on 3 Bass v. Chicago, etc. R. R; Co. 36

Carriers of Passengers, says the rule Wis. 450. In Goddard v. Grand

which is in accord with reason and Trunk R. R. Co. supra, Walton, J.,

the weight of authority is that pas- said: " But it is said that if the

senger carriers, although corpora- doctrine of exemplary damages

tions, may be liable, in a proper must be regarded as established in

case, in exemplary damages for in- suits against natural persons for

272

0AEEIEE8.

It cannot be denied that this view is based upon considera-
tions of great weight, and is supported by respectable, and
probably by a preponderance of, authority. The old doctrine
was that a master is not liable for a wilful or malicious tres-

their own wilful and malicious torts,
it ougM not to be applied to corpor
rations for the torts of their servants,
especially where the tort is com-
mitted by a servant of so low a
grade as a brakeman on a railway
train, and the tortious act was not
directly nor impliedly authorized
nor ratified by the corporation; and
several cases are cited by the de-
fendants' counsel, in which the
courts seem to have taken this view
of the law; but we have carefully
examined these cases, and in none
of them was there any evidence ithat
the servant acted wantonly or ma-
liciously; they are simply cases of
mistaken duty; and what these same
courts would have done if a case of
such gross and outrageous insult
had been before them, as is now
before us, it is impossible to say;
and long experience has shown that
nothing is more dangerous than to
rely upon the abstract reasoning of
courts, when the cases before them
did not call for the application of
the doctrines which their reasoning
is intended to establish.

" We have given to this objection
much consideration, as it was our
duty to do, for the presiding judge
declined to instruct the jury that if
the acts and words of the defendants'
servant were not directly or impliedly
authorized nor ratified by the de-
fendant, the plaintiff could not
recover exemplary damages. We
confess that it seems to us that there
is no class of cases where the doc-
trine of exemplary damages can be
more beneficially applied than to
railroad corporations in their capac-

ity of common carriers of passen-
gers; and it might as well not be
applied to them at all, as to limit its
application to cases where the serv-
ant is directly or impliedly com-
manded by the corporation to
maltreat and insult a passenger, or
to cases where such an act is directly
or impliedly ratified; for no such
cases will ever occur. A corporation
is an imaginary being. It has no
mind but the mind of its servants:
it has no voice but the voice of its
servants; and it has no hands with
which to act but the hands of its
servants. All its schemes of mis-
chief, as well as its schemes of
public enterprise, are conceived by
human minds and executed by
human hands; and these minds and
hands are its servants' minds anl
hands. AU attempts, therefore, to
distinguish between the guilt of
the servant and the guilt of the
corporation, or the punishment of
the servant and the punishment of
the corporation, is sheer nonsense;
and only tends to confuse the
mind and confound the judgment.
Neither guilt, malice nor suflEeriug
is predicable of this ideal existence,
called a corporation; and yet, under
cover of its name and authority,
there is in fact as much wickedness,
and as much deserving punishment,
as can be found anywhere else.
And since these ideal existences
can neither be hung, imprisoned,
whipped or put in the stocks — since
in fact no corrective . influence can
be brought to bear upon them, ex-
cept that of pecuniary loss — it does
seem to us that the doctrine of

CAEEIEE8 OF PASSENGEES.

273

pass of his servant ; ^ if the servant be guilty of anything which
is not a mere want of skill or want of care, the master was

exemplary damages is more bene-
ficial in its application to them than
in its application to natural persons.
If those who are in the habit of
thinking that it is a terrible hard-
ship to punish an innocent corpora-
tion for the wickedness of its agents
and servants, will for a moment
reflect upon the absurdity of their
own thoughts, their anxiety will
be cured. Careful engineers can be
selected who will not run their
trains into open draws; and careful
baggagemen can be secured who
will not handle and smash trunks
and bandboxes as is now the uni-
versal custom; and conductors and
brakemen can be had who will not
assault and insult passengers; and
if the courts will only let the ver-
dicts of upright and intelligent
juries alone, and let the doctrine
of exemplary damages have its legit-
imate influence, we predict the
great and growing evils will be very
much lessened, if not entirely cured.
There is but one vulnerable point
about these ideal existences, called
corporations, and that is the pocket
of the monied power that is con-
cealed behind them; and if that is
reached, they will wince. When it is
thoroughly understood that it is not
profitable to employ careless and
indifferent agents, or reckless and
insolent servants, better men will
take their place, and not before.

"But the defendants say that the
damages awarded by the jury are
excessive, and they move to have
the verdict set aside and a new trial
granted for that reason. That the
verdict in this case is highly, puni-
tive, and was so designed by tte
jiiry, cannot be doubted; but by
Vol. Ill— 18

whose judgment is it to be measured
to determine whether or not it is
excessive ? What standard shall be
used ? It is a case of wanton insult
and injury to the plaintiff's charao-
ter, and feelings of self respect, and
the damages can be measured by-
no property standard. It is a case
where the judgment will be very
much influenced by the estimation
in which character, self respect and
freedom from insult are held. To
those who set a very low value on
character, and think that pride and
self respect exist only to become
objects of ridicule and sport, the
damages will undoubtedly be con-
sidered excessive. . . .

"A careful examination of the
case fails to satisfy us that the jury
acted dishonestly, or that they made
any mistake in the application of
the doctrine of exemplary damages.
We have no doubt that the highly
penal character of their verdict is
owing to the fact that, after Jack-
son's misconduct was known to the
defendants, they still retained him.
in thpir service. The jury undoubt-
edly felt that it was due to the
plaintiff, and due to every other
traveler upon the road, to have him
instantly discharged; and that to
retain him in his place, and thua
shield and protect him against the
protestation of the plaintiff, made
to the servant himself at the time of
the assault, that he would lose his
place, was a practical ratification
and approval of the servant's con-
duct, and would be so understood
by him and every other servant on
the road."

I Wright V. Wilcox, 19 Wend.
343.

27J: CAEEIEE9.

held not responsible,' unless the act was done by his command ;
that is, unless the particular act was ordered to be done by the
pnncipal, or some act Avhich comprised it.' In some early cases
this rule exonerated the master where the tortious act of the
servant was very closely connected with his legitimate duties.
In an English case," where the servant in charge of and driving
his master's chaise ■wilfully collided with another chaise, it was
held the act of the servant, and not of the master. Lord
Kenyon, adopting the words of Holt, C, J., in a previous case,
said: "No master is chargeable with the acts of his servant
but when he acts in the execution of the authority given him; "
and added, that when a servant quits sight of the object for
which he is employed, and, without having in view his master's
orders, pursues that which his own malice suggests, he no longer
acts in pursuance of the authority given him, and, according to
the doctrine of Lord Holt, his master will not be answerable
for the act," The principle is sound, but the application is not
in harmony with the rulings in later cases.* It has been fol-
lowed in some cases in New York.' In a case decided in
1857,* on the assumption that the conductor had wrongfully
ejected the plaintiff, a passenger, from the defendant's cars, on
some punctilio relating to the plaintiff refusing to show a ticket
or pay his fare, the trial court refused to instruct the jury that
the defendant was not liable for the injuries which the plaintiff
might have sustained in consequence of the assault in question
by their agents and servants, and did charge " that if, in pursu-
ance of the defendant's orders and instructions, the plaintiff
was wrongfully ejected from the cars, and was wantonly treated
by the conductor or agents of the defendant in so ejecting him,

1 Seymour v. Greenwood, 6 H. & Pollock, C. B., said: "At the time
N. 363, 364. of the decision of Scott v. Shepherd,

2 Sharrod v. London, etc. E'y Co. 2 W. Black, 893, and McManus v.
4 Exch. 580, 585; Morley v. Gais- Crickett, 1 East, 106, the subject had
ford, 2 H. Black, 442. ,not been so thoroughly considered

SMcManus v. Crickett, 1 East, 108. as It since has been."

4 Seymour v. Greenwood, 7 H. & * Wright v. Wilcox, 19 Wend. 843;

N. 355; Huzzey v. Field, 3 Cromp. Richmond Turnpike Co. v. Vander-

M. & R. 433, 440; Eastern, etc. R'y bilt, 1 Hill, 480; S. 0. 3 Comst. 479.

Co. V. Brown, 6 Exch. 314. In Sey- « Hibbard v. New Y. & E. li'y Co.

mour V. Greenwood, 6 H. & N. 364, 15 N. Y. 455.

CAEEIEES OF PA6SEXGEES. 275

the defendant is liable for the injuries resulting from such ejec-
tion," including in their discretion compensation for the " per-
sonal ill treatment to which the plaintifif had been subjected in
ejecting him." This refusal to charge and this instruction were
held erroneous. Brown, J., said: "The object of the request
was that the court should discriminate between those acts of
the company's agents done in the execution of its directions
and those done in excess of its instructions, and without au-
thority or approbation. This, I think, should have been done.
The plaintiff may have been injured by the use of unnecessary
force to effect what the company had a right to do. The con-
ductor and those who aided him are not the company. They
are its agents and servants, and whatever tortious acts they
commit by its direction they are responsible for and no other.
This is upon the principle that what one does by another he
does by himself. But for the wilful acts of the servant the
master is not responsible, because such wilful acts are a depart-
ure from the master's business.' In removing a passenger from
the cars, who refuses to pay his fare or exhibit his ticket, the
servants of the company are limited to the use of so much,
force as may effect that object and no more. They are not to
resort to force at all, until it becomes absolutel}^ necessary, by
refusal of a passenger to depart upon request ; and when they
do resort to it, they are to use no more than becomes sufficient,
and they are to do no unnecessary injury to the party. This is
the extent of their authority, and if they exceed it, they, and
not the company, are responsible for the consequences." ^

1 Wright V. "WUcox, 19 Wend. 343. " If , on the other hand, the con-

2 In this case Coinstock, J., said: ductor had no right to eject the

"If the plaintiff had forfeited his plaintiff from the train after he had

right to be carried as a passenger, complied with the request and pro-

by refusing to show his ticket when duced the ticket, then I do not see

requested to do so by the conductor, on what principle the defendant can

and if the right was not restored by be made liable for the wrong. The

subsequently complying, then his regulation, and instructions to the

expulsion was lawful, and he has conductor, as we Iiave said, were

nothing to complain of, unless lawful, and they did not, in their

greater force and violence were used terms or construction, jsrof ess to

than his own resistance rendered justify tlie trespass and eviction,

necessary. The verdict of the jury Tlie result is, that the wrong was

was for a wrongful expulsion and done without any authority, and

not for an excess of fore© therefore that those who actually

276 OAEEIEES.

This strictness has been yery much relaxed by later cases.
In a case decided in 1871, it was held, in the court of appeals,
that where a conductor on a railroad, under a mistake of facts,
or of judgment, ejected .a person from the car in which he wag
a passenger, the act not being justified by any misconduct of
the passenger, the company was liable; and so if there was
justifiable cause for ejection, but excessive force was used.
There was no evidence of wanton violence or malice, and the
effect of such elements in a case was not decided. The court
say : " It is sufficient to make the master responsible owiliter,
if the wrongful act of the servant was committed in the busi-
ness of the master, and within the scope of his employment,
and this, although the servant, in doing it, departed from the
instructions of his master. This rule is founded upon pubUo
policy and convenience. Every person is bound to use due care
in the conduct of his business. If the business is committed to
an agent or servant, the obligation is not changed. The omis-
sion of such care by the latter is the omission of the principal,
and, for injury resulting therefrom to others, the principal is
justly held liable. If he employs incompetent or untrustworthy
agents, it is his fault; and whether the injury to third persons
is caused by the negligence or positive misfeasance of the agent,

did it are alone answerable. The implied contract to carry the plaint-
judge was requested to charge the i£E to the place for which he had
jury that the plaintiff, if entitled to bought his ticket, and that contract
recover at all, could only recover was broken. The defendant, being
such damages as he had sustained in bound to carry him to Soio, might
consequence of the defendant's not be liable for the breach 'of the en-
performing its contract to carry him gagement, even if the plaintiff
to Scio, to wit, damages to his busi- had been expelled by another pas-
ness. The judge refused so to senger. The defendant was bound
chai-ge, but did charge that the even to prevent an unlawful expul-
plaintiff could recover, if at all, for sion and to carry the passenger
personal ill treatment; in other tlu-ough. But this is a liability en-
words, for the unlawful assault and tirely different from the one en-
batteiy. It seems to me that the forced at the trial. The conductor,
request was essentially right, and according to the plaintiff's own
that the refusal and charge were er- showing, without authority from
roneous. The request was made his principal, assaulted and expeUed
and the charge given upon the him from the train ; and, under tho
theory that the plaintiff's expulsion charge given to them, the jury ren-
was unlawful. But if unlawful, dered their verdict for the personal
then the company had not author- wrong and outrage. This, I think,
ized it. There was, no doubt, an is contrary to the law of the case."

CAEEIEES OF PAS8ENGEES. 377

the maxim res;pondeat superior applies, provided only tbat the
agent was acting at the time for the principal, and within the
scope of the business intrusted to him." ' Such is the establislied
doctrine. As a general rule, the master is liable for what his
servant does in the course of his employment; but in regard to
matters wholly disconnected from the service to be rendered,
the master is under no responsibility for what the servant does
or neglects to do. The reason is, that in respect to such matters
he is not a servant.^

The fact that the injurious act of the agent or servant in the
course of his employment was wanton and malicious will not
excuse the master,' nor will the master be exonerated, though
the act was committed in violation of his instructions,* but any
element of wanton violence or malice will aggravate the dam-
ages.'

The liability of masters or employers, thus recognized and ex-
emplified, for the negligence and misfeasances of their servants,
augmented in cases where the injury has been aggravated by mal-
ice, or insult, or excessive violence, and to which such employer
was privy only by his relation of employer to the guilty actor, is
founded on the legal unity and identity of employer and em-
ploye in respect to all that is done by the latter within the
sphere of his employment. There are considerations of public
poUcy to support it ; the wrongs done by the servant are im-
puted to the master, and there is an assumption of actual cul-
pability on his part. But in some of the states exemplary
damages are not allowed against a carrier of passengers for the
act of the servanj without some proof of previous direction, of
participation, or subsequent ratification. Thus, in "Wisconsin,
it was ruled in a late case, that although a principal is liable to

1 Higgins V. Watervliet F. Co. 46 Aldrich v. Boston, etc. R. K. Co. 100
K. Y. 23. See Sandford v. Eighth Mass. 31; Philadelphia, etc. R. R.
Avenue R. R. Co. 23 N. Y. 343; Co. v. Quigley, 21 How. U. S. 202;
Weed V. Panama R. R. Co. 17 N. Y. Moore v. Fitchburg R. R. Co. 4 Gray,
362; Hamilton v. Third Avenue R. 465.

R. Co. 53 N. Y. 25; Rounds v. Dela- 'Weed v. Panama R. R. Co. 17 N.

ware, etc. R. R. Co. 64 N. Y. 129; Y. 362.

Cohen v. Dry Dock, etc. Co. 69 N. < Philadelphia, etc. R. R. Co. v.

Y. 170. Derby, 14 How. U. S. 468.

2 Bryant v. Rich, 106 Mass. 180; ' Hawes v. Knowles, 114 Mass. 518.

278 CAEKIEES.

full compensatory damages for a malicious injury inflicted by
his agent acting within the scope of his employment, yet that
he was not liable to punitory damages, unless he directed the
injurious act or subsequently adopted or confirmed it ; but that
retention, by the principal, in his service, of the guilty servant,
after notice of his wrongful act, was sufficient evidence of rati-
fication.' The law is so held in California '^ and in Rhode Island.'
So in N'ew Tork it has been ruled that " for injuries by the negli-
gence of a servant, while engaged in the business of the master,
within the scope of his employment, the latter is liable for com-
pensatory damages; but for such negligence, however gross or
culpable, he is not liable to punitive damages unless he is himself
also chargeable with gross misconduct. Such misconduct may
be established -by showing that the act of the servant was
authorized or ratified, or that the master employed or retained
the servant, knowing that he was incompetent, or from bad
habits unfit for the position he occupied. Something more than
ordinary negligence is requisite; it must be reckless and of a
criminal nature, and clearly established. Corporations may
incur this liability as well as private persons. If a railroad
company, for instance, knowingly and wantonly employs a
drunken engineer or switchman, or retains one after knowledge
of his habits is clearly brought home to the company, or to a
superintending agent authorized to employ and discharge him,
and injury occurs by reason of such habits, the company may
and ought to be amenable to the severest rule of damages." *

In New Jersey it has been held that where a railroad com-
pany adopts all rules and regulations needful to the safety of
the passengers, and employs competent agents, whose duty it
is to see that those rules and regulations are observed, the com-
pany, in case of injury to the passengers, happening by reason
of the failure of the agent to perform this duty, cannot be held
liable for punitive damages. If, however, the company, as

1 Bass V. Chicago, etc. R. E. Co. 578; Mendelsohn v. Anaheim L. Co.
43 Wis. 654; M. & M. R. E. Co. v. 40 Cal. 657.

Finney, 10 Wis. 388; Craker v. Chi- s Hagan v. Providence, etc. E. E.

cago, etc. E. R. Co. 36 Wis. 676. Co. 3 R. I. 88.

2 Turner v. N. B. & M. E. E. Co. ^Cleghorn v. New York, etc. E.
34 Cal. 594; Wade v. Thayer, 40 Cal. E. Co. 56 N. Y. 44.

CAKEIEE8 OF PASSENGERS.

279

such, is jn fault, a different rule applies. The company, for its
own carelessness, may be justly held liable for smart money.
This rule does not prevail when the carelessness is that of a
subordinate agent. The principle is not admitted that the
company is guilty of gross negligence whenever its agent is.^

Injury to wife, child oe seeyant. — Where a husband or
parent brings the action for the injury sustained by his wife or
child, there can be no recovery for suffering either bodily
or mental, but only for loss of services or society, and the ex-
penses attending the cure. For these he is entitled to recover.'
, He can maintain but one action for the same injury to his
wife, from a particular act or default. - All the damage past,
present and prospective proceeding therefrom is from one cause
and indivisible. The wrong in such a case is entire and com-
plete at once, though the injurious consequences remain for an
indefinite period afterwards. The party liable is guilty of but

1 Aokerson v. Erie Railway Co. 33
N. J. L. 254. See Perkins v. Mis-
souri, etc. E. R. Co. 55 Mo. 201; Gra-
liam V. Pacific R. R. Co. 66 Mo. 536;
New Orleans, etc. R. R. Co. v. AU-
britton, 88 Miss. 243.

In Great Western Railway Co. v.
Miller, 19 Mich. 314, Campbell, J.,
said: " It was urged on the hearing
that the railroad company could not
be held liable for any wrongful ex-
pulsion under this statute, because
it would be the personal wrong of
the conductor in violation of law,
for which he must be held to have
exceeded his known agency. And
the same exemption was claimed
for them from liability for any ex-
pulsion, unless under circumstances
where they may be supposed to have
authorized it by their instructions,
general or special. There is, how-
ever, so far as we have seen, no au-
thority which would exempt them
from some amount of responsibility
for any wrongful expulsion of a
passenger by a conductor. He rep-

resents them in -the whole manage-
ment of his train, and the power to
do any serious mischief is chiefly
derived from their investing him
with the control of this large agency.
He occupies the same position as the
master of a ship, and his action in
the case supposed must be regarded
as done in the line of his employ-
ment. But it does not follow that
the responsibility of his employers
is the same as his. For those aggra-
vations which may arise out of his
wantonness and malice, we have
held that the employer is not on the
same footing with the agent." De-
troit Daily Post Co. v. McArthur,
16 Mich. 447.

2 Dennis v. Clark, 3 Cush. 347;
Klein v. Jewett, 36 N. J. Eq. 474;
Cowden v. Wright, 24 Wend. 429;
Ransom v. The New Y. & E. R. R.
Co. 15 N. Y. 415, 419; Ford v. Mon-
■roe, 20 Wend. 210; Mary's Case, 9
Co. Ill; HaU v. Hallander, 7 Dowl.
& R. 133.

CAEEIEKS.

one wrong and can be subjected to but one action for it to one
party. The real extent of the injury received and the amount
of the damages do not depend on the time when the action is
brought or tried. The husband may commence his suit forth-
with or delay it for years ; in either case the same question
would be tried and the same damages recoverable ; though^ if
the trial be delayed, the delay will be likely to afford more
satisfactory means of ascertaining the real extent of the wife's
injury, and the actual amount of the husband's damages. If
the condition of the wife is such at the time of the trial as to
disable her for the future, and require further expenses for
medical treatment and nursing, the jury may give damages for
prospective expenses and loss of society and services.^ These
are general, not special damages, in the sense of those terms as
used in the law of pleading and evidence. They are not caused
by any incidental fact, or by the peculiar situation and circum-
stances of the party, but are the natural and uniform effects of
the injury itself. And when the injury to the wife is once
shown to be of such a nature, the damages to the husband,
from the loss of her services and society, and the expenses of
her cure, follow uniformly and by legal necessity from the
relation of husband and wife, which entitles him to her
services and society, and charges him with her support.^ Where
the injury is permanent, or must continue after the trial, pros-
pective damages may be recovered. The jury will be obliged
to estimate as well as they can from the condition in which
fhey found the wife at the time of the trial, the whole ultimate
loss and damage of the husband, in the same way and on the
same principle that they would estimate such damage for a Uke
feijury to himself.'

In a California case, where an infant child had been wounded
by a vicious animal, and had thereby been disfigured or de-
formed, it was held that the father of the child could recover
from the owner of the animal only for such expenses as he had
incurred in healing the original wound, and not for any expense
incurred in removing the deformity or disfiguration. The in-
jury arising from the permanent deformity would be an item

1 Hopkins v. The Atlantic, etc. E. 2 id.
E. Co. 38 N. H. 9. aid.

CAEEIEKS OF PASSENGEES. 281

properly allowable in the daughter's own claim for damages;
but the cost of its removal, after the wound was healed, would
be a voluntary expenditure by the father.^

In ]S"ew York, it has been held in an action of trespass by a
father for assaulting and beating his son jper quod servitvwm
amisit, a jury in assessing the damages are not authorized to
take into account the wounded feelings of the parents. The
court remarked on the difference between such cases and those
for seduction where the only remedy for the injury is the ac-
tion by the parent ; whereas in case of an assault and battery
the child may also maintain an action against the defendant, in
which the measure of redress depends very much upon the
sound discretion of the jury, because his personal injury and
suffering then constitute the gravamen of the suit.^ In an
earlier case, the same court held in an action on the case for
negligence in driving a carriage whereby the son of the plaint-
iff was run over and killed, that the loss of service of the chUd,
and expense occasioned by the sickness of the plaintiff's wife,
caused by the shock to her maternal feelings^ were proper items
of damage, the same being laid as special damages in the
declaration.'

Wheee the mjuEY CAUSES DEATH. — By the common law all
right of action for personal injury, whether it be the cause of
death or not, is extinguished by the death of the injured party ;
the cause of action dies with the person entitled to sue.* This
rule, so far as it applied to an act or neglect which causes death,
has been generally abrogated by statute. In England and
many of the states the statutes are general, and to the effect
that whenever the death of a person shall be caused by such
wrongful act, neglect or default, as would, if death had not
ensued, have entitled the party injured to maintain an action
to recover damages therefor, the guilty party shall be hable to
an action for damages notwithstanding the death, and that
such action may be brought in the name of personal repre-
sentatives of the deceased. In other states the statutes are not

iKarr v. Parks, 44 Cal. 46. * 1 Saund. 316; Broom's Leg. Max.

. 2 Cowden V.Wright, 34 "Wend. 429. 400, 401; Zabriskie v. Smith, 13 N.
»Ford v. Monroe, 30 "Wend. 310. Y. 333.

2S3 CAEEIEES.

general, but apply to carriers and where death is caused under
particular circumstances.

This legislation does not liquidate damages; there is gen-
erally, but not invariably, a maximum limit, not exceeding which
the actual damages of a pecuniary nature sustained may be
recovered for the particular beneficiaries whom the statutes
designate. The statutes do not transfer the right of action
which the deceased would have had, but create a new right of
action on different principles. The measure of damages is not
the loss or suffering of the deceased, but the injury resulting
from his death to his family.'

It is only for pecuniary injuries that this statutory right of
action is given. Although it can be maintained only in cases
in which an action could have been brought by the deceased, if
he had survived, damages are given on different principles and
for different causes. ITeither the pain and suffering of the
deceased, nor the grief and wounded feelings of his surviving
relatives, can be taken into account in the estimate of damages.^
But as a right of action is given whenever the injured person,
had he lived, could have maintained an action, at least nominal
damages may be recovered.' And the substantial damages
recoverable are for injuries of a pecuniary nature sustained by
the survivors for whose benefit the action is given. There
should be at least a reasonable expectation of benefit from the
life of the deceased to warrant such a recovery. "While there
can be no recovery for loss of society, or wounded feelings, 'or
anything which cannot be measured by money and satisfied by
a pecuniary recompense ; ^ the word pecuniary is not construed

1 Blake v. Midland K'y Co. 18 Q. B. & Q. E. R. Co. v. Harwood, 80
B. 93; Whitford v. Panama E. E. lU. 88; Pym v. Great N. R'y Co. 4
Co. 33 N. Y. 465; Cleveland, etc. E. B. & S. 396; Penn. E. E. Co. v.
E. Co. V. Eowan, 66 Pa. St. 393; Vandever, 36 Pa. St. 398; Penn. E.
Telfer v. Northern R. E. Co. 30 N. J. E. Co. v. Goodman, 63 Pa. St. 339;
L. 188; Penn. E. E. Co. v. Butler, CaldweU v. Brown, 53 Pa. St. 453.
57 Pa. St. 335; Taylor v. West Paoiflc a Chicago v. Soholten, 75 lU. 468;
E. E. Co. 45 Cal. 333; CasteUo v. Johnston v. Cleveland, etc. E. E.
Landwehr, 38 "Wis. 533. Co. 7 Ohio St. 386. But see Blake v.

2 Id. ; Ohio, etc. R. E. Co. v. Tin- Midland E'y Co. 18 Q. B. 93.

daU, 13 Ind. 366; Chicago, etc. E. E. ^ Telfer v. Northern E. R. Co.

Co. V. Morris, 36 III. 400; Chicago, supra.

OABEIEES OF PASSENGERS. 283

in a strict sense.^ It will not exclude tlie loss of nurture, of
the intellectual, moral and physical training which a mother
only can give to children.^ Nor is the same certainty of loss
required to be established as in ordinary actions. The damages
are largely prospective, and their determination committed to
the discretion of juries upon very meagre and uncertain data.
A parent may recover for loss of expected services of children,
not only during minority,^ at their estimated net value, but
afterwards, on evidence justifying a reasonable expectation of
pecuniary benefit therefrom.*

It is not essential that this expectation of pecuniary benefit
from the life of the deceased should be based on a legal or
moral obligation on the part of the latter to confer it ; but it
may be proved by any circumstances which render it probable
that sudh benefit would in fact be realized.^ The period of such
expected benefit may be ascertained, both in respect to its be-
ginning and duration, from proof of the age of the deceased
from whom it must have proceeded, as well as from the age of
the beneficiary ; and to assist the jury in the estimate of the
probable duration of life, mortuary tables may be put in
evidence.* '

For the death of a wife a husband should be allowed the
value of her services and companionship, estimated in a pecun-
iary sense.' So a wife and children, for the loss of a husband
and father, should be allowed such sum as would be equal to
the probable earnings of the deceased, taking into consideration

1 Tilley v. Hudson E. E. E. Co. 44 E. Co. v. Barron, 5 Wall. 90; Gro-
N. Y. 471; Mclntyre v. N. Y. C. E. tenkemper v. Harris, 25 Ohio St.
E. Co. 37 N. Y. 387; Penn. E. E. Co. 510; Chicago & A. E. E. Co. v. Shan-
V. KeUer, 67 Pa. St. 300. non, 43 111. 338; Kesler v. Smith, 66

2 Id. N. C. 154; Penn. E. E. Co. v. KeUer,

3 Telf er v. Northern E. E. Co. 30 67 Pa. St. 800.

N. J. L. 188; Duckworth v. Johnson, « Donaldson v. M. & M. E. E. Co.

4 H. &N. 653; Ewen v. Chicago, etc. 18 Iowa, 381; David v. Southwestern

E. E. Co. 38 Wis. 613; Potter v. E. E. Co. 41 Ga. 333; Sawter v. N. Y.

Chicago, etc. E. E. Co. 31 Wis. 373. etc. E. E. Co. 66 N. Y. 50; Eowley v.

* North Penn. E. E. Co. v. Kirk, 90 London, etc. R'y Go. L. E. 8 Ex. 331;

Pa. St. 15; TeiTy v. Jewett, 17 Hun, Denver, etc. E. E. Co. v. Woodward,

395. 4 Col. 1.

5 Chicago, etc. E. E. Co. v. Bay- 'Penn. E. E. Co. v. Goodmah, 63

field, 37 Mich. 305; Illinois Cent. E. Pa. St. 339.

284 CAERIEES.

his age, health, business capacity, habits and experience, and
adding thereto the value of his services in the superintendence,
attention to, and care of his family, and the education of his
children.! jsfoj. g^n any deduction be made for moneys received
on a hfe insurance policy on his life for the benefit of the wife
and children, and paid to them after his death.^ I^or for any
property received from the estate of the deceased by inherit-
ance.'

These statutes have no such extra-territorial force that if the
injury from which death ensues was done beyond the limits of
the state enacting them, the statutory right of action for the
damages resulting from such death can be enforced in the
courts of that state.* The law of the state or country where
the action is brought governs only the remedy, and cannot be
invoked to create a right, or to make an act tortious, which was
not such at the time and place of its commission.* A party
who has suffered a personal injury or tort in another state or
country, and comes here, brings with him his cause of action
therefor; and if he finds here the party who committed the
injury or tort in such other country or state, can sue him here ;
but it is presumed that in ordinary cases he can do so only
upon the ground that he brought the cause of action with him ;
that is, that the act or acts of the defendant, by which the
injury or wrong was effected, were unlawful when and where
committed ; in other words, that the injmy or tort complained
of was an injury or tort by the law of the country or state
when and where committed.*

In actions brought for injuries committed in another state or
country, where the common law is presumed to prevail, the
court gives the common law remedies for such injuries, upon
the presumption that they wiU give the injured party the same
redress he would obtain if the action had been brought where
the injury was done.' "Where, however, the injury is such that

1 Baltimore, etc. R. E. Co. v. SMaMer v. Norwich, etc. Co. 45
Wightman, 39 Gratt. 431. Barb. 226.

2 Id. 6 Beach v. Bay State S. B. Co. 30

3 Terry v. Jewett, 17 Hun, 395. Barb. 438.

4 Whitf ord v. Panama E. R. Co. 23 ^ Id.
N. Y. 465.

CAEEIEES OF PASSENGERS. 285

the common law gives no right of action for it, as is the case
with that resulting from death, and a right of action therefor
exists by virtue of the statutes in force in the state where the
wrongful act or neglect causing the death was committed, it is
not a matter of course to allow that right of action to be en-
forced in the courts of another state. An Ohio case ^ involved
the right of a local administrator to enforce a right of action
given by a statute of Illinois for damages resulting from a
death happening and caused in that state by the alleged wrong-
ful act or neglect of a railroad company. The action did not
succeed. The court said: " We take it to be clear that no such
right of action existed at common law. It is a right of action
given by statute, not to the intestate, but to his personal rep-
resentatives, not as general assets, but as a trust for the widow
and next of kin, in respect to a pecuniary loss they are supposed
to have sustained. There, are serious difficulties in allowing an
Ohio administrator to undertake and discharge such a trust
conferred by the laws of another state. It would be difiBcult
to maintain that, without legislation, his oath or bond would
extend to such a case. The jurisdiction of the court under
which he acts does not extend to trusts to be carried out in
pursuance of the laws of other states, for it may well happen
that the next of kin, under the law of Illinois, may not be the
same persons, or take in the same proportion, as under the law
of Ohio. Certainly, to determine who are the cestui que trusts,
the laws of Illinois must be regarded, and it is therefore the
intention of the statutes of that state, that the tribunal under
which the personal representative in whom the right of action
is vested, and upon whom the trust is imposed, in acting, should
administer the trust and distribute the fund among the proper
parties. It is more than questionable, whether, if an authority
in another state should undertake to do so, it would be regarded
as a bar to other proceedings in Illinois." '^

Similar obstacles to recovery have been recognized in Massa-
chusetts.'

iWoodard v. Mich. L. & N. I. E. 'Richardson v. New York C. R.

R. Co. 10 Ohio St. 121, R. Co. 98 Mass. 85. Hoar, J., said:

2 Hover v. Penn. etc. R. R. Co. 25 "There is great difflcxilty in ascer-

Ohio St. 667. taining what cause of action this

286

OAEEIEES.

But in a decision, at special term of the supreme court in
New York, a like action was held on demurrer maintainable,
for damages resulting from a death from alleged negligence of
the defendant in the state of New Jersey, on the ground that

plaintiff has against the defend-
ants. . . . The plaintiff's counsel
. . . have placed their claim to
recover upon the ground that the
statute of New York vested a right
of property in the widow and her
children at the moment of the hus-
band's death, and designated a
trustee to receive and enforce this
right, whose capacity to sue will be
sustained in any forum.

"The right of property which the
statute defines is of a very peculiar
nature. In the first place, the act
or default which caused the death
must be such as would, if death had
not ensued, have entitled the party
injured to an action to recover dam-
ages in respect thereof. This the
statute makes requisite to give the
personal representative an action for
damages, and it would thus seem
that the action was designed to be
for the purpose of compensating the
injury to the deceased. But we
next find that the compensation is
not to go to the personal representa-
tive of the deceased, to be disposed
of as other property or rights of
property belonging to the deceased.
It is not to be applied in payment of
his debts, nor is it subject to the
provisions of his will. It is not the
injury to the deceased which is to
be estimated at all. The whole
amount is not to exceed five thou-
sand dollars; and, with that limita-
tion, the jury may give such dam-
ages as they shall deem a fair and
just compensation, with reference
to the pecuniary injuries resulting
from such death, to the wife and
next of kin of such deceased person.

The damages, therefore, are • to be
for the pecuniary injuries to the
wife and next of kin. But, when
the pecuniary interests of the wife
and next of kin in the death have
been ascertained, the sum recovered
on this basis is not to be paid over to
these several parties in the propor-
tion to their respective pecuniary
interests thus determined or re-
gai-ded, but is to be distributed to
them in the proportion provided by
the laws for the distribution of in-
testate personal property. If we
take some one of the next of kin,
therefore, it may follow that, be-
cause the defendants caused by neg-
ligence the death of the plaintiffs
intestate, this person may recover
by virtue of the statute, through the
plaintiff as administratrix, a sum of
money which has no relation to the
extent of the injury done to the de-
ceased, and no relation to the extent
of the injury done to the person who
is to receive it. If the jury should
deem $3,000 a fair and just compen-
sation for the pecuniary injiuy re-
sulting to the wife, and $1,000 to
one of the nest of kin, and $300 to
another, and should be of opinion
that there was no pecuniary injury
to the others of the next of kin,
from the death, they would assess
as damages $4,500; and this the
plaintiff would be bound to dis-
tribute according to the statute of
distributions, which makes no ref-
erence to the pecuniaiy interest of
the distributees in the death. . . .
If we understand that the limit-
ation of the defendant's responsi-
bility to cases in which the deceased

CAEETEES OF PASSENGEES.

287

the act of New Jersey was in entire consonance with the policy
of the state of New York as declared by similar legislation.
And the court deduced from the cases this rule : that causes of
action of the kind set forth in the complaint in that case ^ are
not recognized by the common law, and that statutes of any
particular state giving such rights of action have no extra-ter-
ritorial jurisdiction; that causes of action of this character, aris-
ing under statutes of one state, may be enforced in another state,
provided it is made to appear that the maintenance of such
causes of action is in conformity with the policy of the state in
which the action is brought and are recognized by the laws of
that state.^ A late case arose under the statute of New Jersey,

•would have had aright of action, if
he had survived, is not intended to
make his right of action survive to
his representatives, but is only
meant to define and describe the
cases in which the right of property
and of action is recognized in the
widow or nert of kin, w^e have still
the question to meet, how can that
be regarded as anything else than a
statute penalty, which the personal
representative of the deceased is to
recover by an action; -which is lim-
ited in amount, although that
amount may be much less than the
extent of the injury sustained by
those whose loss is to be computed
in estimating it; and which is to be
distributed among the parties en-
titled to receive it, not in proportion
to the injuries which they have re-
spectively sustained, but in projwr-
tion to the shares to which they
would be severally entitled in the
distribution of an intestate estate?
We do not readily find a satisfactory
answer to this question. But a com-
plete and decisive objection to the
maintenance of the action by this
plaintiff remains.

"The plaintiff is the adminia-
tratris appointed under the law of
Massachusetts. Her right to sue in
this commonwealthi in her repre-

sentative capacity, is upon causes of
action which accrued to her in-
testate, or which grow out of his
rights of property or those of his
creditors. The remedy which the
statute of New York gives to the
personal representatives of the de-
ceased as trustees of a right of
property in the widow and next of
kin, is not of such a nature that it
can be imparted to a Massachusetts
executor or administrator, virtute
officii, so as to give him a right to
sue in our courts, and to transmit
the right of action from one i)erson
to another in connection with the
representation of the deceased. The
only construction which the statute
can receive is, that it confers certain
new and peculiar powers upon the
personal representative, in New
York. The administrator in Massa-
chusetts is in privity with the New
York administrator only to the ex-
tent w^hich our laws recognize. A
succession in the right of action, not
existing by the common law, cannot
be prescribed by the laws of one
state to the tribunals of another."

iStaUknecht v. Penn. R. R. C!o. 53
How. Pr. 305.

2 See Needham v. Grand Trunk
E'y Co. 38 Vt. 294; McCarthy v C,
B. L etc. B. B. Co. 18 Kan. 46.

288

CAEEIEE8.

upon which an action was brought in the state of New York by
an administrator appointed in the latter state.^ The supreme
court of the United States in deciding the case reviewed and
dissented from the foregoing decisions in Ohio and Massachu-
setts. It was held that a personal action, when the remedy-
given for the demand or injury is statutory, if it is of a transi-
tory nature, may be brought in any court which has jurisdiction
of such matters and can obtain jurisdiction of the parties. The
demand on the statute under consideration was held to be of this
nature. The action, as brought, was held maintainable, and
the legal objections found insurmountable in those states are
answered by Mr. Justice MUler, who delivered the opinion of the
courts, with great cogency of argument.^

1 Dennick v. Central R. R. Co. 103
U. S. 11.

2 Miller, J., said: "The action in
the present case is in the nature of
trespass to the person, always held
to be transitory, and the venue im-
material, and the local court in New
York and the circuit court of the
United States for the northern dis-
trict, were competent to try such a
case when the parties were properly
before it. See Mostyn v. Fabrigas,
1 Cowp. 161; Rafael V. Verelst, 2W.
Bl. 1055; M'Kenna v. Fisk, 1 How.
343. We do not see how the fact that
it was a statutory right can vary the
principle. If the defendant was
legally liable in New Jersey, he could
not escape that liability by going to
New York. If the liability to pay
money was fixed by the law of the
state where the transaction oc-
curred, is it to be said it can be en-
forced nowhere else because it
depended upon statute law and not
upon common law ? It would be a
very dangerous doctrine to establish,
that in all cases where the several
states have substituted the statute
for the common law, the liability
can be enforced in no other state but
that where the statute was enacted*
and the transaction occurred. The

common law never prevailed in
Louisiana, and the rights and reme-
dies of her citizens depend upon her
civil code. Can these rights be en-
forced or the w^rongs of her citizens
be redressed in no other state of the
Union? The contrary has been held
in many cases. See Ex parte Van
Riper, 20 Wend. 614; Lowry v. In-
man, 46 N. Y. 119; Pickering v. Fisk,
6 Vt. 102; R. R. Co. v. Sprayberry,
8 Baxt. 341; R. R. Co. v. MUler, 19
Mich. 305. But it is said that, con-
ceding that the statute of the state
of Ne«\r Jersey established the lia-
bility of the defendant and gave a
remedy, the right of action is lim-
ited to a personal representative
appointed in that state and
amenable to its jurisdiction. The
statute does not say this in terms.
' Every such action shall be brought
by and in the name of the personal
representatives of such deceased
person.' It may be admitted that
for the purpose of this case the
words ' personal representatives '
mean the administrator. The plaint-
iff is, then, the only personal repre-
sentative of the deceased in exist-
ence, and the construction thus given
the statute is, that such a suit shall
not be brought by her. This is in

CAERIEES OF PASSENGEEB.

Excessive verdicts. — It is the exclusive province of a jury
to decide facts ; and to decide causes depending upon contro-
verted facts, applying thereto the law as given to them by the
court. In actions for personal injuries, and in cases generally

direct contradiction of tHe words of
the statute. The advocates of this
view intei-polate into the statute
what is not there, by holding that
the personal representative must be
one residing in the state or appointed
by its authority. The statute says
the amount recovered shall be for
the exclusive benefit of the widow
and next of kin. Why not add here
also, by construction, ' if they reside
•in the state of -New Jersey ? ' It is
obvious that nothing in the language
of the statute requires such a con-
struction. Indeed, by inference it
is opposed to it. The first section
makes the liability of the corpora-
tion or person absolute where death
arises from their negligence. Who
shall say it depends on the appoint-
ment of an administrator within the
state ? The second section relates to
the remedy, and declares who shall
receive the damages when recov-
ered. These are the widow and next
of kin. Thus far the statute de-
clares under what circumstances a,
defendant shall be liable for dam-
ages, and to whom they shall be
paid. In this there is no ambiguity.
But fearing there might be a ques-
tion as to the proper person to sue,
the act removes any doubt by desig-
nating the personal representative.
The plaintiff here is that representa-
tive. Why can she not sustain the
action ? Let it be remembered that
this is hot a a case of an administra-
tor, appointed in one state, suing in
that character in the courts of an-
other state, without any authority
from the latter. It is the general
rule that this cannot be doije. The
Vol. Ill— 19

suit here was brought by the admin-
istratrix in a court of the state which
had appointed her, and of course
no such objection could be made.
If, then, the defendant was lia-
ble to be sued in the courts of the
state of New York on this cause of
action, and the suit could only be
brought by the personal representa-
tive of the deceased, and if the
plaintiff is the personal representa-
tive of the deceased, whom the
courts of that state are bound ie>
recognize, on what principle can her
right to maintain the action be de-
nied ? So far as any reason has been
given for such a proposition, it seems
to be this: that the foreign adminis-
trator is not responsible to the courts
of New Jersey, and cannot be conii-
pelled to distribute the amount re^
ceived in accordance with the New-
Jersey statute. But the courts o£
New York are as capable of enf osb--
ing the rights of the widpw and next-
of kin as the courts of New Jersey..
And as the court which renders the-
judgment for damages in favor oL
the administratrix can only do. so byr
virtue of the New Jersey statute, so ■
any court having control of the ad-.-
ministratrix can compel distribution. .
of the amount received in the man-
ner prescribed by that statute.
Again, it is said that by virtue of her
appointment in New York, the ad-
ministratrix can only act upon ^ or
administer that which was of the
estate of the deceased in his life-
time. There can be no doubt that
much that comes to the hands of
administrators or executors must go
directly to heirs or devisees, and is

290

CAEEIEES.

where there is no fixed legal rule of compensation, the theory
of the law is that the decision of the jury is conclusive, unless
they have been misled, or their verdict has been influenced by
corruption, passion or prejudice.' Unless the verdict in a given
case finds an amount of damages so out of proportion to the
actual injury as to evince such misleading, or the presence of

not subject to sale or distribution in
any other mode, as tlie amount set
apart in most of the states to the
family, devises of specific property
to individuals, all of which can be
enforced in the courts; and no reason
is per(;eived why the specific direc-
tion of the law on this subject may
not invest the administrator with the
right to receive or recover by suit,
and the duty of distributing under
that law. There can be no doubt
that an administrator invested with
; the apparent right to receive or re-
cover by suit property or money,
may be compelled to deliver or pay
over, to some one who establishes a
better right, or that what was so
recovered was held in trust for some
one not claiming under the will or
under the administrator. And so
here. The statute of New Jersey
says the personal representative
shall recover, and the recovery shall
be for the benefit of the widow and
next of kin. It would be a reproach
to the laws of New York to say that
when the money recovered in such
an action as this came to the hands
of the administratrix, her courts
could not compel distribution as the
law directs. It is to be said, how-
ever, that a statute of New York,
just like the New Jersey law, pro-
vides for bringing the action by the
personal representative, and for dis-
tribution to the same parties, and an
administrator appointed under the
law of that state would be held to
have recovered to the same uses, and
subject to the remedies in her fidu-
ciary character which both statutes

require. We are aware that the case
of Woodward v. E. R. Co. 10 Ohio St.
121, asserts a different doctrine, and
has been followed by the cases of
Richardson v. R. R. Co. 98 Mass. 85,
and McCarthy v. R. R. Co. 18 Kan.
46. The reasons which support that
view we have endeavored to show
are not sound. These cases are op-
posed by the latest decision on the
subject in the court of appeals of
New York, in tlie case of Leonard,
Adm'r, v. Columbia Steam Nav. Co.,
not yet reported, but of which we
have been furnished with a certified
copy. [84 N. Y. 48.] The right to
recover for an injury to the person,
resulting in death, is of very recent
origin, and depends wholly upon
statutes of the different states. The
questions growing out of these stat-
utes are new, and many of them un-
settled. Each state court will con-
strue its own statute on the subject,
and differences are to be expected. In
the absence of any controlling au-
thority or general concurrence of
decision, this court must decide for
itself the question now for the first
time presented to it, and with every
respect for the courts which have
held otherwise, we think that sound
principle clearly authorizes the ad-
ministrator in cases like this to
maintain the action."

1 Schmidt v. M. & St. Paul R. R.
Co. 23 Wis. 186; Duffy v. Chicago,
etc. R. R. Co. 34 Wis. 188; Thomas
v. Womack, 13 Tex. 580; Lambert
v. Craig, 12 Pick. 199; Wiggin v.
Coffin, 3 Story, 1.

CAEEIEES OF PA68ENGEES.

291

some malign influence, it will be sustained, although it may
materially differ from the judgment of the court.^ But if the
amount of the verdict so far exceeds or falls short of what to
the court appears to be just compensation, as to induce the
belief that the jury have not given the case a fair and dispas-
sionate consideration, the verdict will be set aside.^ In such
actions it is within the discretion of the court, on a motion for
new trial, to indicate a sum for which the verdict may be re-
tained on remitting an excess, or adding to the deficient verdict,
to make the amount suggested by the court.'

Loss OF BAGGAGE. — The responsibility of common carriers of
passengers for the safe transportation of the baggage of passen-
gers, is, in general, the same as that of common carriers in
respect to merchandise which they receive for carriage.'' The
money paid for passage by the passenger is a consideration for
the carrier's undertaking or duty in respect to his baggage.^

What is baggage has often been a subject of conflicting discus-

1 Bierbauer v. N. Y. etc. R. R. Co.
15 Hun, 559; Collins v. Albany, etc.
E. R. ^o. 12 Barb. 493; Bass v. Chi-
cago, etc. E. R. Co. 43 Wis. 654, 673;
Hammond v. Mukwa, 40 Wis. 35;
Plath V. BraunsdorflE, 40 Wis. 107;
Davis V. Central R. R. Co. 60 Ga.
339; Cummins v. Crawford, 88 111.
313; Illinois Central R. R. Co. v.
Parks, 88 111. 873; Solen v. Virginia
City, etc. R. R. Co. 13 Nev. 106.

2 Nashville, etc. R. R. Co. v. Smith,
6 Heisk. 174; Bass v. Chicago, etc.
R. R. Co. 39 Wis. 636; Goodno v.

• Oshkosh, 38 Wis. 300; Diblin v.
Murphy, 3 Sandf. 19; Nettles v. Har-
rison, 3 McCord, 330; Spicer v. Chi-
cago, etc. R. R. Co. 39 Wis. 580;
Wiggin V. Cofan, 3 Story, 1; Price
V. Severn, 7 Bing. 316; Armytage v.
Haley, 4 Q. B. 917; Tinney v. New
Jersey S. B. Co. 5 Lans. 507; Gains
V. Western R. R. Co. 59 Ga. 436; Col-
lins v. Albany, etc. R. R. Co. 13
Barb. 493; Chicago, etc. R. R. Co. v.
Hughes, 87 111. 94; Chicago, etc. R.
R. Co. V. Payzant, 87 111. 125; Union
P. R. R. Co. V. Hause, 1 Wyo. 37.

3 Collins V. Albany, etc. R. R. Co.
13 Barb. 493; Clapp v. Hudson R. R.
Co. 19 Barb. 461; Durell v. Carver,
9 Ohio St. 73; Hegeman v. Western
E. R. Co. 16 Barb. 353; 13 N. Y. 9;
Peck V. N. Y. C. etc. R. R. Co. 8 Hun,
386; Whitehead v. Kennedy, 69 N.
Y. 462-470; Goodno v. Oshkosh, 38
Wis. 300; Spicer v. Chicago, etc. R.
R. Co. 39 Wis. 580; Patten V. Chicago,
etc. E. E. Co. 33 Wis. 534; Potter v.
Chicago, etc. R. E. Co. 23 Wis. 615;
Lombard v. Chicago, etc. R. E. Co.
47 Iowa, 494; Murray v. Hudson E.
E. Co. 47 Barb. 196; Bierbauer v. N.
Y. C. etc. E. E. Co. 15 Hun, 559.

4 Merrill v. Grinnell, 30 N. Y. 594;
Powell V. Myers, 36 Wend. 591;
Chamberlain v. Western T. Co. 45
Barb. 218; Hannibal, etc. E. E. Co.
V. Swift, 13 Wall. 263; Perkins v.
Wright, 37 Ind. 37; Baylis v. Lintott,
L. E. 8 C. P. 345; Chicago, etc. E.
R. Co. V. Fahey, 52 111. 81.

5 Id.; Orange Co. Bank v. Brown,
9 Wend. 85; Woods v. Devin, 13 111.
746; Hutchins v. Western, etc. R. R.
Co. 35 Ga. 51.

292 OAEEIEES.

sion and decision. The implied undertaking of safety is not un-
limited, but extends only to such kinds of articles and valuables,
and to such quantity, as are ordinarily taken by travelers for their
personal use and convenience, varying according to the station of
the party, the object and length of his journey, and many other
circumstances.' It is safe to say generally that baggage, en-
titled to protection under the rule stated, embraces anything
which travelers usually carry for their personal use, comfort,
instruction or amusement, considering the circumstances before
mentioned, the occupation of the traveler, the mode of con-
veyance, and any others which affect his needs, including, ac-
cording to the weight of authority, a sufficient amount of
money for expenses.^ But property of other persons, not mem-
bers of his family, or intended to be presented to others at the
end of the journey, is not baggage ; ' nor are masonic regalia
or engravings;* nor samples of goods carried by a commercial
traveler;^ nor valuable papers carried by a lawyer on his way
to court ; " n(jr the manuscript of a work intended for publica-
tion.' liut it has been held that a reasonable quantity of tools
is proper baggage for a mechanic'

1 Hannibal, etc. E. R. v. Swift, 13 98 Mass. 371; Chicago, etc. E. E. Co.

Wall. 203; New York Cent. etc. E. v. Boyce, 73 111. 510; Dexter v. Syrar

R. Co. V. FralofE, 100 U. S. 34; AngeU cuse, etc. E. E. Co. 43 N. Y. 836;

on Car. § 115; Thompson's Car. Pas. First Nat. Bank v. Marietta, etc. E.

510. _ E. Co. 20 Ohio St. 339; Becher v.

2 Id.; Duffy v. Thompson, 4 E. D. Great E. R'y Co. L. R. 6 Q. B. 341;

Smith, 178; Doyle v. Kiser. 6 Ind. Nevins v. Bay State S. B. Co. 4

342; Baltimore Steam Packet Co. v.' Bosw. 325; The Ionic, 5 Blatchf. 538.

Smith, 23 Md. 403; Dibble v. Brown, See Baltimore, etc. Co. v. Smith, 23

13 Ga. 217; Woods v. Devin, 13 lU. Md. 403.

746; Van Horn v. Kennit, 4 E. D. « Nevins v. Bay State S. B. Co. 4

Smith, 454; Hopkins v. Westcott, 6 Bosw. 325.

Blatchf. 64; Toledo, etc. E. R. Co. v, sStimpson v. Conn. E. E. Co. 98

Hammond, 23 Ind. 379; Porter v. Ma,is. 83; Ailing v. Boston, etc. E.

Hildebrand, 14 Pa. St. 129; McCor- E. Co. 136 Mass. 131; Hawkins v.

mick V. Penn. etc. R. E. Co. 4 E. D. Hoffman, 6 HUl, 586.

Smith, 181; 49 N. Y. 303; Jones v. 6 Phelps v. London, etc. E. E. Co.

Voorhies, 10 Ohio, 145; Bomar v. 19 C. B. N. S. 831; Thomas v. Great

Maxwell, 9 Humph. 631; Fraloff v. Western R'y Co. 14 U. C. Q. B. 389,

N. Y. C. etc. R. R. Co. 10 Blatchf. 16; 'Hannibal, etc. E. E. Co. v. Swift,

American Contract Co. v. Cross, 8 13 Wall. 363.

Bush, 473; Orange Co. Bank v. sporter v. HUdebrand, 14 Pa. St.

Brown, 9 Wend. 85. 139; Davis v. Cayuga, etc. E. E. Co.

3 Dunlap V. International St. B. Co. 10 How. Pr. 330.

CAEEIEES OF PA6SENGEKS. 293

If a passenger's baggage includes only what lie is entitled to
have carried as such, he will not be prevented from recovering
its full value, in case of loss, by having failed to inform the
carrier of its nature and value; unless the carrier has made
inquiry of him, or he has notice of reasonable regulations of
the carrier requiring such disclosure and payment of extra
charges, where the value of the baggage is above the standard
of ordinary baggage; or unless the passenger is guilty of some
fraud to conceal the true value.'

Where such inquiries are made, or regulations brought to the
passenger's notice, and he makes true disclosure and pays any
extra charges demanded, either for baggage or merchandise, the
carrier is bound for the safe conveyance of the property.'^ But
Avhere the passenger delivers to the carrier, as baggage, what is
not such, there is no implied undertaking in respect to it; the
undertaking of the carrier is to carry the passenger and his
baggage — no more ; and if articles no't properly baggage are
packed with others that are, in case of loss there can be no
recovery, in the absence of negligence or misconduct, except
for the latter, unless the carrier is informed of the true value
and accepts them for carriage as baggage without objection.' i

Measure OF damages. — If the property lost has a market value,
that is the measure of recovery,* including interest.' Where the
property lost was valuable laces, which had been made by the

iNew York C. etc. R. R. Co. v. 19 "Wend. 234; S. C. 13 C. B. N. S.

Fraloflf, 100 U. S. 34; Camden, etc. 818; Pardee v. Drew, 35 Wend. 459;

R. R. Co. V. Baldauf, 16 Pa. St. 67; Millard v. Mo. Kan. & T. R. R. Co.

Kuter V. Mich. Cent. R. R. Co. 1 30 Hun, 191; Lee v. Grand Trunk

Biss. 35. R'y Co. 86 Upp. Can. Q. B. 350; Bel-

2 Stoman v. Great Western R. Co. fast, etc. R'y Co. v. Keys, 9 H. L. C.
67 N. Y. 398; Stoneman v. Erie R. 556; Great Northern R'y Co. v. Shep-
R. Co. 53 N. Y. 429. herd, 8 Exch. 80; Stoneman v. Erie

3 Ross V. Missouri, etc. R. R. Co. R. R. Co. 53 N. Y. 439; Minter v.
4 Mo. App. 583; Doyle v. Kiser, Pacific R. R. Co. 41 Mo. 503.

6 Ind. 342; Nevins v. Bay State St. * Illiuois Central v. Copeland, 34

B. Co. 4 Bosw. 335; Michigan, etc. IlL 333; New O. etc. R. R. Co. v.
R. it. Co. V. Oeher, 56 lU. 398; HUl- Moore, 40 Miss. 39.

man v. HaUiday, 1 Woolw. 365; 6 Mote v. Chicago, etc. R. R. Co.
CahiU V. London, etc. R'y Co. 10 37 Iowa, 33.

C. B. N. S. 154; Hollister v. Nowlen,

294: CAEEIEES.

plaintiff's ancestors, and had come to her by gift 6r inherit-
ance, it was held necessary, nevertheless, to prove their value
by a monej'' standard, otherwise there could be no recovery
beyond nominal damages.' In a late case in New Tork,'^ in
regard to the mode of fixing the value of lost clothing consti-
tuting part of a traveler's baggage, and which had gone into
defendant's possession by their own mistake, to be carried to
New York, instead of by boat, as the checks on the same
indicated, the court said : " The court did not err in charging
the jury that the plaintiff was entitled to recover the full value
of the clothing for use to him in 'New York, and not merely
what it could be sold for in money. The clothing was made
to fit plaintiff, and had been partly worn. It would sell
for but little, if put into market to be sold for second hand
clothing, and it would be a wholly inadequate and unjust rule
of compensation to give plaintiff the value of the clothing thus
ascertained. The rule must be the value of the clothing for
use by the plaintiff. No other rule would give him a compen-
sation for his damages. This rule must be adopted, because
such clothing cannot be said to have a market price, and it
would not sell for what it was really worth."

iFraloff V. N. Y. C. etc. E. R. 2 Fairfax v. N. Y. C. etc. E. E.
Co. 10 Blatchf. 16. See lUinois, etc. Co. 73 N. Y. 167.
E. R. Co. V. Copeland, 24 111. 332.

TELEGEAPH COMPANIES. 295

CHAPTER XIT.

TELEGRAPH COMPANIES.

Nature of the duty of these companies — They may adopt reasonable regu-
lations— Measure of damages — What messages and accompanying
explanations bring substantial damages within contemplation of the
parties — Action may be brought on contract or for tort.

Nature OF the duty of these companies. — These compa-
nies, by reason of their public employment, their contracts, and,
to some extent, by force of statutes, are bound to receive,
transmit and deliver messages with impartiality, care and dili-
gence. They do not undertake with the same absoluteness, as
■ common carriers, to convey and deliver messages furnished to
them for that purpose. Though they have sometimes been
regarded as common carriers, the decided weight of authority
now is that their liabihties are not to be measured by that
standard.! They are bound to employ competent and faithful
agents, who will perform their duties with a degree of care
and diligence proportioned to their delicacy and importance.
The omission to send a message, or to deliver one which
has been transmitted, or the occurrence of an error in the
tenor of the message, is prima facie evidence of neglect on
the part of the company, and the burden of proof is upon
them to show that such failure or mistake happened without
their fault, and the means of doing so is peculiarly within their
power.^

1 Baldwin v. U. S. T0l. Co. 45 N. ington Tel. Co. v. Hobson, 15 Gratt.

Y. 744; Leonard v. N. Y. etc. Tel. 123; Western U. Tel. Co. v. Carew,

Co. 41 N. Y. 544; Bartlett v. West- 15 Mich. 535; Aiken v. Tel. Co. 5 S.

ern U. Tel. Co. 63 Me. 209; Camp v. C. 358.

Western U. Tel. Co. 1 Met. (Ky.) 2 Baldwin v. U. S. Tel. Co. 45 N.

164; De Rutte v. N. Y. etc. Tel. Co. Y. 744; Bartlett v. W. U. Tel. Co.

30 How. Pr. 408; S. C. 1 Daly, 547; 63 Me. 209; Rittenhouse v. Inde-

New York, etc. Tel. Co. v. Dryburg, pendent L. T. 44 N. Y. 363; Western

35 Pa. St. 398; Passmore v. Western XT. Tel. Co. v. Carew, 15 Mich. 525;

U. Tel. Co. 78 Pa. St. 238; Birney v. Tyler v. Western U. Tel. Co. 60 111,

N. Y. etc. Tel. Co. 18 Md. 841; Wann 431; S. C, 74 HI, 168.
V. W. U. Tel. Co. 37 Mo. 473; Wash-

296 TELEGEAPH OOMPAJSTIES.

Such companies mat adopt ekasonable eegulatiohs. — They
may make reasonable regulations for the safe and proper con-
duct of their business, and have power to contract with the
sender of a message so as to relieve themselves from liability
for inadvertencies, but not for gross negligence, misconduct, or
bad faith.^

Eegulations and contracts exempting the company from the
payment of damages for errors in the transmission of messages,
unless repeated at an extra compensation, to be paid by the
sender, have been sustained as reasonable. Bigelow, C. J., said :
" In view of the risks and uncertainties attendant on the trans-
mission of messages by means of electricity, and the difficulties
in the way of guarding against errors and delays in the per-
formance of such service, . . . and also of the very exten-
sive liability to damages which may be incurred by a failure to
deliver a message accurately, we think it just and reasonable
that the conductor of a telegraph should require that additional
precautions should be taken to ascertain the accuracy of the
messages as received, at the request and expense of the parties
interested, if they intend to hold him responsible in damages
for any mistake which may have taken place in the transmission
of the messages. 'There is nothing in this regulation which
tends to embarrass or hinder the free use of the telegraph, or
to impose on those having occasion to transmit or receive mes-
sages any onerous or impracticable duty." -

The practice very generally prevails of requiring messages to
be written on blanks furnished by the company, on which are

1 Western U. Tel. Co. v. Carew, Grinnell v. W. U. Tel. Co. 113 Mass.

Bupra; United States T. Co. v. 399; Passmore v. Western TJ. Tel. Co.

Gildersleeve, 29 Md. 248; Western U. 78 Pa. St. 338.

Tel. Co. V. Graham, 1 Colo. 230; 2 Ellis v. Am. Tel. Co. IB Al len,
game v. Fontaine, 58 Ga. 433; True 326; Western TJ. Tel. Co. v. Carew,
T. International T. Co., 60 Me. 9; 15 Mich. 535; U. S. Tel. Co. v. Gild-
Western U. Tel. Co. V. Buchanan, ersleeve, 29 Md. 341; Birney v. N. Y.
85 Ind. 429; Same v. Meek, 49 Ind. etc. Tel. Co. 18 Md. 341; Western U.
83; Same v. Fenton, 52 Ind. 1; Can- Tel. Co. v. Graham, 1 Colo. 330;
dee V. Western XJ. Tel. 34 Wis. 471; Wolf v. W. U. Tel. Co. 62 Pa. St.
ffiweatland v. Illinois, etc. T. Co. 37 83; Wann v. W. IT. Tel. Co. 37 Mo.
Iowa, 433; Manvillev. W. U.Tel. Co. 472; Sweatland v. Illinois, etc. Tel.
87 Iowa, 214; Breese v. U. S. Tel. Co. 27 Iowa, 433; True v, Interna-
Co. 48 N. Y. 133; S. C, 45 Barb. 374; tional Tel. Co. 60 Me. 9.

TELEGEAPH COMPAOTES.

297

printed the terms and conditions in such form that the message-
sender not only assents to such an exemption from damages,
but also for delay in the delivery or for non-delivery of any un-
repeated message. The repetition of a message has no legiti-
mate eifect to induce a delivery of it, nor to expedite such
delivery ; but it is true that the repetition will convey a warn-
ing that the message is deemed important, and implies that the
company has received, or, on delivery, will receive, additional
compensation. It is obvious that if such a condition, assented
to, is sustained,^ as having the force of a condition or contract,
the company is under no obligation to deliver any unrepeated
message. For this reason, such conditions exacted and assented
to are generally treated as unreasonable and void.^

1 Tyler v. "Western V. Tel. Co. 60
m. 431; 74 id. 168; Western U. Tel.
Co. V. Graham, 1 Colo. 230; Birney
V. N. Y. etc. Tel. Co. IS Md. 341;
True'v. International Tel. Co. 60 Me.
9; ManviUe v. W. U. Tel. Co. 87
Iowa, 314; Baldwin v. U. S. Tel. Co.
45 Barb. 505; 1 Lans. 125; Bryant v.
Am. Tel. Co. 1 Daly, 575; Sprague
V. W. U. Tel. Co. 6 Daly, 300; W. U.
Tel. Co. V. Fenton, 53 Ind. 1; New
.York, etc. Tel. Co. v. Dryburg, 35
Pa. St. 398; Eedpatb v. W. U. Tel.
Co. 112 Mass. 71. In Candee v. W.
U. Tel. Co. 34 Wis. 471, Dixon, C. J.,
said such "regulations were in-
tended to secure the coinpany
against liability for the injurious
consequences flowing from its own
negligence and omissions, and from
those of its agents and operators, in
and about the performance of its
contract entered into with the sender
of the message. The supposed ex-
emption is broad and sweeping, and
calculated, no doubt, to relieve the
company from aU responsibility for
the improper or insufficient per-
formance or attempted performance
of the contract, or the entire failure
to perform it, from whatsoever cause
occurring. Aside from the objec-

tions resting on grounds of public
policy, and which forbid the com-
pany from stipulating for immunity
from the consequences of its own
wrongful acts, it seems very clear
to us that there can be no considera-
tion for such stipulation on the part
of the sender of the message, and
that, so far as he is concerned, it is
void for that reason, although ex-
acted by the company and fully
assented to by him. Either the
company enters into a contract with,
and takes upon itself the burden of
some sort of legal obligation to send
the message, or it does not. It
would be manifestly against reason,
and what all must assume to be the
intention of the parties, to say that
no contract whatever is made be-
tween them; and nobody, not even
the officers and representatives of
the company, asserts such a doc-
trine. It would seem utterly absurd
to assert it. Holding itself out as
ready and willing and able to per-
form the service for whosoever
comes and pays the consideration
itself has fixed and declared to be
sufficient, and actually receiving
such consideration, it cannot be de-
nied, -we think, that a legal obliga-

298 TELEGRAPH COMPAIHES.

Measuee of damages. — The injuries which telegraph com-
panies are called upon to make compensation for arise from
neglecting altogether to transmit or to deliver, or delaying the
transmission or delivery of messages, or from delivering them
changed so as to mean something different from what the sender
intended. If not transmitted or not delivered at all, the dam-
ages may be more serious than where there is merely delay ;
but if a different message is delivered, there is at once a failure
to deliver the intended message, and also a substituted commu-
nication made which may be still more detrimental. And the
transmission and delivery of a forged or spurious message may
occasion great injury to the receiver.

The general rule of compensatory damages stated and defined
in the leading cases of Hadley v. Baxendale ^ and Griffin v.
Colver,^ applies in these telegraph cases, and they afford very
striking examples to illustrate the justice and comprehensive-
ness of that rule. In the latter case, Selden, J., says : " The
party injured is entitled to recover all his damages, including
gains prevented as well as losses sustained ; and this rule is sub-
ject to but two conditions : the damages must be such as may
fairly be supposed to have entered into the contemplation of
the parties when they made the contract, — that is, they must
be such as might nalturally be expected to f oUow its violation ;
and they must be certain, both in their nature and in respect to
the cause from which they proceed." Under this rule, only
nominal damages or the price paid for transmitting the mes-

tion arises and duty exists on the completely nullify the contract by
part of the company to transmit absolving the company from all ob-
the message with reasonable care ligation to perform it, and the party
and diligence, according to the re- delivering the message gets nothing
quest of the sender. Such being in return for the price of transmis-
the attitude of the company, and sion paid by him." Baitlett v. W.
the obligation which it assumes by U. Tel. Co. 62 Me. 319; Passmore v.
accepting the payment, the question Western XJ. TeL Co. 78 Pa. St. 338.
arising is, wliether it can, at the But see U. S. Tel. Co. v. Gilder-
same time, and as part of the very sleeve, 29 Md. 333; GrinneU v. W.
act of creating the obUgation, exact U. T. Co. 113 Mass. 399; Schwartz
and receive from the other party to v. Atlantic, etc. Tel. Co. 18 Htin, 157.
the contract a release from it. The 1 9 Exch. 341.
regulatioi;is under consideration, if 2 jg N, Y. 489.
looked upon as reasonable and valid.

TELEGEAPH COMPAHIES. 299

sage can be recovered for neglecting to transmit or to deliver it, if
its purport is not explained to the agent of the company or its
operator, or if it is written in cypher, or is wholly unintelligible
to him ; for no other damages in such a case could be within
the contemplation of the parties. The operator who receives,
and who represents the company, and may for this purpose be
said to be the other party to the contract, cannot be said to
look upon such a message as one pertaining to transactions of
pecuniary value and importance, and in respect to which pecun-
iary loss or damages will naturally arise in case of his failure
or omission to send it. If ignorant of its real nature and im-
portance, it cannot be said to have been in his contemplation, at
the time of making the contract, that any particular damage or
injury would be the probable result of a breach of the contract
on his part.^

Telegraph agents must take it to be true that when the tele-
graph is resorted to as a means of communication the message
is deemed by the sender to be important enough to justify the
increased expense over postage, and that fact implies no more ;
there is no standard for measuring this importance ; there is no
known average ; no data to stimulate to the exercise of special
care; none for the assessment of damages, as upon supposed
contemplation of any particular loss, direct or consequential,
beyond that of the cost of telegraphing. Where, therefore,
there is a studied concealment of the meaning of a telegram,
whether by writing it in cypher or otherwise, there is an in-
tention on the part of the sender manifest not to permit the
subject in any of its bearings to come within the contemplation
of the company. In the sense of the law of damages, he
thereby elects to employ the company in a mechanical capacity,
and to take the risks of all errors and negligence upon himself.
But where the telegram offered and accepted to be transmitted
expresses the object of the sender, and by actionable negligence
of the company in not transmitting or not delivering it, or by
unreasonably delaying the transmission, or by change of its

I Candee v. W. U. Tel. Co. 34 Wis. Co. 44 N. Y. 744, 748; Belun v. W.

471; Sanders v. Stuart, 1 C. P. D. U. Tel. Co. 8 Cent. L. J. 445; Shields

326; Beaupri v. Paci6c, etc. Tel. Co. v. Washington Tel. Co. 9 West. L, J.

21 Minn. 155; Baldwin v. U. S. Tel. 283.

800 TELEGEAPH COMPANIES.

tenor so that it fails to be the communication intended, then,
independent of any contract or valid regulation affecting the
measure of damages, the company is liable for such injury as
is the direct natural and necessary consequence of defeating the
object which would have been accomplished by the seasonable
delivery of the correct message, — or such injury as so results
from any negligent change in the purport of the message. Thus
if the message be a direction from a principal to a broker, factor
or correspondent to purchase or sell stocks or property, or is an
acceptance of an offer for either, and by negligent non-delivery
or delay in delivery of the message, such transactions do not
take place at all, or not until a later day, the telegraph company
is liable for the loss which the sender sustains by not having his
directions executed or his acceptance delivered. Where a sale
is thus prevented and the property declines in price before the
injured party, by the use of due diligence after notice of the
delinquency in respect to his message, could give new directions,
he is entitled to recover damages against the company, meas-
ured by such decline.^ So, if a purchase is thus defeated or
delayed, and the property advances in value before he is ad-
vised of the company's neglect, he is entitled to recover dam-
ages to the extent of such advance.^ For like reasons, if the
sender's purpose in respect to such transactions is defeated, by
a negligent change in the wording of his message, he may hold
the company liable for loss of a bargain where it occurs, and
also for any other injurious consequence which ensues from such
change.'

A plaintiff's message to his broker directed him to sell his
stock of a certain kind, and to buy a given amount of another
named stock. By a change in the message as deUvered it di-
rected simply a purchase of an additional amount of the kind
of stock directed to be sold, which was done by the broker. As
soon as the plaintiff was apprised of the mistake and of this
purchase, he ordered the stock to be sold, which was done at a

1 Strasberger v. W. TJ. Tel. Co. N. 2 True v. International Tel. Co. CO

Y. Sup. Ct. 1867, Allen's Tel. Cas. Me. 9; TJ. S. Tel. Co. v. Wenger, 55

661; ManviUe v. W. U. Tel. Co. 37 Pa. St. 262.

Iowa, 414. See Turner v. Hawkeye ' Sweatland v. Ulinois, etc. Tel.

Tel. Co. 41 Iowa, 458. Co. 37 Iowa, 433.

TELEOEAPH COMPAJSIES. 301

loss of $475, and repeated his order to purchase, but the price
had advanced in the meantime so that it cost $1,875 more to
make the purchase than would have been required at the time
the erroneous message was received ; it was held that the plaint-
iff was entitled to recover both of these sums. It was said by
the court that the loss from the advance on stock ordered to be
purchased would be recoverable without an actual purchase of
the stock at the increased price, by showing that immediately
or soon after the delivery of the erroneous megsage the stock
rose in market so that the order could not have been filled for
less than the advanced price.^ In a Massachusetts case,^ Bige-
low, C. J., after adverting to the rule of damages applicable to
a carrier who had negligently delayed to transport and deliver
goods intrusted to him — namely, the difference in their mar-
ket value at the time when and place where they ought to have
been delivered, and their mai'ket value at the same place on the
same day when they were delivered, — said: " We can see no
reason why an analogous rule is not applicable to the case be-
fore us. The defendants, as a contracting party, are liable for
the injury actually caused by their breach of duty. There is
nothing in the nature of the business which they undertake to
carry on, that should exempt them from making compensation
for any neglect or default on their part.' The only question
then is as to the effect of the application of the general rule of
damages, already stated, to the contract between the parties.
This necessarily depends on the subject matter. The defend-
ants undertook to transmit a message which on its face
purported to be an acceptance of an offer for the sale of mer-
chandise. The agreement was to transmit and deliver it with
reasonable diligence and dispatch, having reference to the or-
dinary mode of performing similar services by persons engaged
in the same business. The natural consequence of a failure to
fulfil the contract was that the party to whom the message
was addressed, not receiving a reply to his offer to sell the mer-

• Rittenhouse v. Independent Line How. Pr. 403; Bowen v. Lake E.

Tel. 44 N. Y. 383; S. O. 1 Daly, 474; Tel. Co. 1 Am. L. Reg. 685.

N. Y. etc. TeL Co. v. Dryburg, 35 2 Squire v. W, U. Tel. Co. 98 Mass.

Pa, St. 398; De :Rutte v. New York, 333.

etc. TeL Co. 1 Daly, 547; S. C. 30 a ElUs v. Am. Tel, Co. 13 AUen, 336.

302 TELEGEAPH COMPAHIES.

chandise in due season, would dispose of it to another person ;
that the plaintiff might be unable to procure an article of like
kind and quality at the same price, and in order to obtain it
would be obliged to pay a higher price for it in the market than
he would have paid if the prior contract for its purchase had
^ been completed by the seasonable delivery of his message by
the defendants. The sum, therefore, which would compensate
the plaintiffs for the loss and injury sustained by them would
be the difference, if any, in the price which they agreed to pay
for the merchandise by the message which the defendants under-
took to transmit, if it had been duly and seasonably delivered
in fulfilment of their contract, and the sum which the plaint-
iffs would have been compelled to pay at the same place in
order by the use of due diligence to have purchased the like
quantity and quality of the same species of merchandise." ^

An interesting case, illustrative of the principles under dis-
cussion, arose in 'New York, and after repeated arguments and
thorough consideration, was finally decided in 1870. The
plaintiffs' agent at Chicago telegraphed for five thousand sacks
of salt to be sent immediately from Oswego, the plaintiffs'
shipping port ; the message came over the defendant's line ; was
delivered by them, and by carele5sness of their servants cawfe
was written for " sacks." The order was executed accordingly.
A sack was a fourteen pound package of fine salt ; a cask con-
tained three hundred and twenty pounds of coarse salt. On
the arrival of the salt at Chicago there was no market for it ;
it was stored at the expense of the plaintiffs' agent, and finally
sold at less than the market price at Oswego. The plaintiffs were
held entitled to recover damages for that mistake ; and that the
difference between the market value of the salt at Oswego,
where but for the mistake the salt would have remained, and
what it sold for at Chicago, together with the expense of trans-
portation to the latter place, was not an improper measure of
damages. This rule was sustained, although there was no evi-
dence as to what it would have cost to return the salt to Oswego,
and the difference in the market price of the two cities was

iTrae V. International T. Co. 60 Co. 37 Iowa, 214; Tyler v. W. U. T.
Me. 9, 26; Manville v. W. U. Tel. Co. 60 lU. 431.

TELEGRAPH COMPANIES. 303

greater .than the whole cost of the outward transportation.
Earl, 0. J., thus vindicated this ruling : " The cardinal rule (of
damages) undoubtedly is, that the one party shall recover all
the damages which has been occasioned by the breach of con-
tract by the other party. But this rule is modified in its
application by two others. The damages must flow directly
and naturally from the breach of contract, and they must bq,
certain, both in their nature and in respect to the cause from
. which they proceed. Under this latter rule, speculative, con-
tingent and remote damages, which cannot be directly traced
to the breach complained of, are excluded. Under the former
rule, such damages only are allowed as may fairly be supposed
to have entered into the contemplation of the parties when
they made the contract, as might naturally be expected to
follow its violation. It is not required that the parties must
have contemplated the actual damages which are to be allowed.
But the damages must be such as the parties may be supposed
to have contemplated when they made the contract. Parties
entering into contracts usuallj'^ contemplate that they will be
performed, and not that they will be violated. They very
rarely actually contemplate any damages which would flow
from any breach, and very frequently have not sufficient in-
formation to know what such damages would be. As both
parties are usually equally bound to know and be informed of
the facts pertaining to the execution or breach of a contract,
which they have entered into, I think a more precise statement
of this rule is, that a party is liable for all the direct damages
which both parties to the contract would have contemplated as
flowing from the breach, if, at the time they entered into it,
they had bestowed proper attention upon the subject, and had
been fully informed of the facts. In this case, then, in what
may properly be called the fiction of law, the defendant must
be presumed to have known that this dispatch was an order for
salt, as an article of merchandise, and that the plaintiff would
fill the order as delivered ; and that if the salt was shipped to
Chicago, it would be shipped there as an article of merchandise,
to be sold in the open market. And the market price in Chicago
being less than the market price in Oswego, that they would
lose the cost of transportation, and the difference between the

304 TELEGEAPH COMPAITIES.

market price at Chicago and the market price at Oswego.
. . . The damages allowed were certain, and they were the
proximate, direct result of the breach." ^ There was some con-
tention that it was the duty of the plaintiff, on being apprised
of the mistake, to reship the salt to Oswego, and there was
some division of judicial opinion on that point. The learned
judge from whom we have just quoted remarked in support of
the final opinion of the court, from which only one member
dissented : " For anything that appears in this case, the cost of
transportation to Oswego would have been equal to the dif-
ference in the market between the two places. Then there was
the risk of the lake transportation at that season of the year,
and the uncertainty in the Oswego market, when the salt should
again be landed there. If the plaintiff had shipped, and it had
been lost upon the lake, the total loss would not have been
chargeable to the defendant. By the wrongful act of the de-
fendant, the salt had been placed in Chicago, one of the largest
commercial centers of the country, and the plaintiffs had a
right to sell it there in good faith, and hold the defendant liable
for the loss." The rule supported in this case was sanctioned
as sufficiently favorable to the defendant. It does not decide
that it was a rule sufficiently favorable to the plaintiffs.
Nothing was allowed by the trial court fdf profits that might
have been miade on the fine salt ordered, if it had been shipped;
nor for the casks of salt at Oswego, if it had not been sent.

In a Virginia case,^ the plaintiff sent over the defendant's
line a message to his factor in Mobile, directing him to buy
500 bales of cotton ; this message was altered, and as delivered
required the factor to buy 2,500 bales. He proceeded to exe-
cute it, and bought 2,078 bales before the mistake was discov-
ered. It was ruled that if the defendants were liable for the
alteration, the measure of damages was what was lost on the
sale at Mobile of the excess of the cotton above the amount
ordered; or if not sold there, what would have been the loss
on the sale at Mobile in the condition and circumstances in
which it was when the mistake was ascertained, including the

1 Leonard v. New York, etc. Tel. son, 15 Gratt. 132. And see Smith
Co. 41 N. y. 514. V. Independent L. Tel. Scott & J. on

2 Washington, etc. Tel. Co. v. Hob- Tel, § 413, note.

TELEGEAPH COMPANIES.

305

proper costs and charges. The factor's commissions upon the
purchase were held to be a part of the damages. And it ap-
pearing that a part of the cotton was on board a ship to be
sent to lyiverpool when the mistake was ascertained, it was
ruled that, in the estimate of damages, the whole should still
be valued as if sold at Mobile, a part on shipboard and a part
under contract of aifreightment. The court held further, that
if the plaintiff intended to hold the company responsible for
the excess, he should, as soon as apprised of the purchase, have
made a tender of such excess to the company, on the condition
of its paying the price and all the phargps incident to the pur-
chase ; giving it notice, in case of a refusal of such tender, that
he would proceed to sell the excess at Mobile, and after credit-
ing the company with the net proceeds, would look to it for any
difference between the amount of such proceeds and the cost of
such excess, including the commissions, costs and charges.

A telegraph company neghgently omitted to deliver a mes-
sage containing the plainliff's direction from Denver to his
agent at Nebraska City : " Ship oil as soon as possible at the
best rates you can." The plaintiff alleged that by reason of
the consequent delay he was obliged to pay higher rates of
freight and lost great profits on the oil. Of what the lost,
profits consisted is not shown by the case ; damages for the in-
crease of freight were allowed; and doubtless, on the same
principle, if there had been a fall in the market price of the oil,
the amount of such decrease of value would also have been
allowed.'

A telegraph company negligently delayed for a day to, for-
ward plaintiff's message to his agent, stating amount of the
debt, and directing attachment if he could find ■ property.
During the delay the property was seized by other creditors.
The court say: "To ascertain the damages sustained by the
breach of this contract, these inquiries are pertinent: if the
message had been sent, was the plaintiff's agent in StocktO'n at
the time, and would he have received it ; next, would he have
taken out an attachment on the debt; at what time could

1 Western TJ. Tel. Co. v. Graham, 1 Col. 230. See ManvillSe t.. W. XJ. TeL
Co. 37 Iowa, 214.
Vol. Ill— 20

306

TELEGEAPH OOMPAOTBS.

he have done this ; could he have given security ; could he have
procured attorneys to issue the writ ; at what hour could, and
would, it have been put in the hands of the sheriff; was prop-
erty there of the debtor's subject to the writ ? If a telegraphic
dispatch had reached the agent at eight o'clock on the seventh,
the agent would have been bound to act at once ; it is to be
presumed that he would bave done so ; at least, he can testify
whether he would. If he had, the sheriff is to be presumed
willing to do his duty ; if he did not, he would be liable to the
plaintiff, and thereby the plaintiff's debt would be secured."
It was held that the company was liable for the cost of the
dispatch, and the amount of the claim, on the assumption that
the whole claim might have been secured by a seasonable at-
tachment, and was prevented by the defendant's default.^

1 Parks V. Alta Cal. Tel. Co. 13
Cal. 423; Bryant v. Am. Tel. Co. 1
Daly, 575. In Turner v. Hawkeye
Tel. Co. 41 Iowa, 458, the company
undertook to furnish the plaintiff at
a specified place daily dispatches,
showing the prices of grain both in
Chicago and New York, for the con-
sideration of ten dollars per month.
During the engagement defend-
ant's agent delivered to plaintiff a
dispatch, showing the raarket price
of wheat in Chicago to be $1.34)^ per
bushel for a certain day. This re-
port was incorrect; on that day the
price was $1.56. Upon that dispatch
the plaintiff acted; be bought 5,000
bushels. In an action upon the con-
tract he recovered damages meas-
ured by that discrepancy. Beck, J.,
said: " It is claimed that as plaint-
iff was engaged in buying gi'ain at
S. R., and gave defendant no notice
that the market repoi't furnished
was intended to guide him in pur-
chases .of wheat in Chicago, he can-
not recover as damages the loss
which he sustained by reason of the
error in the dispatch in the purchase
of 5,000 bushels of wheat. Such
damages, Jet is .claimed, did not enter

into the contemplation of the par-
ties when the contract was made.
There is nothing in the evidence
upon the subject further than that
plaintiff was a purchaser of grain
at S. E. and that he sold in Chicago.
It also appears that he made con-
tracts for the delivery of grain at
that city at a future day. All of his
transactions were based upon his in-
formation of the Chicago market;
and that he might have speedy and
accurate information, he entered
into the contract sued upon. It is
within the ordinary course of busi-
ness for a dealer to make contracts
for future delivery, and to depend
upon future purchases to enable him
to fulfil his obligation. The pur-
chases are made whenever the grain
can be had at a price offering an in-
ducement to the dealer, and such
purchases are often made by busi-
ness men of this state in Chicago to
flU their contracts for delivery in
that city. These facts, it will be
presumed, entered into the contem-
plation of the parties to the contract
in suit. The defendant, then, can-
not claim that it is released from
liability for the loss sustained by

TELEGEAPH COMPANIES. 307

A party having a case in court at a distance gave a telegraph
company a message addressed to his attorney : " Hold my case
until Tuesday or Thursday. Please reply." Keceiving no
answer, and inferring, therefore, that there could be no post-
ponement, he went with his counsel to attend the trial; he
found that the message had not been sent and that his case had
been adjourned to a future day ; so that his journey and that
of his counsel were wholly useless. In an action against the
companj'- for neglect to send the message, it was held that he
was entitled to recover as damages the expenses of himself and
counsel, and the counsel fee, found reasonable, which' he was
obliged to pay for his counsel making the trip.^ "Where through
the negligent delay of a telegraph company to deliver a mes-
sage the plaintiff lost a situation, he was allowed to recover
substantial damages in view of the salary and the time for
which he would have been emploj'^ed.^

"What messages and acoompanting explanations being sieb-
stantial damages within contemplation op paeties. inde-
pendent of all other considerations, damages, to be recoverable,
must be the proximate and natural consequence of the defend-
ant's act or default. This is the universal requirement ; remote

plaintiff on the ground of a want mation sent to him by his agents,
of notice of the- transaction in and purposely doing it, to injure his
which defendant used the informa- business and giving precedence to a
tion furnished by the report of the rival in the same business. The
market. It appears to us that as the court said: " It is evident that the
defendant contracted to furnish re- mere allowance of* the amount of
ports of the Chicago grain market loss the plaintiff proved he actually
to plaintiff, it was sufficiently noti- sustained would not, in justice, re-
fled that plaintiff's tralnsactions were munerate him for the violation by
to be in that market, and there is the defendant of its agreement, and
no evidence raising a presumption the jury might very properly have
that defendant was authorized to re- given an additional sum." The
gard him as a seller only of grain court favored a liberal course in the
there." assessment of damages for a wilful
In Davis v. Western U. Tel. Co. 1 and causeless violation of contract
Gin. Sup. Ct. 100, the plaintiff, a by the defendant,
commercial news agent, engaged in ' Sprague v. W. IT. Tel. Co. 6
furnishing customers information Daly, 200.

and reports of the state of the mar- 2 Western U. Tel. Co. v. Fenton,

ket, brought an action against the 53 Ind. 1. .
defendant for delaying such infer-

308 TELEGEAPH COMPANIES.

and speculative effects are always excluded in the assessment
of compensatory damages. What are such requires no special
elucidation in this place. "Where a telegram was sent by the
defendant's line to plaintiff, asking for $500, and by neghgence
of the defendant's employfi it was changed as to the sum to
$5,000, which the plaintiff sent to the party making the re-
quest, and he upon receipt of it appropriated it to his own use
and absconded, it was held that the defendant's negligence was
not the proximate cause of the loss ; the embezzlement did not
naturally result therefrom, and could not reasonably have been
expected.^ To maintain an action for special damages, it has
sometimes been stated that they must appear to be the legal
and natural consequences arising from the tort or breach of
contract, and not from the wrongful act of a third person in-
duced thereby; in other words, the damages must proceed
wholly and exclusively from the injury complained of.^ The
law does not undertake to hold a person who is chargeable with
a breach of duty toward another, with all the possible conse-
quences of his wrongful act. It in general takes cognizance
only of those consequences which are the natural and probable
result of the wrong complained of, and may reasonably be ex-
pected to result under ordinary circumstances from the mis-
conduct.' This rule, as we have seen, excludes all but nominal
damages ; or the price paid for sending the message, where the
message is \^ritten in cypher or unintelligible terms, and is

1 Lowery v. Western U. Tel. Co. The case does not warrant so abso-
60 N. Y. 198. lute a statement, nor can such a

2 Grain v. Petrie, 6 Hill, 523; First proposition be maintained as law;
Nat. Bank v. "Western XJ. Tel. Co. there may be a legal loss in being
30 Ohio St. 555; 2 Pars, on Cont. 257. deprived of benefits from future
In the syllabus of McCall v. W. TJ. dealing depending on the volimtary
Tel. Co. 12 Jones & Spencer, 487, it action of a third person; damages
is stated that, "Where the damages are often estimated and limited by
claimed is a loss of that which reference to such action. The case
might have been obtained, depend- of Western U. Tel. Co. v. Fenton,
ing on the contingency of a certain 52 Ind. 1, is an instance. See Beaupri
expected action of a third party in v. Pacific, etc. Tel. Co. 21 Minn. 155.
the event of the contract being car- ' Lowery v. W. U. Tel. Co. supra;
ried out. It is too remote to be re- Baldwin v. U. S. Tel. Co. 45 N. Y.
garded as within the contemplation 744; Rigby v. Hewitt, 5 Exch. 240,
of the party breaking the contract." per Pollock, 0. B.

TELEGEAPH COMPAJSTES. 309

accompanied with no explanation. From this limit the con-
templation of damages will expand with the surface of dis-
closure. This proposition is well illustrated and supported by
a New York case,' which has often been cited and approved.
The plaintiffs, at San Francisco, California, contracted with L
of that place to purchase for him in New York, on commission,
three hundred pistols, and to deliver them in San Francisco, by
the steamer which should leave New York on the 20th of Jan-
uary, 1857; for which the plaintiffs were to receive a commis-
sion of seven and a half per cent, on the cost of the pistols.
They agreed to hold themselves responsible to the sum of $500
to be paid to L by them, if they failed to fulfil the agreement.
For the purpose of executing this agreement the plaintiffs re-
mitted from San Francisco by the Pacific Mail Co. $10,000,
which arrived in New York January 13th. The plaintiffs deliv-
ered to defendants at New Orleans on the 16th of January a
dispatch, addressed to plaintiffs' firm in New York, in these
words : " Get $10,000 of the Mail Company." On the following
day the telegram was transmitted to and received at the de-
fendants' ofiice in New York; but the address had been so
changed that it could not be delivered until the correct address
was sent, which was on the morning of the 23d of January.
By reason of the non-delivery of the dispatch before the 20th
of January, the plaintiffs' agreement with L could not be per-
formed for want of the money mentioned in the dispatch. The
plaintiffs' paid L the $500 stipulated damages. It appeared
that the sole cause of the non- delivery of the dispatch was the
negligent error in the address. The actual loss of the plaintiffs
was $970.09; ^'iz., $500 paid L; $462 loss of commissions they
were to receive; $6.50 paid for transmitting the message; and
$9.59 interest on the $10,000 for five days, while its use was
delayed by the erroneous address of the message. But because
the defendants had no information whatever in relation to the
subject of the dispatch, or the purposes to be accomplished by
it, except what could be derived from the dispatch itself, the
recovery of damages against the defendant was limited to the
last two items.

1 Landeberger v. Magnetic Tel. Co. 33 Barb. 530.

310 TELEGEAPH COMPAUIBS.

It does not appear to be necessary that the company should
be apprised of details, if the purpose of the message is made
known ; they will be liable for the actual injury which directly
results from thwarting that object by a negligent performance
of their duties, though there is no mention of facts material to
the attainment of that object. A party in Portland, Maine, ad-
dressed a message to a party in Baltimore in these words : " Ship
cargo named at ninety. If you can secure freight at ten. Wire
us result." In an action .against a telegraph company to whom
this message was delivered, they admitted their liability for fail-
ure to dehver it, and in determining the damages therefor, the
court assumed the company's knowledge of the object of the
sender to be derived from the message itself. And the court
say : " "We assume that the plaintiffs can prove that the firm ia
Baltimore to whom the telegram was addressed, had offered and
agreed to sell a cargo of corn at ninety cents per bushel to the
plaintiff ; that the telegram contained notice of acceptance of
the proposition ; that the condition named, ' if you can secure
freight at ten ' (cents), could have been complied with, if the
message had been delivered when it should have been ; that, if
it had been thus delivered, the bargain would have been closed,
and the plaintiffs would at that moment have obtained the cargo
at ninety cents per bushel, with freight at ten cents. The pe-
cuniary value, then, of this telegraphic message was in this, that
it contained a part of a contract, and that the final and binding
and effectual act, by which the bargain would become operative
and complete. It seems clear that such a message has a dis-
tinctive and clear pecuniary value, and demands of the party,
who, for a reward, undertakes to convey it, knowing its con-
tents, the same care and diligence, and that he is subject, at
least, to like rules and liabilities, as if he (not being a common
carrier) had undertalien to transport an article of merchandise.
On its face it gives clear intimation that it is of a business char-
acter, relating to a distinct and specific contract, and that, ac-
cording to the well known custom of merchants, it must have
been understood by the operator or agent as an acceptance of
an offer to sell a cargo at the price named, if freight at ten cents
could be procured. In this respect it differs from a class of
cases to be found in the reports, where the message was so brief,

TELEGEAPn COMPANIES. 311

or enigmatical, or so obscure, that it gave the operator no
notice that it was of any value pecuniarily." The defendant
was held liable for the value of the bargain.^ In another case
the telegraph company negligently delayed the delivery of this
message : " "Will take your hogs at your offer," and the same
rule of damages was applied. This message does not state the
number of hogs nor the price. It was sufficient that on its face
it purported to be an acceptance of an o£fer for the sale of mer-
chandise.^ Non-delivery of a telegram : " Hold my case until
Tuesday or Thursday. Please reply," subjected the company
to damages for the expense of a journey by the party and his
counsel, and a fee for the time to the latter.' For delay in de-
livery of the message; " Ship your hogs at once," the company
were held liable for decrease in market value of one hundred
and eighty fat hogs.*

It is to be observed that in these instances there was sufficient
on the face of the dispatches to show not only that they related
to business of pecuniary concern, but they were likewise explicit
enough to suggest the nature, though not the extent, of the
consequences of any negligence touching their transmission or
delivery. They support the conclusion that a telegraph com-
pany may be made liable for the actual damages resulting di-
rectly and proximately from the non-receipt or the delayed
receipt of the telegram, through their negligence, where the
business to which it relates, and the purpose to which it is in-
tended to contribute, are stated or disclosed in a general way.
It is not essential that the company be informed of the magni-
tude, or of any of the usual incidents of the transaction ; that all
the requisite agencies and conditions to accomplish the object
indicated have been or will be so arranged as to insure success.
It is the duty of the telegraph company to inquire for such par-
ticulars, if they desire them.' Telegraphic messages are very
generally brief for purposes of economy, even when there is no

1 True V. International T. Co. 60 * Manville v. "Western U. T. Co. 37
Me. 9. lo'^'a, 214.

2 Squire v. W. U. T. Co. 98 Mass. ' Rittenhouse v. Independent Line
233. ' Tel. 44 N. Y. 263; Candee v. W. U.

3 Sprague v. Western U. Tel. Co. 6 Tel. Co. 34 "Wis. 471.
Daly, 200.

312 TELEGEAPH COMPANIES.

•

thought of concealment. Relating to certain subjects on which
there is much trafl3.c by telegraph, certain abbreviated or con-
densed expressions are in general use among those who conduct
this traffic, and telegraphic operators ought to know their con-
Tential meaning, whether intelligible to the general public or not.
There are some cases which do not confirm the foregoing ob-
servations, and which seem out of harmony with the decisions
that suggested them. Thus, in Maryland, a suit was brought
by a broker to recover damages resulting from the failure to
transmit a dispatch containing this order: "sell fifty gold," and
it was proved that the dispatch would be understood among
brokers to mean $50,000 of gold, but it was not shown that the
company's agent so understood it ; and it was held that the
nature of this dispatch should have, been communicated to
the company's agent at the time it was offered to be sent, in
order that the company might have observed the precautions
necessary to guard itself against the risk ; and that it was error
to instruct the jury that the plaintiff was entitled to recover to
the full extent of his loss by the decline in gold.' "Where the
plaintiff intrusted the defendant, a Canada telegraph com-
pany, with this message, addressed to a person in Oswego : " Do
accept your offer — ship, to-morrow, fifteen or twenty hun-
dred," Eobinson, C. J., said : " What would the message . . .
have informed the man or boy whose duty it was to take it from
the wire, and to send it by another man to the qffice of the
American company? ITothing but that the plaintiff had ac-
cepted an offer, he could not tell for what, and would ship
fifteen or twenty hundred, whether of staves or shingles, or bar-
rels of flour, or bushels of grain, he could not tell ; nor could he
guess what might be the occasion for haste, or the consequences
of delay or neglect. A possible loss or gain to the plaintiff,
depending on the time at which the message would arrive, was
a consequence which the defendants could not appreciate, and
cannot be supposed to have contemplated at the time they re-
ceived the message." ^ In a Minnesota case,' an order for mer-

iTT. S. Tel. Co. v. Gildersleeve, 39 ^Kinghorne v. Montreal Tel. Co.
Md. 333. See Shields v. Washington 18 U. C. Q. B. 60.
Tel. Co. 9 West. L. J. 5. 3 Beaupri v. Pacific & Tel. Co. 31

Minn. 155.

TELEGRAPH COMPAOTES. 313

chandise, contained in a message, was negligently delayed for
several days, and the price advanced in the meantime ; when
received, the dealer refused to fill the order at the price current on
the day of its date, or at any less than the advanced market price
current at the time of its arrival. It was properly held that the
sender was only entitled to recover the price paid for the message,
because, if sent, it would not have concluded a bargain for the
merchandise, and it was not shown as a fact that the plaintiff
would have obtained it at the then market price if the dispatch
had been duly delivered. But the court said that the findings
imphed that the defendant had only such information as was
afforded by the message itself. " The message purports to re-
late to some business transaction the nature of which is not dis-
closed. It gives no intimation of the magnitude or importance
of the business involved, or of the amount of damage that
might result from a delay in transmitting it. The company
might have known from the tenor of the message that it related to
a purchase of goods, and was presumably of some value ; but the
message itself, ' will take two hundred extra mess, price named, .
would hardly have informed the defendant of the nature, quan-
tity, price or value of the goods which the plaintiff offered to
take. The damage the plaintiff might suffer from a rise in the
market price of pork, if this message were not seasonably de-
livered, could hardly have entered into the contemplation of
the defendant, at the time he received and undertook to trans-
mit this message, as a probable consequence of the breach of its
contract." ^ The court add, however, that whether the informa-
tion conveyed to the company by the message was sufficient to
render it liable for any consequential damages the plaintiff
might have sustained from its delay, it was not necessary to de-
cide, and announced the general principle which all the cases
affirm, that " considering the magnitude of the damages which
may result from mistake or delay in transmitting important
messages, damages often out of all proportion to the price paid
for transmission, it is simple justice to the company that it

1 Citing Stevenson v. Montreal U. S. Tel. Co. v. Gildersleeve, 29

Tel. Co. 16 U. C. Q. B. 530; Allen's Md. 233; Baldwin v. XJ,' S. Tel. Co.

Tel. Cases, 71, 98; Kinghome v. Co. 45 N. T. 744.
Montreal Tel. Co. 18 U. C. Q. B. 60;

314 TELEGRAPH 00MPAHIE8.

should not be held liable for such consequential damages, un-
less the character and object of the message appear upon its
face, or the nature of the risk assumed by the company is made
known to it by the sender."

Action mat be brought on conteact or foe toet. — In Eng-
land, the only duty of a telegraph company is that arising out
of contract, and, therefore, only the sender or party making
the contract has a right of action.' The company is not liable
to the receiver of a telegram, even for a misfeasance.^ In this
country, however, a different doctrine prevails. The com-
pany's employment is of a public character, and it owes the
duty of care and good faith to both sender and receiver. For
the gross negligence of a telegraph company's agent in sending
a dispatch over the wires, purporting to be that of a cashier
of a bank, at the request of one known to the operator not to
be such cashier, and without evidence of such cashier's author-
ity, to the effect that such cashier would honor the drafts, for a
large amount, of the person so procuring the transmission of
such message, whereby a banking house to which such message
was presented was induced to pay money to the person so rec-
ommended, the company was held liable to make good the loss.'
So a telegraph company was held liable in damages to the
recipient of a message for the misfeasance of their agent in
sending a different message from that addressed to him.* It
was ruled that, though not insurers of the safe delivery of
what is intrusted to them, their obligations, like those of com-
mon carriers, spring from the public nature of their employ-
ment, and the contract under which the particular duty is
assumed. If they negligently or wilfully violate their duty of
sending the very message furnished, they are responsible to the
party to whom the erroneous message is addressed, in an action
on the case. Even if the telegraph company be considered
only as the agent of the sender of the message, they are liable

' 1 Playf ord v. United Kingdom Tel. 2 Dickson v. Eeuter Tel. Co. supra.

Co. L. R. 4 Q. B. 706; S. C. 10 B. & SElwood v. "West. U. Tel. Co. 45

S. 769; Dickson v. Renter Tel. Co. N. Y. 549; Allen's Tel. Cases, 594.

2 C. P. Div. 62; 3 id. 1. See Feaver ^New York, etc. Tel. Co. v. Dry-

V. Montreal Tel. Co. 23 U. O. C. P. burg, 35 Pa. St. 298.
150; S. C. 34 id. 358.

TELEGEAPH COMPANIES.

315

to third persons, as wrongdoers, for any misfeasance in the
execution of the duties confided to them.i Accordingly, where
they dehvered a message for two hand lovqueis, changed so as
to read two hundred iouquets, they were held liable to the
receiver for the damages resulting from the expense of
partial execution of the erroneous order before the mistake
was discovered and corrected.^, A telegraph company, by
changing a telegram sent to plaintifiF, informed him that
eight thousand bushels of wheat could be furnished him for
transportation from Chatham to Oswego, three thousand
being the amount in the message furnished for transmission.
In consequence of this information, he gave up a contract for
a cargo from another place, and sent his vessel to Chatham,
where he obtained only the three thousand bushels. It was
held that a reasonable compensation for sending his vessel to
Chatham and back was all the plaintiff was entitled to recover
as damages; that his real damage arose from giving up the
contract for the other cargo, but that could not be taken into
consideration, because the defendant had no notice of it ; that
he was not entitled to freight on five thousand bushels which
his vessel did not carry, and it did not appear that he could
have obtained this freight if the message had been correctly
transmitteid.'

1 New York, etc. Tel. Co. v. Dry- 8 Lane v. Montreal Tel. Co. 7 IT. C.
burg, 35 Pa. St. 398. 0. P. 23.

2 Id.

316 BJECEAOH Q7 UABBIAOE FB0HI8E.

CHAPTEE Xin.

BREACH OF MARRIAGE PROMISK

Nature of the action for this cause — Seduction is an aggravation — Injury
to feelings, and other dements of damage — Damages for loss of mar-
riage— What will excuse a breach of th^ contract — Wliat may be
proved in mitigation.

if ATUKE OF THE ACTION FOE THIS CAUSE. — The axstioii f or this
cause is peculiar. While it is in form an action upon contract,
and in truth based upon contract and the breach of it, the
damages are governed by principles which apply to actions for
personal torts. The motive of the breach may be inquired
into, and may be very material in respect to the amount of
damages. The right of action is so personal in its nature
that it will not survive to or against personal representatives.
Nor are the damages confined to the mere pecuniary loss.
Either party may sue for breach by the other,i though, in the
large majority of instances, the female is the plaintiff; and she
may recover, according to the general language of the cases,
for injury to her feelings, her affections and wounded pride, as
well as for loss of marriage.^

SEDucTnoN IS A3S A&GEAVATioN. — The rcsult of an ordinary
breach of promise is the loss of the alliance and the mortifica-
tion and pain consequent on the rejection.' If the defendant,
during the subsistence of the promise, has seduced the plaintiff,
this fact may be proved in aggravation of the damages. The
common law practice is substantially uniform in allowing it.
The seduction which is allowed to be proven in these cases is
brought about in reliance upon the contract, and is, in itself, in

1 There are several instances given 2 "Wilbur v. Johnson, 58 Mo. 600

in the reports of actions by the male Holloway v. Griffith, 32 Iowa, 409;

party to the contract. Baker v. Royal v. Smith, 40 Iowa, 615; Wells

Cartwright, 100 Eng. C. L. 124; Har- v. Padgett, 8 Barb. 323; Harrison v.

risonv. Cage, 1 Ld. Raym. 886; S. C. Swift, 18 Alien, 144.

1 Salk. 34; Alchinson v. Baker, Peake 'Sheahan v. Barry, 27 Mich. 217.
Ad. Cas. 103, 104.

BEEAC3H OF MAEEIAGE PEOMISB. 317

no indirect way, a breach of its implied conditions. Such an
engagement brings the parties necessarily into very intimate
and confidential relations, and the advantage taken of those re-
lations by the seducer is as plain a breach of trust in all its
essential feature as any advantage gained by a trustee or guard-
ian, or confidential adviser, who cheats a confiding ward, or
beneficiary, or client, into a losing bargain. It differs from or-
dinary breaches of trust in being more heinous. A subsequent
refusal to marry the person whose confidence has thus been
abused cannot fail to be aggravated in fact by the seduction.
The contract is twice broken ; for to the results of an ordinary
breach there are added loss of character and social position, and
not only a deeper shame and sorrow, but a darkened future.
All of these spring directly and naturally from the broken ob-
ligation. The contract involves protection and respect as well
as affection, and is violated by the seduction as it is by the re-
fusal to marry. A subsequent marriage condones the first
wrong, but a refusal to marry makes the seduction a very
grievous element of the injury .that cannot be lost sight of in
any view of justice.^ But in Wisconsin and Indiana this

lid.; Coilv. Wallace, 34 N. J. L. the tribunals of justice for compen-

291; Whalen v. Layman, 3 Blackf. sation, thanthatof a violated prom-

194; Green v. Spencer, 3 Mo. 318; ise to enter into a contract, on the

Hill V. Manpin, 3 Mo. 333; Conn v. faithful performance of which the

Wilson, 3 Overt. 333; GoodaU v. interest of all civilized countries so

Thurman, 1 Head, 209; Williams v. essentially depends. When two

Hattingsworth, 6 Baxt. (Tenn.) 13; parties, of suitable age to contract,

Mathews v. Cribbitt, 11 Ohio St. 380; agree to pledge their faith to each

Fidler v. McKinley, 31 HL 308; other, and thus withdraw them-

Tubbs V. Van Kleck, 13 HL 446; selves from that intercoiurse with

Ispey V. Jones, 1 Alw. SeL C. 454; society which might probably lead

Kniffen v. McConnell, 30 N. Y. to a similar connection with an-

285; Wells v. Padgett, 8 Barb. 333; other, — the affections being so far

Sherman v. Eawson, 103 Mass. 395; interested as to render a subsequent

Kelly V. Riley, 106 Mass. 339; Sauer engagement not probable or desira^

V. Schulenberg, 33 Md. 388; Jarvis ble, — and one of the parties wan-

V. Johnson, 2 West. L. Monthly, 389. tonly and capriciously refuses to

Parker, C J., in Wightman v. execute the contract which is thus

Coates, 15 Mass. 1, thus vindicates commenced, the injury may be seri-

the general usefulness of this rem- ous, and circumstances may often

edy: justify a claim of pecuniary indem-

"We can conceive of no more niflcation.
suitable ground of application to " When the female is the injured

318

BEEAOH OF MAJBEIAGB PKOMISE.

party, there is generally more rea-
son for a resort to the laws than
when the man is the sufferer. Both
have a right of action, but the jury
will discriminate and apportion the
damages, according to the injury
sustained. A deserted female, whose
prospects in life may be materially
affected by the treachery of the
man to whom she has plighted her
vows, will always receive from a
jury the attention which her situa-
tion requires; and it is not disrepu-
table for one, who may have to
mourn for years over lost prospects
and broken vows, to seek such com-
pensation as the laws can give her.
It is also for the public interest, that
conduct tending to consign a virtu-
ous woman to celibacy, should meet
with that punishment which may
prevent it from becoming common.
The delicacy of the sex which hap-
pily, in this country, gives the man
so much advantage over the woman,
in the intercourse which leads to
matrimonial engagements, requires
for its protection and continuance
the aid of the laws. When it shall
be abused by the injustice of those
who would take advantage of it,
moral justice, as well as public pol-
icy, dictates the propriety of a legal
indemnity.

" This is not a new doctrine. As
early as the time of Lord Holt, it
was enforced, as the common law,
by that wise and learned judge and
his brethren, that a breach of prom-
ise of marriage was a meritorious
cause of action (Hutton v. Mansel,
3 Salk. 16; 3 Comyn on Contracts,
408); and although the value of a
marriage in money might have had
some influence on that decision,
there is no doubt that the loss sus-
tained in other respects — the
wounded spirit, the unmerited dis-
grace, and the probable solitude.

which would be the consequence?
of desertion after a long courtship —
were considered to be as legitimate
claims for pecuniary compensation,
as the loss of reputation by slander,
or the wounded pride in slight as-
saults and batteries."

Mr. Schouler, in 7th Southern L.
Review, 57, advances a different
view of the action. He says: "On
the whole, we may question whether
the right to sue for breach of prom-
ise is not productive of more evil
than good. It is admitted that only
one sex makes practical use of such
a remedy, though its logical appli-
cation should be mutual. It is ad-
mitted, too, that the marriage state
ought not to be lightly entered into;
that it involves the prof oundest in-
terests of human life, transmitting
its complex influences direct to pos-
terity, and invading the happiness
of parents and near kindred. From
such a standpoint, we view the mar-
riage engagement as a period of pro-
bation, so to speak, for both parties, —
their opportunity for finding one
another out; and if that probation
results in developing incompatibility
of tastes and temperament, cold-
ness, suspicion, an incurable repug-
nance of one "to the other, though
all this may impute no vice to either,
nor afford matter for judicial dem-
onstration, duty requires that the
match be broken off. What then
shall be the consequence to the party
who takes the initiative ? Analyze
our reported breach of promise cases ,
and you will see that the fair plaint-
iff is frail on the point most essen-
tial to womanly self-respect in the
majority of instances; that she has
unwisely granted to her lover the
indulgences of a husband, or that
she was a soiled dove when he of-
fered himself, or, more brazen still,
that she has been loose with other

BEEAOH OF MAKBIAGB PEOMISE. 319

matter of aggravation cannot be proved unless specially
alleged.^

Injtjet to feelings and other elements of damage. — As
the plaintiff is entitled to recover damages for injury to Tier
feelings, any circumstances may be proved which tend to in-
crease or mitigate this injury. The plaintiff may show that she
announced the fact of her engagement to her friends and in-
vited them to her wedding.^ She may prove that the defendant
assigned as a reason for discontinuing his attentions to her, that
she was a thief, and that she had submitted her person to his
pleasure ; evidence may be given of defamatory words, action-
able in themselves, or otherwise, as circumstances of contumely
and aggravation which attended the defendant's refusal to per-
form his coiltraot ; ' but it has been held not an indecent and an
insulting letter written by the defendant to the plaintiff after
the commencement of the action.* Any misconduct of the de-
fendant, however, in which the plaintiff did not participate, at
the time of the breach, or before or afterwards, tending to in-
crease the injury therefrom, may be shown, as well as loss of
time and expense incurred in preparations for marriage.* The
jury in estimating the damages, therefore, may well take into
account, as has been stated, the seduction of the plaintiff by
the defendant, as tending to increase the mortification and dis-
tress suffered by her.* In the exercise of their right to draw
inferences from facts proved, it is competent for the jury, in esti-
mating the damages, to consider the period of time that had

men while plighted in affection, ruption be yearly exposed to a jest-
That the man's virtue in such cases ing community, under the misnomer
wiU usually bear comparison, we of a blighted affection ? "
need not contend, since in practice i Leavitt v. Cutler, 37 "Wis. 46;
it is not he that invites litigation. Gates v. McKanney, 48 Ind. 563.
In the interest of morality, then, 2 Reed v. Clark, 47 Cal. 194.
and for the sake of compensating s Chesley v. Chesley, 10 N. H. 327.
the innocent few who complete this * G-reenleaf v. McCoUey, 14 N. H.
record (like the plaintiff in Heman 303.

V. Earle, 53 N. Y. 367), and whose SBaldy v. Stratton, 11 Pa. St. 316.

vows, moreover, were made in a be- See Smith v. Sherman, 4 Cush. 408;

fitting spirit (as, semble, was not Thorn v. Knapp, 43 N. Y. 474.

the case in MiUer V. Rosier, 31 Mich. •> Sherman v. Rawson, 103 Mass.

475), should so much festering cor- 895.

320 BREACH OF MAEEIAGE PEOMISE.

elapsed pending the engagement,^ the intimacy of the parties, the
frequency of the defendant's visits, the time, place and circum-
stances of making such visits; the imputations, if any, cast
upon the plaintiff's character, under the circumstances, by the
defendant's denial, on oath, that notwithstanding all these con-
siderations, he ever promised or intended to marry her.'' In
such a case, if the jury discredit the defendant's testimony in
such denial, they have a right to regard it as an attempt on the
part of the defendant, in the most public and solemn manner,
to excite groundless suspicions against the plaintiff's character.'
In fixing the amount of damages the jury may take into con-
sideration the nature of the defense set up by the defendant ;
if by pleading or evidence he attempt to justify or palliate his
abandonment or breach of the contract to marry, on the ground
of any misconduct or bad character of the plaintiff, and he
fails to establish the same, and had no reasonable grounds for
believing any such objections to exist, such defamatory and
fraudulent defense may be considered by the jury as increas-
ing the injury and justifying a larger verdict.* To justify any
increase of damages on account of such defense not established,
the jury should be satisfied that it is interposed in bad faith.'
It is the policy of the law to encourage matrimony, and
society has an interest in contracts of marriage both before and
after they are consummated. A man who enters into a con-
tract of marriage with improper motives, and then ruthlessly
and unjustifiably breaks it off, does a wrong to the woman, and,
also, in a more remote sense, to society ; and he needs to be
punished in the interest of society, as well as the man who
commits a tort under circumstances showing a bad heart. The
rule of damages applicable to ordinary contracts would be
wholly inadequate; — so m^jch depends upon the circumstances
surrounding it, and upon the conduct, standing and character of

1 Grant v. WiUey, 101 Mass. 356; Kniflfen v. McConnell, 30 N. T. 285;
Miller v. Rosier, 81 Mich. 475. Thorn v. Knapp, 43 N. Y. 474.

2 Lawrence v. Cooke, 56 Me. 187. 'Leavitt v. Cutler, 37 Wis. 46;

3 Id. Simpson v. Black, 27 Wis. 206; Pow-
<Denslow v. Van Horn, 16 Iowa, ers v. Wheatly, 45 Cal. 113; Clark v.

476; Southard v. Eexford, 6 Cow. Reese, 35 Cal, 89; Blackburn v.
254; Reed v. Clark, 47 Cal. 194; Mann, 85 111. 222.
White V. Thomas, 13 Ohio St. 312;

BEEACH OF MAEEIAGE PE0MI8E.

321

the parties. Accordingly, in actions for breach of promise of
marriage, where it appears that the contract was made and
broken, exemplary damages may be given if the defendant
was actuated by such motives and has been guilty of such a
ruthless and unjustifiable breach.^ The jury may give such an
amount of damages, not flagrantly excessive and disproportion-
ate to the injury, as will mark their disapprobation, and deter
others from th§ violation of such sacred promises.^ For this
purpose the jury may take into consideration all the facts and
circumstances of the case, and the conduct of both parties
towards each other, and particularly the conduct of the defend-
ant, in his whole intercourse with, and treatment of, the plaint-
iff, in connection with the making and breach of the contract,
and afterwards up to and including the defense and trial of
the action. It is, among other facts, a legitimate subject for
the consideration of the jury, if the fact is so, that the defend-
ant not only abandoned the plaintiff and trifled with her affec-
tions, but had sought to disgrace her and ruin her character.^

1 Thorn v. Knapp, 43 N. Y. 474;
CoryeU v. Colbaugh, 1 N. J. L. 77;
Johnson v. Jenkins, 34 N. Y. 353.

2 Coil V. WaUace, 34 N. J. L. 391.

3 Thorn v. Knapp, supra, per
Smith, J. The /general principles
here stated, it is believed, are sus-
tained by the best authorities, and,
considering the excejDtional charac-
ter of the action, are just and rea^
sonable. They are also ably discussed
and illustrated by Earl, 0. J., in
the same case. He says: " In such
actions it is not only proper to show
the main transaction, btit any facts
bearing upon or relating to it, show-
ing that it was done wantonly, ma-
liciously and wickedly, with the
view of enhancing the damages. It
is upon this theory that, in an action
of slander, the plaintiff is permitted
to prove the repetition of the slan-
derous words subsequent to the time
alleged in the complaint, even down
to the trial. This proof is allowed.

Vol. Ill— 31

not to sustain the action, and for the
purpose of recovering damages for
the words thus repeated, but solely
for the purpose of proving the mal-
ice which prompted the utterance-
of the words counted on, and thus,
bearing upon the damages to be al-
lowed on account of them. And80^
if, instead of repeating the slander-
ous words orally, they are repeated
by being set up as a justification or
in mitigation in the answer, and
thus placed upon the records of the
court, and the defendant fails to
prove them, for precisely the same
reason, and upon the same theory,
the damages may be enhanced. So
in an action for breach of promise of
marriage, it is always competent, for
the purpose of enhancing the dam-
ages, to prove the motives that actu-
ated the defendant; that he entered
into the contract and broke it with
bad motives and a wicked heart; and
it is competent for him to prove, in

322

BEEAOH OF MAEEIAGE PEOMISE.

If the abandonment of the plaintiff by the defendant was
wanton and ruthless, and so accomplished as to manifest an
intent unnecessarily to wound her feelings, injure her reputa-
tion, and destroy her future prospects, all the circumstances
showing the defendant to have been influenced by bkd motives
may be proved, and then the largest measure of damages, not
only by way of compensation to the plaintiff, but by way of
punishment to the defendant, are proper.^ On the contrary, if
the breach of promise was occasioned by a change of circum-
stances, which, without legally justifying, took from the aban-
donment all its character of cruelty and wantonness, and the
defendant, in withdrawing from his engagement, was tender of

mitigation of damages, that his mo-
tives were not bad, and that his con-
duct was neither cruel nor malicious.
In the case of Johnson v. Jenkins,
24 N. Y. 252, it was held competent,
in mitigation of damages, for the
defendant to prove, when asked by
the plaiutiif why he had discontin-
ued his visits to her, he declared
that his affection and regard for her
were undiminished, but that he
could not marry her, because his
parents were so violently opposed
to the match. Judge Allen, writing
the opinion of the court, says:
' Every circumstance attending the
breaking off of the engagement be-
comes part of the res gestce. The
reasons which were operative and
influential with the defendant are
material, so far as they can be ascer-
tained; and whether they are such
as, tending to show a willingness to
trifle with the contract and with
the rights of the plaintiff, should
enhance the damages, or, on the
contrary, showing a motive consist-
ent with any just appreciation of
and regard for his duties, should
confine the damages within the
limit of a just compensation, will
always be for the jury to determine.'
' Had the defendant, by his declara-

tions, shown a wicked mind in the
transaction, it is evident that they
very properly would have been sub-
mitted to the jury further to en-
hance the damages.' Suppose he
had told the plaintiff, at any time
before the trial of the action, tjjat
he had discontinued his visits and
broken the contract because she was
a prostitute; could she not, upon the
same principles, have proved this in
enhancement of damages ? No dam-
ages could be allowed for defaming
her by the utterance of these words,
but they could be proved as show-
ing the mind with which the con-
tract was broken, and as thus bearing
upon the damages to be allowed for
that. So if this language, instead
of being uttered orally, is placed
upon the record in the answer, for
the same reason, and upon precisely
the same principle, if the defend-
ant fails to prove it, and it turns out
to be untrue, it may be taken into
consideration by the jury in aggra-
vation of damages." On this prin-
ciple it would seem proper that the
jury should consider the letter ex-
cluded in Greenleaf v. McColley, 14
N. H. 303, and the afi&davit excluded
in Leavitt v. Cutler, 37 Wis. 46.
1 Johnson v. Jenkins, 24 N. Y. 253.

BEEACH OF MABBIAGB PEOMISB. 323

the feelings and reputation of the plaintiff, and so accomplished
his purpose as to leave no stain upon her reputation, and do the
least injury to her feelings and future prospects, it would be a
case for compensatory damages merely.^

Damages foe the loss oe maeeiage. — In determining the
damages for the loss of marriage, where no special damages are
alleged, the jury may take into view the money value or worldly
advantages, separate from considerations of sentiment and af-
fection, of the marriage which would have given her a perma-
nent home and an advantageous establishment; and if her
affections were in fact implicated, and she had become attached
to the defendant, the injury to her affections may be considered
as an additional element of damage.^

It is proper for the jury to consider the pecuniary as well as
' the social standing of the defendant, as tending to show the
condition in life which the plaintiff would have secured by the
marriage.' In these cases the jury should take into consideration
the rank and condition of the parties, the estate of the defend-
ant, and all the facts proven in the case.* And the amount of
damages not being capable of measurement by any precise rule,
. it is left for decision to the discretion of the jury, on the cir-
cumstances of each particular case,' subject to the power of
the court to set aside the verdict, when it appears that the jury
has been misled or influenced by passion or prejudice.^

1 Johnson v. Jenkins, 24 N. Y. 353. v, Farr, 1 Younge & J. 477; GoodaU

2 Harrison v. Swift, 13 Allen, 144. v. Thurman, 1 Head, 309. In Smith

3 HoUoway v. Griffith, 33 Iowa, v. Woodflne, 1 C. B. N. S. 660, Cress-
409. well, J., said: " I am far from deny-

* Id. ; Jarvis v. Johnson, 3 Western ing that there may be oases in which

L. Monthly, 389; Eoyal v. Smith, 40 it may be the duty of the court to

Iowa, 615; Reed v. Clark, 47 Cal. interfere with the verdict of the

194. jury. If, for instance, it appeared

5 Southard v. Eexford, 6 Cow. 354; that it had been obtained by means

Welbar v. Johnson, 58 Mo. 609; Hoi- of perjury, that would be ground

loway Y. Griffith, 33 Iowa, 409; for setting aside the verdict. So, if

Lawrence v. Cooke, 56 Me. 187; it were shown that evidence was

GoodaU V. Thurman, 1 Head, 809; given which had taken the defend-

Denslow v. Van Horn, 16 Iowa, 476. ant by surprise, and which he could

^Wilbur V. Johnson, 58 Mo. 600; have had no opportunity to meet.. It

Collins V. Mack, 31 Ark. 684; Doug- is said here that the defendant was

lass V. Gausman, 68 111. 170; Gough surprised at the amount at which

324: BEEAOH OF MAEEIAGE PEOMISE.

"Where the plaintiff introduces no proof as to the defendant's
pecuniary condition, it has been held that the latter cannot bring
in such testimony on his own behalf to reduce the amount of
damages.' But as damages for loss of marriage are to be ascer-
tained by considering the rank and condition of the parties,
and as the pecuniary standing of the defendant is a material
element, the offer of proof of that condition by the defendant
is not so much to reduce damages as to exhibit the state of
facts from which they are primarily to be determined. The
true principle is well stated in an Iowa case.^ "While in such
action the question, whether the defendant will, in view of his
pecuniary circumstances, be able to pay the damages awarded,
should have no influence with the jury in estimating the
amount of their verdict, they may, nevertheless, properly con-
sider the pecuniary as well as social standing of the defendant,
as tending to show the condition in life which the plaintiff
would have secured by a consummation of the marriage con- '
tract.' In a Maine case the instruction of the trial court to
the jury was approved, to the effect that, if the jury found for
the plaintiff, the rule in actions of this sort, as in other cases,
is, that the plaintiff is entitled to such damages as will place
her in as good condition as she would have been in if the con-

his property was estimated by the under any prejudiced view, or that

plaintiff's witnesses. . . . But at they misunderstood any particular

all events, it cannot be said that the piece of evidence. There has been

plaintiff artfully relied on the state- no perjury, no surprise, no preju-

ments of the defendant, and ab- dice, no mistake. But it is said that

stained from giving other evidence the jury have awarded the plaint-

in her power, in order to mislead iff an unreasonable and excessive

the jury as to the value of the de- amount of damages. No legitimate

fendant's property. Was it surprise ground being laid for it, it seems to

that the question as to his circum- me that we should be guilty of a

stances was entered into ? Certainly most inconvenient and unconstitu-

not; for that is an inquu-y that is in- tional exercise of our power, if we

variably gone into in cases of this took upon ourselves to interfere with

sort, and therefore it was his duty the discretion which the law has, in

to be prepared for it. . , . There a peculiar manner, vested in the

has been no perjury, and no fraud jury in cases of this sort." See

or misconduct on the part of the Berry v. Vreeland, 31 N. J. L. 184.
plaintiff to deprive the defendant of i Wilbur v. Johnson, 58 Mo. 600.
a fair opportunity of laying his case 2 HoUiday v. Griffith, 33 Iowa,

before the juiy ; nor is there any sug- 409.
gestion that the jury were acting 3 Royal v. Smith, 40 Iowa, 615.

BBEAOH OB" MABEIAGB PBOMISE.

325

tract had been fulfilled. The instruction was construed as
referring to her pecuniary condition. Her loss of pecuniary
support is one of the elements of damage. Evidence of the
defendant's pecuniary ability was properly introduced to show
the probable character of such support. The iustruotion was
treated as calling for the judgment of the jury upon the ques-
tion of the pecuniary value to the plaintiff of a matrimonial
alliance with the defendant, and in that view was held un-
objectionable.i

What will excuse a beeaoh of the conteaot. — A man is
not legally holden on his promise of marriage, and he may
justify his refusal to fulfil it, if he entered into the engagement
in ignorance of the fact that the woman has had an illegitimate
child, or has committed fornication with other men, and on
that ground declines entering into the marriage.^

All promises of this kind are founded upon the presumption
of chastity on the part of the woman. This is the considera-
tion of the contract, and where that consideration is discovered

1 Lawrence v. Cooke, 56 Me. 187.
In MiUer v. Rosier, 31 Mich. 475, the
court held such an instruction erro-
neous; that the elements of such a
rule are too complicated and con-
jectural to be of service as a guide
to the jury.

2 Bench v. Merrick, 1 C. & K. 463
Irving V. Gi-eenwood, 1 C. & P. 350
Boynton v. Kellogg, 3 Mass. 189
Berry v. Bakeman, 44 Me. 164. In
Wharton v. Lewis, 1 C. & P. 539, it
was held that if it appear that the
defendant was induced to make the
promise, or to continue the connec-
tion, either by misrepresentation or
vdlful suppression of the real state
of the circumstances of the family,
and previous life of the plaintiff,
this goes in bar, and not to the dam-
ages only. And in Baddeley v.
Mortlock, 1 Holt. N. P. 151, which
was an action against a woman for
breach of a promise of marriage, it
was held a sufficient justification for

non-performance, that the person to
whom she had given the promise
turned out upon inquiry to be a man
of bad character. The bad conduct
charged against the plaintiff was
dishonesty in some pecuniary con-
cerns and perjury.

In Foulker v. Sellway, 3 Esp. 236,
Lord Kenyon ruled that where the
defendant relies upon general bad
character, a witness may be ex-
amined as to representations made
to him by third persons.

In Berry v. Bakeman, 44 Me. 164,
Tenny, 0. J., said no case has been
found which sustains the principle
that a breach of the criminal law
by the plaintiff, accruing after the
promise, or before the promise, of
which the party contracting is igno-
rant, wUl necessarily be a bar to a
suit, but such conduct would be
material on the question of dam-
age.

326 BREACH OF MAEEXAGE PEOMISE.

to have failed, she has herself been guilty of the first breach.*
And if she be guilty of such immorality after the promise, it
will be a bar.^ But if the defendant made his promise with
knowledge of such past misconduct with other men, or if such
misconduct occur afterwards with his connivance, it is no bar.'
Jja. an early Massachusetts case,^ the following distinctions were
declared as law, and they appear to be generally recognized by
later adjudications : 1. That if the woman was of bad charac-
ter at the time of the contract, and that was unknown to the
defendant, the verdict ought to be in his favor. 2. If the
plaintifif after the promise had prostituted her person to any
other than the defendant, she tbereby discharged the defendant.
3. If her conduct was improperly indelicate, although not
criminal, before the promise, and it was unknown to the de-
fendant, it ought to be considered in mitigation of damages.
i. If such was her conduct after the promise, it was prope r, in
the same view, for the consideration of the jury. So, when a
man breaks off the engagement after he has seduced the woman,
and does so on grounds furnishing . no excuse or reason, and on
the trial produces evidence of her previous incontinence before
or during the engagement, of which he had no knowledge or
suspicion before he so broke off the engagement, such evidence,
if believed, will go in mitigation only, and not in bar of dam-
ages.'

"What mat be peoted m MxriGATioN. — If a man promise to
marry a woman, knowing at the time that she had borne an
illegitimate child, or that she is a loose and immodest woman,
he is bound by his contract, and if he refuse, he must respond
to an action for damages.^ Such actions, however, are brought
to recover, among other things, for injury to reputation, and
therefore it is involved in such actions ; and must necessarily

iBudd V. Crea, 6 N. J. L. 370. 6 Irving v. Greenwood, 1 C. & P.

2Boynton v. Kellogg, 3 Mass. 189; 350; Bench v. Merrick, 1 C. & Ker.

Burnett v. Simpkins, 24 111. 264. 463; Denslow v. Van Horn, 16 Iowa,

3 Denslow v. Van Horn, 16 Iowa, 476; Morgan v. Yarborough, 5 La.

476; Burnett v. Simpkins, 24 111. 264; Ann. 316; Woodai-d v. Bellamy, 3

Johnson v. Smith, 3 Pittsb. 184. Eoot, 354; Johnson v. Oaulkins, 1

iBoynton v. Kellogg, supra. John. Cas. 116; Johnson v. Smith, 3

5Sheahan v. Barry, 37 Mich. 217. Pittsb. (Pa.) 184.

BEEACH OF MAEEIAGE PEOMISE. 32^7

depend on the general conduct of the party subsequent as well
as previous to the injury complained of.' It may be the subject
of inquiry on the question of damages, for a loose and immodest
woman cannot be said to be entitled to so large a compensation
as one on whose reputation no imputation has ever rested.^
Any misconduct showing that the party complaining would be
an unfit companion in married life may be given in evidence in
mitigation of damages.' But the defendant cannot reduce
damages by showing his want of affection for the plaintiff, and on
the assumption that he would not fulfil the duties of a husband.*
She may, however, show that she is sincerely attached to de-
fendant.* So it has been held that declarations by the plaintiff,
made after the breach, that she would not marry the defendant
but for his money, may be proved by the defendant in mitiga-
tion.^ But such declarations made after the commencertient of
the action have been excluded.'' The defendant may show
instances of licentious conduct in the plaintiff, and her general
character as to sobriety and virtue.* A defendant, however,
who was shown to have seduced the plaintiff and gotten her
with child, was held not entitled to prove her general reputa-
tion. Parker, J., said : " It appears from the declaration in this
case, that the plaintiff had been seduced by the defendant, and
that pregnancy was the consequence of the seduction. This,
of itself, would degrade her in the estimation of the public ;
and the defendant wishes to avail himself of this degredation,
a consequence of his own misconduct, to avoid the plaintiff's
action, or to reduce the sum she may recover in damages. ISTo
argument can show the absurdity of such a proposal in a

iWaiard V. Stone, 7 Cow. 22; ^ Piper v. Kingsbury, 48 Vt. 480.

Johnson v. Caulkins, 1 John. Cas. See HaU v. Wright, 96 Eng. C. L.

116; S. C. 3 id. 437. 745, 763.

2 Bench V. Merrick, 1 C. & K. 463; ^Sprague v. Craig, 51 lU. 288.
Johnson v. Cauikins, supra; Von ^ Miller v. Eosier, 31 Mich. 475.
Storch V, GriiBn, 77 Pa. St. 504; "MiUer v. Hayes, 34 Iowa, 496.
Buddv. Crea, 6N. J. L. 370; Butler 8 Johnson v. Caulkins, supra;
V. Eschleman, 18 111. 44; Burnett v. Foulkes v. Sellway, 3 Esp. 236;
Simpkins, 34 III. 364; Denslow v. Williams v. Hollingsworth, 6 Baxt.
Van Horn, 16 Iowa, 476; Palmer v. (Tenn.) 12; Cole v. HoUiday, 4 Mo.
Andrews, 7 Wend. 143. App. 94; Button v. McCauley, 38

3 Button V. McCauley, 5 Abb. N. S. Barb. 413, 417, 418; S. C. 5 Abb. N.
29. S. 39.

328 BREACH OF MAEEIAGE PROMISE.

stronger light than the bare statement of it. A gentleman,
under pretense of courtship, pursues a lady to seduction, leaves
her to suffer the pain and ignominy which necessarily follow,
and Trhen she appeals to the laws of her country for a pecun-
iary satisfaction, even that, inadequate as it is, is to be resisted
or reduced, by arguing her ignominy as a reason why she should
not recover. To permit such a defense would be a reproach upon
the administration of justice." ^ Nor wiU a defendant be per-
mitted to show, by general reputation, that after the promise,
another had supplanted him in the affections of the plaintiff.'^
The defendant may prove in mitigation of damages, that, at
the time of the breach, he was afflicted with an incurable dis-
ease.' The defendant cannot affect his liability for breach by
subsequently offering to fulfil the contract.* Where seduction
is proved by way of aggravation, its consideration in that
view cannot be excluded on account of the existence, or even
the prior actual enforcement, of the parent or master's right of
an action for that wrong ; for such action is not for the same
injury; although the damages they may recover for loss of
service are allowed to be much larger than the value of wages
could have been, they are, nevertheless, in legal contemplation,
the damages of the parent or master and not of the woman.'

iBoyntonv. Kellogg, 3 Mass. 187; ^Southard v. Eexford, 6 Cow.

Espy V. Jones, 37 Ala. 379. 254; HoUoway v. Griffith, 32 Iowa,

^WiUard v. Stone, 7 Cow. 22. 409.

3 Sprague v. Craig, 51 lU. 288. See ssheahan v. Barry, 27 Mich. 317;

Hall V. Wright, 96 Eng. C. L. 745. Wells v. Padgett, 8 Barb. 333.

£J£OXM£J!IT.

329

CHAPTEK XrV.

EJECTMENT.

Kemedt foe damages in this OOUNTET (JENEEALLT statu-
TOET.^ The damages for withholding possession of real property
are recoverable in this country by proceedings to a great extent
regulated by statute ; either in the action for recovery of posses-
sion of real estate, or in a supplementary suit or proceeding.'

I In Alabama it is provided by-
statute that actions to recover the
possession of land may be brought
in the nature of an action of eject-
ment (Code 1876, § 2959), or the
plaintiff may proceed by the action
of ejectment as established at com-
mon law. Id. Damages may be
recovered in the statutory action,
and must be comiputed to the time
of the verdict. §2957. Where there
are more defendants than one, the
jury may assess damages arising
from the detention of the land, and
injury thereto, in severalty, against
each defendant for distinct dam-
ages. § 2964. But a tenant in
possession, and asserting his right
thereto, londer a lease or license
from another, is not liable beyond
the rent ia arrear at the time of
suit brought, and that which may
accrue during the continuance of
his possession. § 2965. And per-
sons holding possession under color
of title, in good faith, are not re-
sponsible for damages or rent for
more than one year before the com-
mencement of the suit. § 2966.
The defendant may suggest upon
the record that he, and those whose
possession he has, had adverse pos-
session for three years next before
the commencement of the suit.
In such case, if the jury find for

the plaintiff, they must also ascertain
by their verdict whether such sug-
gestion be true or false. § 2951. If
found true, the verdict must show
the value of the land, the improve-
ments and the rents; if found to be
false, the jury must return a verdict
as in ordinary cases for damages.
If the value of the improvements is
greater than the rents, the posses-
sion of the land may be retained by
the defendant for one year, unless
the excess of the assessed value
thereof be paid by the plaintiff; and
if the same is not paid within one
year, then the defendant, on pay-
ment of the value of the land,
acquires a good title. Code, §§
3952-2954.

In Arkansas the action of
ejectment may be maintained in
all cases where the plaintiff is
legally entitled to possession of the
premises. Ark. Dig. 1858, ch. 61.
And the plaintiff may claim dam-
ages in his declaration. § 8. If
the plaintiff prevail in the action,
he may recover, by way of dam-
ages, the mesne profits, except
where the plaintiff, or those "under
whom he claims title, may have
entered, in any United States land
office within the state, the improve-
ments of the defendant, and the
action is brought to recover the

330

EJECTMENT.

possession of such improvements;
in that case the plaintiff can recover
no damages. § 15. If the right of
the plaintiff to the possession expire
after the commencenaent of the
action, and. before the trial, the
verdict must be returned according
to the fact, and judgment entered
only for damages and costs. § 16.

In California the plaintiff may
unite in his complaint claims to
recover specific real property, with
or without damages for the with-
holding thereof, -or for waste com-
mitted thereon, and the rents and
profits of the same. Code 1876,
§ 437; Statutes of Nevada, Code
1869, § 1137; Arizona C. L. 1877,
§ 3500; Utah C. L. § 1389. "Where
the plaintiff shows a right to recover
at the time the action was com-
menced, but it appears that his right
has terminated during the pendency
of the action, the verdict and judg-
ment are required to be according
to the fact; and the plaintiff may
recover damages for withholding
the property. § 740; Utah Statutes,
§ 1481; Statutes of Nevada, Code
1869, § 1319; Ohio Code, § 61. Also
Statutes of Minnesota, R. S. 1866,
p. 539, § 4; Arizona C. L. 1877, § 3694;
Kansas Stat. Gen. St. p. 748, § 598;
Nebraska E. S. pt. 3, tit. 7, ch. 6, § 133;
tit. 18, oh. 1, §§ 636-633. When
damages are claimed for withhold-
ing the property recovered, upon
which permanent improvements
have been made by a defendant, or
those under,whom he claims, holding
under color of title adversely to the
claims of the plaintiff, in good faith,
the value of such improvements
shall be allowed as a set-off against
such damages. § 741; Statutes of
Nevada, Code 1869, § 1320; Arizona
C. L. 1877, § 2695.

In Connecticut the action of dis-
seizin or ejectment is commenced

and prosecuted like a personal
action. Gen. St. 1875 tit. 19, ch. 5,
§§ 7, 8. Any defendant in posses-
sion, who has purchased the lands
believing that he accquired an
unconditional title by such Tpwc-
chase, or who holds under those
who have purchased, or who have
derived a supposed title by devise,
inheritance, or otherwise, from
those who have thus purchased,
and such defendant, or those under
whom he holds, or from whom he
cla,ims to have derived a title, have
made valuable improvements there-
on, under a belief that he or they
acquired a good title by such pur-
chase, devise, inheritance, or other
conveyance, and the verdict of the
jury shall be for the plaintiff, the
court before whom such action may
be pending may allow the defend-
ant for the improvements, after
deducting a reasonable sum for the
use of such land, to be adjusted by
an accounting; and if the plaintiff
so elect in such case, the court may
confirm the title to such land in the
defendant, on payment of such sum
as the court shall find in equity
ought to be paid to the plaintiff.
Id. title 18, ch. 7, § 17.

In Colorado, by the territorial
statutes of 1867, p. 279, it is pro-
vided:

Sec. 82. The plaintiff recovering
judgment in ejectment in any of the
cases in which such action may be
maiutained, shaU also be entitled to
recover damages against the defend-
ant for the rents and profits of the
premises recovered.

Sec. 83. Instead of the action of
trespass for mesne profits heretofore
used, the plaintiff seeking to recover
such damages shall, within one year
after the entering of the judgment,
make and file a suggestion of such
claim, which shall be entered with

EJEOTMENT.

331

the proceedings thereon upon the
record of such judgment, or be at-
tached thereto as a continuation of
the same.

Sec. 34. Such suggestion shall be
substantially in the same form as is
now in use for a declaration in an
action of assumpsit for use and oc-
cupation, as near as may be; and
it shall be served on the defendant
in the same manner hereinbefore
prescribed, respecting the service of
a Bummons in ejectment; and the
same rules of pleading thereto shall
be observed as upon a declaration in
personal actions.

Sec. 35 provides that if issue be
found for the plaintiff, the same
jury shall assess his damages to the
amount of the mesne profits re-
ceived by the defendant since he
entered into possession of the prem-
ises, subject to certain restrictions.

Sec. 38. The plaintiff is required
to establish, and the defendant may
controvert, the time when the de-
fendant entered into possession, —
the time during which he enjoyed
the mesne profits is not evidence of
such time. The defendant is to
have the same right to set off any
improvements made on the prem-
ises, to the amount of the plaintiff's
, claim, as may be allowed by law,
and in estimating the plaintiff's dam-
ages, the value of the use by the de-
fendant of any improvements made
by him is not to be allowed to the
plaintiff.

Sec. 43. Every person who may
hereafter be evicted from any land
for which he can show a plain clear
and connected title in law or equity,
deduced from the record of some
public office, without actual notice
of an adverse title, in like manner
derived from record, shall be exempt
and free from all and every species of
action, writ or prosecution, for or

on account of any rents or profits,
or damages which shall have been
done, accrued or incurred, at any
time prior to receipt of actual no-
tice of adverse claim, by which the
eviction may be effected, provided
such person obtained peaceable pos-
session of the land.

Dakota (Revised Code of 1877, ch.
29):

§ 635. An action may be brought
by any person against another who
claims an estate or interest in real
property adverse to him.

§ 640. In such action, where the
plaintiff shows a right to recover at
the time the action was commenced,
but it appears his right has termi-
nated during the pendency of the
action, the verdict and judgment
must be according to the fact, and
the plaintiff may recover damages
for withholding the property.

§ 641. Where improvements have
been made by a defendant or those
under whom he claims, holding un-
der color of title adversely to the
claim of the plaintiff, in good faith,
the value of such improvements
must be allowed as a counter-claim
to such defendant.

§ 644. The judgment of the court
upon such finding, if in favor of the
plaintiff for the recovery of the
real property, and in favor of the
defendant for the counterclaim,
shall require such defendant to pay
to the plaintiff the value of the land
as determined by such finding, and
the damages, if any, recovered, for
withholding the same, and for waste
committed upon such land by the
defendant, within sixty days from
the rendition of such judgment,
and in default of such payment by
the defendant, that the plaintiff
shall pay to the defendant the value
of the improvements as determined
by such finding, less the amount of

332

EJECTMENT.

damages so recovered by plaintiflf
for withholding the property, and
for any waste committed upon such
land by the defendant; and until
such payment or tender and deposit
no execution or other process shall
issue in such action to dispossess
sUch defendant, his heirs or assigns.

In Delaware the common law ac-
tion of ejectment is in use.

In Florida the party claiming may
bring his suit directly against the
party in possession or one claiming
adversely; the declaration must con-
tain a plain statement of the cause
of action to entitle him to recover
the land in controversy, together
with the mesne profits. Digest of
Laws, 1881.

In Georgia it is provided by stat-
ute that the plaintiff in ejectment
may add a count in his writ or dec-
laration, and submit the evidence to
the jury, and recover by way of
damages all such sums of money to
which he may be entitled by way of
mesne profits, together with the
premises in dispute. The count for
mesne profits may be in the name of
the nominal or real plaintiff in the
action; and no plaintiff in eject-
ment can have and maintain a sepa-
rate action in his behalf for the
recovery of inesne profits which
may have accrued to him from the
premises in dispute. Rev. Code,
1873, §§ 3356, 3357.

Idaho (Revised Laws, 1875, §§275,
378):

Actions may be brought by any
person against another, who claims
an estate or interest in real property
adverse to him, for the purpose of
determining such claim.

If the defendant disclaim any in-
terest or estate in the property, or
suffer judgment to be taken, the
plaintiff shall not recover costs.

In such action, when the plaintiflf

shows a right to recover at the time
it was commenced, but it appears
his right was terminated during the
pendency of the action, the verdict
and judgment shall be according to
the fact, and the plaintiff may re-
cover damages.

Where permanent improvements
have been made, their value shall
be allowed as a set-off.

In Indiana, under the statutes of
1881, the plaintifif cannot recover for
the use and occupation of the prem-
ises for more than six years next
before the commencement of the ac-
tion; but may recover in the same
action for use and occupation up to
the time of its termination. § 1058.
If the interest of the plaintiff ex-
pire before the time in which he
could be put in possession, he shall
obtain judgment for damages only.
§ 1059.

When the plaintiff, in an action of
this nature, is entitled to damages,
for withholding, or using, or injur-
ing his property, the defendant may
set off the value of any permanent
improvements made thereon, to the
extent of such damages, uule.ss he
prefers to avail himself of the law
of occupying claimants. § 1061.

In case of wanton aggression on
the part of a defendant, the jury
may award exemplary damages.
§ 1063.

When an occupant of land has
color of title thereto, and in good
faith has made valuable improve-
ments, and is afterwards, in a proper
action, found not to be the rightful
owner thereof, no execution shall
issue to put the plaintiff in posses-
sion until certain provisions are
complied with.

These consist in a finding by a
jury: 1. The value of all lasting
improvements made previous to the
commencement of the action. 3. The

EJECTMENT.

333

damages, if any, from waste or cul-
tivation to the time of rendering
judgment. 3. The fair value of the
rents and profits which may have
accrued, without the improvements,
to the time of rendering judgment.

4. The value of the estate which the
successful claimant has in the prem-
ises, without the improvements.

5. The taxes, with interest, paid by
the defendant, and by those under
whose title he claims. Then the
plaintiff may pay the appraised
value of the improvements, and the
taxes paid, with interest, deducting
the value of the rents, profits and
damages, as assessed on the trial,
and take the property. If he fails
to do this within a reasonable time,
fixed by the court, the defendant
may take the property upon paying
the appraised value of the land, aside
from the improvements. If this be
not done within a reasonable time, to
be fixed by the court, the parties are
tenants in common of all the lands,
including the improvements, each
holding an interest proportionate to
the value of the property, as ascer-
tained by the jury. §§ 1076, 1077,
1078, 1079.

By the statutes of Iowa, 1880,
§ 3250, the petition in actions for the
recovery of real estate may state
generally that the plaintiff is enti-
tled to the possession of the prem-
ises, particularly describing them;
also the quantity of his estate and
the extent of his interest therein,
and that the defendant unlawfully
keeps him out of possession, and
the damages, if any, which he
claims for withholding the property;
but if he claims other damages than
the rents and profits, he shall state
the facts constituting the cause
thereof.

If the interest of the plaintiff ex-
pire before the time in which he

could be put in possession, he can
obtain judgment for damages only.
§ 3360.

The plaintiff cannot recover for
use and occupation of the premises
for more than six years prior to the
commencement of the action. § 3261.

When the plaintiff is entitled to
damages for withholding, or using,
or injuring his property, the de-
fendant may set off the value of
any permanent improvements made
thereon to the extent of the dam-
ages, unless he pi-efers to avail him-
self of the law for the benefit of
occupying claimants. § 3362. In
case of wanton aggression on the
part of the defendant, the jury
may award exemplary damages.
§ 3363. A tenant in possession in
good faith, under a lease or license
from another, is not liable beyond
the rent in an*ear at the time of
the suit brought for the recoveiy of
the land, and that which may after-
wards accrue duiing the continu-
ance of his possession. § 3264. The
statute also provides for a defendant
retaining, as security for rent, tlie
possession, for a limited time, where
he alleges that he has a crop sowed,
planted or growing on the premises,
and that fact is found by the jury.
§ 3365.

The statute of this state for relief
of occupying tenants is like that of
Indiana. § 1976 et seq.

By statute in Illinois, the plaintiff
recovering judgment in ejectment
in any of the cases in which the
action may be maintained is entitled
to recover damages against the de-
fendant for the rents and profits of
the premises recovered; but instead
of the action of trespass for mesne
profits, the plaintiff seeking to re-
cover such damages must file a sug-
gestion of the claim and have it
entered upon the record of the judg-

334

EJECTMENT.

ment in ejectment, or attached
thereto as a continuation of the
same. It is substantially like a
declaration for use and occupation;
the defendant may plead to it the
general issue of non-assumpsit, and
under this plea give notice of, or
plead specially, any matter in bar,
except such as might have been con-
troverted in the action of ejectment.
If the issue be found in favor of the
plaintiff, the jury must assess his
damages to the amount of the
mesne profits received by the de-
fendant since he entered into the
possession of the premises. On the
trial of such issue, the plaintiff is re-
quired to establish, and the defend-
ant may controvert, the time during
which he enjoyed the mesne profits
thereof, and the value of such profits,
and the record of the recovery in
the action of ejectment will not be
evidence of such time. On such
trial the defendant has the same
right to set off any improvements
made on the premises, to the amount
of the plaintiff's claim, as is allowed
by law; and in estiuiating the
plaintiff's damages, the value of the
use by the defendant of any im-
provements made by him is not to
be allowed to the plaintiff. If no
issue be joined on such suggestion,
or if judgment by default, on de-
murrer or otherwise, be rendered, a
writ of inquiry to assess the value
of the mesne profits is to be issued,
and on the execution of it the
plaintiff must establish the same
matters as on an issue, and the de-
fendant may controvert the same,
and make any set-off to which he is
entitled, and the jury must assess
the damages in the same manner.
C!othran's ed. of Stats, of lU. 1881,
ch. 45.

Kansas, C. L. 1879, ch. 80, article
25, § 601:

In aU cases, any occupying claim-
ant, being in quiet possession of any
lands or tenements for which such
person can show a plain and con-
nected title, inlaw or equity, derived
from the records of some pubUc
office, or being in quiet possession
of, and holding the same by deed,
devise, descent, contract, bond or
agreement, from and under any per-
son claiming title, as aforesaid, de-
rived from the records of some
public office, or by deed duly au-
thenticated and recorded; or being
in quiet possession of, and holding
the same under sale on execution or
order of sale, against any person
claiming title as aforesaid, derived
from the records of some public of-
fice, or by deed duly authenticated
and recorded; or being in possession
of, and holding any land under any
sale for taxes, authorized by the
laws of this state or the laws of the
territory of Kansas; or any person
or persons, who have made a bona
fide settlement and improvement
which he, she or they stiU occupy,
upon any of the Indian lands lying
in this state, or any lands held in
trust for the benefit of any Indian
tribe at the date of such settlement,
or which may have heretofore been
Indian lands, and which were vacant
and unoccupied at the date of such
settlement, and where the records
of the county show no title or claim
of any person or persons to said
lands at the time of such settlement;
or any person in quiet possession of
any land, claiming title thereto, and
holding the same under a sale and
conveyance, made by executors, ad-
ministrators or giiardians, or by any
other person or persons, in pursu-
ance of any order of court, or decree
in chancery, wherelands are or have
been directed to be sold, and the
purchaser or purchasers thereof

BJEOTMENT.

335

have obtained title to and possession
of the satae without any fraud or
collusion on his, her or their part,

, shall not be evicted or thrown out
of possession by any person or per-
sons who shall set up and prove an
adverse and better title to said lands,
until said occupying claimant, his,
her or their heirs, shall be paid the
f uU value of aU lasting and valuable
improvements made on said lands
by such occupying claimant, or by
the person or persons under whom
he, she or they may hold the same,

♦ previous to receiving actual notice
by the commencement of suit on
each adverse claim by which evic-
tion may be effected.

§ 604. The jury shall assess the
value of all lasting and valuable im-
provements made on the lands pre-
vious to the party receiving actual
notice of such adverse claim; and
shall also assess the damages which
said land may have sustained by
waste, together with the net annual
value of the rents and profits which
the occupying claimant may have
received from the same after having
received notice of the plaintiff's
title, and deduct the amount thereof
from the estimated value of such
lasting and valuable improvements;
and said jury shall also assess the
value of the land in question at the
time of rendering judgment as afore-
said, without the improvements
made thereon, or damages sustained
by waste.

§ 607. If the jurors shall report a
sum in favor of the plaintiff or
plaintiffs in said action, for the re-
covery of real property on the assess-
ment and valuation of the valuable
and lasting improvements, and the
assessment of damages for waste,
and the net annual value of the rents
and profits, the court shall render a
judgment therefor without plead-

ings, and issue execution thereon as
in other cases; or if no excess be
reported in favor of said plaintiff or
plaintiffs, then, and in either case,
the said plaintiff or plaintiffs shall
be thereby barred from having or
maintaining any action for mesne
profits.

§ 608. If the jurors shall report a
sum in favor of the occupying
claimant or claimants, on the assess-
ment of the valuation of the val-
uable and lasting improvements,
deducting the damages to said land,
the court shall render judgment in
favor of the said occupying claimant
or claimants for the sum or sums so
assessed; and no writ or process for
the eviction of the said claimant or
claimants shall be issued until the
said judgment shall be paid.

Gen. St. 1868, p. 646, §83. The
plaintiff may unite in the same pe-
tition claims to recover real prop-
erty, with or without damages for
the withholding thereof, and the
rents and profits of the same. See
California.

Minnesota statute same. Rev. St.
1866, p. 642, § 98.

Nebraska statute same. L. 1867,
p. 71, §3.

In Kentucky, by the civil code of
1854, the claim for recovery of spe-
cific real property, and the rents,
profits and damages for withholding
the same; may be united in the same
petition, where each affects all the
parties to the action. See §§ 93, 111 ;
17 B. Mod. 325. If any person, be-
lieving himself to be the owner, by
reason of a claim in law or equity,
the foundation of which being of
public record, hath or shall hereafter
peaceably seat or improvs any land,
which shall, upon judicial investiga-
tion, be decided to belong to another,
the value of the improvements shall
be paid by the successful party to

336

EJECTMENT.

the occupant, or the person under
whom and for whom he entered and
holds, before the court rendering
judgment or decree of eviction shall
cause the possession to be delivered
to the successful party. Gen, St.
ch. 80.

In Maine when a demandant re-
covers judgment in a writ of entry,
he may recover damages for the
rents and profits of the premises,
and also for any destruction qr
waste of the buildings or other prop-
erty for which the tenant is by law
answerable. The tenant is not liable
for the rents and profits of the prem-
ises for naore than six years, nor for
waste or other damages committed
before that time, unless the rents
and benefits are allowed in set-off to
his claim for improvements. When
the demanded premises have been
in the actual possession of the tenant,
or those under whom he claims, for
six years or more before the com-
mencement of the action, the
tenant will be allowed for his better-
ments. Provision is made by the
statute for the allowance to the
tenant for his betterments where the
cause is determined in favor of the
demandant upon demurrer, default,
or by verdict; and the tenant may
also obtain compensation for build-
ings and improvements on the prem-
ises, to be estimated by the jury
according to the increased value of
the premises by reason thereof, and
the jury may also appraise the value
of the premises without such im-
provements, whereupon the demand-
ant may abandon the premises, or
he may pay for use of the tenant the
sum assessed for the buildings and
Improvements, with interest thereon,
as he may elect; but if he elects to
abandon the premises to the tenant,
then the tenant must pay the de-
mandant for his premises their

value without the improvements.
R. 8. 1871, tit. 9, ch. 104; Tyler on
Ejectment, 638-9.

In Michigan the action of eject-
ment Is retained, and mesne profits
are recoverable after judgment in
the ejectment suit upon suggestion,
in the form, upon like issue, and
proof, as in Illinois. 2 Comp. L.
1871, §§ 6304^6213.

When the defendant in ejectment,
or any person through whom he
claims title, shall have been in actual
possession of the premises for six
successive years, or more, and be-
fore the commencement of the
action, and"^laiming either by virtue
of or in opposition to a sale made by
any executor, administrator or
guardian, or the auditor general, or
any county treasurer, or other person
or body corporate authorized by any
statute to make sale of land for non-
payment of taxes, such defendant
shall be allowed a compensation for
the value of any buildings and im-
provements on the premises made
by him, or any person through
whom he claims title. In all cases
of such possession of the premises
by the defendant, he may file a
claim in writing to compensation
for buildings and improvements on
the premises, and a request for an
estimation by the jury of the in-
creased value of the premises by
reason thereof, and the plaintiff may
file a request in writing that the
jury would also estimate what would
have been the value of the premises
at the time of trial if no buildings
had been erected, or improvements
made, or waste committed, both
which estimates it shall be their duty
to make, and in their verdict state
to the com-t. If, after the rendition
of the verdict, the plaintiff shall, at
the same or next subsequent term
of the court, make his election on

EJECTMENT.

337

record to abandon the premises to
the defendant at the value estimated
by the jmy, then judgment shall
be rendered against the defendant
for the sum so estimated by the jury,
with costs of suit. If the plaintifE
shaU not so elect, he shall within a
year after the rendition of the judg-
ment for recovery of the premises,
pay the defendant such sum as shall
have been assessed for the buildings
and improvements, with interest
thereon, and no writ of possession
shall issue on tiie judgment rendered
on the verdict, nor any new action
be sustained for the land, until such
sum is paid, and a default in making
payment as aforesaid shall be deemed
an abandonment of all claim of title
to the premises, and be a bar to the
recovery thereof. Id. §§ 6353-6255.

If the right or title of a plaintiff
in ejectment expire after the com-
mencement of the suit, but before
trial, the verdict shall be returned
according to the fact, and judgment
shall be rendered that he recover
his damages by i-eason of the with-
holding of the premises by the de-
fendant, to be assessed.

As to Minnesota, see California
and Kansas, ante, pp. 330, 834.

Damages for withholding the
property recovered shall not exceed
the fair value of the property, ex-
clusive of the use of the improve-
ments made by the defendant for a
period not exceeding six years: and
when permanent improvements
have been made by a defendant, or
those under whom he claims, hold-
ing under color of title adversely to
the claims of the plaintiff, in good
faith, the value thereof shall be al-
lowed as a set-off against the dam-
ages of the plaintiff for the use of
the property. Gen'l Stats. Minn.
1878, p. 815, § 13.

Eev. Code Mississippi, 1880, ch.
Vol. Ill— 33

68, provides that the action of eject-
ment shall be brought in the name
of the person claiming as plaintiff
against the tenant or possessor as
defendant. § 2479. And the plaint-
iff may add to his declaration a
claim for mesne profits (§g 2487,
2512), or he may have his action for
mesne profits after recovery in eject-
ment. Id.

When the jury shall find for the
plaintiff, in the action of ejectment,
if the defendant has a crop then
planted, and growing upon the
premises, they shall assess a reason-
able rent for the plaintiff to receive
for the use of the premises for such
time as they may think necessary
for the defendant to make and gather
his crop. And if the defendant
shall, during the term of the court
at which the action was tried, enter
into bond, with security to be ap-
proved by the court, in a penalty of
double the amount of the rent so
assessed by the jury, payable to the
plaintiff, conditioned for the pay-
ment of the rent assessed as afore-
said, at the expiration of the term
fixed by the jury for the defendant
to hold possession of the premises,
then no writ of possession shall issue
upon the judgraent in such action
until the expiration of the time so-
allowed by the jury, and such bond
shall be iiled in the court, and, if
forfeited, shall have the force and
effect of a judgment, and execution
may issue thereon against the prin-
cipal and sureties, as upon other
judgments in such court. § 2507^

§ 2512 provides that it shall be law-
ful in all cases for the defendant in
ejectment, or in an action for mesne
profits, to plead the value of all per-
manent, valuable, and not orna-
mental improvements, made by the
defendant on the land, or by any one
xinder whom he claims, before notice

338

EJECTMENT.

of the intention of the plaintiff to
bring the action.

The plaintiff can have no execu-
tion until he has paid the excess of
the value of such improvements
over the amount of mesne profits
and damages.

After three months, if the plaintiff
has failed to make such payment,
the defendant may retain the land
by paying within three months the
assessed value of the land, with in-
terest and costs.

After this time has elapsed, if the
defendant has not availed himself of
this option, the land is to be sold,
and the proceeds to be applied to
pay the costs, the assessed value of
the land, and out of the residue the
defendant is to be paid the assessed
value of the improvements above
the value of the mesne profits and
damages. Any surplus is to be di-
vided between the parties in the pro-
portion of the payments for the land
and the impi'ovements.

In Missouri, if the plaintiff prevail
in the action, he may recover dam-
ages for all waste and injury, and,
by way of damages, the rents and
profits down to the time of assessing
the same, or to the time of the ex-
piration of the plaintiff's title, under
the following limitations: First,
when it shall not be shown on the
tria^that the defendant has knowl-
edge of the plaintiff's claim prior to
the commencement of the action,
such recovery must be only from
the time of the commencement of
the action; second, when it shall be
shown on the trial that the defend-
ant had knowledge of the plaintiff's
claim prior to the commencement of
the action, and that such knowledge
came to tlie defendant within five
years next preceding the commence-
ment of the action, such recovery will
be from the time that such knowl-

edge came to the defendant; third,
when it shall be shown on the trial
that knowledge of the plaintiff's
claim came to the defendant more
than five years prior to the com-
mencement of the action, such re-
covery will only be for the term of
five years next preceding the com-
mencement of the action. Rev.
Stat. 1879, § 2252.

If the right of the plaintiff to the
possession of the premises expire
after the commencement of the suit,
and before the trial, the verdict must
be returned according to the fact,
and judgment will be entered only
for the damages and costs. If the
plaintiff pi-evail in his action, and it
appear in evidence that the right of
the plaintiff to the possession is un-
expired, the jury must find the
monthly value of the rents and prof-
its; in which last case the judgment
will be for the recovery of the prem-
ises, the damages assessed, and the
accruing rents and profits, at the rate
found by the jury, from the time of
rendering the verdict until the pos-
session of the premises is delivered to
the plaintiff. Id. §§ 2253, 2254, 3255.

If a judgment or decree of dispos-
session shall be given in an action
for the i-ecovery of possession of
premises, or in any real action in
favor of a person having a better
title thereto, against a person in pos-
session (held by himself or by his
tenant) of any lands, tenements or
hereditaments, such person may re-
cover in a court of competent jmis-
diction compensation for all im-
provements made by him in good
faith on such lands, tenements or
hereditaments, prior to his having
had notice of svich adverse title. Id.
§ 2259.

Montana (Rev. Stats. 1879, oh. 3):

§ 854. An action may be brought
by any person in possession, by him-

EJECTMENT.

339

self or his tenant, of real property,
against any person who claims an
estate or interest therein adverse to
him, for the purpose of determining
such adverse claim, estate or in-
terest.

§ 355. If the defendant in such
action disclaim in his answer any
interest or estate in the property, or
suffer judgment to be taken against
him without answer, the plaintiff
shall not recover costs.

§ 356. Where the plaintiff shows
the right to recover at the time the
action was commenced, but it ap-
pears that his right has terminated
during the pendency of the action,
the verdict and judgment shall be
according to the fact, and the plaint-
iff may recover damages for with-
holding the property.

§ 357. When damages are claimed
for withholding the property re-
covered, upon which permanent im-
provements have been made by a
defendant, or those under whom he
claims, holding under color of title
adversely to the claims of the plaint-
iff, in good faith, the value of such
improvements shall be allowed as a
set-off against such damages.

As to Nebraska, see California and
Kansas, ante, pp. 330, 334

As to Nevada, see California and
Kansas, ante, pp. 330, 334.

New Hampshire (Gren. Stat. 1878,
p. 538, §§ 6-8): Any person against
whom any action is brought for the
recovery of real estate, who has
been in the actual, peaceable posses-
sion thereof under a supposed legal
title for more than six years before
the action was commenced, may
claim the amount which, buildings
erected and improvements made by
him have increased the value, after
deducting for any injury or waste,
and the plaintiff will not be entitled
to a writ for possession unless he

pays the amount allowed for such
betterments within a year.

New Jersey: In all actions where
the defendant in ejectment would be
liable for mesne profits and damages,
the plaintiff may declare for and
recover the same in the same action,
under such regulations, as to plead-
ings and proceedings, as the justices
of the supreme court may prescribe;
or. after judgment in ejectment, an
action may be brought for the mesne
profits and damages according to the
former practice. Rev. Stats. 1877,
p. 333.

In the action for mesne profits,
the plaintiff shall be entitled to re-
cover of the defendant as damages
the full value of the use and occu-
pation of the premises for the time
such defendant was in possession
thereof, not exceeding six years be-
fore the commencement of such
action; but such damages shall not
include the value of the use of any
improvements made by the defend-
ant; and where permanent improve- ^
ments have been made in good
faith on the premises by the defend-
ant, or those under whom he claims,
while holding adversely to the
plaintiff undercolor of title obtained
by a fair bona fide purchase from
some person in possession, and sup-
posed to have a legal fight and title
thereto, the value of such perma-
nent improvements shall be allowed
to the defendant, and set off against
the damages of the plaintiff .to the
extent of such damages, and no
further.

New Mexico, Gen. Laws 1880,
p. 486:

§ 8. When any person or his as-
signors may have heretofore made
any valuable improvements on any
lands, and he or his assignors have
been or may hereafter be deprived
of the possession of said improver

340

EJECTMENT.

ments in any manner whatever, he
shall have the right, either in an
action of ejectment which may have
been brought against him for the
possession, or by an appropriate
action at any time thereafter within
ten years, to have the value of his
said improvements assessed in his
favor, as of the date he was so de-
prived of the possession thereof ; and
the said value so assessed shall be a
lien upon the said land and improve-
ments, and all other lands of the
jpersou who so deprived him of the
possession thereof situate in the same
county until paid; but no improve-
ments shall be assessed which may
or shall have been made after the
service of summons in the action of
ejectment on him in favor of the
person against whom he seeks to
have said value assessed for said
improvements.

New York: By the code the
l^laintifE may unite in the same com-
plaint claims to i-ecover real prop-
erty, with or without damages for
the withholding thereof, and the
rents and profits of the same. § 167.

North" Carolina: The action for
recovery of real property is called
ejectment, in which the practice is
statutory — and in form trespass, —
and the plaintiff after judgment in
this action may bring trespass for
mesne profits. Rev. Code, 1855;
Tyler on Eject, pp. 797, 800, 806;
Porter v. Jones, 3 Dev. & Batt. L.
294.

Ohio: The plaintiff may unite in
one petition claims to recover real
property, with or without damages
for the withholding thereof, and the
rents and profits of the same. Ohio
Code, § 80.

The parties in an action for the
recoveiy of real property may avail
themselves, if entitled thereto, of
the relief of the statutes in force

for the relief of occupying claimants
of land. Id. § 564.

Oregon (General Laws of 1872,
p. 175):

§ 313. Any person who has alegal
estate in real property, and a pres-
ent right to the possession thereof,
may recover such possession, with
damages for withholding the same,
by an action at law. Such action
shall be commenced against the per-
son in the actual possession of the
property at the time, or if the prop-
erty be not in the actual possession
of any one, then against the person
acting as the owner thereof.

§ 314. A defendant, who is in act-
ual possession, may for answer
plead that he is in possession only
as tenant of another, naming him,
and his place of residence, and
thereupon the landlord, if he apply
therefor, shall be made defendant
in place of the tenant, and the ac-
tion shall proceed in all respects as
if originally commenced against
him.

§ 315. The plaintiff, in his com-
plaint, shall set forth the nature of
his estate in the property, whether
it be in fee, for life, or for a term of
years, and for whose life, or the
duration of such term, and that he
is entitled to the possession thereof,
and that the defendant wrongfully
withholds the same from him to his
damage, such sum as may be therein
claimed. The property shall be de-
scribed with such certainty as to
enable the possession thereof to be
delivered, if a recovery be had.

§ 318. The plaintiff shall only be
entitled to recover damages for
withholding the property for the
term of six years next preceding the
commencement of the action, and
for any period that may elapse from
such commencement to the time of
giving a verdict therein, exclusive

EJECTMENT.

3il

of the use of permanent improve-
ments made by the defendant.
When permanent improvements
iaave been made upon the property
by the defendant, or those under
whom he claims, holding under color
of title adversely to the claim of
the plaintiif , in good faith, the value
thereof at the time of trial shall be
allowed as a set-off against such

§ 319. If the right of the plaintiff
to the possession of the property
expire after the commencement of
the action, and before the trial, the
verdict shall be given according to
the fact, and judgment shall be
given only for the damages.

Pennsylvania: In the statutory
action of ejectment, mesne profits
may be recovered. Dawson v. Mc-
Gill, 4 "Whart. 330; Tyler on Eject.
680.

South Carolina: The action for
trying title to real property is tres-
pass — between the real parties. If
the jury find for the plaintiff, they
are empowered in the same verdict
to award damages for mesne profits,
and judgment will be entered on
the verdict as well for the damages
as for the recovery of the land, to
be executed by writ of possession
and execution, o St. at Large, p. 170.

Tennessee: The action for the re-
covery of real property is called
ejectment; the plaintiff is the real
claimant, and it is brought against
the actual occupant, or, where the
jiremises are vacant, against any
person claiming an interest therein
or exercising acts of ownership at
the commencement of the action.
Damages are claimed in the declara-
tion. Statutes 1871, § 3230 et seq.

If the right of the plaintiff expire
after the commencement of the
action, and before trial, the verdict
must be according to the facts, and

judgment will be entered for dam-
ages for the withholding of the
premises by the defendant. Id.

The plaintiff may have an action
for mesne profits after verdict and
judgment in ejectment. Statutes,
§ 3359.

Texas: Trespass is the action for
trying title to land, and where the
plaintiff succeeds, he recovers not
only the land but damages for mesne
profits. Damages are limited to two
years prior to commencement of
suit. Improvements made in good
faith allowed as offset. Eev. Stats.
1879, art. 4784 et seq.

Vermont: Damages in the action
of ejectment for mesne profits may
be recovered, but only as shall be
just and equitable in view of im-
provements made upon the premises
by the defendant or those under
whom he claims. Eev. Laws, 1880,
tit. H, ch. 69. If thefilaintiff's title
shall expire or be conveyed by him
after the commencement of the
action, the suit will not thereby
fail, but the plaintiff may recover
judgment for his damages during
the continuance of his ijfle, with
costs. Id. And if the declaration
is properly framed, damages may be
recovered in that action for wanton
acts of the defendant to the injury
of the premises. Lippett v. KeUey,
46 Vt. 516.

Virginia: If the plaintiff file with
his declaration in ejectment a state-
ment of the profits and other dam-
ages which he means to demand,
and the jury find in his favor, they
are required at the same time, unless
the court otherwise order, to assess
the damages for mesne profits of the
land for any period not exceeding
five years previously to the com-
mencement of the suit until the ver-
dict, and also the damages, for any
destruction or waste of the build-

3i2

EJECTMENT.

ings or other property, during the
same time, for which the defendant
is chargeable.

There is the usual provision for
recovery of damages where the
plaintifE's title expires after suit
brought and before trial.

If the defendant intends to claim
allowance for improvements made
upon the premises by himself or
those under whom he claims, he
must file with his plea, or subse-
quently, a statement of his claim
therefor, in case judgment be ren-
dered for the plaintiff. In such case
tlie damages of the plaintiff and the
allowance to the defendant for im-
provements will be estimated, and
the balance ascertained, and judg-
ment therefor rendered, as pre-
scribed by tlie statute in i-espect to
allowance for improvements. In-
stead of fililfg such statement, the
defendant may wait until after judg-
ment in the ejectment suit, and at
any time before execution of the de-
cree or judgment, present a petition
for relief in respect to improvements,
by obtaining an order which either
party may apply for, that the assess-
ment of damages and allowance for
improvements be postponed until
after the verdict on the title has been
recorded. Code of 1873, chs. 131,
133.

Washington Territory (Code of
1881, § 541): The plamtiff shall only
recover damages for withholding
the property for six years preceding
the bringing of the action, and for
any period that may elapse from
such commencement to the time of
giving a verdict therein. When
permanent improvements have been
made upon the property by the de-
fendant, under color of title, the
value thereof at the time of trial
shaU be allowed as a set-ofl against
such damages.

West Virginia (Rev. Stats. 1878,
chs. 71, 73): The action of ejectment
is retained, and niay be brought in
the same cases in which a writ of
right might have been brought prior
to July 1, 1850, in Virginia. If the
plaintiff file with his declaration a
statement of the profits and other
damages which he means to demand,
and the jury find in his favor, they
shall at the same time, unless the
court otherwise order, assess the
damages for mesne profits of the land
for any period not exceeding five
years previously to the commence-
ment of the suit until the verdict,
and also the damages for any de-
struction or waste of the, buildings
or other property during the same
time.

If the defendant intends to claim
allowance for improvements, made
upon the premises, he shall file with
his plea, or before the trial, a state-
ment of his claim therefor, in case
judgment be rendered for the plaint-
iff. In such cases the damages of
the plaintiff, and the allowance to
the defendant for improvements,
shall be estimated, and the balance
ascertained, and judgment therefor
rendered.

Any defendant against whom a
decree or judgment shall be ren-
dered for land, where no assessment
of damages has been made as above
provided, may, before the execution
of the decree or judgment, present
a petition to the court, stating that
he, while holding the premises under
a title believed to be good, made
permanent improvements thereon,
and praying that he may be allowed
for the same over and above the
value of the use and occupation of
the land; and thereupon the court
may suspend the execution of the
judgment or decree, and impanel a
jury to assess the damages of the

MESNE PE0FIT8.

343

The action for recovery of the land is made in many states a
bar to any other action or proceeding to recover mesne pr^jfits.
But in most cases, even though mesne profits may be recovered
in the same action in which the land is recovered, the common
law action for mesne profits may be maintained after the action
for the recovery of the land has been determined in favor of
the plaintiff.'

Sbotioit 1.

MESNE PROFITS.

The remedy for— What may be allowed as damages — Remedy for, under

the code.

The remedy foe. — The action of trespass for mesne profits
is consequential to the recovery in ejectment.^ The plaintiff in
the latter, upon the introduction of the fictions by which the
proceedings were distinguished, was a nominal party, and the
damages assessed became nominal aiso.^ As these nominal
damages are not given in satisfaction of the mesne profits,

plaintifE and the allowances to the
defendant for such improvements.
The jury, in assessing such damages,
shall estimate against the defendant
the clear annual value of the prem-
ises during the time he was in pos-
session thereof, for not longer than
five years before suit brought, and
the damages for waste.

In "Wisconsin, the plaintifE in any
action for the recovery of any spe-
cific real property, or of the posses-
sion thereof, is entitled in the same
action to recover damages for the
withholding of the premises, includ-
ing the rents and profits of the
premises recovered, during the time
they were unlawfully withheld, in
cases in which the plaintiff is enti-
tled to recover such rents and
profits. And, on the trial of the ac-
tion, the defendant has the same
right to set off permanent improve-
ments made on the premises to the
amount of the plaintiff's claim, as is

allowed by law. In estimating the
plaintiff's damages, the value of the
use by the defendant of any im-
provements made by him is not to
be allowed. If the title of the
plaintiff expire after the commence-
ment of the action, but before trial,
the verdict must be according to the
fact, and judgment entered that he
recover hi^ damages by reason of
the withholding of the premises by
the defendant to be assessed. E. S.
1878, ch. 133.

1 Tyler on Eject. 838.

2 Lord Mansfield in Astin v. Par-
kin, 3 Burr. 668; Mitchell v. Mitch-
ell, 1 Md. 55; "Morgan v. Varick, 8
Wend. 587; Benson v. Matsdorf, 3
John. 869; Blount v. Garen, Hay-
wood, 88; Van Alen v. Rogers, 1
John. Cas.- 388, note; S. C. 3 id. 457;
Cushwa V. Cushwa, 9 Gill, 343.

3 It has been held in some cases
that it is not error to assess the act-
ual damages in ejectment. Miller v.

i-iri

EJECTMENT.

but only entitle the plaintiff to costs,^ the recovery of them
will not preclude the plaintiff from the recovery of mesne
profits by action^ — that is, in trespass.' "Where the plaintiff's
title expires after the Tcomraencement of the ejectment suit, and
before trial, he cannot recover the land, but he is entitled to
damages and costs; and these he is entitled to recover in the
ejectment suit. This was allowed at common law,* and is a
right now very generally declared by statute.

In this action of trespass for mesne profits, after recovery in
ejectment, the tenant or defendant is estopped from controvert-
ing the title, from the time of the ouster complained of in the
ejectment ; or date of the demise laid in the declaration ; ° but
if the plaintiff proceed for antecedent profits, he must prove his
title to the premises whence they arose, to show his right to re-
cover them." Only the lessor of the plaintiff can proceed for

Melcher, 13 Ired. L. 439; Boyd's
Lessee V. Cowan, 4 Ball. 138; Lessee
of Battin v. Bigelow, 1 Pet. C. C.
453; Osbourn v. Osbourn, 11 S. &
R. 58, per Duncan, J.

1 Van Alen v. Rogers, supra; Davis
V. Doe, 25 Miss. 445.

2 Van Aien v. Rogers, supra, and
note.

3Bao. Abr. tit. Ejectment (H.):
"The object at this day proposed to
be recovered by it (ejectment) is
quite changed from what it was in
its original state; for as, formerly,
damages were only recoverable' by
it, and not the term; so now the
term only is sought for by it, and
not damages. For a satisfaction in
damages, therefore, a subsequent
action is to be brought, which sub-
sequent action is in form an action
of trespass vi et armis, but in effect
to recover the rents and profits of
the estate. It is in form an action
of trespass, because it is consequent,
and, as it were, supplemental to the
action of ejectment, and, therefore,
must necessarily be of the same
species with it. It may be brought

by the lessor of the plaintiff in his
own name, or in the name of the
nominal lessee; but in either shape it
is equally his action; for it is not in
any manner affected by the fiction ia
the ejectment."

* Jackson v. Davenport, 18 John.
295; Wilkes v. Lion, 3 Cow. 383;
WoodhuU v. Rosenthal, 61 N. Y.
393.

» Id. ; Benson v. Matsdorf , 3 John.
369; Avent v. Hard, 3 Head, 458;
Van Alen V. Rogers, 3 John. Cas. 457;
Crockett v. Lashbrook, o T. B. Moj:.
531; Man v. Drexel, 2 Pa. St. 303;
Myers v. Sanders' Heirs, 8 Dana, 65;
Drexel v. Man, id. 371; Doe exd.
Marshall v. Dupey, 4 J. J. Marsh.
388; Graves v. Joice, 5 Cow. 261;
Postern v. Jones, 3 Dev. & Batt.
394; Brewer v. Beck with, 85 Miss.
467; Chirac v. Reinecker, 11 Wheat.
380; Leland v. Tousey, 6 Hill, 838;
Den V. McShane, 13 N. J. L. 35.

6 Id.; Masterson v. Hagan, 17 B.
Mon. 338; Avent v. Hard, 3 Head,
458; Kille v. Ege, 83 Pa. St. 103;
Brewer v. Beckwith, supra; West v.
Hughes, 1 Har. & J. 574,

MESNE PEOFITS. 345

damages anterior to the demise.^ ISTo party can recover mesne
profits for any time prior to his obtaining title ; an heir or dev-
isee cannot recover those which accrued in his ancestor's time.^

What mat be allowed as damages. — The plaintiff must
prove the value of the mesne profits, for the judgment in eject-
ment does not prove anything as to that. In estimating them,
however, the jury are not confined to the mere rent of the
premises ; they may give extra damages ; and the costs in ej ect-
ment are recoverable, whether the judgment be by default
against the casual ejector, or upon a verdict against the tenant
or landlord, and are therefore usually declared for as damages
in the action for mesne profits.'

The general principle is that the plaintiff in this action is en-
titled to recover all damages fairly resulting from his having
been wrongfully kept out of possession.* They may be com-
puted during the whole period that the defendant has withheld
the premises from the plaintiff, down to the time of the verdict,
unless the statute of limitations is pleaded,' if the defendant has
kept possession ; and the time and extent of the defendant's pos-
session are open to proof.^ On this principle, he is entitled to
• recover ih& costs of the ejectment suit, both of the trial and in
error. In England, if the costs have been taxed, the recovery
is confined to the taxed costs, and no extra costs will be allowed ;
but it is not essential to the recovery that the ctosts be taxed.''
And where the costs cannot be taxed, it has been held there that

1 Tyler on Eject. 839; Denn v. Walker, 9 Barb. 493; Morgan v. Var-
Chubb, Coxer466. iok, 8 Wend. 587; Avent v. Hard, 3

2 Hotchkiss V. Auburn, etc. E. E. Head, 458; Love v. Shartra, 31 Cal.
Ck). 36 Barb. 600; Brown v. McCloud, 487.

3 Head, 280. See Cook v. Webb, 31 SAslin v. Parkin, 3 Burr. 668;

Minn. 428. Pearse v. Coaker, L. E. 4 Exoh. 92;

sBac. Abr. tit. Ejectment (H.); 38 L. J. Exch. 33; Vance v. Inhab-

Goodtitle v, Tombs, 3 Wils. 118. itants, etc. 7 Blackf. 341; Eyers v.

^ Symonds t. Page, 1 Cromp. & J,
29; Doe v. Perkins, 8 B. Mon. 198,

5 Dawson v. McGill, 4 Whart. 230
Whissenhunt v. Jones, 78 N. C. 361
Pendergast v. McCosten, 2 Ind. 87

Wheeler, HiU & D. Supp. 389; Ains-
lie V. Mayor, etc. of N. Y. 1 Barb.
168; Mitchell v. Freedley, 10 Pa. St.
198; Miller v. Henry, 84 Pa. St. 33.
7 NeweU v. Eoake, 7 B. & 0. 404;

McCrubb v. Bray, 86 Wis. 341; Field Symonds v. Page, 1 Cromp. & J. 39;
V. Columbet, 4 Sawyer, 533; Jackson Doe v. Davis, 1 Esp. 358; Doe v. Fil-
V. Wood, 34 Wend. 448; Budd v. Uter, 18 M. & W. 47; 11 id. 80; Doe v.

346 EJECTM3SNI.

the jury might reasonably consider the costs oetween attorney
and client as the measure.^ Costs of the ejectment suit have been
held recoverable in this country ; ^ nor is the recovery limited,
at least not uniformly, to costs taxable between party and party.
In a Kentucky case, Marshall, C. J., said: " The principle from
which the rule on this subject is to be extracted is in our opin-
ion this : that the plaintiff in this action is entitled to be reim-
bursed in such amount as he has in good faith been compelled
to pay in obtaining by legal means the restoration of the prop-
erty which the defendant has wrongfully taken or withheld
from him." " The amount recoverable under this head cannot
exceed what he has actually paid, or is in good faith actually
bound to pay for obtaining restitution. But as he cannot be
compelled to pay more than the reasonable fees and charges for
the services of others necessary for obtaining legal redress, he
may not be entitled to recover the full amount which he has
bound himself to pay for such services. And on the other hand,
as he may have obtained the services- for Jess than their actual
or reasonable value, he may not always be entitled to recover to
the full amount of that value. The recovery under this head
may thus be limited below the amount which the plaintiff has
actually paid, or bound himself to pay, on the ground that that
amount is more than the reasonable value of the services neces-
sary in his suif for restitution of his right. But it cannot be
carried beyond that amount, on the ground that the necessary
services were reasonably worth more. Then the criterion in this
case is not what would have been reasonable if the plaintiff had
paid, or undertaken to pay so much, but what the plaintiff had
paid, or had undertaken and was bound to pay, if that sum was
not unreasonable." '

The plaintiff is entitled to recover, as a general rule, the an-
nual value of the land, for the time he shows a right to recover,
to which may be added other damages under particular circum-
stances. Compensation is the proper measure of damages.*

Hare, 3 Dowl. P. C. 345; 3 Cromp. & Doe v. Perkins, 8 B. Mon. 198; Denn

M. 145; Doe v. Huddart, 3 Cromp. v. Chubb, Coxe, 466. See Tate v.

M. & R. 316. Doe, 34 Miss. 465.

1 Newell V. Roake, supra. ' Doe v. Perkins, supra.

2 Barron v. Abeel, 3 John. 481; < Adams on Eject. 387, 391; Kille

MESNE PEOFITS. 347

In an Englisli case, in which it appeared that there tad been an
actual ouster, and the defendant had kept the plaintiff out until
the judgment in the ejectment, it was held that recovery was
not to be confined to mesne profits only, but, as was remarked
by Gould, J., the plaintiff might recover for "his trouble,
etc.," that he had known four times the value of the mesne
profits to be given.^ Referring to this language, Gibson, 0. J.,
said : " If trouble and expense are subjects of compensation,
why are they not also included in the original judgment? But
it would have been received as a startling novelty. A separate
suit could not lie for the trouble and expense of a previous one ;
and there is no reason why they should be component parts of
a cause of action in common with something else. There is no
case in which compensation has been specifically recovered for
them. There are diota that a jury may give whatever they
may think reasonable; but surely no court will subject a party
to a blind and an unbridled discretion. A verdict will not be
set aside for excess of damages, except in an extreme case ; and
the defendant would often suffer all but extreme injustice." ^
Consequential damages, however, besides costs of the ejectment,
may be recovered — as for shutting up an inn and destroying
the custom, when specially declared for.^ The plaintiff may
recover the actual damage and injury to the premises, as well
as the yearly value of the land."* Defendants, in an action for
mesne profits, had demised premises for a term of fifteen

V. Bge, 83 Pa. St. 103-113; Goodtitle 335; Lippett v. KeUey, 46 Vt. 516.
V. Tombs, 3 WUs. 118; Dewey v. Os- In Averett v. Brady, 20 Ga. 533,
bom, 4 Cow. 339; Drexel v. Man, 3 whicli was an action for mesne prof-
Pa. St. 371 ; Brown's Lessee v. Gallo- its for a ferry, it was held sufficiently
way. Pet. 0. O. 391; Lippett v. liberal to defendant to instruct the
Kelley, 46 Vt. 516; Congregational jury to consider the proceeds of the
Society v. Walker, 18 Vt. 600; Aver- ferry, deducting the expense of
ett V. Brady, 30 Ga. 533; Masterson fitting it up, and carrying it on, and
V. Hagan, 17 B. Mon. 335; New Or- making due allowance for aU risk
leans v. Gaines, 15 Wall. 634; Wood- and expense,
hull V. Rosenthal, 61 N. Y. 394. Under a statute in Massachusetts,

1 Goodtitle v. Tombs, supra. providing that " the rents and profits

2 Alexander v. Herr, 11 Pa. St. for which the tenant is liable shall
689. SeeGood V. Mylin, 8Pa. St. 51. be the clear annual value of the

3 Dunn V. Large, 3 Doug. 335. premises for the time during which
•4 Cooch V. Gerry, 3 Harr. 380; Hus- he was in possession thereof " (Gen.

ton V. Wickersham, 3 Watts & S. St. ch. 134, § 15), it was held that
308; Masterson v. Hagan, 17 B. Mon. in estimating the damages for with-

348 EJECTMENT.

years, at an annual rent of $2,000, besides the payment of~
royalty on each ton of iron ore mined; and they had re-
ceived the rent for one year ; but the premises were in no way
injured, and Jio ore was taken therefrom. The defendants hav-
ing been evicted by the plaintiffs, became unable to fulfil their
covenants in the lease, and the lessees thereby acquired a right
of action against them for damages. It was held that the
$2,000 received by defendants did not establish a correct
basis for fixing the rental value of the premises.^ A defendant
being bona fide purchaser for value, and having taken possession
under color of title of mines which were unimproved, and hav-
ing expended large sums in their development, as well as in
permanent improvements thereon of great value, it was held
he was chargeable for ores removed only their value in place,
that is, by deducting from their market value the cost of min-
ing, cleansing and delivering in market.^ And he may defend
against the claim of mesne profits by showing that the im-
provements he has made and left upon the lands are of value
sufficient to be 'a full compensation for the use and occupation.'
Interest has been held recoverable on mesne profits.* Where
the property was situate in New York city, where rent was
payable quarterly,, it was held proper to add interest quarterly.^
IJnder the statute of ISTew Tork, and similar statutes adopted
in other states, for recovery of damages upon a suggestion
after determination of the ejectment suit, the measure of dam-
ages is that applicable in assumpsit for use and occupation.
The compensation is adjusted as upon contract and not upon
the footing of a tort.* The statutes indicate the measure of
damages, and the defenses which may be made.

holding a strip of land, the premises v. Tappan, 33 Cal. 306; Graller v. Felt,

in question, the jury might not take 30 id. 481; Stockbridge Iron Co. v.

into consideration its special value Cone Iron Works, 103 Mass. 80;

to the demandant as a passage-way Vol. I, p. 169, note 4.

to adjacent premises; that the stat- sifl.

ute excludes the idea that he can re- < Jackson v. Wood, 34 Wend. 443;

cover consequential damages for Low v. Purdy, 2 Lans. 433; Allen v.

alleged injury to his other land Smith, 68 Mo. 108.

adjoining the premises. McMahan 5 Jackson v. Wood, supra.

T. Bowe, 114 Mass. 140. 6 Holmes v. Davis, 19 N. Y. 488;

iKiUe V. Ege, 83 Pa. St. 103. reversing S. C. 31 Barb. 365; Wood-

2Ege V. Kille, 84 Pa. St. 333; Maye huU v. Rosenthal, 61 N. Y. 394

MESNE PEOFITS. 349

The common law action of trespass for mesne profits is a
liberal and equitable one, and equitable defenses may be made.^
Taxes paid by the defendant may be deducted from the dam-
ages.' "Where the defendant had paid ground rent during his
occupancy, which otherwise the plaintiff must have paid, it Avas
deducted from the damages in an action for mesne profits.^ At
common law, whoever takes and holds possession of land to
which another has a better title, whether he be a hona fide or
mala fide possessor, is liable to the true owner for all the rents
and profits which he has received ; but the disseizor, if he be a
hona fide occupant, may recoup the value of the meliorations
made by him against the claim of damages.* The owner is
not compelled to pay for improvements as a condition on which
he may regain possession of his property. The improvements
when annexed to the land become part of the freehold.' But
a hona fide occupant is entitled to have them taken into account
in ascertaining whether the owner of the land has sustained
damages or not, both in the case where such improvements
were made by the occupant, and where they were made by one
whose title he has purchased.^ In such case, the defendant
should be allowed the value of his improvements, made in good
faith, that is, in belief of his title, and without notice of the
real owner's claim, to the extent of the rents and profits due to
such owner.' The improvements should be estimated in favor

1 Murray v. Governeur, 3 JohB. 321; Dothage v. Stuart, 35 Mo. 231;

Cas, 441; Jackson v. Loomis, 4 Cow. Kussell v. Blake, 2 Pick. 505; Camp-

172. bell V. Brown, 2 Wood, 349; Utter-

2Rmghouse v. Keener, 63 111. 230; ,back v. Binns, 1 McLean, 242;

Stark v. Starr, 1 Sawyer, 15. Averett v. Brady, 20 Ga. 523; White

8 Doe V. Hare, 2 Cromp. & M. 145. v. Moses, 21 Cal. 34; McGarrity v.

4 Green v. Biddle, 8 Wlieat. 1. Byington, 12 Cal. 436; Worthington

5 Anderson v. Pisk, 36 Cal. 639; v. Young, 8 Ohio, 401; BedeU v.
Russell V. Blake, 2 Pick. 505. Shaw, 59 N. Y. 46; Bright v. Boyd,

6 Morrison v. Robinson, 31 Pa. St. 1 Story, 478; 2 id. 607; Union Hall
456. Asso. V. Morrison, 89 Md. 381; Mor-

"' Jackson v. Loomis, 4 Cow. 173; rison v. Robinson, 31 Pa. St. 456.
Hatcher v. Briggs, 6 Oregon, 31; A defendant in ejectment is not
Tongue v. Nat well, 31 Md. 302; liable for mesne profits taken ^rior
Week V. Fulton, 3 Graft. 193; Dbwd to his own entry, by those under
V. Fawcett, 4 Dev. 92; E wing v. Han- whom he claims; but if, in account-
ley, 4 litt. 846; Porter v. Henley, ing for the profits chargeable to
10 Ark. 187; Doe v. Roe, 3 Houst. himself, he claims credit for im-

360 EJECTMENT.

of the defendant, at such amount as they add to the market
value of the premises.' The compensation allowed at common
law for improvements was a mere equitable defense in mitiga-
tion of damages. iJ^ow very generally this defense, or the
right of a lona fide occupant to compensation for improve-
« ments, is defined and regulated by statute, and where it is so
defined and regulated, the party claiming such compensation
must bring himself within the statute.''

Eemedt foe, under the code. — The claim for damages for
withholding the possession is a distinct and separate cause of
action from the claim of possession. It was necessarily the sub-
ject of a subsequent action at common law. Under the code,
however, it is at the option of the plaintiff to join it with the
claim of possession in one action, or bring a separate action.
By the New York statute, prior to the code, the action for
mesne profits was required, in substance, to be an action for use
and occupation.' The change in the statutes by the introduc-
tion of the code did not disturb or affect this right of action
for use and occupation, but the action or procedure for its re-
covery was changed. "When the code came to unite the various

provements made by his predeoes- Huggins v. Clark, 51 Cal. 113; Mc-

sors, such improvements must first Crubb v. Bray, 36 Wis. 343. See ante,

answer for the profits taken by those p. 339, note 1. Where the improve-

■who erected them. Gardner v. Gi'an- ments made on the land by the de-

nis, 57 Ga. 539. fendant, in an action of ejectment,

A defendant in ejectment, who have been destroyed' by casualty

claims under a tax title, also under before the trial, and he is thereby

conveyance from a third party, and deprived of his right to compensa-

who made improvements before the tion for them in case the plaintiff

tax title accrued, cannot recover the recovers the land, the plaintiff will

value of his improvements from not be entitled to recover as mesne

the plaintiff. Jacks v. Dyer, 31 profits or rents during any portion

Ark. 334. of the time of the defendant's pos-

1 Thomas v. Thomas, Ex'r, 16 B. session, anything more than the rea-
Mon. 430; Bell's Heirs v. Barnett, 8 sonable value of the rent of the
J. J. Marsh. 516; Allison v. Taylor's premises, without the improvements
Heirs, 3 B. Mon. 363; Stark v. Starr, made by the defendant and de-
1 Sawyer, 15 ; Woodhullv. Rosenthal, stroyed. Nixon v. Porter, 38 Miss.
61 N. Y. 396-7; Wythe v. Myers, 3 401.

Sawyer, 598. 3 Holmes v. Davis, 19 N. Y. 488;

2 Lanquest v. Ten Eyck, 40 Iowa, Woodhull v. Rosenthal, 61 N. Y.
213; Love v. Shartra, 31 Cal. 487; 894.

MESNE PEOFITS.

851

classes of actions into one, under whicli all rights of action were
to be enforced, and to abolish all peculiarities in the forms of
pleading, the remedy for mesne profits naturally fell into the
arrangement, and became the subject of a civil action under the
new system; and the peculiar method of commencing it by
suggestion became inapplicable.^ Hence a claim for recovery
of real property, and damages for withholding the possession,
was held not to embrace- the claim for the rents and profits, be-
cause the latter is a separate and distinct cause of action.^

Under the Kentucky statute the plaintiff may unite in the
same petition " claims for the recovery of specific real property,
and the rents, profits and damages for withholding the same."
It was held that if the plaintiff shall elect to sue for the recov-
ery of the land merely, or for that and damages for being kept
out of possession in the same action, and seek by another suit
to recover damages for trespasses and injuries committed by
the destruction of timber or other property upon or appurte-
nant to the land, a judgment in one case would not bar a
recovery in the other.'

The right to damages for withholding the possession of real
property given by the Oregon code,* is equivalent to the action
of trespass for mesne profits given by the common law, and in-
cludes all damages to which the owner is entitled on account
of the wrongful occupation of the premises, as well for waste
committed or suffered by the occupant as the value of the use
and occupation. Such right is a distinct cause of action, and
it joined with a claim of possession should be separately stated.'

1 Holmes V. Davis, supra. See also Bottorff v. Wise, 53 Ind.

2Lariied v. Hudson, 57 N. Y. 151; 33.

Livingston v. Tanner, 13 Barb. 481. 4§§ 313, 318. See ante, p. 340.

See Cagger v. Lansing, 64 N. Y. 417. 5 Wythe v. Myers, 3 Sawyer, 595;

3 Burr V. Woodrow, 1 Bush. 692. Neff v. Pennoyer, id. 495.

353 ejectment.

Section 2.

DOWER.

The right of — It is assignable on valuation — Damages for detention —
Extinguishment by widow's death — Reprisals — Dower limited to hus-
band's equitable interest — Dower right in land subject to paramount
incumbrance.

The eight of dowee. — Dower, at common law, exists where
a man is seized of an estate of inheritance and dies in the life-
time of his wife. She is entitled to be endowed, for her natural
life, of the third part of all the lands whereof her husband was
seized, either in deed or in law, at any time during the coverture,
and which any issue which she might have had could by possi-
bility have inherited.^ Marriage, seizin of the husband, and his
death, are essential ; and where they concur, on the happening
of the latter, the right of dower becomes perfect, not as an
estate or interest in the land, but as a chose in action.^

It is assignable on a valuation. — Whatever the proceeding
by which dower is recoverable, the value of the lands must be
ascertained, for it is on that standard that the dower right is
measured. If the lands were aliened by the husband, and have
afterwards increased in value, it has been a question whether
such increase should be excluded from the valuation. Where
such increase of value is the result of improvements on the land
made by the alienee, it does not enter into the estimation for the
purpose of dower ; in other words, the admeasurement is then to
be made according to the value at the date of alienation; the
dowress recovers the equivalent of one-third of the value of
the land as such value was at that time.' But if the value is en-

1 4 Kent's Com. 35. Babb, 13 III. 483 ; Moore v. New York,

2 Id.; Sheaf 6 v. O'NeU, 9 Mass. 13
Hildreth v. Thompson, 16 Mass. 191
Croade v. Ingraham, 13 Pick. 33
Shields v. Batts, 5 J. J. Marsh. 13
Stedman v. Fortune, 5 Conn. 463:

4 Sandf. 456; Torrey v. Minor, Sm.
& M. Ch. 489; Harrison v. "Wood, 1
Dev. & Bat. Eq. 437; Potter v. Bver-
itt, 7 Ired. Eq. 152; Webb v. Boyle,
68 N. C. 271; Van Name v. Van

Jackson v. Aspell, 20 John. 412; Cox Name, 23 How. Pr. 347.

V. Jagger, 3 Cow. 638; Yates v. Pad- 3 Humphrey v. Phinney, 3 John,

dock, 10 Wend. 528; Johnson v. 484; Hale v. James, 6 John. Ch. 358;

Shields, 33 Me. 424; Summers v. Tod v. Baylor, 4 Leigh, 498; Wilson

DOWEE. 353

hanced by extrinsic or general causes, the weight of authority
seems to be in favor of including it. Tilghman, C. J., said : " I
have found no adjudged case in the Tear Books confining the
widow to the time of the alienation by her husband where the
question did not arise on improvements made after the aliena-
tion ; and having considered all the authorities which bear upon
the question, I find myself at liberty to decide according to
what appears to me to be the reason and justice of the case,
which is, that the widow shall take no advantage of the improve-
ments of any kind made by the purchaser, but throwing these
out of the estimate, she shall be endowed according to the value
at the time her dower shall be assigned to her." ^ This view is
supported by those great jurists. Story and Kent, and by many
adjudications.^ The rule has frequently been stated, however,
to be, that when lands are alienated during coverture, by the
husband, his widow is to be endowed of such lands at their
value at the time of alienation, thereby excluding her from the
benefit of any subsequent increase in the value from any cause.*
As to lands of which the husband died seized, the widow is eAtt-
tled to dower according to their value at the time of the assign^
ment.* She is entitled to have such part of the land set out to,

V. Oatman, 3 Blackf. 323; Thrasher Lawson v. Morton, 6 I^na, 471. See-

T. Pinckard, 33 Ala. 616; Banseth v. Doe v. Gwinnell, 1 Q. R 683;

Bank of the U. S. 6 Ohio, 77. 3 Humphrey v. Phinney, & Johni.

iThompson v. Morrow, 5 S. & E. 484; Shaw v. Whiter 13 John.. 179j

389. Dorchester v. Co.veatry,. 11 Jjohiii,

2 Powell V. M. & B. M. Co. 3 Mason, 509; Walker v. Schuylar^ lOi Wend.

347, 374; 4 Kent's Com. 68; Smith v. 481; MarW© tt.. Lewisv. 53 Barlx 432;

Addleman, 5 Blackf. 406; Dansethv. Brown v.. BEOwn, 31 How. Pr. 481

Bank of U. S. 6 Ohio, 77; Allen v. Green v. Tennant, 3Harr. (Del.)336

McCoy, 8 Ohio, 418; Gore v. Brazier, Ayer v. Spring,, 9iMassK 8; Catlin v,

3 Mass. 544; Soammon v. Campbell, Ware, 9> Mass. 317; Wooldridge v.

75 ni. 338; Barney v. Frowner, 9 Wilkins, 3. How. (Miss.) 360; Mark

Ala. 901; Summers v. Babb, 13 111. ham v. Merrett, 7 How. (Miss.) 437

483; Maiming v. Laboree, 33 Me. 343, Thomas v. Glammel, 6 Leigh, 9; Pol

347; Hobbs v. Harvey, 16 Me. 80; lard v. Underwood, 4 Hen. & M. 459

Mosber v. Mosher, 15 Me. 371; Bowie Leggett v. Steel, 4 Wash. 305.

V. Berry, 3 Md. Ch. 359; Fritz v. 4 Catlin t. Ware, supra; Wright v.

Tudor, 1 Barb. 38; Westcott v. Camp- Jennings, 1 Bailey, 377; McCreary v,

bell, 11 R. I. 378; Carter v. Parker, Cloud, 3 Bailey, 343; Lorrowe v.

38 Me. 509; WaU v. HiU, 7 Dana, 175; Beam, 10 Ohio, 498*

Taylor v. Brodrick, 1 Dana, 348; ^
Vol. Ill— 23

354 EJECTMENT.

her as dower, as will produce an income equal to one-third part
of the income, which the whole estate would then produce.^

Damages foe detention of dowee. — Originally, damages
were not recoverable in an action for dower at law.^ They
were first given by the statute of Merton ; but as that statute
only applied to actions for dower in lands of which the hus-
band died seized, damages continued to be denied in actions
brought against the husband's alienee.' At common law, the
right to damages was limited by the remedy. In this country
damages are generally, by statute or otherwise, recoverable
against the alienee from the time of demand and refusal, or of
the institution of the suit.* The heir or devisee in possession
is answerable for damages from the death of the husband, and
in New- York, Maryland, ISTew Jersey, and perhaps other
states, even without a demand, unless he plead tout temps prist;
and even on sustaining that plea he is liable from the com-
mencement.of the suit.' If that issue be found for the demand-
ant, she is entitled to damages from the death of the husband,
and not from the date of the demand only.^ The statute of
Merton seems not to have been adopted in South Carolina,
and, therefore, damages are not recoverable in actions for
dower ; '' and in that state interest cannot be recovered in a
court of law on a sum of money assessed in heu of dower,

1 Carter v. Parker, 28 Me. 509. 131; MoClannahan v. Porter, 10 Mo.

23 Saund. 45, note 4; Fisher v. 746. But see Benuer v. Evans, 3 Pen.

Morgan, Coxe, 135; Wright v. Jen- & Watts, 454; Bamet v. Bamet,

nings, 1 BaUey, 277; Laytonv. But- 15 S. & R. 73; McElroy v. Wathen,

ler, 4 Harr. (Del.) 507. ■ 3 B. Mon. 135.

3 Kendall v. Honey, 5 T. B. Mon. sDarnaU v. HiU, 13 G-Ul & J. 888;
283; Marshall v. Anderson, 1 B. Thrasher v. Tyack, 15 Wis. 356;
Mon. 198; Waters v. Gooch, 6 J. J. Hitchcock v. Harrington, 6 Jolrn.
Marsh. 589; Embree v. Ellis, 3 John. 390; Hopper v. Hopper, 33 N. J. L.
119; Fisher v. Morgan, Coxe, 125; 715; Rankin v. Oliphant, 9 Mo. 339;
Hopper V. Hopper, 33 N. J. L. 715; Layton v. Butler, 4 Harr. (Del.) 507;
Gaston v. Bates, 4 B. Mon. 866. Slatter v. Meek, supra; Turner v.

4 0'Perrall V. Simplot, 4Iowa, 381; Morris, 27 Miss. 733; Thomas v.
Beavers v. Smith, 11 Ala. 20; Slatter Gammel, 6 Leigh, 9.

V. Meek, 35 Ala. 528; Atkin v. Mer- <* Watson v. Watson, 30 L. J. C. P.

rell, 89 lU. 62; Galbreath v. Gray, N. S. 35.

20 Ind. 390; Price v. Hobbs, 47 Md. THeyward v. Cuthbert, 1 MoCord,

359; Sleigle v. HiUer, 5 Gill & J. 386.

DOWEB. 855

where the husband died seized; but, by statute, interest may-
be allowed on assessiiients against the husband's alienee.* It
has been usual there to assess one-sixth of the value of the
entire fee as equivalent to the widow's estate for life in one-
third of the land; and as a general rule, it is said that that
proportion -should be adhered to, except in extreme cases of
youth on the one hand, or of age and infirmity on the other.^
In Maryland damages against the husband's alienee can be
recovered only in equity.' The admeasurement and assignment
of dower defines it with a view to future enjoyment. If
withheld, afterwards, the loss is of that specific parcel. For
withholding dower before assignment, damages, when recover-
able, include, but do not consist exclusively of, the net annual
value of the third part of the lands in which the right of dower
exists. In a Canadian case,* after a judgment of seizin in'
dower, on a writ of inquiry, it was held that the mesne value
of the premises, between the death of the husband and the
obtaining the judgment, should be assessed ; also the demand-
ant's taxable costs in obtaining judgment of seizin ; her costs of
executing the writ of habere facias, and her necessary traveling
expenses incurred in prosecuting her suit. It was also held that
her residence on the premises, in the family, and at the expense
of the heir at law, for part of the time between the death of
the husband and her obtaining judgment, was not admissible as
a set-off to her damages for the detention, though proper to go
to the jury in mitigation.*

1 Wright T. Jennings, 1 Bailey, the value or third part of the profits,
277; McCreary v. Cloud, 3 Bailey, and also damages for the detention,
343. with costs. Upon this subject the

2 "Wright T. Jennings, supra. books seem irreconcilable. It would
sSeUman v. Bowen, 8 Grill & J. appear from Co. Litt. 836; the

55; Kiddall y. Trimble, 1 Md. Ch. Statute of Merton, 30 H. Ill, cap. 1;

143. 1 Ruffhead, 16; 3 Inst. 80; Eastal's

*Eobinett v. Lewis, Draper, 373. Entiies, b; Spiller v. Adams, 8

5 See Bogardus v. Parker, 7 How. Mod. 25; Hetley, 141, as if the value

Pr. 303. In Fisher v. Morgan, Coxa, and damages for detention were

125 (1792), Kinsey, C. J., said: " One not distinguishable from each other,

question which has been debated is, but assessed and recovered together

whether the word damages includes under the name of damages. But

the value or mesne profits; or although the word damna, properly

whether there is to be a recovery of taken, does include both the mesne

356

EJEOTMENT.

Dower was originally granted for the sustenance of widows,
and for this purpose she was relieved of feudal exactions. It
was provided by Magna Oharta that she should give nothing
for her dower, and tarry in the chief house of her husband for
forty days after his death, within which time it was required
that dower be assigned her.' Hence she has a right to damages
if dower is not so assigned ; but they cannot properly be given

profits and the extra sum for the
illegal detention,. yet there are not
wanting respectable authorities who
appear to regard them as distinct
objects of the suit and judgment.
In Trials per pais, 333, where the
duty of the jury is laid down, it is
said, if they find the husband died
seized, then they are to inquire:
1st. Of the value beyond reprises.
2d. What time has elapsed since
the death of the husband. 8d.
What damages the demandant has
sustained by the detention of the
dower. In Dennis v. Dennis, 3
Saund. 3S8, the jury find, first, that
the husband died seized; secondly,
the value; thirdly, the damages
for the detention beyond the value
and costs, by the name of damages;
fourth, the costs and charges. The
judgment follows, first, to recover
seizin of the third part; second, the
value of the third part; third, for
damages found by the jury, extra,
and the costs of increase; and the
record concludes, value and dam-
ages, and not, as in Bastal, which
damages amount to, etc. Clifton,
301-3-8; Hoxley, 99; Ashton, 363,
365, seem to confirm this form of
entry.

"As to the question before the
court, it is this: Whether, as the
jury have not found that the hus-
band died seized, the court are
empowered to give judgment either
for the value — the damages for
detention — or costs. In Dyer, 38a,

it is laid down that 'the common
practice is, and the precedents of
the common pleas are, that a
woman demandant in dower shall
not recover any damages, unless the
husband died seized; and this by
the stattite of Merton, c. 1.' The
same law is laid down in Doct. and
Stud. cap. 18, p. 140; Co. Litt. 33&;
Yelv. 113. The form of the writ of
inquiry strengthens the authority
of these books; it always directs the
jury to inquire if the husband died
seized, and if he did, then to inquire
of the value and damages. A note
in Jenk. 45, seems contrary to this,
and to give countenance to the idea
that, if the husband did not die
seized, she shall recover her dam-
ages from the time of the demand
from the tenant. Buller adopts
the same doctrine, but in neither of
these books is there any other
authority cited than 1 Inst. 336,
which, as we have seen, establishes
the contrary law. The dicta of
these writers are respectable author-
ities, but the court are compelled to
reject them on the present occasion
as not warranted by any judicial
opinion, and as insufficient to weigh
against the law as it has long been
established." See Sheppard v. War-
dell, Coxe, 453; Martin v. Martin,
14 N. J. L. 135 (1833). See O'Fla-
herty v. Sutton, 49 Mo. 583; Thomas
V. Mallinckrodt, 43 Mo. 58.
1 Co. Litt. 336, sec. 36.

DOWEE. 357

for -withholding dower, except for such withholding after the
duty attaches to assign it to her. The alienee of the husband
wrongfully withholds it after demand, and the heir and his
ahenee from the death of the husband. Jn her action against
the heir, however, he may plead tout temps prist, and if he suc-
ceeds, she will not recover damages, because it is said the heir
holds by title and does no wrong till a demand is made.' If
the tenant comes the first day and acknowledges the action, and
avers that he was at aU. times ready to render dower, the de-
mandant could take judgment ; then she would recover only
seizin et nihil de misd quia venit primo die. But if the de-
mandant would have damages, she may reply that she requested
her dower, and the tenant did not endow her, and then the
judgment for damages and value will wait till the issue is tried,
and depend on the result.^ She is not called on to prove such
demand except upon that issue.'

If the heir sells, he by that act denies dower, and his grantee
cannot plead tout temps prist because he had not the land all
the time since the death of the husband.^ That plea is avail-
able only to the heir. When he sells, and thus repudiates the
dower and in effect refuses it, such plea cannot be made. And
the widow is entitled to recover, against the feoffee of the heir,
damages for the whole period from the death of the husband —
although such defendant has occupied and claimed the land for
only a portion of that time.^

ExTiNGijiSHMENT BY wiDOw's DEATH. — At law, whcrc uo Stat-
utes protect her, the widow's right to damages is extinguished
by her death.* But it is otherwise in equity.' A widow has a
right to ask, in equity, part of a fund in lieu of dower, where

1 Co. Litt. 33a, sec. 86. kins v. Yeomans, 6 Met. 438; Sand-

2 Id., note. back v. Quigley, 8 Watts, 460;
sHitchcockv. Harrington, 6 John. Turney v. Smith, 14 111. 343. See

390; Woodnaff v. Brown, 17 N. J. L. Kama v. Tanner, 74 Pa. St. 339.

346. '1 Story's Eq. § 625; Mulford v.

< Co. Litt. 83; Park on DoWer, 303. Hirds, 13 N. J. Eq. 13; Curtis v.

5 Woodruff V.Brown, supra; Seaton Curtis, 3Bro. Ch. 633; Dormer v. For-
V. Jamison, 7 Watts, 533; Hopper v. tesque, 3 Atk. 130; Park on Dower,
Hopper, 33 N. J. L. 715. ch. 15, p. 830. See McLaughlin v.

6 Kowe V. Johnson, 19 Me. 146; At- McLaughlin, 33 N. J. Eq. 505.

358 EJECTMENT.

that fund has been produced by a sale of her husband's lands
which were subject to her dower, and increased by being sold
clear of that incumbrance with her consent.^

In determining the value of dower, when to be paid out of
the proceeds of the land sold so as to extinguish the right of
dower, its present worth is estimated upon the basis of an an-
nuity of such amount as equals the legal interest on one-third
of those proceeds for a period which constitutes the widow's
expectancy of life according to the rules generally adopted in
calculating the probable time a person will live.^ And this sum
is recoverable though the widow die before its recovery and
short of the time included in her expectancy. In such case the
thing to be appraised, and with which the widow parts, is not
the value of her real interest in the land, but the value of her
expectancy.'

Kepeisals. — At common law, there were certain reprisals
which were made frpm the damages of the widow, and among
these sometimes were included a deduction on account of her
occupation of some part of the property. The legitimate ex-
tent of such deductions appears to have been this : "Whatever
part of the property the widow has been in the actual enjoy-
ment of, was thrown out of the estimation of damages, and on
the simple ground, that, from such property, she had not been
deforced of her dower. But this rule merely excluded the
claim of the widow to recover the value of her thirds in the
land during the time she hatl so occupied it ; but it did not au-
thorize the heir to set up a counterclaim, in the suit for dower,
for the other two-thirds of the value of the premises so having
been occupied. If the widow had occupied the land without
the assent of the heir, she was a mere trespasser, and it would
not be competent for him, in the action of dower, to set off the
damages thus sustained ; and if, on the other hand, he had con-
sented to such occupation, he had his action to call the widow to

iMaccubbin v. Cromwell, 3 Hair. 667. See Shippen & Eobbins' App.

& G. 443; Bonner v. Peterson, 44 80 Pa. St. 391; How v. How, 48 Me.

m. 353. 428.

2 0'DonneU v. O'Donnell, 3 Bush, s McLaughlin v. McLaughlin, 22

316; Alexander v. Bradley, 3 Bush, N. J. Eq. 505.

DOWEE. 359

acoount. But in the action of dower, the eifect of the enjoy-
ment by the widow was to estop her from saying that in such
land she had been deforced of her dower, and on that account
to claim damages.^

DoWEE LtMriED TO THE HUSBA2^d's EQUITABLE mTEEEST m THE

LAND. — Dower is generally confined to the beneficial interest
which the husband acquired during coverture in the land.^ If
the land is subject to a paramount charge or incumbrance, as
where the dowress had joined with her husband in making a
mortgage; or he, on instantaneous seizin, alone mortgages it
for purchase money ; or it was subject to a judgment or mort-
gage at the time of the marriage, or when the husband acquired
it, her dower is confined to the right of redemption ; it is sub-
ject to the incumbrance and liable to be foreclosed, or to con-
tribute to the payment of the debt.'

DoWEE EIGHT ET LAND SUBJECT TO PAEAMOUNT INCUMBEANOE.

It has always been the policy of the law to preserve with care
the right of dower, when it has once attached to the property
of the husband ; but the right must always attach subject to
all the equities that may exist against the title of the husband

1 McLaughlin v. McLaughlin, su- ^CarU v. Batman, 7 Greenl. 102;

pra; Perrine v. Perrine, 35 Ala. Eichardson v. Skolfield, 45 Me. 386;

644; Driskell v. Hanks, 18 B. Mon. Simonton v. Gray, 34 Me. 50; Strib-

855; Craige v. Morris, 25 .N. J. Eq. ling v. Ross, 16 111. 132; Manning v.

467; Strawn v. Strawn, 50 111. 256. Laboree, 33 Me. 343; Eawlings v.

. ^Welchv. Buckins, 9 0hloSt. 831; Lowndes, 34 Md. 639; Stewart v.

Fontaine v. Boatman's Sav. Inst. 57 Beard, 4 Md. Ch. 319; Birnie v. Main,

Mo. 553; BuUard v. Bowers, 10 N. 39 Ark. 591; Opdike v. Bartles, 11

H. 500; Griggs v. Smith, 13 N. J. L. N. J. Eq. 133; Hinchman v. StUes,

28; Edmundson v. Welsh, 27 Ala. 9 N. J. Eq. 361; Walton v. Har-

578; Leavitt v. Lamprey, 18 Pick, groves, 43 Miss. 18; Culver v. Ex'r

383; Holbrook v. Finney, 4 Mass. of Harper, 37 Ohio St. 464; Mc-

566; NicoU v. Ogden, 39 111. 333; Mahon v. Kimball, 3 Blackf. 1;

NicoU V. MiUer, 87 lU. 387; NicoU v. Coles v. Coles, 15 John. 319; Young

Todd, 70 lU. 395; Stow v. Steel, 45 v. Tarbell, 37 Me. 509; MiUs v. Van

lU. 338; Stow v. TiflEt, 15 John. 458; Voorhees, 20 N. Y. 413; Leaven-

Coates V. Cheever, 1 Cow. 460; Gam- worth v. Croney, 48 Barb. 570; Clark

mon V. Freeman, 31 Me. 248; GiUiam v. Munroe, 14 Mass. 351; Lewis v.

v. Moore, 4 Leigh, 30; Winn v. El- James, 8 Humph. 537; Mantz v. Bu-

Uott, Hardui (Ky.), 482; Hale v. chanan, 1 Md. Ch. 203. See King

Munn, 4 Gray, 183. See Barnes v. v. Stetson, 11 Allen, 407; Smith v.

Gay, 7 Iowa, 26; Yeo v. Mercereau, McCarty, 119 Mass. 519. See also

18 N. J. L. 887. Greenbaum v. Austrian, 70 lU. 591.

360

EjfiOTMENT.

at the time it attaches.^ Payment of the incumbrance, by the
husband or his personal representative, will inure to the relief
of her dower; but when she claims her dower from an heir or
purchaser who has discharged the lien, she will be required to
contribute, and must pay proportionately to the value of her
dower, which will be the interest on one-third of the debt that
was a lien, for her life, or a gross sum equivalent thereto.^
If there is a surplus on the foreclosure of a mortgage or other
incumbrance to which dower in the land is subject, it will at-

1 Firestone v. Firestone, 3 Ohio St.
415. See Crane v. Palme, 8 Blackf .
120.

s Swaine v. Ferine, 5 John. Ch. 483;
Evartsou v. Tappeii, 5 John. Ch.
497; Atkinson v. Stewart, 46 Mo.
510; Rossiter v. Cassitt, 15 N. H. 38;
Woods V. Wallace, 30 N. H. 384;
Bolton V. Ballai-d, 13 Mass. 337; Mc-
Arthur v. Franklin, 16 Ohio St. 193;
BuUard v. Bowers, 10 N. H. 500;
Peckham v. Hadwen, 8 E. I. 160;
Coates V. Cheever, 1 Cow. 460;
Creecy v. Pearce, 69 N. O. 67; Hil-
dreth v. Jones, 13 Mass. 535; Jenni-
son V. Hapgood, 14 Pick. 345; Snyder
V. Snyder, 6 Mich. 470; Cockrill v.
Armstrong, 31 Ark. 580; Danforth
V. Smith, 33 Vt. 347; Van Vronker
V. Eastman, 7 Met. 157; Bell v.
Mayor of N. Y. 10 Paige, 49. See
Newton v. Sly, 15 Mich. 391; WUson
V. Davissou, 3 Rob. (Va.) 384. In
Campbell v. Campbell, 13 N. J. Eq.
415, a bill was filed by the widow of
an intestate for dower in lands of
three kinds: 1, that which was sub-
ject to a mortgage, put thereon by
the intestate; 3, that which was
purchased by him, subject to a
mortgage, the amount of which was
allowed to him as so much of the
pui'chase money, and the payment
thereof assumed by him; and, 3,
that which belonged to him as a
member of a partnership; and the
chancellor said: "It is, of course,
unnecessary to speak of the real es-

tate owned by him individually,
which was not subject to any in-
cumbrance. It is almost equaEy so
with regard to that part of such
real estate which is subject to mort-
gage put thereon by him. His per-
sonal estate is bound to exonerate
that land from the burden of the
mortgage. Keene v. Munn, 1 C.
E. Green, 398; McLenahan v. Mc-
Lenahan, 8 C. E. Green, 101. As
to that which was purchased by him
subject to mortgage, the amount of
which was allowed to him as so
much of the purchase money, and
the payment whereof he assumed,
his personal estate is not bound to
exoneration. In such case, to make
his estate primarily liable, there
must be clear evidence of an inten-
tion to make the mortgage debt his
own. The weiglit of authority,
both in this country and England,
is that the personal estate is not pri-
marily liable, unless the grantee has
not merely made himself answer-
able for the payment of the mort-
gage, but has made the debt directly
and absolutely his own, or has in
some other way manifested an in-
tention to throw the burden on the
personalty. But the point under
consideration was directly passed
upon and decided in McLenahan v.
McLenahan, ubi supra. There the
amount of the mortgage had been
allowed to the intestate as so much
of the purchase money. See, also,

DOWEE.

361

tach to sucli surplus.' The widow may redeem from a para-
mount mortgage; but in that case she must pay the whole
debt.2 But if the mortgage is held by the purchaser of the
equity of redemption, or in other words, by the party bound to
contribute the residue of the mortgage debt, she may redeem
by paying her fair proportion according to her estate.^ If the
defendant in such case has been in possession under the mort-
gage, she is entitled to an account of rents and profits. And
in computing the sum due on the mortgage, it has been held that
annual rests should be made; that the sums paid by the de-
fendant, the first year, for repairs, taxes, etc., should be deducted
from the gross rents received by him, and the balance be taken
as the net rents ; that the interest on the mortgage debt, for the
first year, should be added to the principal, the net rent be de-
ducted from the aggregate, and the balance become a new prin-
cipal ; and so on from year to year to the time of judgment.*

Where a mortgage, in which the wife joined, was foreclosed
in the life-time of the husband against him alone, and the pur-
chaser went into possession, it was held that as to the widow

Crowell V. Hospital of St. Barnabas,
12 C. E. Gr. 650, and King v. White-
ley, 1 Hofifm. Oh. 477.

" The real estate of a partnership,
purchased with partnership funds,
or for the use of the firm, is subjected
to the doctrine of equitable conver-
sion, so far as necessary for the pur-
poses of the partnership, but other-
wise it retains its legal character
and incidents. It is, in equity,
chargeable with the debts of the co-
partnership, and any balance which
may be due from one copartner to
another. On the winding up of the
affairs of the firm, as between the
heirs at law and the personal repre-
sentatives of a deceased partner,
his share of the surplus of that real
estate remaining after paying the
debts and adjusting all the equitable
claims of the different members of
the firm, as between themselves, is
to be considered and treated as real
estate. The widow of such deceased

partner will be entitled to dower in
his share of any real estate of the
firm not required for the payment
of such debts and the adjusting of
such equitable claims. Uhler v.
Semple, 5 0. E. Gr. 388; Buchan v.
Sumner, 3 Barb. Ch. 165; Shearer v.
Shearer, 98 Mass. 107; 1 Wash, on
E. P. (4th ed.) 669; 1 Scribner on
Dower, 536; Foster's App. 74 Pa.
St. 391." Bopp V. Fox, 63 111. 540.

1 Matthews v. Durgee, 45 Barb. 69
Titus V. Neilson, 5 John. Ch. 453
Smith V. Jackson, 3 Edw. Ch. 28
Hawley v. Bradford, 9 Paige, 300
Keith V. Trapier, 1 Bailey Eq. 68
Boyer v. Boyer, 1 Cold. 12; Bank of
Commerce v. Owens, 81 Md. 330.

2 Norris v. Morrison, 45 N. H. 490.

3 Woods V. WaUace, 30 N. H. 384;
Van Vronker v. Eastman, 7 Met.
157; McArthur v. Franklin, 16 Ohio
St. 193.

< Van Vronker v. Eastman, supra.

362 EJECTMENT.

applying to redeem her dower interest, he was to be regarded
as the mortgagor and mortgagee occupying in common accord-
ing to their respective interests ; that regarding the price paid
at the judicial sale as representing both interests, the purchaser
should account for such a proportion of the net annual rents as
the amount due on the mortgage at the time of the sale bore to
the price at which the land was sold ; that in ascertaining the
annual rents, the enhanced value of the land from improve-
ments other than ordinary repairs should be excluded. Taxes
and ordinary repairs should be deducted to get the net rents.
The plaintiff not having been a party to the foreclosure suit, is
entitled to have the amount taken in the same manner as though
no decree had been rendered; therefore, in the computation,
there should be no rest made at the time of the rendition of
the decree. In determining the amount to be paid by the
widow, she should be charged with such part of one-third of
the debt remaining unpaid as bore the same proportion to the
one-third of such debt as the value of her life estate in one-
third of the land bore to the value of an unincumbered fee in
one-third of the entirety; in other words, the widow should
pay the present worth of an annuity for her hfe equal to one-
third of the interest of the debt found due at the taking of the
account.^

"Where land is sold to satisfy a paramount lien, and there is a
surplus, a wife's contingent dower interest in it will be recog-
nized. It has been held, in New York, that she is entitled, as
against judgment creditors, to have one-third of the amount
invested for her benefit, and kept invested during the joint
lives of herself and her husband, and during her own life in
case of her surviving him, as and for her dower in such surplus
moneys.^ In a late case in Ohio,' the same interest was recog-
nized ; but the court disapproved of sach an investment as a
mode of protecting or preserving it; and it was held that its
value, ascertained by reference to the tables of recognized au-
thority on that subject, in connection with the state of health
and constitutional vigor of the wife and her husband, be paid
to her.*

1 McArthur v. Franklin, supra. ' Unger v. Lister, 33 Ohio St. 210.

2 Denton v. Nanny, 8 Barb. 618. ^ See Bonner v. Peterson, 44 111. 253.

TBESPASS TO EEAL PEOPBETT. 363

CHAPTER XT.

INJURIES TO REAL PROPERTY.

The damages for withholding possession, recoverable after
judgment for the plaintiff in ejectment, or in the action for re-
covery of possession of real property, have been discussed in
the foregoing chapter. These damages result from, or are con-
nected with, the loss or suspension of the plaintiff's possession,
and cannot be recovered until possession is regained. When
there has been a re-entry, whether pursuant to a judgment of
restitution or otherwise, all the damages from the ouster to the
re-entry may be recovered.^ But all injuries to real estate do
not involve a loss of possession ; so injuries to the inheritance
may be redressed by action, though the owner is not in pos-
session. These will constitute the subject of the present
chapter.

Section 1

trespass to real peoperty.

The gist of the action — Trespass defined, and the scope of the remedy
stated — Measure of damages — Aggravations and special damages.

The gist of the action. — The gist of this action is the injury
to the plaintiff's possession;^ and only the party actually or
constructively in possession can sue.' "Where the land on which

1 Cutting V. Cox, 19 Vt. 517; Smith v. Palister, 3 Greenl. 6; Lyford v.
V. Wunderlich, 70 111. 426; Stevens Toothaker, 39 Me. 28; Holmes v.
V. Hollister, 18 Vt. 294; Holmes v. Seely, 19 Wend. 507; "West v. Lamer,
Seely, 19 Wend. 507; Smith v. 9 Humph. 762; Smith v. Wunder-
Ingram, 8 Ired. 175; AUenv. Thayer, lich, 70 IE. 426; CampbeU v. Arnold,
17 Mass. 299; Illinois, etc. Coal Co. 1 John. 511; Wickham v. Freeman,
V. Cobb, 82 111. 183; Wohler v. Buf- 13 John. 183; Van Rensselaer v. Rad-
falo, etc. Co. 46 N. Y. 686. See oliif, 10 Wend. 639; Lienow v.
Tracy v. Batters, 40 Mich. 406. Ritchie, 8 Pick. 235; French v. Fuller,

2 Booth V. Sherwood, 13 Minn. 436; 23 Pick. 104; Owings v. Gibson, 2 A.
Smith V. Wunderlich, 70 lU. 436; K. Marsh. 515; Foster v. Fletcher, 7 T.
Reed v. Price, 30 Mo. 443. B. Mon. 534; Miller v. Fulton, 4 Ohio,

3 Smith V. Ingram, 8 Ired. 175; 433.
Abbott V. Abbott, 51 Me. 575; Little

'364 INJUEIES TO EEAL PEOPEETT.

the trespass is committed is not in the actual occupation of any
person, the plaintiff may prove constructive possession by
showing his title.^ One person may have possession of the
surface and another of the subsoil, or mines and minerals.^
The possession is presumed to be in the owner of the legal title
in the absence of all other evidence ; or in other words, no one
being shown to be in adverse possession, he will be presumed to
be in possession ; ' and it will also be presumed that his pos-
session is coextensive with his grant.* Though the possession
is by wrong, it will sustain the action against a stranger.*

Teespass deputed, and geneeal scope op the eemedt stated.
Every' unauthorized intrusion into the land of another is suffi-
cient trespass to support an action for breaking the close.^ It
is immaterial to the cause of action that no actual injury is
done, or that the tortious act of the defendant is even bene-
ficial to the plaintiff.'' His legal right being invaded by the
intrusion upon his premises, he is entitled at least to nominal
damages, in order to vindicate that right, and recover his costs.^
When the plaintiff's land is illegally entered, a cause of action
at once arises ; whatever is done after the breaking and entry
is but aggravation of damages.'

The action of trespass qua/re clav^%mi f regit, therefore, may
embrace, for the purpose of compensation to the owner, as well
as punitory damages, all the things done and said by the de-
fendant in the course and forming part of the res gestm of such
breaking and entry, and all the natural and proximate effects
which ensue.'"

1 Booth V. Sherwood, supra; Yor- Coy, 50 Mo. 348; Doty v. Burdick,
gensen v. Yorgenseu, 6 Neb. 383. 83 lU. 473.

2 Cox V. Glue, 5 0. B. 533. « Dougherty v. Stepp, 1 Dev. &

3 Griffin v. Creppin, 60 Me. 270; Batt. 371.

Smith V. Wunderlich, supra. 7 Murphy v. Fond du Lac, 23 Wis.

iMelcher v. Merry man, 41 Me. 365; Parker v. Griswold, 17 Conn.

601. 288.

SEoUlnsv. Clay, 33 Me. 132; Wil- 8 Vol. I, p. 9.

der V. House, 48 lU. 279; Reeder v. 9 Adams v. Blodgett, 47 N. H. 219;

Purdy, 41 111. 279; Header v. Stone, Brown v. Manter, 22 N. H. 468; Fer-

7 Met. 147; Teates t. AUin, 2 Dana, rin v. Symonds, H N. H. 365; Kolb

134; Ives v. Ives, 13 John. 235; Reed v. Bankbead, 18 Tex. 229.

V. Price, 30 Mo. 443; Jenkins v. Mc- I'Damron v. Roach, 4 Humph. 134.

TRESPASS TO EEAL PKOPEETT. 365

Meastjee of damages. — Damages in this action may be such
as are appropriate to the tenure by which the plaintiff holds,
and such as result from the injury he has suffered. Possession
alone will entitle the plaintiff to recover damages for any
injury affecting solely his possession. If he seeks to recover
damages for the future, he must show that his title gives him
an interest in such damages, and he can recover none except
such as affect his own right,' unless he holds in such relation to
the other parties interested that his recovery will bar their
claim.^ The same act may be injurious to several persons
having different interests : to a tenant, or one having a limited
estate in possession, in the interruption of his enjoyment and
the diminution of his profits ; to a landlord, or one having an
expectant estate in reversion or remainder, in the more perma-
nent injury to his property. Eoth may have separate actions
for their several damages.' Where a stranger cuts 'down trees,
a tenant can recover only in respect of shade, shelter and fruit ;
for he is entitled to no more.*

A tenant may recover for an injury which impairs the value
of his possession ; also for an injury which imposes an additional
burden in the performance of his covenant to repair.^ If an
injury is done to a building which the tenant must keep in
repair, that liability entitles him to recover damages for the
injury.* A tenant for years has a right to be compensated for
all injury done to his possession and to his rights as lessee ; and
in ascertaining this, the, expense necessary to restore the build-
ing to such a state as would make the possession as beneficial
for the purposes of the tenant as it was before the trespass was
committed, should be allowed. The allowance of damages

iG-ilbertv. Kennedy, 33 Mich. 117. The Town of Hamdeu v. Rice, 34

^ Woods V. Banks, 14 N. H. 101; Conn. 350; Reader v. Purdy, 41 111.

Hibbard v. Foster, 34 Vt. 543; Bige- 379; Starr v. Jackson, 11 Mass. 519;

low V. Rising, 43 Vt. 678; Nims v. Jackson v. Todd, 35 N. J. L. 131;

City of Troy, 59 N. Y. 500; Jackson Bennett v. Thompson, 13 Ired. 146.

V. Todd, 35 N. J. L. 131; Harker v. ^Bedingfieldv. Onslow, 3 Lev. 309.

Dement, 9 Gill, 7. sRardrop 'v. GaUagher, 3 E. D.

3 George v. Fisk, 23 N. H. 32-45; Smith, 533.

Lane v. Thompson, 43 N. H. 330; ^Gourdier v. Cormaok, 2 E. D.

Rolle's Abr. tit. Trespass, notes 3, Smith, 200.

4, 5; Jesser v. Gifford, 4 Burr. 3141;

366 INJUEIES TO REAL PEOPEETY.

in favor of a tenant, however, should not exceed the value of
his term, including the rent he is bound to pay.' Where J T
demised land to the plaintiff at an annual rent for twenty-one
years, with liberty to dig half an acre of brick earth annually, the
lessee covenanting that he would not dig more, or, if he did,
he would pay an increased rent of 37U. per half acre, being
after the same rate that the whole brick earth was sold for, and
a stranger dug and took away brick earth, it was held the
lessee was entitled to recover against him, and retain the full
value of it.^ Where it appears that the plaintiff entered as
tenant, he must prove his lease in order to recover more than
nominal damages for other than past injury to his possession.'
Where it appeared that the defendant, sued for pulling down
a wall on the premises, received a lease five days after the
trespass complained of, the plaintiff was only allowed nominal
damages, it appearing that he entered under the same lessor,
and did not think proper to show his lease.* A plaintiff in
possession under color of title to the fee can recover against
a stranger as owner. If the defendant be a mere intruder, he
cannot set up title in a third person either to affect the cause of
action, or in mitigation.' One in possession under a contract of
purchase, and entitled to a conveyance, is virtually the owner.^
The damages will be such as result from the injury the
plaintiff has suffered. If the defendant derives a benefit from
the tortious use of the plaintiff's premises, the plaintiff wiU be
entitled to damages measured by the benefit to the defendant.
Where the defendant tortiously used the plaintiff's canal, the
court saj^ trespass could be brought for entering and breaking
the plaintiff's close, and he could allege and prove the use of the
canal as special damages.' He will be entitled to recover the
-value of the use.'

1 Walter v. Post, 4 Abb. Pr. 383- Atkinson, 35 Wis, 48; Todd v. Jack-
390. son, 36 N. J. L. 535; Hebert v. Lege,

2 AttersoU v. Stevens, 1 Taunt. 183. 39 La. Ann. 511.

^Gilbert V.Kennedy, 33 Mich. 117. sHonsee v. Hammond, 39 Barb.

i Twyman v. Knowles, 13 C. B. 323. 89.

5 Reed v. Price, 30 Mo. 443-447; ' Ward v. Warner, 8 Mich. 508-535.

Illinois, etc. R. R. Co. v. Cobb, 94 SMoWiUiams v. Morgan, 75 111.

IlL 55; First Parish of Shrewsberry 473.
V. Smith, 14 Pick. 397; Ganter v.

TEESPASS TO BEAl PEOPEETT. 367

Where land was let to the tenant, but the right to the min-
erals remained in the landlord, who, however, could not get
them without the tenant's consent, and who had, nevertheless,
got them without such consent, it was held that as the tenant
had an absolute veto, it was equal in value to that of the min-
erals, less so much money as would induce a third person to get
them; in other words, the measure of damages against the
landlord would be the net returns from the sales, less such a
sum of money by way of profit as would induce a third person
to undertake the enterprise.^

AU the facts and circumstances constituting or proximately
connected with the trespass, tending to show its character and
immediate consequences, may be proved, both to show the
amount necessary to a just compensation for the injury, and the
motive of the defendant, to enable the jury to determine whether
the wrong is such that punitory damages should be given, and,
if so, how much. In the absence of facts warranting exemplary
damages, the. principle of compensation governs the admeasure-
ment of damages; and to ascertain the amount, the mode of
proof must be adapted to the facts of each case. If the wrong
consists in destroying some improvement on the property not
essential to its enjoyment, and not appreciably affecting the
value of the property as a whole, or any special interest of the
plaintiff therein, the damages may be estimated on the value of
the thing destroyed or removed. Thus the removal by the vil-
lage authorities of a sidewalk which had been laid by the village,
at its own expense, in front of the plaintiff's lot, and used there
for two years, and kept in repair by the plaintiff, is a trespass,
for which the plaintiff was allowed to recover the value of the
walk, down, at the time it was removed .^ But where the tres-
pass suspends or impairs the enjoyment of the premises, compen-
sation may be given on the basis of the rental value in the
absence of any ground for special damages, or in addition to such
special damages ; and if the premises are put out of repair, the
cost of repair will be an additional item, including interest on
the amount paid. Where the trespass was the removal of a

1 Attorney General v. Tomline, 5 See Clark v. St. Clair, etc. Co. 24
Ch. D. 750; Mayne on Dam.^ 387. Mich. 508.

2 Rogers v. Randall, 39 Mich. 41.

368 DfJUEIES TO EEAl PEOPEETT.

fence, it was held that the plaintiff was entitled to recover such
damages as would, properly expended, restore the premises to
the condition they were in before the interference of the defend-
ant.^ "Where the unfinished house of the plaintiff, being built
under contract, was injured and its completion delayed by the
defendant's tortious act, the plaintiff was not only entitled to
recover for the injury to the building but also the rental value
during the delay thus occasioned. The court say : " There was
no valid objection to a recovery by the plaintiff for the injuries
to the dwelling house. It was part of the realty and the prop-
erty of the plaintiff. The fact that it was built by contract, and
was not completed, did not detract from his right to the house
as it was, or to recover for its destruction. A recovery by him
would bar an action by the contractors, even if it be conceded
they would have a remedy against the defendant. Whether an
action would lie at their suit may be very doubtful. It would
depend upon their liability to the plaintiff, and their obligation
to deliver to him a completed house, notwithstanding the de-
struction of the partially completed building, by the falling in
of the sewer on the plaintiff's' own premises, and without fault
on their part. This liability would not probably be readily ac-
quiesced in by the contractors, and it might be difficult to estab-
lish it by action. But no legal objection exists to a recovery by
the plaintiff for that which was clearly his, although he might
have an action against a third person, who in turn would have a
remedy over against the city." ^ If the thing destroyed, al-
though it is part of the realty, has a value which can be accu-
rately measured and ascertained, without reference to the soil
on which it stands, or out of which it grows, the recovery may
be of the value of the thing thus destroyed, and not for the dif-
fetence in the value of the land before and after such destruc-
tion.' The defendant who destroyed the sluiceway to a mill
was held liable for the sluiceway and the consequential damages
of the plaintiff for having his mill stopped.^ If for the purpose
of staying a conflagration, a building has been blown up with-

1 Marvin v. Pardee, 64 Barb. 353. Co. 86 Barb. 647; Clark v. St. Clair,

2Nims V. City of Troy, 59 N. Y. etc. Co. 84 Mich. 508.

608. * Hammat v. Russ, 16 Me. 171.
aWhitbeck v. N, Y. Cent. R. R.

TEESPAS8 TO EEAL PEOPEKTT.

369

out right, the jury in estimating the damages should, consider
the circumstances under which the building and its contents
were situated, and their chance of being saved, even though the
same were not actually on fire ; and should determine their value
with reference to the peril to which they were exposed.'

A railroad company which lays its track upon land without
the consent of the owner, and without acquiring the right to
the land, is liable in damages for the difference between the an-
nual rental value of the premises with the railroad track down,
and the road operated as it is, and what the rental value of the
premises would have been if the road had not been there.^ A
wrong of this nature is held to be a continuing one ; there is,
therefore, a right to bring successive actions, and prospective
damages cannot be recovered.'

1 Parsons v. Pettingill, 11 Allen,
507.

2 Blesch V. Chicago, etc. R. E. Co.
43 Wis. 183.

3 Carl V. Sheboygan, etc. E. E. Co.
46 Wis. 635. In this case Taylor, J.,
says: "One reason why a railroad
company can be charged with the
permanent damages for taking land
for its own use in a proceeding
under the statute for asserting the
right of eminent domain, is, that,
when such damages are paid, the
company is entitled to have a clear
title to the property so taken, and
such title cannot be acquired in an
action for a trespass or nuisance.
Another reason is, that, in the ac-
tion to recover damages for the
nuisance, the plaintiff may have
judgment to abate the nuisance, and
it would be clearly unjust that the
plaintiff should recover damages
for a continuance of the nuisance
and at the same time have judg-
ment to abate and remove the same.

"The exact question presented by
the case at bar was decided in the
case of BattishiU' v. Eeed, 18 C. B.
696, in the court of common pleas
in England, in 1856. This was an
Vol. Ill — 34

action to recover damages for a con-
tinuing nuisance to the plaintiff's
building, maintained by tlie defend-
ant. On the trial the plaintiff
offered evidence of permanent dam-
ages to his premises in the diminu-
tion of their salable value, by the
act complained of. The evidence
was excluded, and the question was
argued before the full bench, whether
the evidence should have been ad-
mitted; all the judges concurired in
holding that it was properly ex-
cluded. The grounds of the decision
were: first, that as the defendant
could be sued again for the continu-
ance of the nuisance, the plaintiff
could only recover such damages as
he could prove he had sustained in
the use of his premises previous to
the commencement ofi the action;
and second, that neither the plaint-
iff or the court has the right to as-
sume that the defendant would
continue the nuisance after a ver-
dict against him in the first action."
In Adams v. Hastings, .etc. E. E.
Co. 18 Minn. 360,. trespass was
brouglit for constructing and oper-
ating a railroad over, the plaintiff's
premises. It was held that damages

37^1

rSJUKIES TO EEAL PEOPEBTT.

could not be assessed for the perma-
nent depreciation of the value of
the plaintiS's land from the building
of the road and its supposed contin-
uance in the fnture. The court say:
" As there is no presumption of law
that such illegal mnning of trains
and other trespasses will be contin-
ued in the future — that the nnlawfnl
act of to-day will be repeated on the
morrow — it is, of course, obTious,
that while the jury in the present
case could a^^ss past d^nages, they
could not assess the permanent dam-
ages, to accrue from an assumed
continued use thereafter of the land
by the defendant in the same way.
Ford V. Chicago, etc. Bailroad, 14
^is. 609.

'• The defendant may now, if it
sees fit, proceed nnder its charter to
acquire in plaintiffs land, by paying
full and projjer comx>ensatian there-
for, the rights above stated. Such
compensation, too, must include not
only the value of the land taken,
but also such incidental loss and
damage as may be reasonably ex-
pected to result from the construc-
tion and use of the road in a legal
and proper manner, necessarily in-
clnding, therefore, permanent dam-
ages to accrue from a continned use
of the road. Till it see fit to do so,
if it continue meanwhile without
his consent to run its trains over
plaintifTs land, it is a trespssser,
liable to him for such damages as he
may sustain by such repeated illegal
acts done on his land. 1 Bedf. on
Bailways, ch. 11, sec. 12: Harring-
ton V. St. P. & S. C. E. K. 17 Minn.
215.

"The plaintiff contends that the
injury to him by reason of said il-
legal acts is in its nature permanent,
and that he is entitled to the conse-
quent damages,

" If the construction of said road-

bed and track upon plaintiff's land
necessarily lessened the valtie of
plaintiffs property, that is to say, if
it would be worth less because of
the mere existence thereon of said
road-bed and track, without refer-
ence to any wrongful use which de-
fendant might or might not make
of them, such depreciation accrued
immediately npon the construction
thereof, and was in its nature per-
manent, and being a direct and im-
mediate result of the trespa^ could
be recovered for in this action; and
if such erection necessarily caused
the surface water to stand on plaint-
iff's land, or run into his cellar and
well, he could recover therefor in
this action, though such injury
might not accrue for some time after
the completion of such illegal act,
viz. : the making of the road-bed and
track. Sedg. on Dam. ch. 5: Troy
V. Cheshire B. E. Co. 23 X. H. 83;
Chase v. X. Y. Cent E. E. 2i Barb.
27;^: McGuire v. Grant, 25 X. J. L.
356; Dickinson V. Boyle, 17 Pick. 78."
Fold V. Chicago, etc. B. B. Co. 14
Wis. 609; Plate v. X. T. Cent. B. E.
Co. 37 X. Y. 472: Anderson, eta R
E. Co. V. Kemodle, 54 Ind. 314

A different view is advanced in
The Town of Troy v. Cheshire B. B.
Co. 23 X'. H. 83, lOL In that case
Bell, J., said: '■ It is evident that a
recovery in this action is a bar to
any future action for this cause. In
cases of nidsance the injury may be
of two kinds: first, the liirect injury
caused by the act complained of; and
second, the injury which may be
afterwards occasioned by the unaa-
thorized continuance of that cause.
The declaration, in this case, allies
injury from the first construction of
the railroad, and from its continu-
ance to the date of the writ The
plaintiff can, in no event, recover
for axLj cause of action not included

TEESPA8S TO REAL PEOPEETT.

371

in his writ; and, on this ground, he
can recover for no damage not sus-
tained when his action is com-
menced. For any future damage he
may recover in an action based upon
the continuance of the injurious
cause; and, in such action, it would
be no answer to say that the damage
now claimed has been recovered in
a former suit, because the writ in
that case warrants a recovery only
for damages sustained previous to
its date. The principle for which the
defendants contend is sound, and
the only question which can arise
here is as to the application of that
principle. The damage done at the
date of the writ is to be compen-
sated, and that only. If that dam-
age consists in the exposing of the
party to expenditures of money, the
test is not the time when those ex-
penditures are made, for they may
be paid at once, or their pay-
■ ment delayed, without, in any way,
affecting the rights of the parties.
The question is not when was the
money paid, whether before or after
suit, but was the liability to those
expenditures occasioned by the acts
complained of in the writ, or was it
by the continuance of the same acts,
or the state of things produced by
those acts, after the action was
brought? If they are the result and
consequence of the wrongful acts
complained of, they are to be re-
covered in that action. If they re-
sult, not from the vsrrongful acts,
but from the wrongful continuance
of the state of facts produced by
those acts, they form the basis of a
new action.

*' There may, of course, be cases
where it may be difficult to draw
the line, but it is apprehended they
will not be numerous. Wherever
the nuisance is of such a character
that its continuance is necessarily an

injury, and where it is of a permar
nent character, that will continue
without change from any cause but
human labor, there the damage is an
original damage, and may be at once
fully compensated, since the injured
person has no means to compel the
individual doing the wrong to apply
the labor necessary to remove the
cause of injury, and can only cause
it to be done, if at all, by the ex-
penditure of his own means.

" But where the continuance of
such act is not necessarily injurious,
and where it is necessarily of a per-
manent character, but may or may
not be injurious, or may or may not
be continued, there the injury to be
compensated in a suit is only the
damage that has happened. This the
individual who so manages the water
he uses for his mills, as to wash
away the soil of his neighbor, is lia-
ble at once for all the injury occar
sioned by its removal, because it is,
in its nature, a permanent injury;
but if his works are so constructed,
that, upon the recurrence of a simi- ""
lar freshet, the water will probably
wash away more of the land, for
this there can be no recovery until
the damage has actually arisen, be-
cause it is yet contingent whether
any such damage will ever arise. A
person erects a dam upon his own
land, which throws back the water
upon his neighbor's land; he will be
answerable for all damage which he
has caused before the date of the
writ, and ordinarily for no more, be-
cause it is, as yet, contingent and
uncertain, whether any further dam-
age will be occasioned or not; be-
cause such a dam is not, of its own
nature, and necessarily, injurious to
the lands above, since that depends
more upon the manner in which the
dam is used than upon its form.
But if such a dam is in its nature of

372

INJUEIES TO EEAL PEOPEETT.

Wherever by one act a permanent injury is done, the dam-
ages are assessed once for all ; ' and any depreciation in the
value of the property will be an element of damages according
to the extent and duration of the plaintiff's estate. An esti-
mate of damages on this basis presupposes that the premises
are subject to the same lasting detriment ; and that it is not to
be averted or removed by any expenditure ; for otherwise, the
injury would be measured upon different elements. Thus,
where by the wrongful act of the defendant a bar of gravel
was deposited upon the plaintiff's land by a flood, and so exten-
sive that the cost of its removal would equal or exceed the
value thereby restored to the premises, that expense was held
not the measure of damages ; but rather the depreciation in the
value of the land in consequence of the deposit remaining.''

a pei'manent character, and from its
nature must continue permanently
to affect the value of the land
flowed, then the entire injury is at
once occasioned by the wrongful
act, and may be at once recovered
in damages. In one of the cases,
which arose from the building of
the great canals of New York, the
case was that a high dam was erected
upon the falls of the Hudson, for
the purpose of diverting the watei's
of the river into a feeder for the
canal; the lands of an owner above
were buried twenty feet under
water, and their value to him, of
course, entirely destroyed; the work
was in its nature and design perma-
nent. There, it would be clear, that
the party injured would be entitled
to recover the entire damages he
had sustained, and must sustain in
a single action, in truth, substan-
tially the entire value of his prop-
erty. And the decision of the coui't,
in the case cited by the plaintiff's
counsel, Woods v. Nashau Manuf'g
Co. 5 N. H. 467, is in entire ac-
cordance with this view. In such
a case, it might be suggested that

the actual loss he had sustained was
only of the use of the property to
the date of the writ, and that he,
and those who' came after him,
might bring their actions, from year
to year, for any injuries they might
afterwards sustain; but in such a
case we entertain no doubt, that,
consistently with the rules of law,
the plaintiff might recover for the
entire property lost." Chicago.etc. E.
E. Co. V. Baker, 73 HI. 316; St. Louis,
etc. E. E. Co. V. Haller, 82 HI. 308.
Title to land does not pass by reason
of a verdict and satisfaction in an
action of trespass; it remains in the
plaintiff; and therefore a verdict for
damages for the value of the land,
or any interest or easement therein,
is manifestly wrong. Atlantic, etc.
E. R. Co. V. Eobbins, 85 Ohio St. 581;
Thompson v. Morris, etc. Co. 17 N.
J. L. 480; Anderson, etc. E. E. Co.
V. Kernodle, 54 Ind. 814.

iLamb v. Walker, 3 Q. B. D. 389.

2Easterbrook v. Erie E'y Co. 51
Barb. 94; Chase v. N. Y. Cent. E. E.
Co. 34 Barb. 373; Hanover Water
Co. V. Ashland Iron Co. 84 Pa. St.
379; Jones v. Gooday, 8 M. & W.

TRESPASS TO EEAL .PEOPEETY. 373

I

So where the plaintiff's land is caused to fall away in conse-
quence of the defendant's removing the lateral support, he is en-
titled to damages to the extent of the injury sustained ; this is
not, however, the cost of restoring the lot to its former condi-
tion, or of building a wall to support it, but it is the diminution
of the value of the land in consequence of the defendant's act.'
It is a damage from loss of soil; and where by any tortious act
of the defendant such a loss occurs, the owner is entitled to be
compensated according to the value of the land or soil to him.^
If its removal reduces the value of the lot, the owner is entitled
to recover for such depreciation.'

If the wrong consists in the destruction or removal of some
addition, fixture, or part of the premises, the loss may be esti-
mated upon the diminution of the value of the premises, if any
results ; or upon the value of the part severed, considered either
as a part of the premises, or detached; and that valuation
should be adopted which wiU be most beneficial to the injured
party ; for he was entitled to the benefit of the premises intact,
and to the value of any part separated.

For cutting and carrying away trees or timber by a continu- f.
ous act, the action must be trespass quare clausum fregit.^ \
Under that form of action the severance of the property from *
the freehold is the essential fact ; and, so far as it diminishes the
value of the land, the owner is entitled to compensation. The
value of the timber need not be averred in such an action, and
may be proved to show the amount of damages.' The plaintiff
maj' adopt the value of the timber as the measure of his dam-
ages, but is not obliged to do so;* if the injury to the land ex-

146; Honsee v. Hammond, 39 Barb, by the present value of the rents and

89; Do Coster v. Mass. Min. Co. 17 profits multiplied by the number of

Cal. 613. years' probable duration of his life,

iMcGuirev. Grant, 25 N.J. L. 356; without any deduction for annual

Gilmore v. Driscoll, 123 Mass. 199; charges, or rebate of interest for the

Nicklin v. Williams, 10 Exch. 259. time allowed.

In Greer v. Mayor, etc. of New 2 Jones v. Gooday, 8 M. & W. 146;

York, 1 Abb. N. S. 206, an action was Mueller v. St. Louis, etc. E. E. Co.

brought for any injury to the plaint- 31 Mo. 263.

iff's life estate as tenant by the court- 'Karst v. St. Paul, etc. E. E. Co.

esy initiate* by the destruction of 32 Minn. 118.

the building which made the prop- * Sturgis v. "Warren, 11 Vt. 433.

erty productive. It was held error ' Kolb v. Bankhead, 18 Tex. 229.

to estimate the value of his estate * Id,

374 ESTJUEIES TO EEAL PEOPEETT.

ceeds the value of the timber, or in other words, if the trees
were worth more standing,^ Hogeboom, J., forcibly said:
" Surely the damage would not be in all cases accurately meas-
ured by the market value of the wood or timber when cut.
The trees might be a highly valuable appendage to the farm,
for purposes of shade or ornament; there might be a very
scanty supply for a farm of that size ; or for other reasons they
might have a special value as connected with the farm, alto-
gether independent of, and superior to, their intrinsic value for
purposes of building or fuel. As well might you remove the
columns which supported the roof or some part of the super-
structure of a splendid mansion, and limit the owner in dam-
ages to the value of these columns as timber or cord wood, as
to adopt the parallel rule in this case." ^ A plaintiff in an action
for trespass on land in cutting and carrying away timber is en-
titled, first, to recover damages for the injury to the land in
severing the growing timber, considering merely the act of
severing it ; and, secondly, for the taking and carrying away
the timber so severed.' Though the whole is but one continu-
ous act, it includes this two-fold injury.* In some instances,
however, the cutting of the trees would be the whole injury; as
where ornamental trees or fruit trees are cut.' The tortious act
is then one of destruction merely. On the other hand, if tim-
ber trees are cut after they have reached maturity, and the
plaintiff, by getting their present market value, will realize all
that he could ever obtain from them, the conversion of the tim-
ber is the principal injury. If ores are mined and removed; a
like injury is done; and the same considerations apply in the

1 Foote V. Merrill, 54 N. H. 490; the plaintiffs close Eind taking and
Wallace v. Goodall, 18 N. H. 439; carrying away property, "virtually
Ensley V. Nashville, 3 Baxt. (Tenn.), includes two causes of action in one
144; Harder V. Harder, 26 Barb. 409; count — an action for the disturb-
Van Deusen v. Young, 29 Barb. 9; ance of plaintiff's possession of his
Templemore v. Moore, 15 Irish C. L. real estate, and an action to recover
N. S. 14. the value of his chattels unlawfully

2 Van Deusen V. Young, supra. taken and converted." WooUey v.

3 Id. ; Longfellow v. Quimby, 33 Carter, 7 N. J. L. 85; Thayer v. Sher-
Mo. 457. lock, 4 Mich. 173.

* In Smith v. Smith, 50 N. H. 318, 5 Whitbeok v. N. Y. Cent. E. R. Co.
the court say: The common mode 86 Barb. 644.
of declaring in actions for breaking

TEESPASS TO EEAL 5KOPEETT.

375

determination of dainages. On the strict theory of trespass
quoure dwusmn, the breaking of the close is the cause of action,
and the removal of timber or other property merely enhances
the damages. This is especially so, if the severance from the
land and the carrying away are by a continuous act. In any
case, where the severance is not the principal injury, where the
conversion into a chattel and the carrying away are together
complained of as the cause or causes of action, and the dam-
ages ascertained on the value of the tiftiber or ore, the actual
injury is, that the defendant has talien the plaintiff's property
in the condition in which it existed prior to the trespass. How
should compensation be computed for this injury ? The law is
not settled on this point ; a great diversity of decision exists.
We exclude now the consideration of any special acts detri-
mental to the land not necessarily involved in taking the timber
or ore.

In this particular action this conflict is confined to narrower
limits than in trover and trespass de bonis; the conflict, when
the wrong is not wilful, is between charging the defendant with
the value of the trees standing, or stumpage, and ore in place,
on one hand, and on the other its value immediately after sev-
erance from the land. The tendency of decision is toward
the former rule ; but, as the trespasser cannot divest the owner
of his title to the property, when it becomes a chattel it is rec-
ognized as belonging to the owner of the land, so that he may
retake it, replevy it, or recover for it in actions for taking or
conversion of personal property. It has been deemed the right
of the owner to recover the value at the time it becomes a
chattel; otherwise it is said the trespasser receives compensa-
tion for services not requested by the owner, and for which he
is not bound to make compensation. It is supposed that the
right to retake the property, and to recover its value, are cor-
relative rights. Ruggles, J., said : " It would be absurd to say
that the original owner may retake the thing by an action of
replevin in its improved state, and yet that he may not, if put
to his action of trespass or trover, recover its improved value
in damages." ^ The right of an owner to retake his property

1 Silsbury v. MoCood, 3 N. Y. 384

376

IKJUKIES TO EEAl PEOPEETT.

is maintainable on the principle that he cannot be divested of
his property without his consent by the tortious act of a wrong-
doer ; but his rate of damages or the measure of his compensa-
tion are governed by another principle, which is that he is
entitled to compensation commensurate, and only commensu-
rate, with the injury he has suffered. "When he sues to recover
damages for the taking or conversion, he sues for a wrong
which precedes and does not include the defendant's acts which
enhance the value. The cases which support the rule of dam-
ages confined to the value of the property before the trespass
was committed are given in a note,* with some of the reasons

iFoote V. MerriU, 54 N. H. 490,
was trespass quare clausum fregit
for cutting down and carrying away
trees. It was held that the measure
of damages is the amount of injury
which the plaintifE suffered from
the whole trespass, taken as a con-
tinuous act; the increased value of
the trees occasioned by the laboi; of
the defendant in converting them
into timber is not to be included.
Hibbard, J., says: " The defendant
having wrongfully cut and trimmed
the plaintiff's trees, and it being im-
possible to separate the original
property in them from the value
subsequently added, it is unneces-
sary to cite authorities to show that
the plaintiff, after they were cut and
trimmed, remained the owner of the
timber made from them, fi-ee from
any lien or claim of the defendant
for his labor, and that he might,
therefore, have lawfully taken it
peaceably into his possession. It is
only whei-e the identity of the orig-
inal material has been destroyed, or
where its value is insignificant com-
pared vi^ith the value of the article
manufactured fi'om it or to which
it has been annexed, that the law is
otherwise. Weatherbee v. Green,
23 Mich. 311. The plaintiff might
also have maintained replevin for
the timber. Davis v. Easley, 13 111.

193; Wingate v. Smith, 20 Me. 287.
Or he might, according to numerous
authorities, have recovered its full
value at the time it was carried
away by bringing trover. Brown v.
Sax, 7 Cow. 95; Baker v. Wheeler,
8 Wend. 505; Rice v. HoUenbeck, 19
Barb. 684; Grant v. Smith, 26 Mich.
301; Ellis v. Wire, 33 Ind. 127. Ac-
cording to the doctrine of Adams v.
Blodgett, 47 N. H. 219, he might have
elected any day prior to the date of
his writ as the time of the conver-
sion; perhaps the same result might
as well have been reached in trespass
de bonis asportatis, but the difficulty
of allowing the original taking to
be abandoned, and a later one
adopted, has probably been thought
greater in that form of action than
in trover, although judges have
sometimes taken a different view.
. . . If the owner of timber cut
upon his land by a trespasser gets
possession of it increased in value,
he has the benefit of the increased
value; the law neither divests him
of his property, nor requires him to
pay for improvements made without
his authority; perhaps in trover, and
possibly in ti-espass de bonis asporta-
tis, he may be entitled to the same
benefit, but we see no occasion for
giving it to him where he brings his
suit for the whole trespass of break-

TEESPASS TO REAL PEOPEETT.

377

ing and entering his close and cut-
ting down and carrying away his
trees as a continuous act. The
plaintiff is entitled to be compen-
sated according to the magnitude of
his loss, and the defendant ought
only be hable to compensate hini
according to the magnitude of his
loss. The inquiry should be, how
much was the plaintiff injured by
the breaking and entering of his
close and the cutting down and car-
rying away of his trees. The true
measure o^ damages is the amount
of injury which the plaintiff has
actually suffered from the whole
trespass. If the trees were worth no
more to the plaintiff to stand than
to the defendant to be cut into tim-
ber at that time, their value as tim-
ber, with the reasonable expense of
cutting deducted, was the measure
of the injury which was done to the
plaintiff by cutting them. . . .
His trees may have been premature-
ly cut; they may have been orna-
mental trees or fruit trees; the value
after they were separated from the
soil may have been but a small part
of the real injury from cutting and
removing them. ' The trees consid-
ered as timber may, from their
youth, be valueless, and so the injury
done to the plaintiff by the trespass
would be but imperfectly compen-
sated unless he could receive a sum
that would be equal to their value to
him while standing upon the soil.'
Gilchrist, J., in Wallace v. Goodall,
18 N. H. 456. A rule of damages,
which is manifestly unsound when
applied to the cutting of trees which
are more valuable while standing
than after they are cut, cannot be
usefully employed in other cases."

In Longfellow v. Quimby, 33 Me.
457, which was a like action, Shep-
ley, C. J., said: "The plaintiff will
be entitled to recover compensation

for the injuries occasioned by the
acts of the defendants upon his
lands, to be ascertained by an esti-
mate of the value of the trees cut
and carried away, and of the injury,
if any, occasioned by cutting thepi
prematurely, and of the injury, if
any, done to the land; and on the
amount thus ascertained for being
deprived of the use of his p"roperty,
may be added an amount equal to
six per cent, per annum, from the
'time of taking the property to the
time of judgment." Stanton v.
Prichard, 4 Hun, 266.

Whitbeck v. N. Y. Cent. E. R. Co.
86 Barb. 644, was a similar action
for damages done by burning the
plaintiff's clover field and destroying
his apple trees. The court held that
the plaintiff should recover the value
of the trees standing, and the court
approved the refusal of the trial
coui't to charge the jury that the
plaintiff could only recover the
diminished value of the orchard lot
by reason of the destruction of the
trees. Johnson, J., said: "It is
true that the trees in question were
real estate, and in one sense part
and parcel of the land itself. But
so are buildings and fences, and
grass, and trees of all kinds while
growing upon the land. The true
rule I conceive to be this: that if the
thing destroyed, although it is part
of the realty, has a value which can
be accurately measured and ascer-
tained, without reference to the
value of the soil on which it stands,
or out of which it grows, the re-
covery must be for the value of the
thing thus destroyed, and not for
the difference in the value of the
land before and after such destruc-
tion. And it can make no diflfei'ence,
in this respect, whether the action
is brought to recover for the destruc-
tion of a single tree, or all the trees

378

INJURIES TO EEAL PEOPEETY,

in the orchard. There is no intrinsic
difficulty, as I conceive, in estimat-
ing the value of a fruit tree growing
upon land, although it has strictly
no market or commercial value, as
a ti-ee, independent of the land
vi'hich sustains it. In this re-
spect, however, it does not differ
materially from buildings and other
fixtures. But it does differ from
trees which are usually converted
into timber, or firewood, and which
are frequently sold as they stand,
for that purpose, or nprsery trees
which are grown for market. The
difference is this: in the one case the
value consists chiefiy in the thing
itself, as a convertible and market-
abfe commodity, while in the other,
the value consists chiefiy in the
quality and quantity of its average
annual products; and it is capable of
being leased as much as a field or a
dwelling. The calculation by which
the value would be determined in
the two cases would be somewhat
different, but, for aught I can see,
it could be determined by the opin-
ion of competent witnesses in the
one case as weU as the other."

Stookbridge Iron Co. v. Cone Iron
Works, 102 Mass. 80, was an action
of tort for mining and cari-ying
away coal, iron and other ores from
the plaintiff's land. The court held
that the plaintiff was entitled to re-
cover on the ground that the taking
of the ore and the injury done to
the property were tortious; that the
value of the ore was to be estimated
as it lay in the bed, not as it was
after the defendants had increased
its value by removing it, and that to
this was to be added the damage
done to the real estate. ,

In re United Merthyr Collieries
Company, L. E. 15 Eq. 46, was a
case like the preceding. Sir James
Bacon, V. C, said: " I have not the

slightest intention of interfering
with or departing from the decisions
which have been mentioned to me
(Powell V. Aiken, 4 K. & J. 343;
Woodv. Morewood, 3Q. B. 440, note;
Morgan V. Powell, 8 Q. B. 178; Jegon
V. Vivian, L. R. 6 Ch. 742; Phillips
V. Homfray, id. 770; Llynvi Co. v.
Brogden, L. R. 11 Eq. 188; Martin
V. Porter, 5 M. & W. 351), especially
the more recent cases, because, as I
recollect, there was a want of exact
agreement between some of the
common law cases and some of those
which had formerly been decided in
this court. I take the difference now
to be entirely removed, and the rule
to be clearly and plainly established,
and so understanding, I made the
order in this case. The word s which
are supposed to have been used are
'actual cost and expenses,' — ^the
word that has been i-ead from the
short-hand notes is ' disbursements.'
In my opinion there is not the
sHghtest doubt about the meaning of
either of those expressions. It is
said that the trespasser must be
treated as if he had been the pur-
chaser. Now, that must be taken
with a certain qualification. It is
a useful illustration of what the
court meant to decide in the partic-
ular case where that expi-ession is to
be found; but the principle of the
decision is, that the plaintiff, al-
though he has suffered a wrong,
shall not have any more than he
would have had if that wi-ong had not
been committed. That I take to be
the clear and plain principle. If he
had himself severed the coal, he
could only have done so by means
of disbursements. If he had brought
it to the pit's mouth when severed,
he could only have done so by means
of disbursements. If he himself
had severed and brought the coal to
the pit's mouth, whatever the value

TEESPAS8 TO EEAL PBOPEETT.

379

of it might then be would have to
be deducted, because he would have
borne the expenses on both these
heads, which would have been act-
ual disbursements, not profit; nor do
'just allowances' mean profit; but
if I were to change the words of
the order, I might leave it doubtful,
or might open up some ground for
argument, as to what was meant by
just allowances. . . . The tres-
passer is not to charge as if some-
body else had employed him to sever.
If he had paid a certain sum to his
workmen, and by the custom of the
trade was entitled to charge a cer-
tain other sum, he is not to have the
larger sum. The plaintiff is to be
put in the same situation as he would
have been in, neither better nor
worse, if he himself had severed the
coal and brought it to the pit's
mouth. That must have been done,
and could only have been done by
means of disbursements, not by any
profit, not by any allowance .in the
trade, not by any artificial mode of
guessing at it; but the books he
must have kept would show how
much money he spent in severing
the coal, and how much money he
spent in bringing it to the pit's
mouth."

In Forsyth v. "WeUs, 41 Pa. St.
291, the parties were owners of ad-
joining tracts of coal land, and the
defendant had opened a mine upon
his own land and worked it for
years. The dividing line was not
exactly known, and the plaintiff
claimed the defendant had dug coal
over the line and out of her land;
which was denied. Lowrie, C. J.,
in delivering the opinion of the
court, said: "The plaintiff insists
that because the action is allowed
for the coal as personal property,
that is, after it had been mined or
severed from the realty, therefore,

by necessary logical sequence, she is
entitled to the value of the coal as
• it lay in the pit after it had been
mined; and so it was decided below.
It is apparent that this view would
transfer to the plaintiff aU the de-
fendant's labor in mining the coal,
and thus give her more than com-
pensation for the injury done.

"Yet we admit the accuracy of
this conclusion, if we may properly
base our reasoning on the form,
rather than on the principle or pur-
pose of the remedy. But this we
may not do; and especially we may
not sacrifice the j^rinciple to the very
form by which we are endeavoring
to enforce it. Principles can never
be realized without forms, and they
are often inevitably embarrassed by
unfitting ones; but stiU the fact that
the form is for the sake of the prin-
ciple, and not the principle for the
form, requires that the form shall
serve, not rule, the principle, and
must be adapted to its office.

"Just compensation in a special
class of cases is the principle of the
action of trover, and a little study
will show us that it is no unyielding
form, but adapts itself to a gi-eat
variety of circumstances. In its
original purpose, and in strict form,
it is an action for the value of per-
sonal property lost by one and found
by another, and converted to his
own use. But it is not thus restricted
in practice; for it is continually
applied to every form of wrongful
conversion, and of wrongful taking
and conversion, and it affords com-
pensation, not only for the value of
the goods, but also for outrage and
malice in the taking and detention
of them. ...

" Where the defendant's conduct,
measured by the standard of ordi-
nary morality and care, which is the
standard of the law, is not charge-

380

IFJUEIES TO EEAIi PEOPEKTT.

advanced in support of it; and also cases supporting the other
view.'

able with fraud, violence, or wilful
negUgenoe or wrong, the value of
the property taken and converted is
the measure of just compensation.
If raw material has, after appropri-
ation and without such wrong, been
changed by manufacture into a new
species of property, as grain into
whisky, grapes into wine, furs into
hats, hides into leather, or trees
into lumber, the law either refuses
the action of trover for the new
article, or limits the recovery to the
value of the original article. 6 HUl,
425; 21 Barb. 93; 23 Conn. 533; 38
Me. 174.

" Where there is no wrongful
purpose or wrongful negligence in
the defendant, compensation for the
real injury done is the purpose of aU
remedies; and so long as we bear
this in mind, we shall have but
little difficulty in managing the
forms of actions so as to secure a
fair result. If the defendant in this
case was guilty of no intentional
wrong, he ought not to have been
charged with the value of the coal
after he had been at the expense of
mining it; but only with its value in
place, and with such other damage
to the land as his mining may have
caused. Such would manifestly be
the measure in trespass for mesne
profits." Herdic v. Young, 55 Pa.
St. 176; Coleman's Appeal, 63 Pa. St.
252, 378; Yahoola, etc. Co. v. Irby,
40 Ga. 479; Coxe v. England, 65 Pa.
St. 213; Schlater v. Gay, 28 La. Ann.
340; Ensley v. Nashville, 3 Baxter
(Tenn.), 144. See reasoning in
opinion in Single v. Schneider, 24
"Wis. 300-303; S. C. 30 Wis. 570;
Webster v. Moe, 35 Wis. 75; Hun-
gerford v. Bedford, 29 Wis. 345;
Eailway Co. v. Hutchins, 32 Ohio

St. 571; Winchester v. Craig, 33
Mich. 305; Chamberlain v. Collinson,
45 Iowa, 439.

iMaye v. Tappen, 33 Cal. 306. The
trespass in this case was committed
by entering upon and taking away
the gold-bearing earth from the
mining claim of the plaintiff. The
court held the true measure of dam-
ages to be the value of the gold-
bearing earth at the time it is sep-
arated from the surrounding soil
and becomes a chattel. The court,
Crocker, Justice, delivering the
opinion of the court, after a review
of the cases, said: " It will be noticed
that the rule of damages in such
cases depends, to some extent, upon
the form of the action; whether the
action is for an injury to the lanji
itself, or for the conversion of a
chattel which had been severed from
the land. The complaint in this
case alleges that the defendants, at
divers times, vsrongfully entered
upon a portion of plaintiff's mining
claim, and extracted the gold and
gold-bearing earth from a portion
thereof; which gold and gold-bear-
ing earth they wrongfully carried
away and converted to their own
use; and the value of the gold thus
carried away is alleged to have been
$3,000. No demand of the posses-
sion of the gold after it was sepa-
rated from the earth appears to have
been made upon the defendants, and
the gravamen of the action appears
to be the injury done to the land
itself by the acts of the defendants.
The proper rule for damages in a
case like the present is the value of
the gold-bearing earth at the time it
was separated from the surrounding
soil and became a chattel. This
seems to be a just and proper rule,

TEESPASa TO ee'al pbopeety. 881

A party may recover the value of timber cut upon his land,
although by naistake he led the defendant to believe he was
cutting the timber on his own land.'

Accompanying trespasses of this nature there is frequently
injury done to the land, beyond taking away timber or miner-
als. Where such is the case, additional damages are recover-
able ; and these will be assessed upon the particular facts. In
an action for breaking and entering plaintiff's coal lands, it was
made to appear that the defendant mined out coal and made
excavations for that purpose, and thereby injured the coal left
remaining as pillars; that by bad mining or otherwise he ren-
dered it difficult or impossible for the plaintiff to get out or re-
move such pillars or remaining coal, and thus rendered it of loss
value ; and the court held the plaintiff entitled, in addition to
damages for the coal actually removed, to recover for such coal
as could not be removed, what it was worth per ton in its native
bed, and such damages, for so much coal as could be removed,
but with increased expense, as the evidence might show such
coal to be diminished in value ; that if the defendant, in mining
and excavating under the lands, thereby rendered it more dif-
ficult or expensive for the plaintiff to obtain access to the coal
unmined and thereby depreciated its value, the plaintiff was en-
titled to recover such damages as he sustained from such depre-
ciation and the increased difficulty and expense of mining and
removing the coal.^

For destroying or carrying away growing crops, the measure
of compensation is the value of the crops in the condition in
which the same are at the time of the trespass.' The plaintiff

and one established by the decisions Illinois, etc. R. R. & Coal Co. v. Ogle,

upon this question. In estimating 83111. 637; Martin v. Porter, 5 M. &

these damages the expense of ex- W. 351; Wood v. Morewood, 3Q. B.

tracting the gold and separating it 440; Morgan v. Powell, 3 Q. B. 378;

from the earth, after it is first Wild v. Holt, 9 M. & W. 673; Barton

moved from its original location, is Coal Co. v. Cox, 39 Md. 1; Bennett

to be deducted from the value of the v. Thompson, 13 Ired. 146. See Bull

gold taken out of the mining ground v. Griswold, 19 111. 631.

of the plaintiffs." GoUer v. Fett, 30 i Pearson v. Inlovs^, SO Mo. 333.

Cal. 481; Moody v. Whitney, 38 Me. 2 Barton Coal Co. v. Cox, 39 Md. 1;

174; Firmin v. Firmin, 9 Hun, 571
Robertson v. Jones, 71 111. 405
McLean Coal Co. v. Long, 81 lU. 359:

Wallace v. Goodall, 18 N. H. 439.

3 Richardson v. Northrup, 66 Barb.
85; Seamans v. Smith, 46 Barb. 330;

382 INJtJEIES TO EEAL PEOPEETT.

will be entitled to compensation, according to the particular
facts of the case ; he is entitled to be compensated in respect to
propei-ty taken or destroyed, and for any other injury. " The
fact that all the labor necessary to a crop has been performed,
and the state of the growth of the crop at the time of the
defendant's interference, will necessarily enter into the calcu-
lation.'

In Iowa it has been held that the value of the crop when
matured, less the cost of tillage, etc., from the time of the in-
jury, may be recovered. The court also held that the plaintiff
might recover as damages reasonable compensation for the labor
necessarily expended in trying to save his crop from destruc-
tion. If he, in the exercise of ordinary care to prevent the
destruction of his crops, because of defendant's fault, expended
money or labor, he should be compensated therefor.^ In Illinois
it has been held that if a trespasser cuts wheat, the owner is en-
titled to recover in this action as if he had himself performed
the whole labor of harvesting.' But in an action against tres-
passers on land, the trouble of looking after the trespassers is
not to be taken into consideration as an item of damage.*

The fact that a trespass in removing a fence Was committed,
in p,ursuance of the vote of the town, has been allowed to be
proved in mitigation of exemplary damages.'

In an action for destroying a fence inclosing a ranch used for
dairy purposes, thereby letting in the cattle of other people
which destroyed the grass, it was held erroneous, as tending to
the allowance of remote and speculative damages, to admit evi-
dence of profits that the plaintiff might have made from hogs
and cows he did not have, and had made no arrangements to
procure.* The value of crops destroyed by cattle may be recov-
ered as a consequential damage from tortiously letting down or

Gresham v. Taylor, 51 Ala. 505. See 2 Smith v. Chicago, etc. R. E. Co.

Folsom V. Apple River, etc. Co. 41 38 Iowa, 518.

Wis. 608-9. 3 Bull v. Griswold, 19 111. 631;

1 WiUiams v. Currie, 1 Man. Or. & Benjamin v. Benjamin, 15 Conn. 347.
Scott, 841; VanWyck v. Allen, 69 <LongfeUow v. Quimby, 29 Me.

N. Y. 61; Jenkins v. McCoy, 50 Mo. 196.

348; Benjamin v. Benjamin, 15 Conn. 5 Gray v. Waterman, 40 111. 533.
347. See Chicago v. Huenerbein, 85 6 Giaccomini v. Bulkeley, 51 Cal.

m. 594 260.

TRESPASS TO EEAL PEOPEETT. 383

removing the fence around the same.^ Interest may be allowed
in the discretion of the jury on the damages/ but it is error to
instruct the jury to allow interest as matter of legal right.'

Aggeatations astd special damages. — Where the act com-
plained of was done \yith force so as to constitute a proper
ground for an action of trespass vi et armis, all the damages of
the*plaintiff of which such injurious act is the efficient cause,
and for which the plaintiff is entitled to recover in any form,
may be recovered in that action, whether sach damage ensues
immediately or does not occur until some time after the act is
done. If special or peculiar damages are claimed, such as are
not the usual consequence of the act done, it is proper and nec-
essary to set them forth specifically in the declaration by way
of aggravation, that the defendant may have due notice of the
claim.* Thus where the defendant broke and entered the plaint-
iff's close, lying adjacent to a river, and dug into a bank near
a dam across the river and carried away some gravel, in conse-
quence of which a flood in t,he river, which took place three
weeks afterwards, carried away a portion of the close and the
cider mill, etc., belonging to the plaintiff, it was held that the
plaintiff might recover damages for the whole of such injury in
an action of trespass quare clausum fregit!" A defendant who
had pulled down plaintiff's fence, so that his cattle thereupon
escaped and were lost, was held liable for the cattle in an action
for pulling down the fence."

The defendant's sheep, while trespassing upon the plaintiff's
land, mingled with the plaintiff's sheep, and communicated to
them a dangerous disease, of which many of them died. In an
action of trespass qyuare clausum /regit, it was held that the
evidence of such communication of disease was admissible to
affect the damages, and that the plaintiff was entitled to recover
for the loss of his sheep, as well as for the breach of his close ;

1 Hardin v. Kennedy, 3 McCord, ' Chicago v. AUcock, 86 111. 384.
877. See Crawford v. Maxwell, 3 * Dickinson v. Boyle, 17 Pick. 78;
Humph. 476; Richardson v.Milburn, McTavish v. Carroll, 13 Md. 439;
11 Md. 340. Sherman y. Dutch, 16 111. 283.

2 Lawrence, etc. E. R. Co. v. Cobb, 5 Dickinson v. Boyle, supra.

35 Ohio St. 94; Wabrath v. Redfleld, « Damron v. Roach, 4 Humph.
18 N. Y. 457. 134.

384 DfJUEIES TO EEAL PEOPEETT.

that in order to recover such damages it was not necessary for
the plaintiff to prove that the defendant had knowledge of the
diseased state of his sheep at the time the disease was imparted ;
but that it was competent for the plaintiff to prove such knowl-
edge to enhance his damages, without any allegation to that
effect in the declaration.^ Where the defendant destroyed part
of a mill, the plaintiff was allowed to recover for the inter-
ruption in the use of the mill, and a consequent loss of profits.'
And so where the plaintiff was deprived of the profitable use
of his pasture for his own stock, by the tortious conduct of the
defendant in turning in his cattle with the plaintiff's ; and, in
consequence of the over-feeding of the pasture, the plaintiff's
cattle suffered, the damages to which the plaintiff was entitled
were held not to be merely the value of the pasturage in the
vicinity, but the value of the growth and increase in weight
which his cattle might reasonably have been expected to attain
but for the over-feeding, caused by the trespass ; and to show
this the testimony of farmers, graziers, and drovers, having ex-
perience with cattle and that mode of feeding, was competent ;
it was also held to be competent to show what would be the
market value of the stock in the vicinity but for the over-
feeding ; and what was the reduced value in the same market
in consequence of ■ the over-feeding ; and the difference in price,
per head and per pound, in cattle of different weights and con-
ditions. The value in a distant market could only be shown so
far as it tended to control the home market ; the measure of
damages being what the cattle would have been but for the
injury to the pasture by the trespass, and the reduced amount
caused by the injury, to be estimated up to and at the time of
the bringing of the action — unless the cattle have been sold
prior to that day — then at the date of the sale. It was also
ruled that damage to the plaintiff's cattle resulting from loss of
feed, occasioned by the tortious occupation of plaintiff's pasture,
by defendant's cattle, is not included in the damage to the past-
ure, caused by such occupation; and the condition of the
pasture, its value as such for future use at the time of the

1 Bamum v. Van Dusen, 16 Conn. 2 White v. Moseley, 8 Pick. 356;
301; Anderson v. Buckton, 1 Str. Hammatt v. Russ, 16 Me. 171; Mo-
193. Tavish v. UaiToll, 13 Md. 439.

TEESPAS8 TO EEAL PEOPEETY,

385

commencement of the action, are proper subjects of inquiry in
estimating damages which had then been sustained.' In actions
of torts, damages, which are the natural and proximate con-
sequences of the defendant's wrongful act, may be recovered,
though not contemplated by the wrongdoer. The injured
party enters into no relation with the defendant, and assumes
no voluntary risk in the matter of the wrong. JSTor is any want
of certainty in respect to his loss, resulting from the manner in
which it is produced by the defendant, attributable to the
plaintiff ; therefore, in the determination of damages for com-
pensation, so far as it is measurable upon any legal standard, the
same rules will apply as in the assessment of damages for breach
of contract ; but such damages will not be assumed to be a full
reparation, unless they appear to include compensation for the
entire injury. The injured party is entitled to complete indem-
nity, even though the amount is not ascertainable with certainty
and precision. All the facts will be submitted to the jury, with
proper instructions by the court, that the jury may award
such damages as in their discretion and judgment is due for
the injury as thus shown.^

1 Gilbert v. Kennedy, 31 Mich. 117.

2 Id. "In this case Christianoy, J. ,
said: " The damages to be awarded
should be such as adequately to com-
pensate the actual loss or injury sus-
tained. This is an obvious principle
of justice from which we see no
reason to depart. But in the appli-
cation of the principle, difficulties
often arise in ascertaining, with
anything like accui'acy, the actual
damages which the plain tifE has suf-
fered from the injury; or what sum
win produce adequate compensa-
tion.

" Some cases are such in their
nature and cfrcumstances, as to fur-
nish an obvious rule by which a
just and adequate compensation can
be readily and accurately measured;
and whenever, and so far as this is
the case, such rule should be applied
in actions of tort, as well as in those
Vol. Ill— 25

upon contracts, as we held in Alli-
son V. Chandler, 11 Mich. 542, and
in Warren v. Cole, 15 Mich. 265.

" But such is the almost infinite
variety of circumstances under
which torts may be committed, that
cases will often occur, in which,
1st, no reliable data, no element of,
certainty can be found by which to<
measure with accuracy the actual!
amount of the damages, though it is
evident to the court and jury thai
large damages have resulted frona
the injury; and 2d, cases in which
there wiU be elements of certainty
as to a part only of such damages,
leaving it certain that the actvual
damages must be largely beyond
what can be thus accurately meas-
ured. Now, in the first class of
cases, are the jury to give merely
nominal, or, what is the same thijQg,
no damages, and is the injuredlp«arty

386

1NJTJEIE8 TO EEAL PEOPEETT.

If a person commits a wilful and malicious trespass upon the
property of another, of such sort, or under such circumstances,
as is likely to produce injury to persons or property, he is liable

to obtain no redress, because the case
happens to be one which does not
furnish a rule for their accurate
measurement? And in the second
class of cases, is he only to recover
so much as can be measured with
certainty, though it may be equally
certain that this does not cover the
tithe of the damages really sus-
tained? jThis might be well enough
if the want of certainty inherent in
the nature of the case were pi-operly
attributable to the fault of the
plaintiff. But he did not make the
case; this was made against his will
by the defendant, who chose his own
time, place and manner of comgiit-
ting the wrong, and the plaintiff is
compelled to grapple with the case
thus made for him; and therefore
such a rule, as one of universal ap-
plication, can only become just when
trespassers become so considerate of
the rights of others as to commit
their trespasses only in cases and
under circumstances where the dam-
ages can be calculated by a fixed and
certain rule. To deny the injured
party the right to recover any actual
damages in such cases, because they
are of a nature which cannot be thus
certainly measured, would be to en-
able parties to profit by, and specu-
late upon, their own wrongs, en-
courage violence and invite depreda-
tion. Such is not, and cannot be,
the law, though cases may be found
where courts have laid down artifi-
cial and arbitrary rules which have
produced such a result.

" There can be no rule of law
founded upon any just or intelligi-
ble principle, which, in actions of
trespass at least, requires any higher

degree of certainty in evidence upon
which the damages are to be esti-
mated, than in reference to any other
bra.nch of the cause. Juries in such
cases have as much right, and it is
as clearly their duty, to draw reason-
able and probable inferences from
the facts and circumstances in evi-
dence, in reference to the amount
of damages, as in reference to any
other subject of inquiry in the case.
And in those cases of trespass, or
those features of a particular case,
where, from the nature of the case,
adequate damages cannot be meas-
ured with certainty by a fixed rule,
all the facts and circumstances tend-
ing to show such damages as are
claimed in the declaration, or their
probable amount, should be submit-
ted to the jury, to enable them to
form, under proper instructions
from the court, such reasonable and
probable estimate, as in the exercise
of good sense and sound judgment
they shall think will produce ade-
quate compensation. There is no
sound reason in such a case, as there
may be, to some extent, in actions
upon contract, for throwing any
part of the loss upon the injured
party, which the jury believe from
the evidence he has sustained;
though the pi-ecise amount cannot
be ascertained by a fixed rule, but
must be matter of opinion and prob-
able estimate. And the adoption of
an arbitrary rule in such a case,
which will relieve the wrongdoer
from any part of the damages, and
throw the loss upon the injured
party, would be little less than legal-
ized robbery.

" Whatever of uncertainty may

TRESPASS TO EEAL PKOrEKTY. 387

to any person injured. It is not necessary that he should intend
to do the particular injury which ensues.' Maliciously and
wantonly pulling out and throwing away the pins used in coup-
ling together the cars of a train, whereby the cars were un-
coupled, and the plaintiff, an eraploy6 of the company, whose
duty it was to hitch and couple cars as required, sustained an
injury to one of his hands while in the ordinary discharge of
his duties, in consequence of such uncoupling, was held entitled
to recover for such injury.'*

Where in consequence of a trespass the plaintiff's business
upon the premises is impaired or destroyed, damages for that
injury may be recovered. Where the plaintiff was engaged in
the business of repairing watches, making gold pens and selling
jewelry on premises which were rendered untenantable by a
trespass, it was held that past proiits in that business, though
they could not be taken as the exact measure of future profits,
were proper to be proved, and taken into consideration by the
jury, and allowed such weight, as they, in the exercise of good
sense and sound judgment, should think them entitled to. If
in consequence of a trespass rendering the premises untenant-
able, the plaintiff was obliged to remove to another place of ;
business, he is entitled to show in an action for the trespass,
that his business fell off in consequence, and how much. The
court, in deciding a case involving the foregoing facts, announced
this general rule : " When, from the nature of the case, the
amount of damages cannot be estimated with certainty, or only
a part of them can be so estimated, there is no objection to
placing before the jury all the facts and circumstances of the
case, having any tendency to show damages, or their probable

be in this mode of estimating dam- and he, taking the law into his own

ages, is an uncertainty caused by hands, makes himself judge in his

the defendant's own wrongful act; own cause, and, knowing his right

and justice and sound public policy to be disputed, seizes upon the prop-

ahke require that he should bear the erty without a judicial trial of his

risk of the uncertainty thus pro- rights."

duced; and this is not only when the ' Hunger v. Baker, 65 Barb. 539; ,

trespass is wilful and wanton, with- Vandenburgh v. Ti-uax, 4 Denio,

out a claim of rig^t, but whenever 464; Scott v. Shepherd, 2 W. Black,

the property, though claimed by 893.

him, is in the possession of another, ^ Hunger v. Baker, supra.

338 INJUEIES TO 2EAL TEOPEETT.

amount ; so as to enable them to make the most intelligible and
probable estimate which the nature of the case wiU permit.
This should, of course, be done with such instructions, and ad-
vice from the court, as the circumstances of the case may re-
quire, or as may tend to prevent the allowance of such as may
be merely possible, or too remote and fanciful in their character,
to be safely considered as the result of the injury." ^ Properly
speaking, special damages are those which are stated under a
])er quod as the consequence of the breaking and entry ; and,
where the defendant is guilty of some outrage connected with
a particular trespass, and such outrage is a part of the trespass
by being done at the same time, it is matter of aggravation, or
a substantive ground of action and damage.

The taking and carrying away of personal property at the
time of breaking and entering the close, or a personal injury,
may be alleged as matter of aggravation. It may be alleged
in the count for breaking the close, or in a distinct count as a
substantive cause of action, and the latter is the more orderly
method of pleading.- If alleged either as aggravation or as a
distinct ground of damages in the count for breaking the close,
it is a dependent claim, and will not, if proved, support the ac-
tion, if the case for breaking the close be not established.' But
when established^ the specific claim for taking and conversion
of property, or for the personal injury, is a part of the grava-
men of the action, and the plaintiff will be entitled to recover
the value of the property taken and converted, or for the
personal injury, as well as for breaking and entering the close.*
But for the purpose of such recovery, the trespass to personal
property or to person should be stated with the same particu-
larity as when it is the sole ground of action ; otherwise such
wrongs will be mere matter of aggravation, not traversable,

1 AllisfiTi V. Chandler, 11 Mich. 'Eames v. Prentice, 8 Cush. 337;
543; St. John v. Mayor, etc. of New Warner v. Abbey, 113 Mass. 355;
York, 13 How. Pr. 537; Sherman v. Brown v. Lake, 39 Ohio St. 64.
Dutch, 16 111. 383; Clark v. St. Clair, < Curlewis v. Laurie, 13 Q. B. 640;
etc. Co. 34 Mich. 508; Fradenheit v. WooUey v. Carter, 7 N. J. L. 85;
Edmundson, 36 Mo. 236; Kemper v. Sampson v. Henry, 13 Pick. 36;
City of Louisville, 14 Bush, 87. Warner v. Abbey, Bupra,

2 Bishop V. Baker, 19 Pick. 517;
Wright V. Chandler, 4 Bibb, 423,

TEE8PASS TO EEAIi PKOPEETT.

38^

not a distinct ground of damage; but only a circumstance
tending to give character to the principal charge and to
enhance the damages assessable thereon.' "Where a daughter,
either of age or under age, is seduced in the father's house, he
may allege it, and the consequential loss of services, as matter
of aggravation, in an action of trespass qua/re olausv/m?

Exemplary damages may be given in this action, and these
are in the discretion of the jury, where the facts are such as
legally to warrant them. If the trespass is wilfully or ma-
liciously done, or if there is connected with the breaking and
entry, otherwise not the subject of punitive damages, cir-
cumstances of outrage, insult, or wanton destruction of per-
sonal property, the proof of these facts may be submitted to
the jury as grounds for damages by way of punishment ; and
the amount to be allowed is left to the sound discretion of the
jury. Such damages are given as punishment, and their al-
lowance and amount are submitted to the jury, only where
there is evidence tending to show conduct culpable in point of
intention. The act in question, or some act accompanying or
connected with it, must be recklessly violent, oppressive, wan- -
ton or malicious.^ The defendant is presumed to know the law, f
and to have acted with general malice when he violates it.*

1 Thayer v. Shirlock, 4 Mich. 173; 253; Smalley v. Smalley, 81 HI. 70;
Chamberlain, v. Greenfield, 3 Wils. Brown v. Allen, 35 Iowa, 806; Kolb
293; Eucker v. MoNeely, 4 Blackf. v. Bankhead, 18 Tex. 228; Gordon v.
179; Keenan v. Cavanaugh, 44 Vt. Jones, 27 Tex. 630; Jasper v. Pur-
268; Allred v. Bray, 41 Mo. 484; nell, 67 lU. 358; Huftalin v. Misner,
Ream v. Bank, 3 S. & E. 215; Brace- 70 111. 55; Owings v. Ulrey, 3 A. K.
girdle v. Orford, 3 M. & S. 77; Bate- Marsh. 454; Bateman v. Goodyear, 13
man v. Goodyear, 13 Conn. 575; Conn. 580; Major v. PuUiam, 3 Dana,
Johnson v. Hannahan, 3 Strobh. 582; Perkins v. Towle, 43 N. H. 230;
435; Brown v. Lake, 39 Ohio St. 64; Bradshaw v. Buchannan, 50 Tex.
Plumb V. Ives, 39 Conn. 120. 493; Stillwell v. Barnett, 60 111. 210;

2 Mercer v. Walmsley, 5 Har. & J. Hamilton v. Third Av. R. E. Co. 53
37; Woodward v. Walton, 3 B. & P. N. Y. 35; Boardman v. Goldsmith,
N. R. 476. 48 Vt. 403; Parker v. Shackelford,

3 Merist v. Harvey, 5 Tarait. 443; 61 Mo. 68; Dearlove v. Herrington,
Sears v. Lyons, 3 Stark. 317; Tul- 70 111. 351; Devaughn v. Heath, 37
lidge V. Wade, 3 Wils. 18; Doe v. Ala. 595; BUsworth v. Potter, 41 Vt.
Felleter, 13 M. & W. 47; Moore v. 685.

Crose, 43 Ind. 30; Ames v. Hilton, * Farwell v. Warren, 51 111. 467;
70 Me. 36; Cutler v. Smith, 57 111. Raynor v. Nims, 37 Mich. 34.

390 INJURIES TO EEAL PEOPEBTT.

Though a party make an entry upon real estate under the be-
lief that he has a right so to do, and therefore will not be liable
for more than compensatory damages for such injury, he having
no right, stUl if in doing so he does wilful injury to the plaint-
iff's goods, he will be liable to exemplar}'' damages.^ So if, in
making such entry, where he is entitled to possession, he uses
force to overcome opposition, commits an assault and battery
upon the occupant, injures his personal property in removing
it from the premises to obtain possession, he may, by reason of
such force in the assertion of his rights, and for such injury to
the person and personal property of the person in possession,
subject himself to exemplary damages.* The circumstance,
however, that the defendant was entitled to possession of the
real estate should be taken into consideration in determining the
amount of exemplary damages, for it is less culpable for a per-
son to attempt to recover his own property by force than to
attempt to rob another of property to which the assailant has
no claim.' "Where an assault in such case was committed upon
the occupant's wife, and the injury to personal property done
to furniture belonging to the husband, and two suits were
brought against the trespasser — one by the husband and wife
for the personal injury to her, and the other by the husband
alone for the assault on his wife, injury to his furniture, and for
breaking his close, the ' former of which was first tried and ex-
emplary damages given therein, — it was held that on the trial
of the second, instructions in favor of exemplary damages, cor-
rect in themselves, would be misleading and erroneous, if the
jury were not reminded that the same transaction had been the
subject of such damages on a preceding trial ; though the jury
had a right to give punitory damages in both suits, yet, on the
question of amount, the former verdict should be considered.*

1 Best V. Allen, 30 m. 30. mented on this point: "The suit

2 Eeeder v. Purdy, 41 111. 379; Bon- brought by Purdy and wife had been
sail Y. McKay, 1 Houst. 530; Hedge- already tried. In that suit the jury
peth V. Robertson, 18 Tex. 858; had been instructed they might give
Champion v. Vincent, 30 Tex. 811; exemplary damages, and they had
Greenville, etc. EaUroad Co. v. Part- imdoubtedly given them. Tlie rec-
low, 14 Rich. L. 337. ox-d of that suit was in evidence on

'Id. the trial of the second suit. The

<Id. Lawrence, J., thus com- court refused the instructions asked

TRESPASS TO EEAL PBOPEETT.

391

The principle of permitting damages in certain cases to go
beyond naked compensation is for example, and the punish-
ment of the guilty party for the wicked, corrupt and mahg-
nant motive and design which prompted him to the wrongful
act. A trespass may be committed from a mistaken notion of
power, and from an honest motive to accomplish some good
end. But the law tolerates no such abuse of power, nor
excuses such act ; yet, in morals, and the eye of the law, there
is a vast difference between the criminality of a person acting
mistakenly, from a worthy motive, and one committing the
same act in a wanton and malignant spirit, and with a corrupt
and wicked design. Hence, where the jury are called upon to
give smart money, or damages beyond compensation, to punish
the party guilty of the wrongful act, any evidence which would
show this difference, or, rather, all the facts and circumstances
which tend to explain or di^lose the motives and design of the
party committing the wrongful act, are evidence which should
go to the jury for their due consideration.' Where the tort

by the defendant, and properly, in
the form they were drawn, except
as to the one already considered.
Neither is there anything in itself
wrong in the foregoing instruction,
and yet it is of such a character
that the court, in order to secure a
fair consideration of the case by the
jury, and having refused all the in-
Mtructions drawn by the defendant,
should, of its own motion, have
modified the somewhat argumenta-
tive effect of this one by telling the
jury that they were also, in esti-
mating the exemplary damages, to
consider the fact that the jury in
the other suit had been authorized
to give exemplary damages, and to
take into consideration on that ques-
tion the amount of the verdict in
the other case. We must hold that,
in strict law, exemplary damages are
recoverable in both cases, because
the suits are brought in different
rights. In the suit by Purdy and
wife, if Purdy fails to collect the

judgment in his life-time, on his
death it would go to the wife sur-
viving him, and not to his personal
representatives. But, apart from
that contingency, the fruits of both
judgments go into his pocket. It
would, therefore, be highly proper
that the jury, in considering the
question of punitive damages,
should have taken into consideira-
tion not only the circumstances of
aggravation enumerated in the in-
struction, but also the fact that
these same circumstances and the
same transaction had been sub-
mitted to another jury, in a suit
prosecuted in reality -for the benefit
of the same plaintiff, and, so far as
related to the single question of the
amount of vindictive damages, the
amount of the former verdict would
have been a proper subject of
regard."

1 Simpson v. McCaffrey, 13 Ohio,
508.

392 INJUBIES TO EEAL PJEOPEETT.

survives, and the action is brought against the representative of
the deceased tortfeasor, vindictive damages should never be
allowed, no matter how aggravated the trespass.'

Section 2.

INJURY TO INHElllTANCE.

Injury to the rights of parties not in possession,

Injuet to the eights of paeties not in possession. — As
has been stated, the same act may be injurious to several per-
sons having different interests ; to the person having a limited
estate in possession, and the person or persons having the fee
subject to that possessory title. The owner of the reversionary
or expectant estate has no claim for damages where the wrong
affects only the present enjoyment; and when it affects the
value of the whole estate in possession and in expectancy, he
has no claim for damages except tor the injury to the inherit-
ance. This injury may arise from the wrongful acts of the
owner of the intermediate estate, or a stranger ; when done by
the former it is waste. Trespass will not lie against either,
because the wrong is not to the possession of the injured party.
In the appropriate action, however, compensation is meted out
to him on the same principles, and in proportion to the injury
he sustains.^

If a house demised to a tenant has been set on fire or thrown
dowa from the negligence of a neighbor, the damages are
apportionable between the landlord and tenant. The tenant
is entitled to recover in respect to the value of his possessoiy
interest and unexpired term in the premises, and the landlord
in respect to the injury to his reversion.' But if the tenant is
bound by covenant to keep the house in repair, a substantial
injury would accrue to the tenant, and the tenant would be
entitled to recover the cost of rebuilding the house, deducting
the difference in value between old materials and new.*

1 Ripey v. Miller, 11 Ired. L. 347. 3 Panton v. Isham, 3 Lev. 359;

2 Van Deusen v. Young, 29 N. 1 Salk. 19.

Y. 9; Randall v. Cleaveland, 6 Conn. ^Lukin v. Groodsall, 3 Peake, 15;
338; Shadwell v. Hutchinson, 3 B. 1 Add. on Tort, 315.
& Ad. 97; Dutro v. Wilson, 4 Ohio
St. 101.

mjUEY TO mnEEITANCE. 393

The declaration in- an action brought by a reversioner must
either expressly allege the act to have been done to tne mjury
of the plaintiff's reversion, or must state an injury of such
a permanent nature as to be necessarily prejudicial to the
reversion, and this allegation must be proved.^ Waste is
the abuse or destructive use of property by him who has not the
absolute, unqualified title, and differs from trespass in this:
that the latter is an injury by the unauthorized use of another's
property by one who has no right whatever.^ Blaokstone says
it is a spoil or destruction of houses, gardens, trees or other
corporeal hereditaments, and the disherison of him that hath
the remainder or reversion.' It is voluntary when the tenant
does some act injurious to the inheritance, and permissive when
he omits some duty, and thereby an injury results to the
inheritance; to tear a house down is voluntary waste; to suffer
it to go to decay for want of necessary repairs is permissive.*
To be waste it must either diminish the value of the estate, or
increase the burdens upon it, or impair the evidence of title of
him who has the inheritance.' The daniages for this injury
and the remedy for them are generally regulated by statute.
In some of the states only single damages are given, in others
double and treble damages.*

The damage for waste, being by definition, for injury to the
inheritance, the plaintiff can recover only such damages as
affect his expectant estate. If waste is committed by cutting
down timber, removing buildings, carrying away gravel or
other substance ^f the estate, the owner of the inheritance
will have a right to the same damages as he would have against
a stranger who tortiously impaired the value of his estate by
similar tortious acts. In general, this damage is the amount the
estate is diminished thereby in value.' In determining the

1 Baxter v. Taylor, 4 B. & Ad. 72; 588; Young v. Spencer, 10 B. & C.

Jackson v. Pesked, 1 M. & S. 334; 145.

Tucker v. Newman, 11 Ad. & El. 40. 6 See 1 Wash. R. P. 143.

2Duvallv. Waters, 1 Bland's Ch. 7 Harder v. Harder, 26 Barb. 409
569. , Jesser v. Gififord, 4 Burr. 3141;

3 3 Bl. Com. ch. 18. See Proffitt Agate v. Lowenbein, 6 Daly, 291

V. Henderson, 39 Mo. 325. Dickinson v. Baltimore, 48 Md. 583

*Id.; 8 Dane Abr. 314; 1 Wash. R. Ayer v. Bartlett, 9 Pick. 156. See

P. 126. WorraU v. Munn, 53 N. Y. 185; S.

»Id.; Huntley v. RusseU, 18 Q. B. 0.'38 N. Y, 137.

394 INJUKIES TO ItEAL PEOPEETT.

amount of damage for cutting and removing wood, the jury
are not limited to the value of the wood and timber actually
cut and removed ; they may, and should also consider the effect
which the cutting off of the wood and timber has had upon the
place wasted. The damages are the solid and permanent injury
to the inheritance.' If one in possession, possessing the right of
a tenant for life of agricultural land, commits waste by cutting
timber necessary to retain for the use of the farm, the rever-
sioner may recover for this damage as well as the value of the
timber.^

Section 3.

NUISANCE.

What is a nuisance — At least nominal damages recoverable therefor —
Usually a continuous wrong requiring a succession of actions — What
recoverable in the first action — Continuing liability of the erector —
Damages may include expenditures not yet made — When nuisance not
a continuing wrong — Measure of damages — For removal of lateral
support to land — Where nuisance interrupts or destroys an established
business — Private remedy for public nuisance — As to joint and several
liability — Pleading.

What is a nuisance. — A private nuisance has been defined
to be anything done to the hurt or annoyance of the lands, tene-
ments or hereditaments of another.' It may be anything which
is calculated to interfere with the comfortable enjoyment of a
man's house ; as smoke, noise, or bad odors, even when not in-
jurious to health.^ It may be any wrongful apt which destroys

1 Harder v. Harder, 36 Barb. 409. Nye, 99 Mass. 583; Duncan v. Hayes,

2 Van Deusen v. Young, 39 N. 23 N. J. Eq. 27; MarshaU v. Cohen,
Y. 9. 44 Ga. 489; Meigs v. Lister, 33 N. J.

3 3 Black. Com. al5; Cooper v. Eq. 199; Pottstown Gas Co. v.
Hall, 5 Ohio, 8S0. Murphy, 39 Pa. St. 257; BUss v. Hall,

4Eex V. White, 1 Burr. 833; Ten- 4 Bing. N. C. 183; Greene v. Nunne-

ant V. Goldwin, 1 SaLk. 360; Eex v. macher, 36 Wis. 50; McKeen v. See,

Neil, 2 C. & P. 485; Cleveland v. 4 Eobt. 449; Cropsey v. Murphy, 1

Citizens' G. L. Co. 20 N. J. Eq. 201; Hilt. 136; Brady v. Weeks, 3 Barb.

Fish V. Dodge, 4 Denio, 311; First 157; Whaleu v. Keith, 35 Mo. 87;

Baptist Ch. v. Schenectady, etc. R. Tate v. Parish, 7 T. B. Mon. 335;

R. Co. 5 Barb. 79; Ross v. Butler, 19 Mulligan v. Elias, 13 Abb. N. S. 259;

N. J. Eq. 294; Whitney v. Barthol- Smiths v. McConathy, 11 Mo. 518;

omew, 21 Conn. 313; Att'y Gen. v. Sparhawk v. Union, etc. R. R. Co.

Steward, 19 N. J. Eq. 417; Ball v. 54 Pa. St. 401; State v. Haines, 30

NUISANCE. 395

or deteriorates the property of another, or interferes with his
lawful use and enjoyment thereof ;, or any act which unlawfully
hinders him. in the enjoyment of a common or public right, and
thereby causes him a special injury.^ An actionable nuisance
may be anything wrongfully done or permitted which injures
or annoys another in the enjoyment of his legal rights.'' It
may be created by affirmative act causing annoyance and dam-
age, or by neglect of some duty of prevention.' Where it is
sought to make one accountable for the consequences of acts
done by him upon his own land, the question, in general, is not
whether he exercised due care, but whether his acts caused the
damage. If they necessarily tend to injure his neighbor in his
pre-existing rights of property, he is liable ' in damages for
the natural and necessary consequences thereof, irrespective of
any considerations as to the care and skill with which such
operations may have been conducted^* The erector of a nui-
sance is liable not only for its creation, but also for its con-
tinuance.' When he who erects a nuisance conveys the land,
he does not transfer the liability for the erection to the grantee ;
the grantee is not generally liable until, upon request, he refuses
to remove the nuisance ; if a tenant or grantee, however, con-
tinues a nuisance after request to abate it, he is hable.^

For the purpose of discussing the subject of damages, it is
not necessary to state the technical differences between nuisance
and the wrong called trespass ; for the same rules of damage

Me. 65; Walter v. Selfe, 4 De G. & ^ Conhochton, etc. Co. v. Buffalo,

S. 315; Soltau v. De Held, 2 Sim. N. etc. R. E. Co. 53 Barb. 390; Wag-

S. 133, 159; EUiotson v. Feethan, 3 goner v. Jermaine, 3 Denio, 306;

Bing. N. C. 134; Scott v. Bay, 3 Md. Fish v. Dodge, 4 Denio, 311; Smith

431. V. Elliott, 9 Pa. St. 345; Pickard v.

1 Fay V. Prentice, 1 C. B. 838; Collins, 3 Barb. 444.

Aiken v. Benedict, 39 Barb. 400; « Woodman v. Tufts, 9 N. H. 88;
Norton v. Scholefield, 9 M. & W. Johnson v. Lewis, 13 Conn. 307;
665; State v. Taylor, 29 Ind. 517; Angell on Watercourses, 403; Pills-
Brown V. lUius, 37 Conn. 84; Wood- bury v. Moore, 44 Me. 154; Morris
ward V. Aborn, 35 Me. 371. Canal, etc. Co. v. Eyerson, 37 N. J.

2 Cooley on Torts, 565. L. 457; Beavers v. Trimmer, 35 N.
'Hankesworth v. Thompson, 98 J. L. 97; McDonough v. GUman, 3

Mass. 77; Cawkwell v. EusseU, 36 L. Allen, 364; Thornton v. Smith, 11

J. Exch. 35. Minn. 15; Waggoner v. Jermaine, 3 ■

*Cahill V. Eastman, 18 Minn. 834; Denio, 306; Hubbard v. Eussell, 34

Heeg V. Licht, 80 N. Y. 579. Barb. 404.

396 INJUEIES TO KEAi PEOrEETT.

apply in both cases. Trespass is susceptible of very precise defi-
nition, but such a variety of wrongs come under the denomina-
tion of nuisance, that all definitions of it must, in the nature
of things, be very general. The remedy against a nuisance by
action for damages merely would be, in many instances, im-
perfect and inadequate, because full redress cannot be obtained
in a single action. For this reason resort may be had to equity
for prevention by injunction. And provision is very generally
made by statute for judicial abatement at law, in addition to
the award of damages.^

]!^uisances are generally of a continuing nature, and are con-
tinuous by the continuous fault of the person creating it ; and
often by that of some other person who has become so con-
nected with it as to be also answerable for its continuance. This
continuous fault may consist in a repetition of afiirmative acts,
keeping alive and perpetuating the nuisance, or it may consist
in a neglect to remove a nuisance which otherwise would, of
itself, continue. The wrong in the latter case is in omitting to
perform the necessary act to cause the nuisance to cease, when
the doing of such act is a legal duty.''

Every man has a right to use his own property as to him
seems proper, subject to this important quaUfication: that he
so use it as not to injure another. Nuisances may be, and gen-
erally are, created and continued on the pretext of the wrong-
doer using his own property to make the same conducive to his
own profit and enjoyment ; but by neglecting the legal restric-
tion of that use to avoid injury to others. If he carry on a
lawful trade or business in such manner that it becomes a nui-
sance to his neighbor, he must answer in damages.'

At least nominal damages eecoveeable theeefoe. — The
creating or continuing a nuisance in any form which involves

1 Remington v. Foster, 42 Wis. v. Spring, 10 Mass. 74; Cumberland,
608; Davis v. Lambertson, 56 Barb. etc. Corp. v. Hitchings, 65 Me. 140;
480. Esty V. Baker, 48 Me. 495; Russell v.

2 Fish V. Dodge, 4 Denio, 317; Brown, 63 Me. 303.

Smith V. EUiott, 9Pa. St. 345; Holmes 'Pickard v. Collins, 23 Barb. 444;

V. Wilson, 10 A. & El. 503; Bowyer Campbell v. Seaman, 63 N. Y. 568;

V. Cook, 4 M. G. & S. 236; Loweth Columbus Gaa, etc. Co. v. Freeland,

V. Smith, 13 M. & W. 582; Thomp- 13 Ohio St. 393.
son v. Gibson, 7 M. & W. 456; Staple

NUISANCE. 397

the physical invasion of or interference with the plaintiff's
property is a wrong for which an action will lie, and at least
nominal damages may be recovered.' But when the act com-
plained of is lawful in itself, a different rule prevails. It is
then only when some actual injury is done that a right of action
ensues. Every man has a right to use his own as to himself
seems proper; but he must be careful to so use it that no injury
is done to another. If the thing complained of as a nuisance
causes neither hurt, inconvenience, annoyance or damage, it is
not a nuisance ; but if it causes either in the least degree, the
person creating it must be liable for the consequences, no mat-
ter how small the damage. The person sustaining it will have a
right of action, but there must have been some damage in fact,
not merely in imagination.''

In Columbus Gas, etc. Co. v. Freeland,' Gholson, J., said:
"It is evident that what amount of annoyance or ineon-
venience will constitute a legal injury, resulting in actual
damage, dependent on varying circumstances, cannot be
precisely defined, and must be left to the good sense and
sound discretion of the tribunal called upon to act. Any rule
on the subject can only serve as a guard against an unreason-
able exercise of that discretion. Thus, in the one above cited,*
we are cautioned to regard the proper mean, the ordinary
standard of comfort and convenience, and not particular or ex-
ceptional cases above, nor, it may be added, below. Kegard
should be had to the notions of comfort and convenience en-
tertained by persons generally of ordinary tastes and susceptibil-
ities. What such persons would not regard as an inconvenience
materially interfering with the physical comfort, may be prop-
erly attributed, when alleged to be a nuisance, to the fancy or
fastidious taste of the party. On the other hand, the charge of
a nuisance, if it be of a thing offensive to persons generally,
cannot be escaped by showing that to some persons it is not at

1 Alexander v. Kerr, 3 Eawle, 83
Foote V. Clifton, 23 Ohio St. 347:
Jones v. Hannovan, 55 Mo. 463:
Phillips V. Phillips, 34 N. J. L. 308:
Butman v. Hussey, 13 Me. 407
Prendenstein v. Hiene, 6 Mo. App,
387; Chatfleld V. Wilson, 37 Vt. 670;

Hill on Torts, 608; Casabeer v.
Mowry, 55 Pa. St. 419.

2 Cooper V. HaU, 5 Ohio, 333; Mc-
Elroy V. Goble, 6 Ohio St. 187; Elliot
V. Fitchburg R. E. Co. 10 Gush. 191;
Monk V. Packard, 71 Me. 309.

3 13 Ohio St. 893.

* Soltau V. De Held, 3 Sim. N. S. 183.

398 INJURIES TO EEAL PKOPEETT.

all unpleasant or disagreeable." ' In Thompson v. Crocker,^ the
action being brought for inconvenience to the plaintiff in work-
ing his mill, caused by increasing the water below his mill by
the defendant's dam, the judge instructed the jury that if the
plaintiff had sustained any actual perceptible damage in conse-
quence of the erection of the defendant's dam, he was entitled
to recover, but that for a theoretic injury, or damage to be in-
ferred from the obstruction of the water by the defendant's
dam, and from the principle that any obstruction of the water
below would prevent it from passing from the plaintiff's mill so
rapidly as it would without such obstruction, the defendant was
not answerable.' In such cases the cause of action depends on
actual damage, and the statute of limitations' begins to run
from the time when such damage occurs.*

UstJALLT A CONTINUOUS WRONG EKQUIEING SUCCESSIVE ACTIONS. —

Successive actions may be brought if the nuisance continues by
the continuous fault of the defendant. In the first, the question
whether the acts complained of constitute a nuisance or not is
to be determined ; and where there is no ground for imputing
any wanton or intentional wrong, the damages are confined to
the actual injury from the nuisance and its continuance to the
date of the writ. If it continues afterwards, the damages re-
sulting therefrom can only be recovered by a new suit, and they
may be so recovered ; for every continuance of the nuisance is
a new nuisance.' In such subsequent action all damages for
continuance of the nuisance since the commencement of the

1 Cooley on Torts, 600; First Bap- derson, etc. E. R. Co. v. Kernodle,
tist Ch. V. Schenectady, etc. R. R. 54 Md. 314; Frendenstein v. Heine,
Co. 5 Barb. 79; St. Helen's Smelting 6 Mo. App. 287; Whitmore v.
Co. V. Tipping, 11 Ho. L. Cas. 643. Bisohoflf, 5 Hun, 176; Hopkins v.

2 9 Pick. 59. Western Pac. R. R. Co. 50 Cal. 190;

3 See Oakley Mills, etc. Co. v. Hartz v. St. Paul, etc. R. E. Co. 21
Neese, 54 Ga. 459. Minn. 358; Sackrider v. Beers, 10

< Delaware, etc. Canal Co. v. John. 241; Duncan v. Markley, Harp.
Wright, 31 N. J. L. 469; Powers v. 179; Cumberland, etc. Co. v. Hitch-
Council Bluffs, 45 Iowa, 663. ings, 65 Me. 140; Allen v. Worthy,

6 Cole V. Sprowl, 35 Me. 161; Ved- L. E. 5 Q. B. 193; Queen v. Water-

der V. Vedder, 1 Denio, 357: Blunt house, L. R. 7 Q. B. 545; Beckwith

V. McCormick, 3 Denio, 383; Savan- v. Griswold, 39 Barb. 391; Mahon v.

nah, etc. Co. v. Bourquin, 51 Ga. N. Y. Cent. R. R. Co. 34 N. Y. 058;

378; Bare V. Hoffman, 79 Pa. St. 71; Thayer v. Brooks, 17 Ohio, 489;

Seely v. Alden, 61 Pa. St. 303; An- Slight v. Gutzlafl, 85 Wis. 675.

'' NTOSANCE. 399

prior action are recoverable; and the defendant will be re-
garded, for sucb continued wrong, as wilful and contumacious,
and subject to exemplary damages, such as may insure the
abatement of the nuisance.^

"What eecovekable m the eiest action. — In the first ac-
tion all damages may be recovered which have resulted from it
and which will ensue without any further fault of neglect or
positive wrongful act of the defendant. If the defendant is
subject to successive actions until he remove the nuisance, then,
of course, in the first action nothing can be included in the re-
covery which will enter into the estimate of damages in any
subsequent suit. For illustration, suppose a business is con-
ducted which causes discomfort and annoyance to others. That
injury will continue so long as the offensive business is con-
ducted; each day's business produces a day's discomfort; the
business and annoyance are continuing cause and effect. In
the first suit for such a nuisance it cannot be proved, nor will
the law assume, that the wrong and injury will continue. If
in fact it is continued during the pendency of the action, it is a
wrong not in issue ; it is a new wrong, and the resulting dam-
age is a fresh cause of action. So if a person has erected a
dam or embankment on his own land or elsewhere, and thereby
water to which another is entitled is diverted from his prop-
erty ; or by such means his property is flooded or otherwise in-
jured, the injury will continue so long as the dam or embankment
is maintained. If it is permanent, the injury will also be perma-
nent, unless the cause is removed, and if the law requires the de-
fendant to remove the dam or embankment, every day that he
neglects that duty he is guilty of continuing the nuisance, and
successive actions may be brought. According to the general
current of decision, and on principle, this is a continuous wrong; .
for if, on such or a similar case, the plaintiff is compelled to
assess his damages once for all, he is precluded from bringing a
second suit, though the damage may turn out to be greater
than the recovery.^ In effect, the defendant would thus, by his

1 Bradley v. Amis, 2 Hayw. 399; 112 Mass. 334; 111. Cent. E. K. Co. v.

Cumberland, etc. Co. v. Hitohings, Grabill, 50 111. 241; JeflersonviUe,

65 Me. 140. etc. E. E. Co. v, Esterle, 13 Bush,

2Fowle V, New Haven, etc. Co. 667.

400 INJURIES TO EEAL PEOPEKTY.

Avrongful act, acquire a right to continue the wrong ; a right
equivalent to an easement. A right to land cannot thus be ac-
qmred.i On the other hand, such a principle would involve the
injustice of compelling the defendant to pay for a perpetual
wrong, which he would, perhaps, put an end to, at once, on the
adjudication that the erection is a nuisance.^ In a late case in
Pennsylvania,' the plaintiff and defendant were owners of tan-
neries on opposite sides of the same stream, the defendant's
being the lower one. The plaintiff was the owner of land on
both sides of the stream below both tanneries. The plaintiff
had a dam from which he conducted water to his tannery ; the
defendant made a dam below into which the surplus water
from plaintiff's dam flowed ; from this dam the defendant by a
pipe conducted the water to his tannery, by which the plaintiff
lost the use of the water required to carry offal from his tan-
nery. The court say : " A severance of the connection of the
pipe with the stream would cause the water to run in its ac-
customed channel and remove the whole cause of complaint.
It is not a case of an entry on another's land and a severance of
a part of the freehold, nor the depositing a permanent nuisance
thereon." The act committed was not of such a permanent
character that it could be 'assumed to continue through all com-
ing time and to justify the assessment of damages accordingly.
It was therefore deemed error to permit evidence to be given
of a permanent injury to the market value of the tannery, and
to instruct the jury that the plaintiff was entitled to recover
the permanent damage done to the freehold. He was deemed
entitled to the damages he had sustained prior to the com-
mencement of the suit, and to be entitled to them as of that
date; and the jury were permitted to compute interest thereon
down to the time of the verdict.*
"Where the defendant filled up about two hundred yards of the

1 Atlantic, etc. R. R. Co. v. Rob- * The reason for the allowance of
bins, 35 Ohio St. 531; Thompson v. interest was deemed the same as in
Morris Canal, etc. Co. 17 N. J. L. two prior cases of Railroad Co. v.
480; Anderson, etc. R. R. Co. v. Gesner, 8 Harris, 340; Pennsylvania
Kemodle, 54 Ind. 814. R. R. Co. v. Cooper, 8 P. F. Smith,

2 See post, pp. 408; D. L. & W. R. R. Co. v. Burson,

3 Bare V. Hofifman, 79 Pa. St. 71. 11 P. F. Smith, 369.

NUISANCE. 401

plaintiff's canal bed without authority, but under color of offi-
cial power to make a street, it was held to be a nuisance erected
on the plaintiff's land which it was the duty of ~ the defendant
to remove ; that successive actions could be brought until such
removal. That in one action it was erroneous to give as dam-
ages the diminution of the value of the property, as that would
lead to an eri'oneous result.^

OoNTiNmNG- LIABILITY OF THE EEEOTOE. — The Continuing lia-
bility of the erector of a nuisance which consists of a perma-
nent structure is very strongly illustrated by an English case,
which was an action on the case for continuing a nuisance to
the plaintiff's market, by a building which excluded the public
from a part of the space on which the market was lawfully
held. It appeared that the building was erected under the
superintendence and direction of the defendants, though not
on their own land, but of the corporation of K. The plaintiff
became a lessee of the market after the erection of the encroach-
ing building. It was contended on behalf of the defendants,
that they were not responsible for the continuing of the nui-
sance ; that they were distinct persons from the corporation ;.
and that though they were guilty of erecting, they could not
be considered as having continued the nuisance, because they
were not in possession, or interested in the soil on which the
building was erected. Parke, B., said : " That the defendants
were responsible for some consequences of the original erection
of the building to the then owner of the market, though the
defendants were not acting for their own benefit, but for that
of the corporation, is not disputed ; nor could it be. If they
are considered merely as servants of the corporation, they
would be liable just as the servant of an individual is, if he is
actually concerned in erecting the nuisance ; and as they would
clearly have been responsible to the then owner of the market
for the immediate consequences of their wrongful act, how can
their liability be confined to the injury by the iaterruption of
the first market, or what limit can be assigned to their respon-
sibility other than the continuance of ttie injury itself ? Is he
who originally erects a wall by which ancient lights are ob-

1 Cumberland, etc. Canal Co. v. Hitchings, 65 Me. 140i
Vol. Ill — 36

4o3 mjUEIES TO EEAL PEOPEETT.

structed, to pay damages for the loss of the light for the first
day only ? Or does he not continue liable so long as the conse-
quences of his own wrongful act continue, and bound to pay
damages for the whole time? And if the then owner of the
market might have maintained the action against the defendants
for the injury to his franchise, for the whole period during
which the defendants' act continued to be injurious to him, his
lessee must be in the same condition as to subsequent injuries ;
for it is clearly established that he has a right of action for
every continuing nuisance. ... It was also said that the
defendants could not now remove the nuisance themselves
without being guilty of a trespass to the corporation, and that
it would be hard to make them liable. But that is a conse-
quence of their own original wrong, and they cannot be per-
mitted to excuse themselves from paying damages for the injury
it causes, by showing their inability to remove it, without ex-
posing themselves to another action." ' Erecting the nuisance
was not deemed the entire wrong; that was done to the owner;
the continuance of the building was a distinct and additional
wrong, and gave an action to the succeeding tenant.^ The con-
tinuance of a dam flooding the plaintiff's property is ground
for successive actions as for a continuous wrong.^ So is the
occupation of the plaintiff's land or of a street adjacent thereto
for a railroad.*

Damages mat include EXPENDrruEES not yet made. — The
authorities agree that damage done at the date of the writ is to
be compensated, and that only. If that damage consists in the
exposing of the party to the expenditure of money, the test is
not the time when the expenditures are made, for they may be
paid at once, or their payment delayed, without in any way af-
fecting the rights of the parties. The question is not when the
money was paid, whether before or after suit ; but, was the lia-

1 Thompson V. Gibson, 7 M. & W. sPillsbury v. Moore, 44 Me. 154;
456. See Blunt v. Aikin, 15 Wend. Staple v. Spring, 10 Mass. 73.

532. 4Mahon v. N. Y. Cent. R. R. Co.

2 See Russell w. Brown, 63 Me. 803; 24 N. Y. 658; Sherman v. Milwau-
Esty T. Baker, 48 Me. 495; Bowyer kee, etc. R. R. Co. 40 Wis. 645.

V. Cook, 4 M. G. & S. 336; Holmes
V. Wilson, 10 Ad. & El. 503.

HTJISAUOE.

403

bility to those expenditures occasioned by the acts complained
of? Or was it by the continuance of the same acts, or of the
state of things produced by those acts, after the action was
brought? If they are the result and consequence of the wrong-
ful act complained of, they are to be recovered in that action ;
if they result from the wrongful continuance of the state of
facts produced by those acts, they form the basis of a new
action.^

"When nuisanoe not a contintjous weong. — When a wrong-
ful act is done which produces an injury which is not only
immediate, but from its nature must necessarily continue to pro-
duce loss independent of any subsequent wrongful act, then all
the damages resulting, both before and after the commence-
ment of the suit, may be estimated and recovered in one action.^
Thus in a Minnesota case, in which it was held that occupying
land for a railroad was a continuing wrong, the court say: "If
the construction of the road and track on the plaintiff's land
necessarily lessened the value of the property ; that is to say,
if it would be worth less because of the mere existence thereon
of said road-bed and track, without reference to any wrongful
use which the defendant might or might not make of them,
such depreciation accrued immediately upon the construction
thereof, and was, in its nature, permanent ; and being a direct
and immediate result of the trespass, might be recovered at
once. And if such erection necessarily caused the surface water
to stand upon plaintiff's land and run into his cellar and well,
he could recover therefor in the same action ; though such in-
jury might not accrue for some time after the completion of
the road-bed and track." '

If the injury to real estate is in the nature of waste, as where
a building is demolished or trees destroyed or fences broken
down, there is no legal obhgation or duty resting upon the
wrongdoer to abate the wrong or repair the mischief. He is
liable only for the damages. Only one action then can be

1 Troy V. Cheshire R. E. Co. 23 N. 2 Cooper v. Randall, 59 111. 321;

H. 83-101; Holmes v. Wilson, 10 Ad. Hayden v. Albee, 30 Minn. 159.

& El. 503; Staple v. Spring, 10 Mass. 3 Adams v. Hastings, etc. R. R. Co.

73. 18 Minn. 365.

404 rtroruEiES to eeal peopeett.

maintained ; and he is liable in that action fcr the whole dam-
age, prospective as well as retrospective.^

Damages have not been invariably assessed as for a continu-
ing wrong, where deposits of soil or other substances have been
made on another's land, or other encroachment made thereon
of a nature to continue unless active measures are taken for
their removal. If the process of deposit goes on, and there is
a continued accretion of foreign matter on the land by defend-
ant's fault, successive actions may, of course, be brought, but
it is not the uniform American rule to regard the wrong of
making the deposit and that of its continuance on the land
distinct or divisible wrongs. Thus, in an action by the owners
of a water power against the owner of a tannery higher up the
stream for permitting tan bark to be conveyed into the plaintiff's
pool to the detriment of his mill, the court recognizing that
the rule for measuring damages is that which aims at actual
compensation for the injury, and that whatever ascertains this
is proper evidence to be submitted to the jury, held that the
plaintiff was entitled to permanent damages ; in other words,
to recover all his damages in one action, measured either by
the depreciation of the value of his property or by the cost of
removing the deposit.'^ Agnew, Justice, said : " The owner of
the freehold may undoubtedly recover for an injury which per-
manentl}^ affects or depreciates his property^ . . . Being
the owner of the property, and in its actual possession and use,
. . (the plaintiff) . . had a right to all the damages iiow-
ing directly from the tort of the defendant. If, therefore, a
permanent injury was created by the lodgment of the tan
bark in the pool of their dam, which actually depreciates the
property in value as a water power, it must affect the value of
the land to which it belongs; and why should not this be com-
pensated in damages ? . . . Compensation for the dimin-
ished enjoyment or use of the property for a certain number of
years is not compensation for the diminished value of the estate
itself. The profit of the land must not be confounded with the
land itself. If the land were under lease, an injury which
diminished its annual profit to the tenant and also depreciated

1 Cumberland, etc. Co. v. Hitch- ^Seely v. Aiden, 61 Pa. St. 303.
ings, 65 Me. 140.

NTHSAHOE. 403

and diminished the value of the property itself, would be the
subject of a double action, in which the tenant andthe landlord
would each recover the amount of his own loss. Of course,
when the owner claims in both cases he cannot be allowed
double compensation for the same loss. So that the damages
for use must not represent in any part the damages for the per-
manent injury. It is the duty of the court to see that one
does not overlap the other. We think the court erred in refus-
ing to admit both methods of computing the permanent dam-
ages, to wit : that which measures the damages by the different
values of the land with and without the deposit, and that
which measures them by the cost of removing the deposit. It
is often difficult for the court to determine the true measure
until the evidence is in; it may turn out that the cost of re-
moving the deposit in a certain case would be less than the
difference in the value of the land, and then the cost of removal
would be the proper measure of damages ; or it may be that
the cost of removal would be much greater than the injury by
the deposit, when the true measure would be the difference in
value merely." A similar ruling has been made in 'New York.
The owner of a flax mill upon a natural stream permitted flax
shives to float down the current and collect in a mass or
deposit in a mill-pond below, thereby impairing the use of the
mill. The cost of removing the deposit was held to be a direct
consequence of the injury, and was recoverable although the
deposit had not been removed. The removal being necessary
to restore the property to its former condition, the expense of
it would measure the diminution of value by the wrong done.
But this was not deemed to be exclusive of other elements of
damage, as, for example, the effect of the shives upon cattle in
drinking, and the filling in at high water of the trunks leading
from the pond to the mill.^

In New Hampshire it has been laid down that wherever the
nuisance is of such a character that its continuance is necessa-
rily an injury, and where it is of a permanent character that
will continue without change from any cause but human labor,
the measure of damages is an equivalent for the original and

1 0'Riley v. McChesney, 3 Lans. 378; affirmed, 49 N. Y. 673.

406 mJTJEIES TO EEAL PEOPEETT.

entire injury, and it may at once be fully compensated; since
the injured person has no means of compelling the individual
doing the wrong to apply the labor necessary to remove the
cause of injury, and can only cause it to be done, if at all, by
the expenditure of his own means.^ The case and the applica-
tion of the principle thereto were thus stated by the court :
" The town is made, by law, chargeable with the duty and ex-
pense of maintaining the road, which this railroad company
have in part destroyed and in part obstructed, according to the
declaration ; they have a qualified interest in the roadway and
bridge which they have constructed and have the right to
maintain, and in the materials of which they are composed, and
are entitled to recover the value of that roadway and material.
The railroad is, in its nature and design and use, a permanent
structure, which cannot be assumed to be liable to change ; the
appropriation of the roadway and materials to the use of the
railroad is, therefore, a permanent appropriation; the use of
the land set apart to be used as a highway by the railroad
company, for the use of their track, is a permanent diversion of
that property to that new use, and a permanent dispossession
of the town of it, as the place on which to maintain the high-
way. The injury done to the town is then a permanent injury,
at once done by the construction of the railroad, which is
dependent upon no contingency of which the law can take
notice, and for the injury thus done to them they are entitled
to recover at once their reasonable damages. Those damages
are, first, the value to them of the property and rights of which
they have been deprived, for the use and purpose to which they
are, by law, bound to apply them. Assuming, then, that they
were suificient to meet the requirements of the law and the
public wants for a highway, their value is to be measured by
the cost of the new ground they are bound to furnish to the com-
munity for a way, if it will be less costly and more reasonable,
having reference to the accommodation of the public by the
highway and the railway to procure new ground, rather than to
build a highway over or under the railway ; by the costs of the
materials which will be requisite to make a road, which will as

1 Troy V. Cheshire R. R. Co. S3 N. H. 103.

NUISANCE. 407

well meet the requirements of the legal duty of the town to
the public in relation to the road as the old, and the expense of
applying those materials to that use in the new road, and the
fund that will be permanently required in all future time to
defray the increased expense of supporting and maintaining the
new road in suitable repair, beyond what would have been
necessary for the old road. These ingredients go to make up the
present value of the old road, of which the town has been
deprived, and they are to be recovered, not as prospective dam-
ages, but as a compensation for the injury the town has now
sustained. "When these expenses shall be paid by the town, or
whether thej"" shall ever be paid, is a question with which these
defendants have nothing to do. If, from change of circum-
stances, the town should be relieved from the burden of main-
taining the road, the amount paid by the railroad will be
applied, as in equity it should, to replace to the town the costs
of the land for the road, and the expenses of making it, long
since paid by them."

This comprehensive remedy for the damages from a perma-
nent nuisance is adopted in Iowa. " In the light of it," said the
court, " we can see that in a case of overflow from a mill-dam,
the injured party should be allowed to maintain successive suits.
Somewhat depends on the way the dam is used. The injury,
therefore, is not uniform. But what is of controlling impor-
tance, the dam if not maintained will go down, as surely as the
sun will go down, and the nuisance of itself wiU come to an
end. Its duration will be determined by freshets and other
forces which are contingent, and, therefore, incalculable. It may,
indeed, be so built that it should be regarded as permanent. In
such case it is said that the damage should be considered and
treated as original.'

" "While no infallible test can be applied to enable us to de-
termine whether a structure is permanent or not, inasmuch as
nothing is absolutely permanent, yet when a structure is prac-
tically determined to be a permanent one, its permanency, if it
is a nuisance, and will necessarily result in damages, will make
the damages original." ^ The case was this : The defendant had

1 Citing preceding case. 2 Powers v. Council Bluffs, 45

Iowa, 655.

408 INJUEIES TO EEAIi PEOPEETT.

constructed a ditch along a street by the plaintiff's property, in
such a negligent and unskilful manner that his property was
injured thereby ; one ditch was made to empty into another by
a fall, making a cavity below the fall, and wearing away the
land at thfe brink of the fall. The court held that the damage
resulting from the construction of the ditch was original dam-
age. The court say: "After the ditch was constructed and
the water of the creek first began to work upon plaintiff's land,
its continuance was just as certain as that water would flow in
the creek, unless changes were made therein by human hands.
Its continuance would just as certainly be an injury as that the
floods of the creek would wash the soil and earth through
which the ditch was dug. It follows then that the plaintift''s
cause of action accrued for all injury sustained or tha.t in the
future would be suffered ; " also, " we have seen no case where
successive actions have been allowed for damages resulting
from negligence combining with a natural cause, however grad-
ual the operation of that cause. Successive actions are allowed
only when the defendant is in continuous fault. It may be a
fault of commission or omission, but if the latter, it must be
something else than an omission to repair or arrest an injury
resulting from negligence or unskilfulness, unless the remedy is
to be applied upon the wrongdoer's premises." ^ This rule, as
applied to such a case, affords the defendant no option or oppor-
tunity to put an end to the injury by amending his work ; but
the permanent or "original damages" are reducible to the
amount it would cost the plaintiff himself to amend the work
if the injurious feature of it may be corrected at a moderate
expense.^ A subsequent case occurred which was unaffected
by this mitigation. A railroad company and a city were de-
fendants. The latter had, in the exercise of its powers, granted
the company the right to locate its road along a certain street,
adjacent to which the plaintiff owned and occupied property.
The complaint was that there was neghgence in selecting a line
for the road on that street, and it was fixed unnecessarily near
to the plaintiff's premises, thereby causing him great inconven-

1 See Finley v. Hershey, 41 Iowa, 2 Simpson v. Keokuk, 34 Iowa,
389. 568; Van Pelt v. Davenport, 43 Iowa,

314.

NUISANCE. 409

ience and damage. The true measure of damages was held to
be the difference in value of the plaintiiFs property with
the road constructed upon its present line in the street, and
what that value would have been, if the road had been con-
structed upon a line in the street selected with reasonable care
and a proper regard for the rights of all interested.'

In another case the plaintiff was the owner of a lot abutting
on a slough or arm of the Mississippi river, and occupied it
with a slaughter or pork house ; the defendant owned a saw
mill on the same slough, and partially filled up this slough in
front of his premises, and thereby impeded and cut off the flow
of water from the river. The wrong was treated as an entirety,
and the damages to be measured and ascertained by comparison
of the value of the property affected by the filling up of the
slough prior thereto, and its value as depreciated by such filling.
It was insisted that the true measure of the plaintiff's damage
was the difference between the value of the use of the property
before and after the filling. On this point the court said:
" The injury sustained by plaintiffs affected the property itself
and incidentally the value of its use was depreciated. It is
evident that the rule contended for by defendant's counsel
would, if applied to the case, fail to make full compensation to
plaintiffs. The property depreciated in value because the value
of its use was affected, and because the property itself was in-
jured by the acts complained of. In order to compensate the
plaintiffs for the injury to their property, they should recover
to the extent its value was depreciated. If plaintiffs could only
recover for the depreciated value of the use of the property
whenever the property was used, as defendant claims, there
Avould be a continually recurring cause of action in favor of
plaintiffs, and the rights of the parties would not be settled in
the present suit, a thing which the law will avoid."

In a late Massachusetts case,^ a railroad company,, for the
construction of its road-bed in such a manner as unnecessarily
to turn the current of a stream against plaintiff's land and
wash away his soil, was held liable for prospective as well as

1 Cadle V. Muscatine, etc, E. E. Co. ^Fowle v. New HaYen, etc. Co.
44 Iowa, 11. 113 Mass. 334.

410 INJUEIES TO EEAL PEOPEKTT.

past injury. A recovery of prospective damages in a prior suit
was held to bar an action for subsequent damage, though caused
by an unusual freshet. The declaration in the former suit was
for soil washed away and for diminution in the value of the
residue. The court say: "The permanent character of the
structure, and the fact that the plaintiff accepted damages
which were assessed for the permanent injury, and necessarily
involved a consideration of the probable future effect upon the
plaintiff's land of the changed current of such a stream in its
different stages of water, remain unaffected by the evidence. The
jury may have intended to compensate the plaintiff for the injury
novf complained of, or to give him the means to protect himself
against it. As a general rule, a new action cannot be brought
unless there be a new unlawful act and fresh damage. There
is no exception to this rule in the cases of nuisance, where
damages after action brought are held not to be recoverable,
because every continuance of a nuisance is a new injury, and
not merely a new damage. The case at bar is not to be treated
strictly in this respect as an action for an abatable nuisance.
More accurately it is an action against the defendant for the
construction of a public work under its charter in such a
manner as to cause unnecessary damage by want of reasonable
care and skiU in its construction. For such an injury the
remedy is at common law. And if it results from a cause
which is either permanent in its character, or which is treated as
permanent by the parties, it is proper that entire damages
should be assessed jvith reference to the past and probable
future injury. This is the course which appears to have been
taken in this case, and to allow a recovery here might subject
the defendant to double damages."

The courts of Kentucky also allow recovery for past and
prospective injury from a permanent nuisance ; as for a railroad
laid and operated in the street of a city, impairing the value of
the easement therein of adjacent lot-owners, and subjecting
such owners occupying their lots to daily annoyance, from
smoke, soot, noise, and hazard of fire.^ The injury and damage
are thus stated by the court in a late case : " We adjudge that

lElizabethtown, etc. E. E. Co. v. Combs, 10 Bush, 383.

HUISAITOE. 411

if appellant's road has been so located as to deprive appellee of
the means of ingress and egress to and from his lot on "W
street with ordinary vehicles, on either side of its road, when
its trains are passing or standing on the street in front of his
lot, he is entitled to recover such damages as he has thereby
sustained; and if his houses are damaged by having smoke,
soot or fire from passing engines thrown or blown into or
against them, he is entitled to recover for this also. The dim-
inution of the value of the adjacent property, occasioned by
these circumstances, will be the measure of his right to recover.
We have heretofore held, in actions for injury to real estate by '
trespassers, that the plaintiff can only recover compensation for
the injury done up to the commencement of the action ; but
that was in cases of injury not continuing or permanent in their
character. The injury in this case, if any, is permanent and
enduring, and no reason is perceived why a single recovery may
not be had for the whole injury to result from the acts com-
plained of." 1

In a subsequent case, it was held that if the railway tracks
have been so located as to unreasonably obstruct the abutting
lot-owner's means of ingress and egress over the street to and
from his lot; or, if his houses have been injured by having
smoke, sparks or cinders thrown or blown into or upon them ;
or, if their walls have been cracked by the rapid movement of
heavy trains of cars, he is entitled to recover for the damages
directly resulting from aU or any one or more of these causes ;
that the measure of damages which the lot owner may recover,
if entitled to recover at all, is the diminution in value of his
houses and lot by the location of the railway tracks, and the
uses to which they are authorized to be put by the grant under
which they are built. If the location and operation of the
roads in front of the houses diminish their value say twenty
per centum, then the diminution should be proportioned to their
value just preceding the time at which it became generally
known that the street had been selected as the line of the road.
The jury should ascertain what the value of the property was
just before it became generally known that the roads were to

lElizabethtown, etc. R. E. Co. v. Combs, 10 Bush, 383.

412 mJTIEIES TO EBAL PBOPBETT.

be located in front of it, and then determine what proportion
of that value was taken from the houses and lot by the obstruc-
tion of the street, and the annoyance incident to the movement
of engines and trains of cars along and over the roads. Benefits
arising out of or from an unauthorized act may sometimes be
considered in the determination of the sum to, be recovered by
the injured party ; but in all cases these benefits must be direct
and immediate. They must be confined to the approximate
consequences of the act complained of, and be of lilie kind with
the opposite injuries for which the recovery is sought. If the
railways afford the complaining lot-owner increased or addi-
tional-facilities for ingress and egress to and from his houses and
lot, or for the movement of articles in which he may deal, or sup-
plies which it is necessary that he shall procure, this benefit may
be talien into consideration in estimating the damages he has sus-
tained. The same case announced the following principle : that
by instituting an action for permanent damages, the lot-owner
in effect consents that the railroad company may continue for
all future time to use the street as it is now using it, and, as
consideration therefor, to accept such judgment as m%y be
therein rendered.*

In Illinois the doctrine has been carried still further. In an
action by the owner and occupant of a lot situated near the
right of way of a railroad on which the company erected cat-
tle pens so conducted as to become a nuisance, the court held
that in estimating the damages it was proper to consider the
depreciation in the value of the plaintiff's property occasioned
by such nuisance; and in addition the injury and annoyance to
the plaintiff while occupying the, premises ; that one recovery
for such depreciation would bar any future action for the same
cause ; but if the former recovery was for annoyance merely,

1 JefEersonville, etc. E. R. Co. v. house and lot, and that while no re-

Esterle, 13 Bush, 667. In Kemper v. covery could be had for physician's

Louisville, 14 Bush, 87, the defend- bills, or loss of time to the occupants,

ant was a municipal corporation; by on account of sickness caused by

a street improvement it dammed a the stagnant water, still these facts

natural drain, and thus flooded the might be proved with a view to

plaintiff's lot where he lived. It was show the extent to which the Value

held that the plaintiffs were entitled of the property had been lessened

to recover for the injury to their by reason of the act complained oi.

mnsANOE. 4:13

and for rendering the atmosphere unwholesome, then a similar
recovery might be had at every term of court so long as the
nuisance continues.*

The apparent discrepancy in the American cases on this sub-
ject may, perhaps, be reduced by supposing that where the
nuisance consists of a structure of a permanent nature, and in-
tended by the defendant to be permanent, or of a use or inva-
sion of the plaintiff's property, or a deprivation of some benefit
appurtenant to it, for an indefinitely long period in the future,
the injured party has an option to complain of it as a permanent
injury and recover damages once for all for the whole time;
estimating its duration according to the defendant's purpose in
creating or continuing it ; or to treat it as a temporary wrong
to be compensated for while it continues ; that is, until the act ,
complained of becomes rightful by grant, or condemnation of
property, or ceases by abatement. The recovery of damages on
a declaration alleging the permanency of the nuisance, on prin-
ciple, would estop the plaintiff not only from recovering future
damages, but also from taking any steps to abate the nuisance,
during the period for which damages had been recovered. This
is apparently the law in Kentucky. By such an action, the
plaintiff consents to the continuance, according to his allega-
tions of the duration of the injury for which he recovered judg-
ment ; and accepts the recovery as a compensation therefor.^ In
the Massachusetts case which has been referred to, the plaint-
iff's second action was deemed barred on account of the scope
of his first declaration, and the acceptance of damages assessed
for the permanent injury.' Thus considered, such a recovery
will have the effect to give the defendant a permanent right to

1 111. Cent. R. E. Co. v. Grabill, 50 and that thereby he was prevented
111. 341; Chicago, etc. E. E. Co. v. from the comfortable use of his
Baker, 73 lU. 316. house; and his family was made sick,

2 JefiEersonville, etc. E. E. Co. v. and he was subjected to medical ex-
Esterle, 13 Bush, 667. pense; it was held that he could not,

s Fowle V. N. H. etc. Co. 118 Mass. under this declaration, for the pur-

888. In Johnson v. Porter, 42 Conn, pose of enhancing damages, show

334, the plaintiff alleged in his dec- the diminished value of his dwelling

laration that the plaintiff had an- house and lot by reason of the offen-

noyed him by offensive odors from sive odors. See lU. Cent. E. E. Co.

a barn-yard, placed by the defendant v. Grabill, 50 lU. 341.
near the plaintiff's dwelling house

414 INJUKIES TO EEAL PEOPEETT.

do the acts which constitute the nuisance, as fully as though
there had been a condemnation of the property by the exercise
of the power of eminent domain. But the option to recover
permanent damages in a common law action, with this effect,
is not generally admitted in this country, and is wholly unknown
in England.^

Measure of damages. — If permanent damages are allowed,
they are measured by the depreciation of value caused by the
nuisance, or by adding to the damages allowed for past injury
the amount necessary to restore the premises to their former
condition, or to protect the plaintiff against future injury.^
"Where, however, the damages are assessed for the continuance
of the nuisance to the commencement of the suit only, it may
affect and injure the inheritance as well as the value of the pos-
session ; they may therefore be assessed for any permanent in-
jury so caused ; and for the depreciation of rental value, by the
difference, in other words, between the rental value free from
the effects of the nuisance and subject to it ; but to the occupant
the latter damages may be computed on the diminution of the
value of the use to him.' These damages compensate the ordi-

' Adams v. Hastings, etc. E. E. Co. Fowle v. N. H. etc. Co. 113 Mass.

18 Minn. 260; Hartz v. St. Paul, etc. 333; O'Eiley v. MoChesney, 3 Lans.

E. E. Co. 21 Minn. 358; Brewster v. 278; Bare v. Hoffman, 79 Pa. St. 71;

The Sussex E. E. Co. 40 N. J. L. 57; Givens v. Van Studdiford, 4 Mo.

Ford V. Chicago, etc. E. E. Co. 14 App. 498.

Wis. 609; Harrington v. St. Paul, 3 Francis v. Schoellkopf, 53 N. Y.

etc. E. E. Co. 17 Minn. 215; Blesch 153; Wiel v. Stewart, 19 Hun, 272;

V. Chicago, etc. E. E. Co. 43 Wis. Whitmore v. Bischoflf, 5 Hun, 176;

183; EUsworth v. Cent. E. E. Co. 34 Emery v. Lowell, 109 Mass. 197;

N. J. L. 98; Carl v. Sheboygan, etc. Walrath v. Eedfield, 11 Barb. 368;

E. E. Co. 46 Wis. 625; Atlantic, etc. Hatfield v. Cent. E. E. Co. 33 N. J.

E. E. Co. V. Eobbins, 35 Ohio St. L. 251; Carl v. Sheboygan, etc. E.

531; Battishill v. Eeed, 18 C. B. 696; E. Co. 46 Wis. 635; Bare v. Hoffman,

Devery v. Grand Canal Co. 9 Irish 79 Pa. St. 71 ; Chicago v. Huener-

C. L. 194; MeUor V. Pilgrim, 3 Bradw. bein, 85 lU. 594; Schuylkill Nav. Co.

476. V. Farr, 4 W. & S. 363; Gilo v.

2 Finley v. Hershey, 41 Iowa, 389; Stevens, 13 Gray, 146; Jutte v.

DI. Cent. E. E. Co. v. GrabiU, 50 111. Hughes, 67 N. Y. 267; Pinney v.

341; Chicago, etc. E. E. Co. V. Baker, Beny, 61 Mo. 359. In Hatch v.

73 111. 316; Powers v. Council BlufEs, Dwight, 17 Mass. 289, a mortgagee

45 Iowa, 655; Elizabethtown, etc. who had taken possession was held

E, E. Co. V. Combs, 10 Bush, 383; entitled to recover interest on the

innsAifCE. 4:15

nary or general loss from the nuisance. If there are special
elements of damage, as there may be, and in most cases are, re-
covery may be increased accordingly. "Where the defendant
caused the nuisance by digging a ditch, and by means thereof
conducting water from his brewery into a clay pit on the plaint-
iff's premises; and such water becoming stagnant and offensive,
the plaintiff incurred expense in filling it up by direction of the
board of health, the expense so incurred was allowed as an item
of damage.*

The owner and occupier may recover for expenses incurred
to protect the premises affected by the nuisance against a con-
tinuance of the injury, as well as to repair those already done.^
The owner of logs scattered and delayed by reason of a boom
by which the defendant obstructed a floatable stream, has been
allowed the depreciation in the market value during the deten-
tion, and for loss of logs carried away, and the expense of
searching for others.'

For injury done to the plaintiff's crops by the flowing of his
land, he is entitled to recover for their value standing upon
the land, so far as destroyed, and the depreciation in value
of such as are only injured or partially destroyed.* But for
depriving a party of the use of land by a nuisance, recovery
can be had only of the rental value ; not the supposed value of
what might have been raised by cultivation, less the cost of
cultivation and marketing.' For injuries done to the plaintiff's
house, grounds, fruit trees and garden by water turned on his
land by the defendant, in constructing a railway, damages may
be ascertained in favor of the owner, by the difference between
the value of the plaintiff's premises before the injury happened,
and the value immediately after' the injury, taking into account
only the damages which have resulted from the defendant's
acts.* Under such circumstances, the owner is bound to use

value of a irriU privilege rendered * Folsom v. Apple E. L. D. Co. 41

useless for the erection of a miU by Wis. 602.

a dam built below. 5 Chicago v. Huenerbein, 85 HI.

1 Shaw V. Cummiskey, 7 Pick. 76. 594.

2 Jutte V. Hughes, 67 N. .T. 267. « Chase v. N. Y. Cent. R. R. Co.
■' Plummer v. Penobscot L. Ass. 24 Barb. 373.

67 Me. 363.

416 ESTJUEIES TO EEAL PEOPEETT.

reasonable care, skill and diligence, adapted to the occasion, to
save his property from being injured by the water, notwith-
standing it came on his premises by the fault and negligence of
the defendant.'

Where the plaintiff is the owner and occupier of the land
affected by the nuisance, the particular circumstances of the
injury may be taken into account, and damages given, not only
for the diminished value of his use and for any peculiar annoy-
ance suffered or expense rendered necessary or incurred in
respect thereto, but also for any act which permanently injures
the inheritance. For the unauthorized maintenance of a dam
so as to overflow another's land, he may recover damages for
loss of the use of a ford which he had habitually used in haul-
ing crops and wood from one part of his farm to another, and
for the loss of growing timber killed by such overflow prior to
the suit, though the timber did not, in fact, die until after-
. wards.^ A city authorized a canal corporation to change the
course of a sewer into which a street was drained, and into
which a house was also drained, the owner of which" consented
to the corporation's making the change on its promise to hold
him harmless from the consequences. The drain became ob-
structed and the water flowed back into the house. In an
action against the city for the obstruction, under a declaration
alleging that the defendants obstructed the drain so that water
and filth flowed into the plaintiff's cellar and destroyed his
property therein, and put him to trouble and expense to get
the water out, the plaintiff was held entitled to damages for
any injury which affected his estate, or diminished its value for
use and occupation by reason of the inconvenience and annoy-
ance of flooding the cellar, and of unwholesome and disagree-
able smells, or of insects thereby generated or attracted to the
house ; and also his reasonable expense in preventing or remov-
ing the nuisance, and of changes and repairs thereby rendered
necessary, and which he could not, by reasonable care and diH-
genoe, have avoided.'

A railroad company, by permitting a horse killed by its loco-
motive to remain on the side of the railroad track so near the

1 Chase v. N. Y. Cent. E. R. Co. 2 Hayden v. Albee, 30 Minn. 159.
24 Barb. 273. 8 Emery v. Lowell, 109 Mass. 197.

NUISAHOE.

417

house of an adjacent owner as to render its occupancy unwhole-
some, is subject to an action by him, and he may show, not
only the sickness of himself, but also the sickness of his wife,
his family and the different members, to affect the damages.^
A plaintiff, suffering from a nuisance of water flooding his
ground about his house, destroying his shrubbery and garden,
and injuring the health of his family, may not only recover for
the injury to the house and lot, but he may prove physicians'
biUs paid, loss of time of his family on account of sickness
caused by stagnant water, not as constituents of the measure
of damages, but for the purpose of showing the extent to
which the value of the property has been lessened by reason of
the acts complained of .^ The working of quarries and blasting
of rooks, whereby large quantities of rocks and stones are
thrown upon the dwelling house and premises of plaintiff,
breaking the doors, windows and roof, is, as to such injuries, a
trespass ; and if by such operations all persons on and about
the plaintiff's premises are kept in continual fear and jeopardy
of their lives, rendering a proper attention to business full of
fear and danger, they would constitute a nuisance, and in case
therefor, the damages for diminution of the value of the prop-
erty for the purpose of renting, and the prevention of the
plaintiff's servants from performing their labor, and for injury
from leakage in the roof through holes so caused, may be re-
covered.' The owner of a ferry established by law may have
an action against an owner who sets up a ferry in opposition to
him, without authority, and uses unwarrantable means to divert,
custom from the plaintiff's ferry; and may recover, as his
measure of damages, the defendant's clear gains from the rival
ferry.*

Foe eemoval of lateeai. bttppoet to lahd. — Kemoval' of
lateral support of land by which such land drops away is a
legal injury to the owner, for which he is entitled to- damages.
There is incident to the land, in its natural condition, a- right of

1 Ellis V. Kansas City, etc. R. R. ' Scott v. Bay, 3 Md. 481'.

Co. 63 Mo. 131. * Stark v. McGowen, 1 N. & McC.

2 Kemper v. Louisville, 14 Bush, 387; Chenango Bridge Co. .v. Lewis,
87; Francis v. Schoellkopf, 53 N. Y. 63 Barb. 111.

153; Wiel v. Stewart, 19 Hun, 373.
Vol. Ill — 37

•ilS DCjnOES TO EEAl PKOPERTT.

support from the adjoining land; and if land not subject to
artificial pressure sinks and falls away in consequence of the
removal of such support, the owner is entitled to damages to
the extent of the injury sustained.' The measure of damages
is not the cost of restoring the lot to its former situation, or
building a wall to support it, but it is the diminution of value
of the plaintiffs lot by reason of the defendant's act.*

It is well settled that where the owner of a lot builds upon
his boundary line, and the building is thrown down by reason
of excavations made upon the adjoining lot, in the absence of
improper motive and carelessness in the execution of the work,
no recovery can be had for the injury done to the building.'
But though the adjacent owner is not obliged to refrain from,
excavations near his land, except to preserve the lateral support
of the land in its natural condition, still, if there are buildings
upon it, he is under obligation to proceed with care for their
protection; he must give reasonable notice of his intended ex-
cavation to the owner of such buildings, and also make his
excavations with care.* Owners of the surface are entitled to
absolute subjacent support ; they have a right to support of the
land with any erections thereon.*

^HEEE A XnSAXCE nrrEREITPTS OE rUPAIRS AX ESTABLISHED

srsETESs. — • This is an element of damage which may be proved
as a distinct injury, or as bearing upon the inquiry how much

1 McGuire t. Grant, 25 X. J. L. 29. In Boothby v. Androscoggin,
356; Thurston v. Hancock. 13 Mass. etc. E. E, Co. 51 Me. 319, it was held
220; Foley v. TVyeth. 3 Allen, 131; that the railroad company was not
Beard t. Murphy. 37 Vt. 99; Farrand liable for removing the lateral sup-
T. Marshall, 19 Barb. 3S0: Guest v. port of adjacent land in excavations
Reynolds, 6SI11. 478; Baltimore, etc. made for their road in pursuance of
R. R Co. V. Reaney, 43 Md. 117: their charter. But see Richardson
Charless v. Rankin, 23 Mo. 566; Hay v. Tt. Cent. R, R. Co. 25 Vt. 465.

V. The Cohoes Co. 3 Comst. 162. ^ Cooley on Torts, 595; "SVyrley

2 McGuire V. Grant, supra. Canal Co. v. Bradley, 7 East, 36S;

3 McGuire v. Grant, supra; Gay- Shrieve v. Stokes, S B. Mon. 453.

fold V. XichoUs, 9 Exch. 703
Humphries v. Brogden, 13 Q. B. 739
Partridge v. Scott. 3 M. & "W. 330
Panton v. Holland, 17 John. 93
"Wyatt V. Harrison, 3 B. & Ad. 871
Brown, v. Windsor, 1 Cromp. & J.

sHext V. GiU, L. R. 7 Ch. Ap. 699;
Bononi v. Backhouse, El. B. & EL
623; S. C. 9 Ho. L. Gas, 503; Smith
V. Thackerah, L. R 1 C. P. 554;
Cooley on Torts, 595.

KUI8A1TCB.

•119

the value of the plaintifFs use of the premises affected has been
lessened by the defendant's wrong-doing. The nature and ex-
tent of the business may be proved, and its past productiveness,
not with a view to measure the damages by expected profits
prevented by the nuisance, but to assist the jury in the exercise
of their judgment, with a view to awarding adequate oompen-
sation.i For obstructing the water below a mill by means of a
dam so as to prevent its running, it has been held in New York,
the owner and occupier of the mill is only entitled to recover
the value of the use of the mill during the time he is neces-
sarily deprived of the use of it, and the amount of the perma-
nent diminution of value by the erection of the dam. It was
intimated that damage from the deterioration or fall in the
market price of saw-logs on band to be sawed, suffered without
negligence of the plaintiff in omitting to make other disposi-
tion of them, should be disallowed as being analogous to
unearned and contingent profits.* It is believed that this inti-
mation is not supported by the supposed analogy, because the
loss in question is not a loss of profits ; and upon the cases truly
analogous, such loss should be compensated.' A party was held
entitled to recover for a loss of rent by the defendant's failure
to keep his privies and drains in repair.* And as for a perma-^
nent injury for establishing a brothel on adjoining property to
plaintiff's tenements held for renting.' In such a case, a fair
means of arriving at the actual damage would be to ascertain
the loss of rent and depreciation of the value of the property
caused by the nuisance ; that is, how much less the property
would sell for on account of the existence of the nuisance, and
Avhat loss of rent has resulted from the same cause. But, in

1 Simmons v. Brown, 5 R. I. 329; ^Walrath v. Redfleld, 11 Barb. 368;

PoUitt V. Long, 58 Barb. 20; White 18 N. Y. 457.

V. Moseley, 8 Pick. 356; Buoknam spiummer j. Penobscot L. Asso.

V. Nash, 12 Me. 474; St. John v. The 67 Me. 363; Ward v. N. Y. Cent. R.

Mayor, etc. 6 Duer, 315; 18 How. R. Co. 47 N. Y. 39; Manville v. West-
Pr. 527; Park v. C. & S. W. R. Co. ' ern U. Tel. Co. 37 Iowa, 314; Shep-

43 Iowa, 636; Shafer v. Wilson, 44 herd v. Milwaukee Gas Co. 15 Wis,

Md. 368; Stetson v. Faxon, 19 Pick. 318.

147; Bonner v. Welborn, 7 Ga. 396; < Jutte v. Hughes, 67 N. Y. 268.

St. Louis, etc. R. R. Co. v. Capps, 67 sGivens v. Van Studdiford, 4 Mo.

111. 607. App. 498.

420 INJtTEIES TO KEAL PEOPEKTY.

ascertaining these facts, all circumstances that would show a
depreciation in value should be considered.* And the damage
recovered must be the actual depreciation shown to be caused
by the existence of the nuisahce. "Where property is changing
its character, and what has been formerly a good residence
neighborhood is invaded by business establishments which de-
stroy its quiet, it is matter of common observation that it
passes through a period in which it is neither good for business
of the better class nor for residences ; and drinking saloons, and
other establishments more or less objectionable or disreputable,
settle down for a time in what were once the residences of
wealthy citizens. "When a bawdy house is opened in such a neigh-
borhood, it may be very difficult to say how much any depre-
ciation of value is attributable to that fact alone. But if it be
shown that after the.defendant's house was occupied as a bawdy
house, other disreputable houses sprang up in the neighborhood,
the mere fact that it may be impossible to say how much of the
damage was occasioned by the nuisance on the defendant's
premises, and how much by the other brothels, will be no bar
to recovery.^

The abatement of a nuisance does not preclude the recovery
of damages which have been suffered prior to such abatement.'

MrnGATioNs. — The fact that the plaintiflf might have abated
the nuisance caused by obstructing a ditch, but did not, it being
necessary to go upon the defendant's land for that purpose, will
not affect his right of action or the damages.^ "Where, how-
ever, the plaintiff has access to the nuisance, or the means or
opportunity of avoiding or mitigating the injury it causes, it
is his duty to abate the nuisance, or to take the proper meas-
ures for preventing or lessening the damages therefrom.*
"Where this duty arises, damages wiU be limited to such as are

lid.; ni. Cent. R. R. Co. v. GrabiU, « White v. Chapin, 102 Mass. 188;

50 lU. 241. Walrath v. Redfleld, 11 Barb. 868;

sGivensv. Van Studdiford, supra. Heaney v. Heeney, 2 Denio, 625.

See post, p. 435. See Gilbert v. Kennedy, 23 Mich.

sGleason v. Gary, 4 Conn. 418; 183.

Pierce v. Dart, 7 Cow. 609; Renwiok » Chase v, N. Y. Cent. R. R. Co.

V. Morris, 8 Hill, 631; The People v. 24 Barb. 273.
Corp. of Albany, 11 Wend. 539.

MxnsAScE. 421

or would be suffered if the duty had been performed, added to
the expense incident to the performance of that duty.' If a
plaintiff, having the opportunity, without incurring a liability
for trespass, neglects to exercise ordinary care and diligence to
prevent injury, he may be denied any recovery, on the ground
of contributory negligence.* The plaintiff is not obliged, how-
ever, to take notice of defendant's threat to commit a wrong,
and thereupon to take measures to prevent damages ; it is suffi-
cient for him if he exercises ordinary care in the preservation
of his property, after he has knowledge that wrong has been
done.'

It is no defense that the plaintiff is a lessee, and rented the
premises injured after the business causing the nuisance had
been established, and with knowledge of its existence, and for
small rent on that account.* iSTor is it a defense that the busi-
ness is necessary to be carried on, and is useful to the public*

If some incidental advantage accrues to the plaintiff from
the wrongful act of the defendant which causes the nuisance,
that circumstance may be considered in mitigation. In an
action in Massachusetts, for damages occasioned by the jBlHng
up by the defendant of his land, adjacent to that of the plaint-
iff, whereby the free flow of water off the plaintiff's land had
been obstructed, the jury were held properly instructed that
they should take into consideration the evidence on both sides
bearing on this point, and if they were satisfied that the fiUing
up had actually benefited the plaintiff's estate in any particu-
lar, they would, in assessing the damages, make an allowance
for such benefi-t, and give the plaintiff such sum in damages as
they found, upon the evidence, would fully iademnify and com-
pensate hina for aU the damages he had actually sustained.*
The authorities of the city in which the plaintiff's premises
were situated gave a railroad company the right to locate and

I Emery v. Lowell, 109 Mass. 197; 'Pltimmer v. Penobscot L. Ass.

Fowle V. N. H. etc. Co. 112 Mass. 67 Me. 363.

334; O'Riley v. McChesney, 3 Laos. ♦ Smith v. PhiUips, 8 Phila. 10.

278; Terry v. Mayor, etc. 8 Bosw. » Id. ; Marcy v. Fries, 18 Kane. 353.

504. 6 Luther v. Winnisimmet Co. 9

2Simpsonv. Keokuk, 34 Iowa, 568; Gush. 171; Brower v. Merrill, 3

Van Pelt v. Davenport, 43 Iowa, Chand. (Wis.) 46; 3 Pin. 46.
808; Irwin v. Sprigg, 6 Gill, 200.

422 INJUKIES TO EEAL PEOPEETT.

operate their road on the street in front of those premises, on
condition that they should macadamize certain' neighboring
streets and construct a sewer ; these improvements were made.
In an action for damagek to the plaintiff for occupying the
street in front of his premises without extinguishing his right
therein as a highway, it was held that the company were enti-
tled to show, in diminution of damages, that the work so done
in the improvement of the streets, and building a sewer, en-
hanced the value of the plaintiff's property.' The benefit occa-
sioned to a meadow below a mill-dam by a ditch dug at the time
of the erection of the dam by the owner of the dam, through his
own land below the meadow, cannot be set off against the dam-
age done to the meadow by subsequent flowing occasioned by the
dam ; and the cost of the ditch is immaterial in assessing such
damages.^ In New Hampshire it has been held that the dam-
age caused in washing away the bank of a stream, flowing
land, and depreciating the grass thereon, by a mill owner accu-
mulating water in the wet season and letting it off in the sum-
mer, cannot be mitigated by any benefit that such flowing
makes on any other part of the same proprietor's land.' A
party liable for conducting a tannery and other offensive busi-
ness, where they constitute a nuisance to the owner of houses
for rent, is not entitled to show in mitigation of damages, that,
since his tannery has been operated, it has enhanced the value
of plaintiff's premises, and the rental value thereof, in conse-
quence of the number of persons employed therein creating a
demand for dwellings in the vicinity.*

To, entitle the defendant to show any incidental benefit to the
plaintiff in case of suit for nuisance, the benefit must accrue
directly from the act or business which causes or constitutes
the nuisance and confer the benefit in the same manner as it

1 Porter v. North Mo. R. R. Co. 33 therefrom any benefit which may

Mo. 138. In The Palmer Co. v. Fer- be done to the same land by the

riU, 17 Pick. 58, it was held that, in same cause, namely, by the flowing,

assessing damages under the statute 2 qHq y. Stevens, 13 Gray, 146.

for flowing lands, the proper rule s Gerrish v, New Market M. Co. 30

waa to estimate the loss arising to N. H. 478; Talbot v. Whipple, 7

the proprietor from the direct in- Gray, 123.

jury done to the land, taken as a < Francis v. Schoellkopf, 53 N. Y.

whole, by the flowing, deducting 153.

NUISANCE.

'423

operates to produce the injury ; the allowance for benefits must
be confined to the proximate consequences of the act complained
of, and be effects of like kind with the opposite injuries for
which the recovery is sought.^

The damages for nuisance will be limited to the title or right
of the plaintiff as in trespass.^ "Where a husband and wife
joined in an action on the case for permanently obstructing a
right of way appurtenant to her inheritance, and she died
pending the action, the court held that the suit did not abate,
but that the surviving husband could go on and recover judg-
ment; that he was entitled to recover the whole amount of
damages sustained until the death of the wife, and afterwards a
proportion equal to the husband's interest in her estate as her
heir.^

Private eemedy foe public nuisances. — A nuisance may be
both public and private in its character, and in so far as it is
private, the person who suffers a special damage therefrom has
a right of action.*

One who has sustained damage peculiar to himself from a
common nuisance has a cause of action against the person
erecting or maintaining the nuisance, although a like injury
has been sustained by numerous other persons.' Grover, J.,
thus forcibly states this doctrine: "The idea that if, by a
wrongful act, a serious injury is inflicted upon a single indi-
vidual recovery may be had therefor against the wrongdoer,
and that if, by the same act, numbers are so injured no recovery
can be had by any one, is absurd. . . . It is said that
holding the defendant liable to respond in an action to each
one injured will lead to a multiplicity of actions. This is true,

1 JeffersonviUe, etc. E. E. Co. v. Malcolm, 6 Hill, 393; Hay v. Cohoes
Esterle, 13 Bush, 667. Co. 3 Barb. 48; Fort Plain Bridge Co.

2 Francis v. Schoellkopf, supra; v. Smith, 30 N. Y. 62; Welton v.
Seely v. Alden, 61 Pa. St. 305; Martin, 7 Mo. 307; Grigsby v. Clear
Staple V. Spring, 10 Mass. 73. See Lake Water Co. 40 Cal. 396; Venard

■ ante, p. 365. v. Cross, 8 Kans. 348; Clark v. Peok-

3 Jeflcoat V. Knotts, 11 Eich. 649. ham, 10 E. I. 35; Greene v. Nunne-

4 Park V. C. & S. W. E. E. Co. 43 macher, 36 Wis. 50.

Iowa, 636; Crommelin v. Coxe, 30 5 Francis v. Schoellkopf, 53 N. Y.
Ala. 318; Abbott v. Mills, 3 Vt. 531; 153.
Mills V. Hall, 9 Wend. 315; Myers v.

424 INJUEIES TO EEAL PKOPEETT.

but it is no defense to the wrongdoer, when called upon to
compensate for the damages sustained from his wrongful act,
to show that he, by the same act, inflicted a like injury upon
numerous other persons. The position is unsustained by any
authority. While in the application to particular cases there
is some conflict, yet there is none whatever in the rule itself.
That rule is, that one erecting or maintaining a common nuisance
is not liable to an action at the suit of one who has sustained
no damage therefrom except such as is common to the entire
community ; yet he is liable at the suit of one who has sus-
tained damage peculiar to himself. No matter how numerous
the persons may be who have sustained this peculiar damage,
each is entitled to compensation for his injury. When the in-
jury is common to the public, and special to none, redress must
be sought by a criminal prosecution in behalf of all." ^ The
plaintiff must suffer some special damage beyond that which
is suffered in common with the public.^ This may be direct
or consequential ; " and it must be specially alleged in the
declaration.^

As TO JOINT AND SEVERAL LIABILITY. — All persous who jointly
participate in the creation of a nuisance, or in its maintenance
during the same period, may be held liable jointly or severally
as in other cases of tort.* But parties liable only as tenants or
grantees of the premises on which the nuisance is situated,
cannot be held jointly liable with the party creating it ; for,
while the creator of a nuisance continues to be hable in the
tenant's or grantee's time, the latter are not liable before their
connection with the property. . And in case- of a succession of

1 Id. ; Lansing v. Smith, 4 Wend. 9; ter v. Wynoski Turnpike Co. 32 Vt.
Mills v. Hall, 9 Wend. 315; First 114; Hatch v. Vt. etc. R. R. Co. 28
Bap. Ch. V. Schenectady, etc. R. R. Vt. 143; Brown v. Watson, 47 Me.
Co. 5 Barb. 83. See Shawbut v. St. 161.

Paul, etc. R. R. Co. 21 Minn. 503. 3 Rose v. Miles, 4 M. & S. 101; De

2 Dudley v. Kennedy, 63 Me. 465; Laney v. Blizzard, 7 Hun, 7.

Yolo County v. Sacramento, 36 Cal. * Baker v. Boston, 13 Pick. 184;

193; Coburn v. Ames, 53 Cal. 385; S. C. 32 Am. Dec. 241; Memphis,

Cole V. Sprowl, 35 Me. 161; Harrison etc. R. R. Co. v. Hioks, 5 Sneed, 437.

V. Sterett, 4 Har. & McH. 540; Bun- 6 Cooley on Torts, 133-4.
yon V. Bordine, 14 N. J. L. 472; Bax-

NUISANCE. 425

tenants, each is severally liable during his term only ; and suc-
cessive grantees in the same manner.^

If several, independently, and without concert, create a nui-
sance, they are not jointly liable ; but each is liable in respect
to his own wrongful act, and for the damages which resulted
therefrom. A dam was filled by deposits of coal dirt from
different mines on the stream above the dam ; Some worked by
defendants and their tenants, and others by persons entirely
unconnected with the defendants. The court held that the de-
fendants were not liable for the combined results of all the
deposits ; that the ground of the action was not the deposit of
the dirt in the dam by the stream, but by the negligent act
above ; throwing the dirt into the Stream was the tort ; the
deposit only the consequence. The liability of the defendants
began with their acts on their own land, and was wholly sep-
arate and independent of concert with others. Their tort was
several when committed, and it did not become general because
its consequences united with other consequences; and the de-
fendants were not liable for the acts of their tenants not done
by their authority or command.^ The court say : " It may be
difficult to determine how much dirt came from each colliery,
but the relative proportion thrown in by each may form some
guide, and a jury in a case of such difficulty, caused by the
party himself, would measure the injury with a liberal hand.
But the difficulty of separating the injury of each from the
others would be no reason that one man should be held liable
fop the torts of others without concert. It would be simply to
say, because the plaintiff fails to prove the injury one man does
him, he may therefore recover from that one all the injury that
the others do." '

The defendant constructed a covered channel for a small
brook that ran through his premises. This channel proved in-

1 Greene V. Nunnemacher, 36 Wis. Russell v. Tomlinson, 2 Conn. 306;
50; Lull V. Fox & W. Improvement Adams v. Hall, 2 Vt. 9; Buddington
Co. 19 Wis. 101; Hess v. Buffalo, v. Shearer, 20 Pick. 477; Auchmuty
etc. E. E. Co. 29 Barb. 391. v. Ham, 1 Denio, 495; Partenheimer

2 Little Schuylkill, etc. Co. v. v. Van Order, 20 Barb. 479. Butj see
Eichards, Adm'r, 57 Pa. St. 142. Boyd v. Watt, 37 Ohio St. 259; Giv-

3 Chipman v. Palmer, 9 Hun, 517; ens v. Van Studdif ord, 4 Mo. App.
Wallace v. Drew, 59 Barb. 413; Van 498.

Steenburgh v. Tobias, 17 Wend. 563;

42 G INJURIES TO EEAL PEOPEKTT.

sufficient for all the waters that came down the brook in times
of heavy rain, and by its obstruction caused water to overflow
upon and injure the adjoining premises of the plaintiff. The
local authorities after the making of such channel constructed
several sewers and drains which emptied into the brook above
these premises, by which a considerable quantity of sewage and
of surface water, that would have gone in other directions,
were let into the brook. It was held that the defendant was
not liable for any damage beyond that caused by the natural
flow of the water, including its increased flow from heavy
rains and other natural causes. That the defendant and the
city which constructed such sewers were not joint tortfeasors.'
There may be a like limitation where the defendant's wrongful
acts have produced consequences multiplied by unforeseen and
extraordinary natural causes. A railway company threw its
waste water from a tank upon the premises of another, where
it spread and froze, doing damage to the property of the owner ;
it was held that the company could not claim exemption from
liability on the ground that the freezing of the water was the
act of nature; for such result from the wrongful act might
have been foreseen. To excuse from liability for an act of
nature in combination with the defendant's act, it must have
been such as could not have been foreseen and prevented by
the exercise of ordinar3'' care and prudence.^ Where all the
water which so freezes on another's lot is not the water turned
thereon by the defendant, but a part is flowing surface water
in its natural course, the defendant is liable only for the dam-
ages resulting from the water caused to flow upon the land by
himself. The jury should not return nominal damages in such
a case, merely because they cannot determine how much of the
. actual damage was so caused. They must estimate in the best
way they can how much of the whole damage was occasioned
by the water turned on the land by the defendant.'

Pleading. — The general allegation of damages will suffice
to let in proof and to warrant recovery of all such damages as
naturally and necessarily result from the wrongful act com-

1 Sellick V. Hall, 47 Conn. 360. 'The Chicago, etc. E. R; Co. v.

2 Chicago, etc. R. R. Co. v. Hoag, Hoag, supra.
90 m. 339; Cobb v. Smith, 38 Wis. 21.

NUISAXCE. 427

plained of; the law implies such damages; that is, damages of
that sort, and proof only,is necessary to show the extent and
amount.^ But where damages actually sustained do not neces-
sarily result from the act complained of, and consequently
are not implied by law, the plaintiff must state in his declara-
tion the particular damage which he has sustained, for notice
thereof to the defendant; otherwise the plaintiff will not be
permitted to give evidence of it on the trial.^

The damages which enter into or constitute the general meas-
ute of recovery for the wrong complained of, are those provable
under the general allegation of damages ; but in many cases of
tort there is no such state of facts that the whole injury would
be covered by any general rule more precise than the element-
ary principle which entitles the injured party to just compen-
sation. The question, therefore, whether any particular injurious
result of the tortious act committed by the defendant, not stated
in the pleadings, can still be proved to enhance the damages,
must depend on whether it is the necessary consequence of that
act. If not the direct consequence, it must be alleged, and al-
leged so specifically as that the defendant may be apprised of
the claim. Where the use of a miU was impaired by the obstruc-
tion of the water by a dam below on the stream, and the dec-
laration alleged that the obstruction subjected the plaintiff to
great loss and expense by the interruption of the business of the
miU, and in depriving the plaintiff of the profits thereof, it was
held he was not entitled to recover for the loss or diminution of
rent. " Profits," say the court, " are clearly distinguishable from
rents. Both terms are technical in their nature, and neither
necessarily includes the other; there may be profits without
rent, and vice versa." '

In an action for obstructing a right of way leading to an estate
held by the plaintiff's wife in mortgage, the declaration con-

11 Ohitty PI. 395; Solms v. Lias, 16 ^Squier v. Gtould, 14 Wend. 159;

Abb. Pr. 311; Taylor v. Dustin, 43 Plimpton v. Gardiner, 64 Me. 360;

N. H. 493; De Forest v. 'Leete, 16 Taylor v. Dustin, supra; Spencer v.

John. 123; Bristol, etc. Co. v. Grid- St. Paul, etc. R. E. Co. 21 Minn. 362;

ley, 28 Conn. 201; Burrell v. N. Y. Wampaoh v. St. Paul, etc. R.°R. Co.

etc. Co. 14 Mich. 39; Teagarden v. 21 Minn. 364; EUicott v. Lamborne,

Hetfleld, 11 Ind. 522; EUicott v. 3 Md. 131; vol. I, p. 63.

Lamborne, 2 Md. 131. 'Plimpton v. Gardiner, supra.

428 INJtTEIES TO EBAL PEOPEETT.

tained only the general allegation of damages ; and it was held
that those for the consequent diminution of rents could not be
recovered because not specially alleged.^ So in an action for
obstructing a natural watercourse, and thereby injuring the
plaintiff's buildings, loss of rents was treated as special dam-
ages.^ In an action for the pollution of the water of a stream
which ran through the plaintifiE's land, he was not permitted to
prove the cost of boiling and skimming the water to fit it for
household purposes, in the absence of an allegation that the
water was, and had to be, so treated.' It was also held
that proof was inadmissible that the rental value of the farm
was diminished by the wrong done in polluting the waters of
such stream, because the complaint failed to allege that the
plaintiff rented the farm or was prevented from renting it for
that reason.*

A plaintiff, the owner of a paper mill, set forth in his declara-
tion as the gravamen of his complaint, that earth, sand and
substances were washed into his mill-dam, and so filled and
choked the dam as to make it in a great degree useless to him
in the working of his mill. The court held that he could not
offer evidence to prove that he could not wash his rags, because
the stream was rendered impure and muddy by the earth and
clay deposit in and upon the margin, and that by reason of
such impurity of the water he was prevented from making
white paper. That the manufacture of paper is one thing, and
the preparation of the materials is another distinct process ; and
evidence showing damage as resulting from the interruption of
the latter process is not proper and legal, unless the fact is ex-
pressly averred in the declaration. That the fact that the plaintiff
owned a paper mill, operated by water from the dam in ques-
tion, did not necessarily suggest the additional fact that he
made white paper in his mill, and that the rags for the same
were washed from the water in the dam. The inability of the
plaintiff to wash his rags and make white paper could not, there-
fore, be regarded as the necessary and inseparable consequence
of the washing of the earth into and filling up of the dam.

1 Adams v. Barry, 10 Gray, 361. sporter v. Proment, 47 Cal. 165.

2 Parker v. Lowell, 11 Gray, 353. < Id.

NUISANCE. ^29

And he could not recover for those particular injuries without
specially alleging them in his declaration. But where the al-
legation was that the defendant failed to keep the privies, drains
and draiii pipes connected with his building in proper repair,
but suffered the same to become and remain out of order, so
that water and filth escaped therefrom and percolated through
the wall of the plaintiff's house, on adjoining premises, and into
the cellar in such quantities as to soak and cover the floor of
such cellar, and to make the sanie permanently unfit for use ;
and, also, to greatly injure the walls and other portions of the
building; and to create such an offensive stench and smell as to
interfere with the plaintiff's use of said premises and with the
letting thereof, it was held that the allegations were sufficient
to authorize evidence of the loss of the use of the cellars and of

the rental thereof.^

.1

1 Jutte V. Hughes, 67 N. Y. 267.

430 TAKING PEOPEETY FOE PUBLIC USE.

CHAPTER XVI.

TAKING PEOPEETY FOE PUBLIC USB.

The power of eminent domain — What is just compensation — The measure
of it — What facts may be taken into consideration — The recovery will
be limited by the ovmer's title and the nature of the interest condemned —
With reference to what time are the value and damages to be assessed —
Deduction for benefits — Proof of value and damages — The effect of
judgment for just compensation — Interest.

The powee of eminent domain. — By the exercise of the right
or power of eminent domain, an individual owner may be com-
pelled to sell and surrender his property when the public neces-
sities require it.' Not only land, but incorporeal rights connected
therewith may be taken for public use.' The taking is deemed
to be for such use as well, when the state or some municipal
division thereof exercises the power, as also when it is invoked
by certain private corporations, in aid of their undertakings to
subserve the public interest, as by railroads, canals, and other
improved means of travel or transportation.' This right of
eminent domain can be exercised to take private property, only
on the inseparable condition of making just compensation
therefor.* This compensation inust be of a pecuniary nature; '
and this is secured by constitutional inhibition of the exercise
of the right except upon the payment of the compensation.

1 Fletcher v. Peck, 6 Cranch, 145; * Bonaparte v. Camden, etc. E. E.
Trombley v. Humphrey, 33 Mich. Co. 1 Bald. 326; Bloodgobd v. Mo-
474; San Francisco, etc. E. E. Co. v. hawk, etc. E. E. Co. 18 Wend. 9; 2
Caldwell, 31 Cal. 367; Eedf. on Eail. Kent's Com. 889; Cooley's Const,
oh. 11, sec. 1. Lim. oh. 15; Bradshaw v. Eogers,

2 People ex rel. Fountain v. Su- 30 John. 103; Carson v. Coleman, 11
pervisors ofWestchester Co. 4 Barb. N. J. Eq. 106; Symonds v. Cincin-
64; Furnlss v. Hudson Eiver E. E. nati, 14 Ohio, 148.

Co. 5 Sandf. 551. 5id.; Chicago, etc. E. E. Co. v.

3 Buffalo, etc. E. E. Co. v. Brain- Melville, 66 111. 339; Weckler v. Chi-
ard, 9 N. Y. 100; Weir v. St. Paul, cago, 61 111. 143; Sutton v. Louis-
etc. E. E. Co. 18 Minn. 155; Boston ville, 5 Dana, 28; Ferris v. Bramble,
Water Power Co. v. Boston, etc. E. 5 Ohio St. 109; Symonds v. Cincin-
E. Co. 38 Pick. 360; Giesy v. Cinoin- nati, 14 Ohio, 175.

nati, etc. E. E. Co. 4 Ohio St. 308.

TAKING PEOPEETT FOE PUBLIC tTSE. 431

Statutes which provide for the exercise of the right universally
direct how the amount shall be ascertained and paid. Many-
such statutes give a right to compensation for consequential in-
juries that are not within the requirement to make just
compensation, for the legislature may authorize the exercise of
the right of eminent domain without providing for all con-
sequential damage.

Where the charter of a company, or other statute providing
for taking private property for public use, and for payment of
compensation for damages not only to land owners whose prop-
erty is taken, but also to owners whose lands are injuriously
affected, no new right is created, but the common law right is
preserved to recover in respect of any injury resulting from the
enterprise, although that enterprise which is the cause of the
injury has the sanction of law.^

The land owner cannot be deprived of this compensation
secured by the constitution, or by more liberal statutes, except
by his own act of waiver or discharge, or by his dereliction.^
The right to it exists not only when land is taken, but when
land is in any manner injuriously invaded though not taken. ^
Where a railroad corporation, claiming to act under legislative
authority, removed a natural barrier situated between the land,
the injury to which was in question, and the railroad, such
barrier having theretofore completely protected the meadow
on such lands from the effect of freshets and floods in a neigh-
boring river, it was held that, although it was wholly beyond
the boundaries of the land in question, yet, as its removal
caused the water to overflow such land, the owner had the
same right to compensation as though a portion of the land
had been taken by the railroad company.* If, however, no land
is taken, nor touched, in the construction and operation or use

1 Columbia, etc. Bridge Co. v. < Eaton v. B. C. & M. R. R. Co.
Geisse, 35 N. J. L. 563. supra; Nevins v. Peoria, 41 111. 503;

2 Western, etc. R. R. Co. y. John- Aurora v. Reed, 57 111. 39; Toledo,
ston, 59 Pa. St. 390. etc. R. R. Co. v. Morrison, 71 111. 616;

3 Pumpelly v. Green Bay Co. 13 St. Louis, etc. R. R. Co. v. Capps, 72
WaU. 166; Baton v. B. C. & M. R. R. El. 191; Gillham v. Madison Co. R.
Co. 51 N. H. 504; Grand Rapids B. R. Co. 49 lU. 488.

Co. V. Jarvis, 80 Mich. 808; Stetson
V. Chicago, etc. R. R. Co. 75 111. 74.

433 TAKINQ PEOPEETT JTOE PTIBLIO USB.

of a public work, there can be no claim for damages for any
consequential injury. Under the sanction of the legislature, a
railroad bridge was built over a stream within the limits of a
city; and on the destruction of the bridge by fire, the city pro-
ceeded to erect another bridge, on substantially the same site,
but built it so that it might be used not only for a railroad
bridge, but also for the accommodation of foot passengers and
teams. The plaintiff, who owned a foundry on the stream, and
relied mainly on the stream for power to propel his machinery,
sought to enjoin the construction of the bridge until compen-
sation was awarded him for the loss produced by building the
piers for the bridge in the channel of the stream. Hdd, that
no cause of action existed, as the plaintiff's land was not
touched, and the damage to them, if there was any at all, was
too indirect or consequential.^

What is jtist compensation. — There is some conflict of de-
cision in respect to what constitutes just compensation. Accord-
ing to the best authorities, however, it is believed it is
compensation for the net injury which is suffered from the
exercise of this sovereign right. The word " compensation " im-
ports that a wrong or injury has been inflicted, and must be
redressed in money. Money must be paid to the extent of the
injury. This may be less or more than the value of the prop-
erty taken; but when compensation has been made to the
extent of the injury, the language and just purpose of the
constitution are satisfied.^ A loss of the property taken will
often be but a part of the injury to the owner ; and, on the
other hand, the value of the part taken may be wholly or
partially compensated, in fact, by benefits resulting from the
taking to the owner's adjacent propertj''. "Where the value of
the property taken is not arbitrarily required to be paid for,
and the constitution or statute requires only full indemnity, the
value of the property taken, and the damages or benefits to the

1 Swett V. Troy, 13 Abb. N. S. 100; Cush. 58; In the Matter of the

Cleveland, etc. R. R. Co. v. Speer, Union Village, etc. R. R. Co. 53

56 Pa. St. 325; Davidson v. B. & M. Barb. 457.

R. R. Co. 3 Cush. 91. SeeFitchburg ^gymonijg y. Cincinnati, 14 Ohio,

R. R. Co. v. B. & M, R. R. Co. 3 175.

TAKING PEOPEETT FOB PUBlIO TTSE. 433

residue, if any, are taken into account, and such sum allowed
as will make the owner whole.^ "Where, by reason of the loca-
tion of a railroad over a part of a lot of land, and the filling
up of a canal in which the owner of the lot had a privilege,
the value of the land was so enhanced that afterwards it was
worth more than the entire lot was before, the owner was held
to have no claim for damages.^

It is said to be long settled law in Connecticut, that where
a land owner has a claim for damages for land taken, and has
received local and special benefits equal to the damage, the
value of the benefits shall be set off against the damage, and
he shall be allowed nothing. It is true that his entire benefit
may be exhausted in this application, while the benefits received
by his neighbors are assessed only a small percentage, and thus
there may be a seeming and perhaps a real inequality, but, so
long as his benefit equals his damage, he cannot be said to suf-
fer by the taking of his property for public use, and there would
be an injustice in compelling others to pay him for damage
that really has no existence.'

The measure of it. — The general measure of just compen-
sation is the value of the land taken where all the owner's land-
is taken ; * and where a part only is taken, the difference in

iSan Francisco, etc. R. R. Co. v. Upton v. South, etc. R. R. Cot 8

Caldwell, 31 Cal. 374; Betts v. Wni- Cush. 600; McMasters. v. Common-

iamsburgh, 15 Barb. 355; Common- wealth, 3 Watts, 293; Alexander v.

wealth V. Session of Norfolk, 5 Baltimore, 5 Gill, 383; Livermore v.

Mass. 435; Macham v. Fitchburg R. Jamaica, 23 Vt. 361; White v. Comity

R. Co. 4 Cush. 391; Bangor, etc. R. Commissioners, 3 Cush. 361; Shaw

R. Co. V. McComb, 60 Me. 390; Kil- v. Charlestown, 2 Gray, 107; Dicken-

bourne v. Suffolk, 130 Mass. 393; son v. Fitchburgh, 13 Gray, 546;

Jones V. The Chicago, etc. R. R. Co. Young v. Harrison, 17 Ga. 30; Alton,

68 m. 880; Commonwealth v. etc. R. R. Co. t. Carpenter, 14 111.

Coombs, 2 Mass. 493; Common- 190; Root's. Case, 77 Pa. St. 276.

wealth V. Sessions of Middlesex, 9 2 whitman v. Boston, etc. R. R.

Mass. 388; Matter of Furman Street, Co. 3 Allen, 133.

17 Wend. 658; People v. Mayor of 3 Trinity College v. Hartford, 33

Brooklyn, 4 Comst. 419; Indiana Conn. 478; Nichols v. Bridgeport,

Cent. R. R. Co. v. Hunter, 8 Ind. 74; 33 Conn. 189; Nicholson v. N. Y.

Mclntire v. State, 5 Blackf. 384; etc. R. R. Co^ 23 Conn. 74.

Greenville, etc. R. R. Co. v. Part- *San Francisco, etc. R. R. Co. v.

low, 5 Rich. 431; White v. C. & Caldwell, supra.
Charlotte, etc. R. R. Co. 6 Rich. 47;
S^OL. Ill — 88

434 TAKING PEOPEETT FOE PUBLIC USE.

value of the whole before the taking and its value affected
by it.'

If property is materially or permanently diminished 'in value
in consequence of a raUroad running over it, or the taking of
part for any public use, the owner is entitled to full satisfaction
in damages. Equity and justice require that he be compensated,
not only for the land actually appropriated, but also for the
incidental injury to the value of the residue. By so much as the
real value of the property, as a whole, is diminished in conse-
quence of the taking and public use of a part, by so much is
the owner of the property injured. If the value of a farm is
thus in fact depreciated, damages therefor are recoverable
without regard to the cause of such depreciation.^ In one case
in "Wisconsin it was said to be inconvenient and troublesome to
cross the track of a railroad from one part of a farm to another
with cattle and agricultural implements ; that there was more
or less danger to person and property in doing so ; that grain
and property near the track were exposed to fire from loco-
motives ; that horses were liable to be frightened by passing
trains of cars, and to run away and destroy property; and
that on account of these things the farm was less valuable.
The evidence relating to these subjects was not interposed for
the purpose of laying the basis for the recovery of damages for
such remote and speculative injuries, but the object was to

1 Id.; Bigelow v. West Wis. E. E. Co. v. McComb, 60 Me. 390; WU-

Co. 27 Wis. 478; Parks v. The Wis- mington, etc. E. E. Co. v. Stauffer,

consin Cent. E. E. Co. 33 Wis. 413; 60 Pa. St. 374; Cummings v. WiU-

Howe V. Eay, 113 Mass. 88; Tucker iamsport, 84 Pa. St. 472; Penosyl-

V. Mass. Cent. E. E. Co. 118 Mass. vania, etc. E. E. Co. v. Bunnell, 81

546; Dickenson v. Fitohburgh, 13 Pa. St. 414; Shenango, etc. E. E. Co.

Gray, 546; Page v. Chicago, etc. E. v. Braham, 79 Pa. St. 447; East

E. Co. 70 111. 324; Harrison v. Iowa, Brandywine, etc. E. E. Co. v.

etc. E. E. Co. 36 Iowa, 323; Curtis Eanck, 78 Pa. St. 454; St. Louis, etc.

V. St. Paul, etc. E. E. Co. 20 Minn. E. E. Co. v. Teters, 68 111. 144; Jones

38; Colvill v. St. Paul, etc. E. E. Co. v. Chicago, etc. E. E. Co. 70 111. 380;

19 Minn. 283; Chicago, etc. E. E. Haslam v. Galena, etc. E. E. Co. 64

Co. V. Francis, 70 HL 238; Wilson v. 111. 353; Dearborn v. Boston, etc. E.

Eockford, etc. E. E. Co. 59 111. 373; E. Co. 34 N. H. 179; Atchison, etc.

Mix V. La Fayette, etc. E. E. Co. 67 E. E. Co. v. Blackshire, 10 Kans.

111. 319; Peoria, etc. E. E. Co. v. 477.

Sawyer, 71 lU. 361; Bloomington v. 2 Patterson v. Boom Co. 3 Dill. 465.
Miller, 84 lU. 631; Bangor, etc. E. E.

TATONG PBOPERTT FOE PXIBLIO TTSEi 435

account for the decrease in the value of the property. On
this subject Oole, J., said : " If, in consequence of its exposure
to these remote injuries, the property is diminished one-half in
value, then this decrease in value measures the actual loss to
the owner, and, when compensated for this depreciation in the
value of his property, he is not receiving compensation for some
imaginary injury, some fanciful loss which may or may not
occur, but he is paid for the real loss which he sustains by the
building of the railroad across his property. If the construc-
tion of the road across his land depreciates the property one-
half its value in the market, then he is damnified to this extent ;
it matters not what causes the depreciation in value, whether
exposure to fire, annoyance from trains, or danger to person
and property ; the real question is, whether, in consequence of
the railroad, the property is diminished in value, and if so, how
much ; for this will measure the direct and necessary loss which
the owner has sustained by the construction of the road over
his land." ^

If the land is rendered less valuable because it is exposed to
fire, or if access to it is rendered more difficult, or if the use of
the remainder is more inconvenient by reason of the railroad ;
or if its value is depreciated by the noise, smoke, or increased
dangers caused by the use of the railroad, all these are to be
included in the estimate of damages ; not that witnesses are to
be oaUed upon to estimate the damages for each or any of them ;
for though they enter into the estimates, the question is, what
is the market value of the land without the railroad, and what
is the market value of the remainder of the piece with the
railroad ; in other words, what is the value of the piece which
is taken, and how much is the residue depreciated in its market
value by the separation and by the construction of the railroad.
These two sums added together is the amount of compensation
to which the injured party is entitled.^

What facts mat be taken into consideeation. — To ascer-
tain the fact of depreciation as a consequence of the taking
and use of part of a parcel of land, before the improvement is

1 Snyder v. Western Union R. R. 2 Matter ot the Utioa, etc. E. R.
Co. 25 Wis. 60. Co. 56 Barb. 464.

436

TiKING PEOPEETT FOE PUBLIC USE.

actually completed and before its ultimate efPect on the value is
practically realized, the consequences of particular facts have
to be in some measure anticipated. There is not entire agree-
ment as to the particular facts or kind of facts Avhich may be
proved and considered in order to determine such depreciation.
In Pennsylvania, only such can be proved as are fair to be con-
sidered as a ground of damages on general principles ; such as
show injury as the certain and immediate consequence of the
construction and proposed use of the part taken.'

In other states, the facts relied on or available to prove such
depreciation are not uniformly subjected to that precise test,
but their admissibility and force are decided by their supposed
tendency to affect in fact the price and value of the property.
Hence circumstances are often taken into account which in no
other view could be a ground of damage.^ The increased ex-
posure to fire by laying and operating railroads near buildings
and through fields, is very generally allowed to be proved to
show damage by depreciation.' So the danger to which

IN. Y. etc. R. R. Co. v. Young, 33
Pa. St. 175; Patten v. Northern
Cent. E. R. Co. 33 Pa. St. 436; Searle
V. Lackawanna, etc. R. R. Co. 33
Pa. St. 57; Watson v. Pittsburg, etc.
E. E. Co. 37 Pa. St. 469; Lehigh, etc.
R. R. Co. V. Lazarus, 28 Pa. St. 303.

2Bigelow V. West W. E. R. Co. 37
Wis. 478; Western Penn. R. R. Co.
V. Hill, 56 Pa. St. 460; Patterson v.
Boom Co. 3 Dill. 465; St. Louis, etc.
R. E. Co. V. Teters, 68 111. 144; Jones
V. Chicago, etc. E. R. Co. 68 lU. 380;
Keithsbury, etc. E. E. Co. v. Henry,
79 111. 290; Summer ville, etc. R. R.
Co. V. Doughty, 33 N. J. L. 495.

3 Hatch V. The Cincinnati, etc. R.
E. Co. 18 Ohio St. 93; Jones V. Chi-
cago, etc. R. R. Co. 68 111. 380; Col-
vill V. St. Paul, etc. R. E. Co. 19
Minn. 283; Curtis v. St. Paul, etc.
E. E. Co. 20 Minn. 38; Bangor, etc.
E. R. Co. V. McComb, 60 Me. 390;
Somerville, etc. R. E. Co. v.
Doughty, 33 N. J. L. 495; Pierce v.

Worcester, etc. E. E. Co. 105 Mass.
199; Adden v. White Mts. N. H. R.
R. 55 N. H. 418. In Lehigh Valley
E. E. Co. T. Lazarus, 28 Pa. St. 203,
it was held a risk to fire being com-
municated from locomotives to
buildings, cannot be taken into con-
sideration in estimating the dam-
ages sustained by the owner of land
arising from the construction of a
railroad over such land, because of
the uncertain and contingent nature
of such damages. Summerville,
etc. R. R. Co. V. HummeU, 27 Pa.
St. 99. In the late case of Wil-
mington, etc. R. R. Co. V. Stauffer,
60 Pa. St. 374, it was held in that
state that if the railroad were laid
so near to a barn, and the danger of
fire was necessarily so imminent,
that no man of common prudence
would use it as such, then the prem-
ises would be depreciated by the
barn being rendered useless. But in
Patten v. Northern C. R. R. Co.

TAEmO PEOPEETT FOE PUBLIC TT8B. 437

the owner and his family and stock are exposed in crossing
the track from one part of a farm to another is provable for
the same purpos^.^ If the remainder of a lot is rendered less
valuable by reason of being severed or disfigured by the
taking and proposed use of a part, such sura may be allowed as
shall be found according to the injury. In determining the
consequent depreciation of the lot, the jury may consider the
use to which the part taken is appropriated ; the character, sit-
uation, present and probable use of the remainder of the lot ;
the distance of the owner's buildings from the public use, and
any facts which the jury, from a view of the testimony, shall
find injure the value of the premises by the proper and legal
use of the appropriated part.^ Where a part has been taken
for a railroad, they may consider all inconveniences from the
sounding of whistles, ringing of bells, rattling of trains, jarring
of the ground, or from smoke, so far as they severally arise
from the use of the strip taken and upon it, excluding all
common and indirect damages, that is, such damages as affect
the owner in common with all other members of the community.
So, also, if they find that the real value of the remainder of
the lot, or any erections thereon, was actually diminished by
exposure to fire from the company's locomotives, they may
assess such sum as win be a just compensation for such diminu-
tion, taking into consideration at the same time, that, by the
statute, if property is injured by fire communicated by a loco-
motive engine, where such a statute is in force, the company
using it is absolutely responsible for such injury.^ Evidence
that the location of a railroad across a farm made it more dif-
ficult to rent it, has been received on the question of damages.*
Where a part of the ownei-'s land was liable to be washed
and to cave off where there was a bank, and the sand drifted

33 Pa. St. 426, it was held that in- Mass. C. R. R. Co. 118 Mass. 546;

creased cost of insurance coald not Watson v. Pittsburgh, etc. R. R. Co.

be considered. 37 Pa. St. 469; Cleveland, etc. R. R.

1 Jones V. Chicago, etc. R. R. Co. Co. v. Ball, 5 Ohio St. 569; Wilson
68 m. 380. V. Rockford, etc. R. R. Co. 59 111.

2 Peoria, etc. R. R. Co. v. Sa-wyer, 373.
71 111. 361; Hannibal B. Co. v. Schou- 3 Id.

bacher, 57 Mo. 582; Bangor, etc. R. < Pittsburgh, etc. R. R. Co. v. Rose,
R. Co. V. MoComb, supra; Tucker v. 74 Pa. St. 368.

438 TAKING I'EOPEETY FOE PTJBLIO USE.

from the road to the injury of the adjoining land, and these
facts resulted unavoidably from the building of a railroad in a
suitable and proper manner, this loss was considered in estimat-
ing the depreciation from building the road.^ So where the
right of way^or a railroad ran through a man's farm so as to
sever a strip of about two acres from the body of the farm,
and thus rendering it useless to him for farming purposes, it
was held that while compensation could not be demanded for
such strip, it not being taken by the road, yet it would form an
element in estimating the damages the owner would sustain, if
any, by the construction and operation of the road.^ The
owner of land over which a railroad sought to condemn a right
of way may recover for loss of the beneficial use of a spring
of water from which he is thus cut off.' So a party who had
procured certain fixtures for a water cure establishment, and
they were useless to him in consequence of taking a part of his
premises for a public improvement, he was held entitled, in ad-
dition to other damages, to recover his loss on such fixtures.*
If taking part of a tract of land destroys a water power on
the residue, damages therefor may be assessed.'

The commissioners or jury, in determining just compensation
for taking land for a railroad, may always take into considera-
tion all incidental loss, inconvenience and damage, present and
prospective, which may be known or be reasonably expected to
result from the construction and operation of the road in a
legal manner. Accordingly they may always take into consid-
eration the exact condition in which the road may be when they
make the assessment.* The owner of flats crossed by a railroad
bridge having raised the flats around and under the bridge
within the location of the road, but without the consent of the
proprietor thereof, was held entitled to recover by way of dam-

1 Dearborn v. Boston, etc. R. B. ' Lake Superior, etc. E. E. Co. v.

Co. supra; CoMll v. St. Paul, etc. Greve, 17 Minn. 333; Barclay E. E.

R. E. Co. 19 Minn. 383. etc. Co. v. Ingham, 86 Pa. St.

2Wnson V. Eockford, etc. E. E. 194.

Co. 59 lU. 273. 6 Missouri, etc. R. E. Co. v.

3 Peoria, etc. E. R. Co. v. Bryant, Haines, 10 Kans. 439; Hayes v. Ot-

57 III. 473. tawa, etc. R. R. Co. 64 m. 373.

* Price V. Milwaukee, etc. R. E. Co.
27 Wis. 98.

TATCTNG PEOPEETT FOE PUBLIC USE. 439

ages, against such proprietor, for so much of the expense of
such raising and filling up as was necessary to enable him to enjoy
his other lands, provided such necessity was caused by the loca-
tion and construction of the railway.^ Land was taken by a city
to widen a highway after such land had been previously filled
in by the owner, in pursuance of an order of the municipal au-
thorities to abate a public nuisance ; the measure of damages
was held to be the value of the land as it stood at the time of
the taking ; that the expense incurred in fiUing it no farther
entered into the measure of damages than so far as it had effect
in increasing the value of the land.^ If the property has been
put to a particular use or business, and its productive value is
chiefly therefor, and the taking of part impairs that use, it is
sometimes an important fact, and may be proved to enhance
damages according to the depreciation caused by destroying or
impairing such business or use. Thus where the construction
and use of a railroad over a plaintiffs land had the effect of de-
stroying the business of a mill thereon by driving away custom,
it was held a ground of damage. It appeared that after the
railroad was built and began to be operated, the customers
ceased to carry their grain there to be ground, and that at least
one-half of the custom had fallen off. The reason given was
simply the danger in going to the mill with horses and teams,
owing to the location of the road with reference to the mill.'

"Where a strip of land appropriated by defendant for the pur-
pose of its railway was part of a larger tract used and occu-
pied as an entirety, as a site for a brick yard, it was ruled that
evidence was admissible to'show that by defendant's appropria-
tion the plaintiffs were prevented from enlarging their works,
and that, in consequence, the value of the brick yard as it was
was depreciated ; that it was proper to consider, as an element
of damage, the effect upon the value of the plaintiff's premises,
and upon the convenience of conducting the plaintiff's business
thereon, the circumstance that, in consequence of the defend-
ant's railway, the plaintiffs were put to the necessity of fre-
quently, for instance, one hundred times a day, crossing the

I Commonwealth V. Boston, etc. R. 3 Western Penn. R. R. Co. v. Hill,

E. Co. 3 Cush. 35. 56 Pa. St. 460.

3 Squire v. SomerviUe, 130 Mass.
579.

440 TAKING PEOPEETT FOE PUBLIC USE.

track in hauling clay to their pits.^ So it has been held in "Wis-
consin, that evidence of the business to which the plaintiff's
adjoining property was devoted, and of the effect upon such
business of the taking of the property in question, was properly
admitted, as bearing upon the question of damages ; the court
having duly instructed the jury that the proper measure of such
damages was the value of the land condemned, and the diminu-
tion in market value of the other property.^ A railroad com-
pany built its road along the street of a town under an ordinance
granting the right of way upon condition that the company
should pay all damages that might accrue to property owners
on such street by reason of the construction of the road. And
it was held that the company was liable to a property owner'
for whatever deterioration in value his real estate may have
undergone in consequence of laying the railroad track, and for
damages for interruption of his business during such time as it
would necessarily require to provide another equally eligible
place to remove to, and that the damage to his business during
such time should be ascertained by proof of the probable reason-
able profits which might have been made had there been no inter-
ruption of the business. In that case, if he chose to remain
and submit to the interruption and loss of profits, he would,
nevertheless, be entitled to recover from the company as dam-
ages the necessary cost to avoid such loss by a removal.'

If a building stands in the way of a road, and it is necessary
to destroy it, its value must be paid, estimating it as a building,
and not the materials composing it ; but should the owner ap-
propriate any of the debris remaining on its removal, his claim
of damages will be lessened ^ro tanto.^ Among the inconven-
iences resulting to a farmer from a railroad crossing his farm
may be considered the fact that he is deprived of access to a
river, and excluded from the river bank for the purpose of fish-
ing, and from a fishing ground.' Under a statute providing
that, in estimating damages sustained, " regard should be had

1 Sherwood v. St. Paul, etc. R. R. Virginia, etc. R. R. Co. v. Henry, 8
Co. 21 Minn. 137. Nev. 165.

2 Driver v. "Western Union R. R. , * Lafayette, etc. R. R. Co. v. Win-
Co. 33 "Wis.- 569. slow, 66 111. 319.

3 St. Louis, etc. R. R. Co. v. Capps, 5 Boston & Maine R. R. v. Mont-
73 111. 188; S. C. 67 111. 607. See gomery, 119 Mass. 114.

TAKING PEOPEETT FOE PUBLIC ITSE. 441

to all the damages done to the party, whether in taking his
property or in injuring it in any manner," the owner of part of
a building was held entitled to' recover for the loss of support
and of shelter caused by removing from his part the part he
did not own.i

Where the erection of a railroad bridge across a river in a
city causes permanent injury or depreciation in the value of a
lot in the immediate vicinity which is used for dock purposes,
such injury is a proper element of damages in a suit by the
owner against the company, and it is proper to allow the
lot-owner to show such damages by proving the value of his
property before the erection of the bridge, and its value after-
wards ; or, in other words, to prove how much less the property
would sell for in consequence of building the bridge.'^ Where
the taking is for a canal, its leakage may be considered on the
question of damages.'

In estimating the damages to land for taking a part thereof
for a railroad or other public improvement, its value should not
be limited by estimates exclusively for any particular use. The
jury are to consider the market value of the land before and
after the alleged injury, and in estimating this value, every-
thing which gives it intrinsic value is to be taken into consider-
ation, and its capabilities for any use to which it may be put.^
If land taken for a right of way has a mine under its surface,
that fact may be considered, if it add to the market value of
the land, even though the mine has never been worked ; so of
a water power which has never been utilized.' The owner may
have damages for being prevented from removing minerals

1 Marsden v. Cambridge, 114 Mass. ter v. St. Paul, etc. R. R. Co. 23
490. Minn. 343; Wliite v. Charlotte, etc.

2 Chicago, etc. R. R. Co. v. Stein, R. R. Co. 6 Rich. 47; Mississippi B.
75 lU. 41. Co. V. Ring, 58 Mo. 491; Matter of

3 James River Co. v. Turner, 9 Purman St. 17 Wend. 649; Burt v.
Leigh, 313. Wigglesworth, 117 Mass. 303; Som-

4 Young v. Harrison, 17 Ga. 30; erville, etc. R. R. Co. v. Doughty,
Shenango, etc. R. R. Co. v. Braham, 23 N. J. L. 495; Regina v. Brown,
79 Pa. St. 447; Dwight v. Hampden, 36 L. J. Q. B. 333.

11 Cush. 201; Dickenson v. Fitch- ^Haslam v. Galena R. R. Ca 64

burg, 13 Gray, 546; Colvill v. St. Ill, 353.
Paul, etc. R. R. Co. 19 Minn. 383; Car-

44:2 TAKTTTG PEOPEETT FOE PUBLIC TJSIi

under the right of way.^ The jury, however, is not at liberty
to make a special allowance for the value of unopened mines
beneath the surface. Their existence is only material so far as
they effect market price.^

Aggravations connected with an entry to take and use land
for public purposes are not to be considered with a view to
damages beyond just compensation.*

The law does not afford indemnity for all losses occasioned
by the laying and use of a railroad, or the making of any pub-
he improvement, especially for such damages as are remote and
consequential, or such as are imaginary or fanciful.'* They are
damages not caused by the taking of land, but by the change
which the public improvement introduces into the course of
business. It affords no protection against, or compensation for,
new competitions.' Nor against changes introduced by time
and the progress of the age.* Nor does it afford relief against
such inconveniences as the whole community suffer alike, in a
greater or less degree, and which are to be borne by the public
in consideration of the greater public good to be acquired.' A
party, a part of whose lands has been taken for public use, can-
not have his damages . increased on account of the loss of a
gratuitous privilege which he has been enjoying by the suffer-
ance of another.^ "Where part of a tract of land is taken for
public use, and the severance of that part, and the public use
of it, necessitates any new expenditure to protect or maintain
the ordinary use of the residue, such expenditures, or the neces-
sity thereof, is an element of damage. The owner has a right
to recover the amount so expended or required to be expended,

iBamsley Canal Co. T. Turbill, 13 5 Fuller v. Edings, 11 Rich. 239;

L. J. Ch. 406; Proud v. Bates, 34 L. Cincinnati, etc. R. R. Co. v. Zinn, 18

J. Ch. 406; Fletcher v. Great West. Ohio St. 417; Adden v. White Mts.

E. R. Co. 39 L. J. Ex. 253. E. R. 55 N. H. 415; Petition of

2Searle v. Lackawanna, etc. R. R. Mount W. Road Co. 85 N. H. 146;

Co. 33 Pa. St. 57. Edmands v. Boston, 108 Mass. 585;

3 Lafayette, etc. R. R. Co. v. Win- SchuylkiU Co. v. Freedley, 6 Whart.
slow, 66 lU. 319. 109. See Patterson v. Boston, 23

4 Miimesota, etc. R. R. Co. v. Pick. 435.
Doran, 17 Minn. 188; First Parish v. 6 id.
Mddlesex, 7 Gray, 106; Troy, etc. 'Id.

E. E. Co. V. Northern T. Co. 16 Barb. 8 Hatch v. Cincinnati & L E. R.
100. Co. 18 Ohio St. 93.

TAKING PEOPEKTT FOE PUBLIC FSE.

443

on the ground that the value of his premises is diminished ac-
cordingly. Thus, the necessity of maintaining fences by the
owner along the line of a railroad is a recognized item of dam-
age.^ The recovery, however, will be limited to such fences,
and such amount therefor, as are reasonably necessary. The
amount expended to erect fences is not the measure of damages.^

1 Baltimore, etc. R. R. Co. v. Lan-
sing, 53 Ind. 329; Montmorency
Eoad V. Rock, 41 Ind. 364; White
VaUey, etc. E. R. Co. v. MoClure,
39 Ind. 536; Teniae, etc. R. R. Co.
V. Unsicker, 33 HI. 331; Rock I. etc.
R. R. Co. V. Lynch, 23 lU. 645; Bland
V. Hixenbaugh, 89 Iowa, 533; Jones
V. Chicago, etc. R. R. Co. 68 Dl. 880;
Winona, etc. R. R. Co. v. Waldron,
11 Minn. 515; Penn. etc. R. R. Co. v.
Bannell, 81 Pa. St. 437; Lonisville,
etc. R. R. Co. V. Glazebrook, 1 Bush,
825.

2 Bland v. Hixenbaugh, 39 Iowa,
533; Milwaukee, etc. R. R. Co. v.
Eble, 4 Chand. 73; 3 Pin. 334; Louis-
ville, etc. R. R. Co. V. Glazebrook,
1 Bush, 335. But see North E. R. R.
Co. V. Smeath, 8 Rich. 185, in which
it appeared that a railroad had been
laid through a large tract of land,
to run partly through cultivated
and partly through wood land; that
on the latter cattle were kept. No
allowance for fencing was made,
though it was held that the railroad
company was not bound to fence its
road; and though it was shown that
its trains had been very destructive
of cattle, and the company had
latterly refused to pay for them.
The court say: " In Greenville & C.
R. R. Co. V. Partlow, 5 Rich. 438,
Judge Frost said: . . . 'the ex-
pense of fencing along the road
where it passes through fields, is
probably an item of damages.' It
might be enough to say that this
diotwii decides nothing against the

appellants. On the contrary, its
implication seems to favor the con-
clusion that it is only where the
road runs through fields that
fencing would be a pi-oper item.
But it really has not, and ought not
to have, any controlling effect on the
very matter of vsrhich it speaks,
further than the respect and weight
which is rightfully due to an able
judge, our late esteemed associate.
For it was a mere obiter, notwith-
standing it was in answer to a
ground of appeal. The case turned
upon and was decided on the ground
_that the increased salable value of
this land ' was a part of the benefit
and advantage to the owner from
the location of the road, and must
be set off against the damages.'
In deciding 'what loss or damage
may occur to the owner,' the jury
are not to resort to mere possibilities.
The natural or necessary conse-
quences from the location are to be
looked at, as cutting off the owner
from a part of his lands; the necessity
to removje a fence and replace it, so as
to secure a field where the road runs
upon and opens one side of it; the
draining of a well or spring by the
excavation; as well as the actual
taking and occupation of his soU.
But fencing along the whole Une,
on both sides of it, in cultivated and
uncultivated, enclosed and unen-
closed lands, is neither a natural nor
a necessary consequence of the loca-
tion of the raih-oad. When it is
located through a field, cattle

444

TAKHTG PEOPEETT FOE PUBLIC USE.

But where a railroad company taking lands for its road is
required by law to fence it, or has already done so, nothing will
be allowed as damages against such company for building a
fence ; ' for, in the assessment of damages for property taken for
public use, it is always assumed that the appropriation will be
made according to law ; that the property so appropriated will
be used in a legal manner, and that all obligations connected
with such use, imposed by law, wiU be fulfilled ; and if the fact
is or turns out otherwise, another remedy is available and must
be resorted to.^ If farm crossings will be necessary on a rail-
road, and the law does not impose upon the railroad company
the duty of their construction and maintenance, the want thereof,
or any expense necessary to be incurred by the owner to secure

guaras, where it enters and leaves,
are all which are necessary or usual.
Fences on both sides would subject
the owner to more inconvenience by
far than the railroad. For then he
he would have his fences to climb,
or pull down, whenever he wished
to pass fi'om one part of his planta-
tion to another.

"Such a system of fencing might
operate as a pound to gather his
cattle for slaughter, by an engine,
and to break up and destroy it, and
the trains, to the endangering of life
and limb of all passing.

" But in fact, fences along railways
in this state are not made, in even
enclosed lands. Persons passing over
the G. & C. Railroad, through the
very land for which fencing was al-
lowed in Partlow's case, wUl find
that not a solitary raU has been laid
alongside the road. It is argued,
howevei", that to prevent the killing
of stock, it is necessary that there
should be fences. I have already
suggested that instead of protection
it might be the means of destruc-
tion. If the question were new, I
should be very much inclined to
hold that a company were not liable
for such injury, unless upon clear

proof of negligence in running of
the train. For the charter of a rail-
road makes the use of it by a loco-
motive just as lawful as the use of a
highway by a wagon or coach. W^ho
would suppose that the owner of a
wagon or coach was liable for a hog
killed by being diiven over by the
wagoner or coachman unless negli-
gence was shown? The runner of
a locomotive knows very well that
he perils his own life, and aU who
are dependent upon his care, when
he runs over a cow or other animal.
It is so rare that men are reckless
enough to incur such peril design-
edly, that I think the presumption
should be in his favor and not
against him.''

ild. ; March v. Portsmouth, etc.
R. R. Co. 19 N. H. 372.

2 Bangor, etc. R. R. Co. v. Mc-
Comb, 60 Me. 390; Fleming v. Chi-
cago, etc. R. R. Co. £4 Iowa, 333;
Troy, etc. R. R. Co. v. Northern
Turnpike Co. 16 Barb. 100; Chicago,
etc. R. R. Co. V. Springfield, etc. R.
R. Co. 67 111. 142; Colcough v. Nash-
ville, c'c. R. R. Co. 3 Head, 171;
Lyon V. Green Bay, etc. R. R. Co. 42
Wis. 543; Southside R. R. Co. v.
Daniel, 20 Gratt. 844.

TAXING PJBOPEETT FOE PUBLIC USE. 4i5

such a convenience, or to lessen the injury from the absence and
want of such crossing, may be considered on the question of
damages.' The expense of erecting and maintaining a retaining
wall, for the protection of property adjacent to railroad excava-
tions, may be allowed in addition to other damages. And this
allowance will not be prevented by tender of a stipulation of the
condemning party to erect and keep up such a wall.^

Where one railroad company acquired, by legal condemnation,
the right to run its road through a high embankment of an-
other, and on a grade twenty feet below the track of the other,
it was held under no legal obligation to erect or maintain a
bridge to support the track of such other company ; and, there-
fore, proof of what it would cost to build such bridge and keep
the same in repair was deemed proper in the assessment of dam-
ages. The company whose property was thus invaded was
entitled to have such sum for damages as would enable it to
construct and keep in repair all such works as should be neces-
sary to keep its track in a safe and secure condition, and also
for aU resulting incidental loss and inconvenience.' If a build-
ing must be removed in consequence of the taking of the land
on which it stands, the expense of the removal will be included
in the damages, and also the value of the right, if any exists, to
have the house remain on the land until it would otherwise ex-
pire.^ And expenditures necessary to restore structures upon
adjacent premises in their former condition relatively, may also
be considered,* as well as loss of time in such removal.'

In the assessment of damages allowed by law for laying out
a highway a grade below an adjoining house and land, the cost
of cutting down the land and of building a basement under the
house, with a door, and interior ascent in the house, is an ad-
missible element, if such alterations are found to be the most
reasonable and economical means of restoring the estate to its
former value. The damages in such a case are not confined to

1 Peoria, etc. R. E. Co. v. Sawyer, * Taf ts v. Charlestown, 4 Gray,
71 m. 361. 537.

2 Thompson v. Milwaukee, etc. R. ' Chase v. Worcester, 108 Mass. 60;
R. Co. 27 Wis. 93; Commonwealth Hyde v. Middlesex, 3 Gray, 267.

V. Boston, etc. R. R. Co. 3 Cush. 35. « Hannibal Br. Co. v. Schau-

3 Chicago, etc. R. R. Co. v. Spring- bacher, 57 Mo. 583.
field, etc. R. R. Co. 67 III. 143.

446 TAKING PEOPBETT TOE PUBLIC USE.

the injury caused to the right of lateral support of the soil
exclusive of the building, but includes aU the damages to the
property.'

The eecoteet will be limited by the owner's title anp by

THE NATUEE of THE PEOPEETY OE INTEEEST CONDEMNED. A railroad

company is not obliged to take the entire width called for by
its petition, and may ask for an adjustment of damages on a
narrower strip than that described in its petition, if the whole
width is not needed for its purposes.^

Property already taken for public use is subject to be again
condemned for a different one. A railroad may be crossed by a
highway, and the easement for such crossing may be condemned
by proceedings against the railway company, and the latter will
be entitled to recover damages for taking their land for the pur-
poses of a highway, subject, however, to its use for a railroad ;
for the expense of erecting and maintaining signs required by
law at the crossing ; for making and maintaining cattle guards
at the crossing, if necessary, and for the expense of flooring the
crossing and keeping the planks in repair.' So where a common
highway is laid over a turnpike road, the owner of the latter will
be entitled to recover damages. In apportioning the damages to
be paid to the turnpike corporation among several towns, the
appraisers may take into consideration, along with the distance
in each town, the value of the existing road, with reference to
the cost of construction and state of repair: but they cannot
consider the greater ability of one town to pay, or the greater
advantage which its inhabitants would receive from the free
highway, and make those matters in part the basis of their
apportionment.*

The condemnation will include everything on the land adapted
to the proposed public use ; thus, if land is taken for a way,
and has already been used as such, the condemnation includes
aU things placed, fixed or existing upon it, adapted to its use

1 Hartshorn v. Worcester, 113 'Old Colony, etc. E. R. Co. v.
Mass. 111. Plymouth, 14 Gray, 155.

2 Peoria, etc. R. R. Co. v. Bryant, * Reed's Petition, 18 N. H. 381.
57 m. 473. See Troy v. Cheshire R. R. Co. 33

N. H. 83.

TAKING PEOPEETT FOE PUBLIC USE. 447

as a public way, such as gravel, stone or wood paving, plank way,
flag stones, bridges, culverts or lamp posts, and all works erected
on or connected with it for use, or rendering its use more safe
and beneficial as a way.^ Even in the ordinary cases of taking
land for the first time as a public way, the proprietors of the
land have only the right to remove buildings, trees and fences,
and generally things not adapted to its use as a way, or not re-
quired for the supply of materials necessary or useful in making
or repairing the way.^ If erections upon the land taken are of
such a character as to become so incorporated with the land
taken as to be regarded as the land taken, they should be in-
cluded in the appraisal.' Steps projecting from the door of a
house over land taken for a highway are obstructions to the
highway, and must be removed by the owner of the land, and
the expenses are to be included in the assessment of damages
occasioned by such taking of his land ; so with the eave spouts
and bay windows, if they interfere with the public use of the
entire limits of the highway.*

Just compensation is not limited to and assessable only in
favor of the owner in fee. A life interest, or a term of years,
may be carved out of the fee. In such case, the tenant for
life or lessee, as well as the remainderman or lessor, is equally
entitled to compensation for injury to his interest.'* Every per-
son having any interest, partial or temporary, or permanent
and absolute, is entitled to damages proportioned to the injury
to that interest.* The division of ownership, however, cannot
operate to subject the condemning party to payment of greater
damages than if one person had a complete and perfect title."

1 Central Bridge Corporation v. 128; Dows v. Congdon, 16 How. Pr.
LoweU, 15 Gray, 111. 571; State v. Halick, 33 N. J. L. 307;

2 Id.; Brown v. Worcester, 13 First Paiish v. Middlesex, 6 Gray,
Gray, 31. 106; MiUer v. Mayor of Newark, 35

2 Id. N.J. L. 460 (66 Pa. St.).

3 Id. ' Burt V. Wigglesworth, 117 Mass.
sColcoughv. NaRhvUle, etc. R. B. Mass. 803; Burt v. Merchants' Ins.

Co. 3 Head, 171. Co. 115 Mass. 1; Edmunds v. Boston,

6 Parks V. Boston, 15 Pick. 198; 108 Mass. 585; Matter of Reservoir,

Lawrence v. Boston, 119 Mass. 136; 1 Buflf. (N. Y.) Sup. Ct. 408; Ross v.

Biddle v. Huseman, 33 Mo. 597; Elizabetjitown B. R. Co. 30 N. J. L.

Breed v. Eastern R. R. Co. 5 Gray, 330.
470; Piatt v. Bright, 39 N. J. Eq.

448 TAKING PEOPBETT FOE PUBLIC USE.

Payment to any other than the true owner will be of no
avail, and would constitute no defense to the claim of such
owner.' Payment cannot be made to one tenant in common
so as to affect the right of other tenants to damages.^ One
having no title can claim no damages,' and the title may be in-
cidentally investigated with a view to awarding the damages
to the proper persons.* But the condemning party may by his
proceedings recognize title in a person proceeded against so as
to preclude any question.' In one case it was held that where
a railroad company applies for the appointment of a commis-
sion to ascertain the value of and condemn land needed by it for
a right of way, and makes the parties in possession defendants
to their application, the latter are entitled to have the land, as
determined by the commission, paid for to then*, although, third
parties have given notice of their ownership of the land."
Where the claimant is plaintiff he must show his title.' Kail-
road companies, by virtue of this compulsory power, acquire
no absolute fee simple to land, but only the right to use it for
their purposes ; and compensation must be allowed for the value
of the use so appropriated. What, if anything, would be left
to the land owner of value, consistent with the enjoyment of
the easement by the company, should also be considered.^

Where a claim has accrued for damages to an entire tract of

1 Tanner v. Kellogg, 49 Mo. 118; Auditor v. Crise, 30 Ark. 540; Criue
Missouri E. R. Co. v. Owen, 8 Kan. v. Auditor, 17 Ark. 573; Selma R. R.
409; Hood v. Finch, 8 Wis. 381. v. Camp, 45 Ga. 180; Provident, etc.

2 Brinokerhoff v. Wemple, 1 Wend, of Mt. Sterling v. Givens, 17 111.
470. 255; Peoria, etc. R. R. Co. v. Laurie,

3 AUyn V. Providence R. R. 4 R. I. 63 111. 364; Same v. Bryant, 57 111.
457; Rooney v. Sac. R. R. Co. 6 Cal. 473; St. Louis, etc. R. R. Co. v.
638; Robbinsv. Milwaukee, etc. R. R. Teters, 68 lU. 144; Wright v. Wis-
Co. 6 Wis. 636; Menot v. Cumber- consin R. R. Co. 39 Wis. 341. See
land Co. Corns. 38 Me. 125. Chandler v. Jamaica P. Aqueduct,

4 Thurston v. Portland, 63 Me. 149; 135 Mass. 544.

Bresbine v. St. Paul, etc. R. R. Co. f Peoria, etc. R. R. Co. v. Bryant,

23 Minn. 114. 57 111. 473; Robbins v. MUwaukee,

SRippe V. Chicago, etc. R. R. Co. etc. R. R. Co. 6 Wis. 636.
23 Minn. 18; Sacramento, etc. R. R. 8 Alabama, etc. R. R. Co. v. Bur-
Co. V. Moffatt, 7 Cal. 577. kett, 43 Ala. 83. See Lake Superior,

«See St. Paul, etc. R. R. Co. v. etc. R. R. Co. v. Grev.e, 17 Minn.

Matthews, 16 Minn. 341; Norristown 333.
Tump. Co. V. Burket, 36 Ind. 53;

TAXTKG PEOPEKTT FOE PUBLIC TTSE. 449

land by reason of the actual construction of a railroad over a
part of it, and, before the damages have been assessed or paid,
the land is sold, without any provision in respect to them, the
right to such damages remains in the vendor.^ The damages
belong to the owner at the time of the injury, and do not pass
to a subsequent vendee,^ or to such owner's heirs.' A lessor
may show, on the assessment of damages,* a surrender of a lease
after the land demised had been taken for a highway, with a
release of the lessee's claim for damages, j

If land sought to be condemned for an easement is already
burdened with one public servitude, the imposition of another
of the same kind gives no right to damages, but it is otherwise
if there is a subsequent condemnation for a different purpose,
inconsistent with or subversive of the first ; and in such case
damages are recoverable as though the former had not existed.*
A plank road laid by a company over a highvfay is not a differ-
ent public use which will give abutting owners a right to com-
pensation as for an additional servitude; but such company
will be liable if it bv excavations endanger the s,tability of
houses on the line.*

WrrH BEFEEENCE TO WHAT TIME AEE THE VALUE AND DAM-
AGES TO BE ASSESSED. — As the valuc of real estate is liable to
be much affected generally and specially by the improvement
for which it may be taken, the inquiry is important, at what
time in the proceeding practically or legally to appropriate it
are the damages to be ascertained for the purpose of just com-
pensation. Possession for public use cannot be taken, nor is
the title of the owner divested until payment is made, or at
least adequately provided for." The time of the taking is that

iPomeroy v. Chicago, etc. R. R. See Pinkerton v. Boston, etc. R. R.

Go. 35 "Wis. 641. See Pick v. Rubicon Co. 109 Mass. 537.

Hydr. Co. 37 Wis. 433. 6 Williams v. Natural B. Plk. Rd.

2 Sargent v. Machias, 65 Me. 591; 31 Mo. 580.

Tenbrooke v. Jahke, 77 Pa. St. 393. ' Daniels v. Chicago, etc. R. R. Co. ,

ButseeCaldwellv. Bank, SOInd. 394. 35 Iowa, 139; Henry v. Dubuque,

3Neal V. Knox, etc. R. R. Co. 61 etc. R. R. Co. 10 Iowa, 540; Bensley

Me. 398. V. Mountain L. W. Co. 13 Cal. 306;

* Dickenson V. Ktohburg, 13 Gray, Rider v. Stryker, 63 N. Y. 136; Cook

546. V. South Park Com. 61 lU. 115; Peo-

5 Moale V. Baltimore. 5 Md. 314. pie v. WiUiams, 51 HI. 63.
Vol. Ill— 39

450 TAIilNG PEOPEETT FOE PUBLIC USE.

at which the value is fixed, but the cases do not agree as to
"what is to be deemed the taking — whether the actual appropria-
tion or the condemnation.^

In Pennsylvania it has been held that the jury should con-
sider the matter as if they were called upon to value the injury
at the moment when compensation could first be demanded.^
This is the difference in the value of the land before the im-
provement is made, and the value after its completion ; ^ that it
is a proper instruction to tell the jury that the market value of
the property should be ascertained before the road or the prospect
of the road had produced any effect upon it, then the value
immediately after the completion should be ascertained, and
the difference would settle the question of damages.*

In "Wisconsin a statute provided that land taken by a railroad
should be appraised at its value at the time the company ac-
quired title.' Under this statute the owner was held to be en-
titled to be paid the value of the property at the time of the
taking, that that is the just compensation of the constitution.
A company having previously built its road, it was held that
the improvements were to be excluded from the estimate. If
the market value is enhanced at the time of the condemnation,
however, the land is to be estimated at such enhanced value.^

In Minnesota the value is required by statute to be assessed
at the time of the taking, and that is construed to mean at the
time of making the award.' Compensation is awarded with

1 Milwaukee, etc. R. R. Co. v. 7S. &R. 411; Shenango, etc. R. R.
Eble, 4 Chand. 73; 3 Pin. 334; Mont- Co. v. Braham, 79 Pa. St. 447; Penn.
clair R. R. Co. v. Benson, 36 N. J. L. etc. R. R. Co. v. Bunnell, 81 Pa. St.
557; MUler v. Easton, etc. R. R. Co. 436.

37 N. J. L. 323; Stafford v. Provi- SHornstein v. Atlantic, etc. R. R.

deuce, 10 R. I. 567; Patterson v. Co. 51 Pa. St. 87; Delaware, etc. R.

Boom Co. 3 DiU. 465; St. Joe, etc. R. Co. v. Benson, 61 Pa. St. 369.

R. R. Co. V. Orr, 8 Kan. 419; Vir- *ld.

giaia, etc. R. R. Co. v. Lovejoy, 8 = Laws of 1873, ch. 119, sec. 31.

Nev. 100; Daniels v. The C. Q. & N. « Aspinwall v. Chicago, etc. R. R.

R. Co. 41 Iowa, 52; The San Fran- Co. 41 Wis. 474; Driver v. Western

Cisco, etc. R. R. Co. v. Mahoney, 29 Union R. R. Co. 33 Wis. 569.

Cal. 113; Hosher V. Kansas City, etc. 'Warren v. St. Paul, etc. R. R.

R. R. Co. 60 Mo. 339; Arnold v. Cov- Co. 31 Minn. 424; Sherwood v. St.

iugton Bridge, 1 Duv. 373. Paul, etc. R. R. Co. 31 Minn. 133;

2 Schuylkill Nav. Co, v. Thoburn, Winona, etc. R R. Co. v. Denman,

TAKING PEOPEETT FOE PtTBLIO TTSE. 451

reference to the value and condition of the premises at the time
of the award.

The same time is adopted in Kansas,* in California,^ and in
Wisconsin.'

: The time of taking in Massachusetts is the time fixed by
statute for estimating the value and damages; that time is
when the land is actually appropriated to public use, not when
the damages are assessed.*

The government, by its agents, entered wrongfully on a tract
of land and erected a building which became part of the realty,
and then took proceedings to condemn the land for public use ;
it was held that the owner had a right to have the value of the
structure allowed him in the estimate of damages.'

In an Iowa case,^ the defendant company appropriated land
for right of way without proceedings to condemn and assess
damages, and without any grant from the owner. By the stat-
ute of that state either party could take proceedings, and the
company in fact instituted proceedings eleven years after the
actual appropriation of the land. The court say: "Defend-
ants have held the land at the sufferance of the plaintiff, enjoy-
ing its benefits to the same extent as though the plaintiff's
damages had been assessed. Plaintiff has suffered no greater
damage than would have occurred to him had the defendants
pursued the course pointed out by the statute which they are
now, by this proceeding, pursuing. By these proceedings plaint-
iff is not deprived of the title to the land ; the defendants ac-
quire nothing more than the right to occupy it for raUroad
purposes. Had they been instituted prior to or upon defendants'

10 Minn. 267; Winona, etc. E. E. 546; Eeed v. Hanover B. E. E. Co.

C!o. V. Waldion, 11 Minn. 515; St. 105 Mass. 303.

Paul, etc. E. E. Co. v. Murphy, 19 5 u. S. t. Land in Monterey Co.

Minn. 500; Hursh v. St. Paul, etc. E. 47 Cal. 515. But see Cal. P. E. E. Co.

E. Co. 17 Minn. 439; WaiTen v. St. v. Armstrong, 46 Cal. 85; Emerson

Paul, etc. E. E. Co. 18 Minn. 884. v. Western Union E. E. Co. 75 111.

iSt. Joe, etc. E. E. Co. v. Orr, 8 176; Graham v. Connersville, etc.

Kan. 419. E. E. Co. 36 Md. 463; Aspinwall v.

2 The San F. etc. E. E. Co. v. Ma^ Chicago, etc. E. E. Co. 41 Wis. 474;

honey, 29 Cal. 113; Stockton, etc. E. Justice v. Nesquehoning P. E. E.

E. Co. V. Galgiani, 49 Cal. 139. Co. 87 Pa. St. 38. .

sLyon r. Green Bay, etc. Co. 43 6 Daniels v. C. 1. & N.'r. Co. 41

Wis. 548. Iowa, 53.

< Dickenson V. Fitchburg, 13 Gray,

452 TAKING PEOPEETT FOE PUBLIC USE.

taking the possession of the land, no different right would have
been acquired by them than they obtain in the present action.
In each case the measure of the plaintiffs damage is the same,
namely, the value of the land without regard to benefits result-
ing from the improvement. Plaintiff, had the damage been
assessed upon the occupancy of the land, would have received
no compensation for its prospective uses, other than as these
would enter into the estimate of its value. The same matters
will now determine the value that it would have then. It will
be seen, in view of these considerations, that the value of the
land, at the time of the appropriation, with interest upon the
sura assessed from tliat date until judgment in this case, is
the just measure of the plaintiff's -damages."

Deduction eoe benefits. — By measuring the damages ac-
cording to the depreciation in market value, the condemning
party will get the benefit of any advance in the price of the
land, as a whole, produced by the improvement at the time the
inquiry as to value is made. The value taken before the ap-
propriation of the land is supposed to be uninfluenced by the
projected improvement. The value after it is completed is
the value as affected by it ; if enhanced, the increase cancels
the damage pro tcmto; if it has the contrary effect, the conse-
quent diminution adds to the special damage for taking a part
and inconveniencing the residue. Where damages are assessed,
however, for depreciation anticipated, by proof of particular
facts, no account is taken of the general benefit of the improve-
ment; on the contrary, they are purposely excluded.' And
so of any common injury which affects the community or
public at large.^ Only those benefits are considered which
are special, and affect particularly the land in question.' These
benefits are estimated like the damages.*

iMeacham V. Fitchburg E. R. Co. Ferrill, 17 Pick. 58; Green v. Fall

4 Gush. 291. River, 113 Mass. 363; Dwight v.

2 Petition of Mount W. Road Co. Hampden, 11 Gush. 301; Meacham

35 N. H. 146; Adden v. R. R. Co. v. Fitchburg R. R. Co. supra; Young

55 N. H. 415. V. Harrison, 17 Ga. 30; Trinity Col-

aWeit V. St. Paul, etc. R. R. Co. lege v. Hartford, 82 Conn. 453;

51 Pa. St. 87; Wood v. Hudson, Hnbourne v. Suffolk, 120 Mass. 393.

114 Mass. 513; Symonds v. Cincin- * Trinity College v. Hartford,

nati, 14 Ohio, 148; Paine v. Woods, supra; Railroad Co. v. Tyree, 7 W.

108 Mass. 168; The Palmer Co. v. Va. 693; St. Louis, etc. E. R. Co. v.

TAKING PEOPEETY POE PUBLIC USE. 453

It is the business of the tribunal to which the ascertainment
of just compensation is confided to balance the advantages
that are special against the disadvantages that are actual, and
vp^ith the aid of whatever testimony is laid before them, to
find out, as well as practicable, how much less the land would
fetch in the market by reason of the improvement in question,
and that sum will represent what has been really taken away
from the owner, and should be given back in damages.^ If
this special benefit is equal to the compensation that the owner
should otherwise receive, he will be entitled to nothing else.^

"Where an assessment was made for damages for flowing
lands by means of a dam, it was held that the benefit might be
considered resulting to the lot flowed, and the adjoining land,
from the formation of ice on it in the ordinary use of the dam,
where such ice might be cut and sold as merchandise, without
appreciably diminishing the water power for which the dam
was erected ; and also benefits resulting to the same land by
reason of the greater convenience afforded the owner by means
of the fiowing, and tkrough the use of his land to exercise his
right in common with the public to take ice from a natural
pond b}'^ which the overflowed land was bounded.' But where
the establishment of a road rendered the building of fences
necessary, the damages allowed for the appropriation of the
land, it was held, should not be diminished by the value of any
advantages which might accrue to the adjacent property from
the erection of the fences.^

Benefits of two kinds may accrue to lands bounding on a
way laid out, altered, or widened : Eirst, the special and direct

Eichardson, 45 Mo. 466; Winona, Co. 4 Jones L. 89; James Eiver Co.
etc. R. R. Co. V. Waldron, 11 Minn. v. Turner, 9 Leigh, 313.
515; Weir v. St. Paul, etc. B. R. Co. iHornstein v. Atlantic, etc. E. E.
18 Minn. 155; Mitchell v. I'homton, Co. 51 Pa. St. 87; Boston, etc. E. E.
21 Gratt. 164; Hosher v. Kansas Co. v. Old Colony E. E. Corpora-
City, etc. E. E. Co. 60 Mo. 339; tion, 13 Cush. 605.
Quincy R. E. Co. v. Eedge, 57 Mo. 2 Whitman v. Boston, etc. E. R.
599; Lee v. Tebo R. R. Co. 53 Mo. Co. 3 Allen, 133; Trinity CoUege v.
178; Miss. E. Bridge v. Eing, 58 Hai-tford, 33 Conn. 453.
Mo. 491; Pacific E. E. v. Chiystal, 3 Paine v. Woods, 108 Mass. 160.
35 Mo. 544; Freedel v. N. C. E. R. < Bland v. Hixenbaugh, 39 Iowa,

583.

454

TAKENG PKOPEETT FOR PC5LI0 USE.

benefit arising from its own position upon the way itself; and
second, the general benefit, not arising from its location on the
way, but from the facilities and advantages caused by the way,
which affect all the estates in the neighborhood equally, and
which are shared in common with such estates. The direct and
peculiar benefit may be set off against the damages. The gen-
eral benefit cannot. ' The advantages that an abutter may re-
ceive from his location on a highway laid out, altered or widened,
are none the less peculiar and special to him, because other
estates on the street receive special and peculiar benefits of the
same kind.^ If a lot is drained or fertilized by a public im-

iHilbourne v. Suffolk, 120 Ma-ss.
393; Carpenter v. Landaff, 43 ,N. H.
318; Shawneetown v. Mason, 88 HI.
337; Commissioners v. Johnston, 71
N. C. 398.

2Hilboume v. SuflEolk, supra;
Allen V. Charlestown, 109 Mass. 343.
But see Whitcher v. Benton, 50 N.
H. 35. In Trinity College v. Hart-
ford, 33 Conn. 476, Park, J., said:
"There are obviously three classes
of benefits that may result from the
opening of highways; one, the gen-
eral benefit which the pubUc', as su ch,
receives from the opening of a new
avenue of travel; another, the
special benefits which those receive
who reside or own land upon the
new highway, in the more conven-
ient access that is given to their
lands; and another, the strictly local
benefit which land, as such, may re-
ceive from the opening and con-
struction of the road, an illustration
of which would be drainage, if it
should happen to be drained by the
road and its ditches; or the filling
up of low ground by surplus earth
that is to be disposed of in lowering
some neighboring hill. As to the
character of these classes of benefits,
and as to their general relation to
the road, with reference to questions
of assessment and damage^ tliei'e

seems to be no serious difference
between the claims of parties. The
m.ere public benefit cannot be as-
sessed at all, and is only to be
considered with reference to the
question how much of the expense
of the road shall be paid by general
taxation. The merely local benefit
is clearly to be deducted from the
damage that would be allowed the
owner for the part of his land taken
for the road, and it goes so far to
reduce the actual damage done to
him in taking his land. The special
benefits, within the limits fixed by
the law, are clearly to be considered
in assessing benefits; and if nothing
was to be done except to assess ben-
efits, there would probably be no
difference of opinion as to the rule
to be adopted in determining the
proportions in which the burden of
the road should be laid upon the
benefits. The sole question is in
the case where the same person has
received benefits and has also a
claim for damages. We will suppose
his claim for damages is $1,000,
that he gets no local benefit, and
that bis special benefit is exactly
$1,000. Now, if he had received
only the benefit, and was assessed
for that benefit, with all the other
persons enjoying special benefits, ho

I TAKING PEOPEETT FOE PUBLIC USE. 453

provement, the benefit is direct and special;^ so, if it discon-
tinue a portion of an old highway, the part vacated thereby
inuring to the person to be compensated.^

In New Hampshire it is held that in estimating damages to
land owners by a new highway, nothing can be deducted on
account of benefits not special to the particular owner to be
compensated ; and where he obtained access to his land, he not
having access otherwise, except across land which he did not
own, such benefit is not special. The court said this was not a
benefit for which the land owner should pay, but a general
improvement in which many would share.'

In Illinois, as a set-off against consequential damages arising
from a railroad crossing a farm, it was held proper to take into
consideration the facilities afforded b}'^ the road, and a conven-
ient depot, for getting the products of the farm to market, as
also the actual increase in the market value of the farm occa-
sioned by the road.*

Where compensation was claimed for the location and con-
struction of a railroad between the coal mines and a navigable
river on the land owner's premises, whereby the conveniences
of the river transportation for the coal to market were injured

would probably be assessed only a unreasonable; but the rule has long

moderate percentage upon it. We been settled in this state, not only in

will suppose that assessment would practice, but by repeated decisions

be ten per cent., so that he would be of this court, that where the land

called upon to pay $100 on account ojsoier has a claim for damage for

of his having received $1,000 of land taken, and has received local

benefit. Now the counsel for the and special benefits equal to the

petitioners contend that, where the damage, the value of the benefits

same person has a claim for $1,000 shall be set off against the damage,

damage, he should not have the and he shall be allowed nothing."

whole benefit he has received applied i Milwaukee R. E. Co. v. Eble, 4

to the damage, satisfying it in full Chand. 73; 3 Pin. 334.

and leaving him nothing, but that sxingley v. Providence, 8 R. I.

only the ten per cent, which he 498.

would have been assessed for his ^Cai-penter v. LandafE, 42 N. H.

benefit, if the benefit had been in- 218; Whitcher v. Benton, 50 N. H.

dependently assessed, should be so 25; Adden v. Railroad, 55 N. H. 413.

applied, and the balance, $900, See Virginia, etc. E. R. Co. v.

should be paid him for his damage. Lynch, 13-Nev. 92.

There is much that is plausible in * Wilson v. Eockf ord, etc. R. R.

this claim, and it is not altogether Co. 59 HI. 273.

456 TAXING PKOPEETX" FOE PUBLIC USB.

or cut off, it was held competent for the raUroad company to
show, for the purpose of reducing the damages,* that the river
transportation, in connection with the coal banks, had ceased
to be valuable, or become of less value by means of the facil-
ities for coal transportation afforded by the railroad. In case of
a railroad appropriation for right of way through a tract of
land, causing incidental and local injury to the residue of the
tract, although general resulting benefits from the railroad to
the value of such residue of the land is prohibited from being
taken into account in estimating the amount of compensation
to be paid the owner, yet where a local incidental benefit to the
residue of the land is blended or connected either in locality or
subject matter with the local incidental injury to such residue
of the land, the benefit may be considered in fixing the com-
pensation to be paid the owner, not by way of deduction from
the compensation, but of showing the extent of the injury done
to the value of the residue of the land.^

In many of the states, benefits are excluded by constitution
or statute, from consideration in determining what shall be
paid for the value of property taken for public use ; but the
inhibition in this form has not been deemed to exclude this
consideration in reduction of consequential damages resulting
from the appropriation. In other states the same restricted
application of benefits is made on general principles, as proper
and necessary to give " just compensation." '

In Kentucky the right to just compensation for property
taken for public use is held to exclude all benefits, in reduction

1 Cleveland & Pittsburgh E. R. Go. E. Co. 53 Ga. 120; Vicksburg, etc. R.

V. Ball, 5 Ohio St. 569. ^E. Co. v. Calderwood, 15 La Ann.

^ M. 481; Buffalo, etc. E. R. Co. v. Ferris,

3 Todd V. Kankakee E. R. Co. 78 26 Tex. 588; New Castle E. E. Co. v.

lU. 530; Carpenter v. Jennings, 77 Bramback, 5 Ind. 543; Memphis v.

111. 350; Wilson v. Rookford, etc. E. Bolton, 9 Heisk. 508; Giesy v. O. W.

E. Co. 59 111. 273; Hayes v. Ottawa, & Z. E. E. Co. 4 Ohio St. 330; Wag-

etc. E. E. Co. 54 111. 373; Ealeigh E. ner v. Gage Co. 3 Neb. 337; Wood-

R. Co. V. Wicker, 74 N. C. 220; folk v. Nashville, etc. E. R. Co. 3

Shipley v. Baltimore, etc. R. E. Co. Swan, 423; Chapman v. Oshkosh,

34 Md. 336; Railroad Co. v. Tyree, 7 etc. R. R. 33 Wis. 629; Newby v.

W. Va. 693; Mitchell v. Thornton, 31 Platte Co. 35 Mo. 358; Commission-

Gratt. 164; Augusta v. Marks, 50 Ga. ers v. O'SuUivan, 17 Kan. 58.
613; Mayor of Atlanta v. Central R.

TAKING PEOPEKTT FOE PUBLIC USE. 4:57

of the value of the property taken, and to limit their applica-
tion to the reduction of damages resulting from such taking.
In an early case the court said : " "When the property of one citi-
zen is taken without his consent for the use of the whole com-
munity of which he is a member, the constitution imperiously
requires, not that the public shall decide whether he is entitled
to any compensation, but that the just compensation shall be
paid Or secured; and that compensation implies the value, at
least, of the thing taken. No citizen can be compelled to give
his land to the pubho without an equivalent ; and what is that
equivalent but the value, in money, of the land surrendered to
public use? He may act unreasonably and unjustly in an im-
aginable case, by insisting on pecuniary compensation, or in
refusing to make a surrender without exacting the value of the
property. But he has a right to insist on being paid the value
of the thing taken from him, although he may be incidentally
benefited with others in the appropriation of it to public use.
If, however, claiming more than the value of the property
taken, he seeks indemnity for consequential inconvenience or
injury, then the true question will be whether, upon a survey of
all advantages as well as disadvantages which wiU be likely to
result to him, the balance wUI be for or against him, and if
ascertained to be in his favor, then, of course, he will be en-
titled to nothing for alleged damages for such inconvenience or
injury, because, the whole case being properly considered in all
its bearings, he wiU sustain no damage. Thus, and only thus,
advantages and disadvantages may be compared, and set off the
one against the other." ^ This view has been adhered to.^ The
compensation guaranteed by the constitution, it is there insisted,
cannot consist of the mere estimate of a jury or by appraisers
of the prospective and speculative advantages, which, in their
opinion, wiU accrue to the owner from the proposed use of his
land by the public, but must be a pecuniary compensation
equivalent to the value of the land to be taken. These advan-
tages may be set off against the consequential damages and
inconvenience which the owner may sustain, but not against

1 Sutton's Heirs v. Louisville, 5 2 Rice v. Turnpike Co. 7 Dana,
Dana, 33. 87.

458 TAKING PEOPEETT FOE PUBLIC USE.

the value of the land itself. To that extent, at least, the owner
is entitled, under aU circumstances, to a specific compensation
without deduction or set-off.' This mode of adjusting the
compensation is deemed to be the true and only effectual expo-
sition of the constitution.^ There is this other distinguishing
feature of the law as held in that state on this subject : advan-
tages which may offset the consequential damages are not con-
fined to those which are special to the land from which a part
is taken. The advantages which the owner may derive from
the construction of a railroad, for instance, are not in the least
diminished by the fact that they will be enjoyed by others, nor
does it furnish any reason why they should be excluded from
the estimate in comparing the advantages and disadvantages
that will result to him from the establishment of the road.
Other persons, it is true, may enjoy the same advantages with-
out being subjected to the same inconveniences ; but this results
from the nature of the improvement itself, and does not, in any
degree, detract from the value of these advantages to the owner
of the land through which the road passes.^

The value which the constitution in Kentucky guarantees is
the value to the owner, where the property taken is a part of a
greater tract ; and it is to be estimated by considering its rel-
ative position to his other land, and the circumstances which
may diminish or enhance that value ; the real value of the land
to the owner as it is actually situated, and not merely regard-
ing it as a separate and independent piece of land, he has a
right to demand. It is held that nothing else can secure him a
just compensation for his property. The inquiry should be.
What is its value, situated as it is, if he were not the owner of it,
but owned adjacent property on both sides of it, under pre-
cisely the same circumstances?* "This question of value," the
court say, in a late case in that state, " can be most readily and
fairly determined by ascertaining the value of the entire tract

lid.; Elizabethtown, etc. E. R. erson, 17 B. Mon. 180; Louisville,

Co. V, Helm's Heirs, 8 Bush, 681. etc. R. R. Co. v. Thompson, 18 id.

2 Jacob V. Louisville, 9 Dana, 114; 744-5; LouisviUe, etc. R. R. Co. v.

Henderson, etc. R. R. Co. Dickerson, Glazebrook, 1 Bush, 325.

17 B. Mon. 178. < Henderson, etc. R. R. Co. v.

s Henderson, etc. R. R. Co. v. Dick- Dickerson, 17 B. Mon. 180.

TAKING PEOPEETT FOE PUBLIC USE. 459

of land, excluding the enhancement resulting from the contem-
plated improvement; then,^ what wUl be its value after the
appropriation of a portion of such estate therein as may be
proposed to be taken. The difference in value thus found is
the true compensation to which the owner is entitled." ^ The
particular facts and circumstances to be considered in adjusting
the difference in the value of a tract of land, before and after
a portion of it has been taken or appropriated to public use,
cannot, from the nature of things, be set out in detail, or de-
fined with any degree of precision; but every circumstance in-
juriously affecting the citizen in the enjoyment of his land not
taken, which can be satisfactorily demonstrated to grow out of
his being deprived of the use theretofore enjoyed by him of
the portion taken, should receive due consideration, and be al-
lowed its proper weight. The appraisers or jury should disre-
gard reasons which are purely personal to the owner, not
affecting the market value of his remaining lands, and also
such prospective damages as may follow the construction and
operation of the proposed railway or other pubhc work. These
prospective damages are to be considered in the determination
of the consequential damages, and the rule laid down in the
case of Sutton's heirs controls the settlement of that question.
A survey is taken of aU the advantages and disadvantages
which may be reasonably anticipated to result from the pru-
dent construction and operation of the proposed railway, and
if the balance be against the owner of the land, then to the
extent that such balance diminishes its market value, he should
have a judgment on account of incidental damages; other-
wise, of course, he is entitled to nothing.'

1 Still excluding this enhance- court. II Stat. 337, directs that the
ment. commissioners or jury, ' in making

2 EUzabethtown, etc. R. E. Co. v. the valuation, shall take into con-
Hehn's Heirs, 8 Bush, 681. sideration the loss or damage -which

3 Id. In Greenville & Columbia may occur to the owner, in oonse-
E. R. Co. V. Partlow, 5 Eich. 436, quence of the land or right of way
the court, by Frost, J., said: "In being taien; and also the benefit or
the argument of the case, *he effect advantage he may receive from the
of the terms of the charter has not establishment or erection of the
been sufficiently weighed. The law railroad or works, and shall take
must control the judgment of the particularly the nature and amount

460

TAKESfG PEOPEETT JOE PUBLIC USE.

The owner's lands taken into consideration in the estimate of
damages and benefits are those adjoining and connected with

of each; and the excess of loss or
damage, over and above the benefit
and advantage, shall form the meas-
ure of valuation of said land or
right of way.'

" What is a benefit or advantage
to the owner of land, which he may-
acquire by the construction of the
road ? The only direct and immedi-
ate benefit of a railroad to an owner,
through whose land it may pass, is
the facility it affords in carrying the
produce of the land to market, and
the cheapness and expedition of
traveling. The mdst important ad-
vantages are incidental. Of these,
incomparably the greatest, in a
pecuniary view, is the enhanced
value imparted to real estate along
the line of the road. It forms the
chief inducement for subscription
to the undertaking. It was promit-
nently in the view of the legislature
in granting the charter, as an ex-
pected benefit to the owner, whose
land might be taken for the con-
struction of the road, and could not
have been overlooked. Tet, it is not
expected that any and every benefit
and advantage, by the terms of the
act, is the subject of assessment. It
is plain by the assessment which is
directed to be niade, that it was in-
tended to provide compensation to
the owner of the land, and no more.
He was to make no gain or profit
from the company. Compensation
is an equivalent for property taken,
or for an injury. It must be ascer-
tained by estimating the actual dam-
age the party has sustained. That
damage is the sum of the actual
value of the property taken and of
the injury done to the residue of the
property, by the use of that part
which is taken, less the benefit

which accrues to the residue of the
said property by the use of that
which is taken. The benefit is in
part an equivalent to the loss and
damage. The loss and damage to
the defendant is the value of the
land the company has taken, and
the injury which the location and
use of the road through his tract
may cause to the remainder. The
amount which may be assessed for
these particulars, the company ad-
naits it is bound to pay; but as a set-
off, it claims credit for the benefit
the defendant has received from
the construction of the road. That
benefit may consist in the enhanced
value of the residue of his tract.
When the company has paid the de-
fendant the excess of his loss or
damage over and above the benefit
and advantage he has derived from
the road, he will have received a
just compensation.

" It is objected that the enhanced
value of the land should not be as-
sessed as a benefit to the defendant,
because it is precarious and uncer-
tain. The argument admits that
the enhanced value, if permanent,
should be assessed, but whether the
appreciation is permanent and sub-
stantial, or transient and illusory, is
a subject about which the court is
not competent to determine; it must
be submitted to a jury, who will
give credit to the company, accord-
ing to the circumstances. The ar-
gument is not tenable that an
increased salable value is no benefit
to the owner of land unless he sells
it. This is true if it be assumed the
price win decline. The chance of
this is estimated by the jury, in the
amount which they may assess for
that benefit. The sum assessed, is,

TAKHTG PEOPEETT FOE PUBLIC USB.

461

the land taken and forming a part of the same parcel.' The
fact that the property consists of several lots or blocks, or sev-
eral legal subdivisions of sections, as sold by the government^
will not prevent its being considered as one tract or parcel, if
it is occupied and used as such.'' Nor will land so occupied be
deemed separated by a highway or street running through it.'
But unless the property claimed to be one tract is so used and
occupied, it may be separated by streets, and will have to be
treated as consisting of separate parcels as so divided.* So
agricultural land may be separated so as not to be treated as an

therefore (so far as human fore-
sight can anticipate the future), the
exponent of the substantial increase
of the value of the land. This is a
benefit to the owner, by enlarging
his credit and his ability to pay his
debts or provide for his family, in
the same manner, and to the same
extent, as if his fortune was in-
creased by an acquisition of prop-
erty.

"But the argument most strenu-
ously urged is, that the public bene-
fit, expected from the construction
of the road, formed the considera-
tion for the grant of the charter;
and of these expected benefits, the
most important was the enhanced
value of the land along the line of
the road, and as a publio benefit is
the aggregate of the benefit of indi-
viduals, the company is precluded,
by its contract, from claiming
against the defendant any assess-
ment for the increased value of the
land. No such stipiolation is found
in the charter. On the contrary, it
appears that the owner of the land
taken by the company is to be as-
sessed for any benefit, without ex-
ception of what he may receive
from the construction of the road.

" The only other argument which
wiU be noticed is, that it is unjust
and oppressive to the defendant to

set off his damage and loss against
the increased value of the land,
because thereby his benefit is ex-
tinguished, while contiguous owners
enjoy that benefit. The state has
invested the railroad company with
its eminent power to take private
property for a great public work.
The company is bound to make com-
pensation. This is all the defendant
can, in reason, demand. He cannot
require a premium; if his neighbors
are more benefited by the construc-
tion of the road than he may be,
that is no loss to him."

1 Hilbourne v. Suffolk, 130 Mass.
393; Mix v. La Fayette, etc. E. R.
Co. 67 m. 319; St. Louis, etc. E. E.
Co. v. Brown, 58 111. 61; Todd v.
Kankakee, etc. E. E. Co. 78 111. 530;
Meacham v. Fitchburg E. R. Co. 4
Cush. 391.

2 Driver v. Western Union R. R.
Co. 33 Wis. 569; Welch v. Milwau-
kee, etc. E. E. Co. 37 Wis. 103.

*Id.; Hannibal Bridge Co. v.
Schaubaoher, 57 Mo. 583; Page v.
Chicago, etc. E. R. Co. 70 111. 334;
Chapman v. Oshkosh R. R. Co. 33
Wis. 639; Sherwood v. St. Paul, etc.
R. E. Co. 31 Minn. 137; St. Paul, etc.
E. E. Co. V. Murphy, 19 Minn. 500.

4 Matter of N. Y. Cent. R. R. Co.
6 Hun, 149.

462 TAXING PEOPEETY FOE PUBLIC USE.

entirety by an intervening bluff.' Damages to separate tracts
are to be separately assessed.^

Peooe of value and damages. — These are not susceptible
of precise proof, and can only be approximately shown bj'^ the
opinions of witnesses having the requisite information.

If the true value of an estate immediately before and imme-
diately after the location of a road over it could be accurately
ascertained, such a discovery would afford the most exact
means of determining what was the real pecuniary damage
sustained by the owner. The market value is a near, and per-
haps the closest, approximation to it; and, therefore, any evi-
dence which is competent in its general character to prove the
value is apposite and admissible. In the very nature of things
there can be no absolute standard by which the value of land
or real estate can be measured ; and, of course, when it cannot
be tested by the fact of a recent sale, the nearest approach to
it, which can be obtained, is a knowledge of the opinion and
judgment of intelligent practical men, who are best acquainted
with the property. Evidence of such opinion and judgment
must of necessity often be all that can be resorted to, and it is
always competent and admissible, leaving its weight in each
particular case to be determined by the jury, in connection with
the circumstances under which it is offered.'

Market value means the fair value of the property as between
one who wants to purchase and one who wants to sell any ar-
ticle ; not what could be obtained for it under peculiar circum-
stances when a greater than its fair price could be obtained, nor
its speculative value; not a value obtained from the necessities
of another. ISTor, on the other hand, is it to be limited to that
price which the property would bring when forced off at auc-
tion under the hammer. Ilv is what it would bring at a fair
public sale, when one party wanted to sell and the other to buy.*

The jury in making an estimate upon the testimony of the
opinions of witnesses, should not adopt those of men who are

1 Minnesota R. R. Co. v. Doran, 15 203; Wymam v. Lexington, etc. R.
Minn. 230. R. Co. 13 Met. 816.

2 St. Louis, etc. R. R. Co. v. Brown, < Lawrence v. Boston, 119 Mass.
58 lU. 61. 126,

'Dwight T. Hampden, 11 Cush.

TAKmG- PEOPBETT FOE PUBLIC USE. 463

sanguine in their estimate of value, nor of men who are over
cautious; but of prudent, practical men, men of experience,
thought and. consideration, and who have had opportunity of
forming correct opinions of the .value of the lands and damages
sustained. 1

The market value of land is not a question of science or skill
upon which only an expert can give an opinion. Persons in the
neighborhood are presumed to have sufficient knowledge of the
market value of land.^ The opinions of witnesses founded
upon a knowledge of the location, productiveness or adaptation
of the land to other uses, not speculative, or, of the market or
selling price of the land in the vicinity, are legal evidence to
prove its value.' But while the opinions of witnesses thus qual-
ified by their knowledge of the subject are competent testi-
mony, it has been held they cannot, upon direct examination,
be allowed to testify as to particular transactions, such as
sales of adjoining lands, how much has been offered and refused
for adjoining lands of like quality and location, or for the land
in question, or any part thereof ; or how much the company have
been compelled to pay in other and like cases — notwithstand-
ing those transactions may constitute the source of their knowl-
edge. If this was allowed, the other side would have the right
to controvert each transaction instanced by the witnesses, and
investigate, its merits, which would lead to as many side issues
as transactions, and render the investigation interminable.
Upon cross-examination, however, the knowledge of the wit-
nesses, and, therefore, the value of their opinions, may be tested
in that mode, if desired, by the party in whose interest the
examination is conducted.''

1 Somerville, etc. E. R. Co. v. Pa. St. 495; Snow v. Boston, etc. R.

Douglity, 33 N. J. L. 503. R. Co. 65 Me. 330; Grand Rapids, etc.

sShattuck v. Stoneham, etc. R. R. R. R. Co. v. Horn, 41 Ind. 479; East

Co. 6 Allen, 115; Swan v. Middlesex, Pennsylvania R. R. Co. v. Hiester,

101 Mass. 173; Pennsylvania, etc. R. 40 Pa. St. 53; Whitman v. Boston,

R. Co. V. Bunnell, 81 Pa. St. 414. etc. R. R. Co. 7 Allen, 313; Penn.'

3 Snyder v. The Western U. R. R. etc. R. R. Co. v. Bunnell, 81 Pa. St.

Co. 25 Wis. 60; Cent. P. R. R. Co. v. 43; Pittsburgh, etc. R. R. Co. v. Rose,

Pearson, 35 Cal. 361; Parks v. Wis- 74 Pa. St. 363.

consin, etc. R. R. Co. 33 Wis. 413; *C. P. R. R. Co. v. Pearson,

Serle v. Lackawanna, etc. R. R. Co. supra; Brunswick, etc. R. R. Co. v.

33 Pa. St. 517; Brown v. Corey, 43 McLaren, 47 Ga. 546; Dickinson v.

464 TAKING PEOPEETT FOE PUBLIC USE.

Opinions of witnesses are not admissible as to the amount of
damages, nor as to the future effect of taking part of a tract of
land for a public improvement.* Some Massachusetts cases
sanction a more liberal rule for the admission of opinions.^ And
in Illinois it has been held that witnesses who are acquainted
with a farm, and its productiveness and value, may give their
opinions as to the damages which wiU result from the construc-
tion of a railroad over it.'

The effect of a judgment foe the just compensation. — The
judgment is a bar only to an action for such injuries as could
properly be included in the assessment.* These are damages
resulting from making the appropriation in conformity to the
law, and proceeding with the construction of the public improve-
ment and subsequent use of the property in a skilfal and proper
manner, observing all legal restrictions and fulfilling all legal
obligations.^ Just compensation does not extend to or embrace
injuries to adjoining land not authorized to be taken ; nor to
damages resulting from carelessness or wilful trespass in the
execution of the work.* It is conclusively presumed after judg-

Fitchburg, 13 Gray, 546; Tufts v. Minn. 28; Dalzell v. Davenport, 13

Charlestown, 4Gray, 537;Pennsylva- Iowa, 437; Hosher v. Kansas City,

nia, etc. E. E. Co. v. Biiinell, 81 Pa. etc. E. E. Co. 60 Mo. 329; Tingley v.

St. 414; Pinkham v. Chelmsford, 109 Providence, etc. E. E. Co. 8 E. I. 493.

Mass. 225; Davis v. Charles Eiver 2 gwan v. Middlesex, 101 Mass. 173:

Bridge Co. 11 Cush. 506; "West New- Brainard v. Boston, etc. E. E. Co. 13

bury V. Chase, 5 Gray, 421; Whit- Gray, 407.

man v. Boston E. E. Co. 7 Allen, ' Keithsburg, etc. E. E. Co. v.

313; Swan v. Middlesex, 101 Mass. Henry, 79 HI. 390.

173; Shattuck v. Stoneham E. E. Co, « South Side E. E. Co. v. Daniel,

6 Allen, 115; FaU Eiver Works v. 20 Gratt. 344.

Fall Eiver, 110 Mass. 428; Cobb v. 'Ante, p. 136; Dodge v. County

Boston, 113 Mass. 181; Lehmicke v. Commissioners, 3 Met. 380; Delaware

St. Paul, etc. E. E. Co. 19 Minn. 464; Canal Co. v. Lee, 23 N. J. L. 343;

Eondout R. E. Co. v. Deyer, 5 Lans. MCCormick v. Kansas City, etc. E.

298. E. Co. 57 Mo. 433; Bailey v. Mayor

• 1 Atlantic, etc. E. E. Co. v. Camp- of N. Y. 3 Hill, 531; Lawrence v.

beU, 4 Ohio St. 583; Troy, etc. E. Great Northern R'y Co. 16 Q. B. 643;

E. Co. V. Northern T. Co. 16 Barb. Mason v. Kennebec, etc. E. E. Co. 31

100; Rockford, etc. E. E. Co. v. Mc- Me. 215.

Kinley, 64 111. 338; Colvill v. St. « Colcough v. NashviUe, etc. E. R

Paul, etc. E. E. Co. 19 Minn. 283; Co. 2 Head, 171.

Curtis V. St. Paul, etc. R. E. Co. 20

TAJIING PEOPEETT FOE PUBLIC USE. 465

•

ment that it embraced all damages of every kind naturally con-
sequent to the taking ; in judgment of law all such damages
■were foreseen and compensated,! and no others. But this does
not preclude a fresh demand if the plan of the public work is
changed after the assessment so as to make the appropriation
more injurious.^ The judgment is conclusive of the amount due
to the person designated to receive it;' and the adjudication
vests a right to the money.* After damages have been ascer-
tained and fixed for taking private property for a highway, there
can be no abatement of the amount for subsequently vacating
a part of such highway,' or its entire discontinuance."

LsTTEEEST. — It being an accepted principle that land taken
for public use should be valued, and damages ascertained, as of
the date of the taking, payment is then legally due, unless a
statute designate some other time ; ' and on general principles,
interest should be given from the time when the principal
should be paid ; ^ or, in other words, from the time the land
owner was entitled to compensation ; ^ unless the obligation to
pay it then is qualified by some required preliminary act to
liquidate the amount, or, a demand of payment.'" In some of

1 Fumiss Y. Hudson R. R. E. Co. 5 18 N. H. 75, -it was considered that
Sandf. 551; Chicago, etc. R. R. Cp. by the adjudication of damages on
-7. Springfield, etc. R. R. Co. 67 lU. laying out a highway, a right to the
143. money is vested, and is not affected

2 Boyd V. Negley, 53 Pa. St. 387; by a subsequent discontinuance of
Carpenter v. Easton R. R. Co. 36 N. the highway. But after such ad-
J. L. 168. judication, no duty is imposed on

3 Sparhawk t. "Walpole, 20 N. H. the town except to pay before mak-
317. ing the road. If the owner sues for

< People V. Board of Supervisors, 4 the money before the town proceeds

Barb. 64. to open the highway, he does- so

5 Reed v. Inhabitants of Wall, 84 before there is any active duty to

N. J. L. 275. pay on the part of the town. The

« Clough V. Unity, 18 N. H. 75. court say that the decree is "not

7 Hamersley v. New York, 56 N. like a judgment, the liquidation of
Y.533; Phillips v. Pease, 39 Cal. 582. a demand; it is of itself the inoep-

8 Norris V. Philadelphia, 70 Pa. St. tion of a demand; it rests on no
338. promise; it is not in the nature of

9 Delaware, etc. R. R. Co. v. Bur- damages for a tort, nor money of
son, 61 Pa. St. 369. . . (the owner) . . received by

w People V. Canal Commissioners, the town and misapplied:
5Denio, 401. In Clough v. Unity, "The award and consequent de-
VOL. Ill— 80

466

TAXING PEOPEETT FOE PUBLIC USE.

the states, the taking is by the legal proceedings to condemn;
and there, as a general rule, interest is charged only from the
date of the award.' It is given not strictly as damages, but as
an equitable mode of compensating the owner for the unneces-
sary delay in ultimately ascertaining the amount he is entitled
to be paid, where the final judgment is postponed for any re-
examination by appeal or otherwise. The general rule, there-
fore, is liable to be controlled by the circumstances of the
particular case. If the owner has had the profitable use of the
premises, or has received rents during such intermediate period,
these circumstances are taken into account, and the interest
abated accordingly. Advantage should be taken of such cu--
cumstances on the trial finally had.^

cree bear certain strong analogies to
a judgment which carries interest.
But a judgment is rather an act of
the party himself, who procures it
for the express purpose of enforcing
an antecedent claim; while the
award of land damages is a matter
into which both parties have been
brought, in invitum, and affords no
evidence whatever that the money
is detained contrary to the vsdshes of
the party entitled to it. There is
no necessary presumption that he
wishes to receive it until the time
when the town would be required
to pay it for the purpose of justify-
ing their entry upon the land, unless
he makes a demand, and so mani-
fests his wishes; and if the demand
is not compUed with, establishes the
adverse relation between the parties
that lays the foundation for de-
manding interest. Mohurinv. Bick-
ford, 6 N. H. 567; Reid t. Renn Glass
Factory, 3 Cow. 436." In the earlier
case of Fiske v. Chesterfield, 14 N.
H. 340, it was held that the accept-
ance by the court of common pleas
of the report of a committee laying
out a road, is not precisely a judg-
ment that the town is indebted to

the land owner in the sum awarded
to him as damages, but it furnishes
record evidence that he is entitled
to recover.

"If he brings an action of debt
on that judgment, without a de-
mand, after the road is opened, he is
entitled to recover interest on the
sum awarded from the time of open-
ing of the road, but not before that
time, as until then the amount could
not be considered as detained."

1 Metier v. Eastern, etc. R. R. Co.
37 N. J. L. 833; Warren v. First
Division, etc. R. R. Co. 21 Minn.
434.

2 Id. But in Commonwealth v.
Boston, etc. R. R. Co. 3 Cush. 57,
the court by Shaw, C. J., said: " We
consider it the plain dictate of jus-
tice when money is due on a judg-
ment, or on a verdict in the nature
of a judgment, and payment is pre-
vented by the necessary time taken
for re-examining the case, if it result
in confirming the former judgment
and showing that the party "ws^
then entitled to his money, that in-
terest should be allowed as a just
compensation for the delay." See
Detmold v. Drake, 46 N. Y. 318.

TAKING PEOPEETT FOE PUBLIC USE. 467

If the delay after the assessment by commissioners is by the
unnecessary act or litigious conduct of the owner, he will not
be entitled to interest during such delay.' Thus, if the owner
is the sole appellant, and the verdict of the jury should not be
in excess of the appraisement of the commissioners, interest
should be disallowed. In that event, the postponement of the
receipt of compensation adjudged by the commissioners, and
decided by the judge to have been adequate, would be due to
his own act. To allow him indemnity for such delay, in the
form of interest, would be unreasonable and unjust. _ But if the
condemning party also appeal, interest will not be denied to
the owner because he had taken an appeal.' In New Hamp-
shire, where the amount of damages has been fixed by award
of commissioners, and the owner appeals, interest will be
allowed unless the money has been tendered or deposited.*
Then if the owner appeals and gets a larger sum allowed, he is
entitled to interest only on such additional sum, for he could
receive the tendered or deposited sum without prejudice to his
right to appeal.*

In those states where the taking is the actual appropriation,
interest is allowed from that time, and included in the award ; '
and the award will itself bear interest after it is made.

"Where the condemning party is required to procure condem-
nation of and pay for the property prior to actual appropria-
tion or use of it, he is in fault, and a trespasser, if he take
possession without first acquiring the right. By such delay in
instituting proceedings, he incurs the hazard of paying an en-
hanced price, as of the date of the assessment, in those states

iCook V. South Park C!om. 61 ni. R. Co. 105 Mass. 803; Whitman v.

115. Boston, etc. R. R. Co. 7 Allen, 313;

2 Warren v. First Division, etc. R. Atlantic, etc. R. R. Co. v. Koblentz,
R. Co. supra. 21 Ohio St. 334. Where a jury re-

3 Concord R. R. v. Greeley, 23 N. turned a verdict in which they as-
H. 337. sessed the damages at a certain sum

* Shattuck V. Wilton R. R. Co. 28 " with interest thereon from the

N. H. 369. time when the said railroad com-

sGay v. Gardiner,- 54 Me. 447; pany took possession of the land,"

Bangor, etc. R. R. Co. v. McComb, it was held void for uncertainty.

61) Me. 290; Eadder v. Oxford, 116 The Conecticut River, etc. R. R. Co.

Mass. 165; Reed v. Hanover B. R. v. Clapp, 1 Cush. 559.

408 TAKING PEOPEETT FOE PTJBLIO ITSE.

where the value and damages are fixed at that date, or the
charge of interest from the time of taking possession, where
that fact fixes the date of taking. In case of appropriations of
private property for public use, by the state or some municipal
division, compensation is not unfrequently so provided for that
the owner must be the actor to obtain it. Then he must take
the necessary steps to entitle himself to the money, and to
impose the immediate duty to pay it, and until that is done
there can be no such default in making the payment as wiU.
give him a right to interest.^ But if the appropriating party
takes unauthorized possession before payment, and the value
and damages are fixed at the date of such appropriation, a right
to interest arises from such actual taking.^

1 People V. Canal Commissioners, 2 Delaware, etc. E. R. Co. v. Bur-

5 Denio, 401; Norris v. Philadelphia, son, 61 Pa. St. 369; Fiske v. Chester-

70 Pa. St. 334; Philadelphia v. Dyer, field, 14 N. H. 340.
41 Pa. St. 469, 470; Second Street
Harrisburg, 66 Pa. St. 133.

TEESPASS TO PEKSONAL PEOPEBXT. 469

CHAPTEE XVII.

TRESPASS TO PERSONAL PROPERTY.

When damages for, may exceed compensation — What they may include —
Measure of damages for taking or destroying property — Speeial and
consequential damages — Expenses to recover or restore property —
Mitigation of damages — Where the property is applied under legal
process to the owner's benefit — Damages against trespasser from the
beginning.

When damages foe, mat exceed compensation. — jLhe aam-
ages for this wrong are limited to compensation in the absence
of aggravations for which punitory damages are allowable.
"Whether, by the proof adduced, there are such aggravations
shown as will justify the jury in considering a claim for exem-
plary damages, is for the court to decide. If there is testimony
tending to show, and warranting a finding, that the trespass was
wanton or malicious, the court will submit the question of the
allowance of such damages, and if allowed, the amount of them,
to the jury.' When the allowance of such damages has been
submitted to the jury, the amount which they may think proper
to allow will be accepted by the court, unless so exorbitant as
to indicate that they have been influenced by passion, prejudice
or a perverted judgment.^

"What they mat include. — Trespass is a wrong committed
with force, actual or constructive ; it is more or less aggressive ;
therefore, the damages necessary to complete compensation
usually include reparation for pecuniary items capable of clear
proof and precise computation, and may include reparation for
other injuries, equally deserving recompense, and which cannot
be proved with certainty, nor estimated by any precise stand-
ard, and possibly by no money standard. The former must be

iSelden v. Cushman, 30 Cal. 56; 2 Rogers v. Henry, 33 "Wis. 337;

Ives V. Humphreys, 1 E. D. Smith, Belknap v. Boston, etc. R. R. Co. 49

196; Pacific Ins. Co. v. Conard, N. H. .358; McCarthy v. Wiskern, 23

Baldw. 138; Moore r. Schattz, 31 Minn. 90; McConnell v. Hampton,

Md. 423; Rose v. Stoiy, 1 Pa. St. 190; 13 John. 334.
Wylie V. Smitherman, 8 Ired. 336.

4:70 TEESPASS TO PEESONAL PEOPEETY.

proved in actions for trespass as in any other action, and if,
when they are compensated, the plaintiff has adequate redress
for the wrong he has suffered, they constitute the basis of his
entire, recovery, and are the measure of damages ; in other words,
where from the nature and circumstances of the case a rale can
be discovei^d by which adequate compensation can be accu-
rately measured, such rule should be applied in actions of tort
as well as in those upon contract.^ If such rule exist as to a
part of the damages only, it is available and obligatory to that
extent. And if the wrong produce other injury also, not capa-
ble of such certain proof and pecuniary estimate, it is not neces-
sarily excluded from the consideration of the jury. If the
general facts can be proved, they will be submitted to the jury
for a finding of compensation according to their best judgment.^
But they must tend to establish a damage in legal contempla-
tion ; that is to say, a recoverable damage according to the ele-
mentary requisites which have been considered at large in
another place ; a damage which is the natural and proximate
consequence of the trespass; and of a nature susceptible of
appreciation upon practicable proof, — neither remote nor spec-
ulative. In this action, as in all others, where no proof laying
ground for exemplary damages is given, compensation to the
plaintiff for his loss is the general rule of damages.'

In this action, the possessor of a chattel may recover in
respect of the taking and its circumstances ; not only for any
actual loss or injury suffered therefrom, but also some damages,
not necessarily nominal, even if no real injury ensue from the
taking, and the property is not removed, nor the plaintiff's en-
joyment materially interfered with. In this respect the action
of trespass reaches an element of the wrong which would be
waived in trover.* "Where the taking of property was attended
with injurious aggravations, it was held that a plea which
alleged an assignment in bankruptcy after the commencement
of the suit by which the right to recover for the property taken

1 Allison V. Chandler, 11 Mich. s Hopple v. Higbe?, 33 N. J. L. 343.
543; Warren v. Cole, 15 Mioh. 365; * Hite v. Long, 6 Rand. 457; Bay-
Gilbert V. Kennedy, 23 Mich. 117. liss v. Fisher, 7 Bing. 153; Madan

2 Id.; Ogden v. Lucas, 48 111. 492; Doss v. Gokul Doss, 14 W. E. 59;

Dennison v. Hyde, 6 Conn. 507. Chamberlain v. Shaw, 18 Pick. 219.

TEESPA8S TO PERSONAL PEOPEETT. 471

passed to the assignee, was not an answer to the whole action ;
that the plaintiff stiU had a right to recover in respect of the
taking.!

Where the taking diminishes the value by severing fixtures,
their value in place, rather than as chattels severed, may
be recovered.^ "Where a plank sidewalk was wrongfully re-
moved, the owner was held entitled to recover not merely the
value of the plank, but their value laid in the walk.' In trover
■ the plaintiff could recover only the value of iixtures as mere
chattels.*

In this action the plaintiff is entitled to give evidence, for
the purpose of enhancing damages, of the circumstances which
accompanied and give character to the wrong, and to show
any inconvenience, iiftult or injury attending it, or resulting
therefrom.'' The defendant, by artifice, obtained entrance into
the plaintiff's dwelling house, and thence removed furniture
lately sold and delivered, because it had not been paid for ; and
the court said the pecuniary loss to the plaintiff is not necessa-
rily the rule of damages. The jury are to determine the
extent of th& injury, and the equivalent damages, in view of
all the circumstances of injury,, insult, invasion of the privacy
and interference with the comfort of the plaintiff and his fam-
ily." The circumstances attending the trespass are thus allowed
to be proved, with a view to compensation for general as well
as special damages ; and also to show the evil motive, if such
there ibe, with a view to exemplary damages. "Where the tres-
pass is committed in a wanton, rude and aggravated manner,
indicating malice, or a desire to injure, " a jury," said l^aldwin,
J., in a charge afterwards approve4 by the federal court of
last resort, " ought to be liberal in compensating the party in-
jured for all he has lost in property, in expenses for the recov-
ery of his rights, in feelings, or in reputation ; and even this

1 Brewer v. De-w:, 11 M. & "W. 635. < Clarke v. Halford, 3 C. & K. 540.
See Gregory t. Cotterell, 1 E. & B. 5 Bracegirdle v. Orf ord, 2 M. & S.
360. 77; Sniveley v. Falmestook, 18 Md.

2 Moore v. .Drinkwater, 1 Fost. & 391.

Fin. 144; Thompson v. Pettitt, 10 Q. ^ Ives v. Humphreys, 1 E. D.
B. 101. Smith, 196.

SEogers v. Randall, 39 Mich. 41.

472 TEESPASS TO PEKSONAL PEOPEETT.

may be extended by setting a public example to prevent a
repetition of the act. In such cases there is no certain fixed
standard, for the jury may not only take into view what is
due to the party complaining, but to the public, inflicting what
are called in law speculative, exemplary or vindictive dam-
ages." ^ The defendant, in the wrongful act of taking the
goods, used language which wounded the owner's feelings; it
was allowed to be proved, and considered as one of the circum-
stances accompanying and giving character to the trespass, for
the purpose of increasing the damages for "the malice and in-
sult.^ Exemplary damages are not allowable in an action based
on a trespass, which, though unlawful, was not malicious ; mal-
ice is not implied from the mere unlawf uhiess of the act.'

"Where the plaintiff complains of no injury to his person
or his feelings ; where no malice is shown ; where no right is
involved beyond a mere question of property ; where there is
a clear standard for the measure of damages, and no difficulty
in applying it, the measure of damages is a question of law,
and is necessarily under the control of the court.* Such dam-
ages are the same in all actions ; they do not depend on the
form of the action, and are not affected by it.^ Where the
trespass is not accompanied by any circumstances tending to
aggravate the wrong, and sufficient to justify exemplary dam-
ages, the law applies in all cases the same uniform measure of
relief, for property taken or injured."

Measure of damages foe taking oe desteoting peopeett. —
For the asportation or destruction of his personal property so
that the owner is wholly deprived of it, he is entitled to

1 Pacific Ins. Co. V. Conard, Bald w. 2 Treat v. Barber, 7 Conn. 279;

138; affirmed, 6 Pet. 262. Johnson Bracegirdle v. Orford, 2 M. & S. 77;

V. Camp, 51 111. 219, decides that Edwards v. Beach, S.Day, 44; Nich-

where a party takes away a crop, ols v. Bronson, 3 Day, 211; Linsley

raised and harvested by another, v. BushneU, 15 Conn. 225.

stacked upon premises the taker had ' Brown v. AUen, 35 Iowa, 306.

bought at a foreclosure sale, he is a * Berry v. Vreeland, 21 N. J. L.

trespasser, and as he is chargeable 187.

with a knowledge in law that he SMcInvoy v. Dyer, 47 Pa. St.

did not acquire the crop by his pur- 118.

chase, he was liable to punitory ^Dorsey v, Manlove, 14 Cal. 553.
damages.

TEESPASS TO PEESONAL PEOPEETT. 473

recover its value at the time of the trespass, and interest from
that time. This is a minimum measure of damages for an
entire loss of the property. For any injury to it there is a
right to a proportional recovery.' Interest is not always men-
tioned in the cases as part of the rule, and is perhaps not
always intended. In England, and to some extent in this
country, it is left to the discretion of the jury ; and they have
been allowed to decide whether the value should be fixed at
the date of the taking or conversion, or at some later date
before or at the time of the trial. ^

The value a party is entitled to recover depends on the
quantity of the interest he possesses or represents in the prop-
erty which was the subject of the trespass. The plaintiff must
have the actual possession, or a present right of possession when
the trespass Avas committed, in order to maintain this action.'
The person in whom the general property is vested may main-
tain an action against a stranger, although he has never had
the possession in 'fact, because the general property draws
after it the right of possession.^ One having the actual pos-

1 State V. Smith, 31 Mo. 566; ston, 74 HI. 83, was for killing ani-
Walker v. Borland, 31 Mo. 289; Grray mals on a railroad. The trial court
T. Stevens, 28 Vt. 1; Clapp v. instructed the jury to add interest
Thomas, 7 Allen, 188; Coolidge v. to the sum they should find as the
Choate, 11 Met. 79; Garretson v. value of the property from the date
Brown, 26 N. J. L. 435; Campbell v. of the kUUng. This was held error,
Woodworth, 36 Barb. 648; Dorsey and the jury having found interest,
V. Manlove, 14 Cal. 558; Gilson v. the judgment was reversed. The

. Wood, 20 ni. 37; Josey v. Wilmiug- court say, in such cases the dam-
ton, etc. E. E. Co. 11 Eich. (S. C. L.) ages must be compensatory only,
399; Thomas v. Isett, 1 O. Greene, unless circumstances of aggravation
470; Scott V. Bryson, 74 111. 430; are shown.

Brannim v. Johnson, 19 Me. 361; 'Scott v. Bryson, 74 111. 430; Neely

iConard v. Pacific Ins. Co. 6 Pet. 363; v. McCormick, 25 Pa. St. 255; Wilson

Pacific Ins. Co. v. Conard, Baldw. v. Martin, 40 N. H. 88; Hume v.

138; Kennedy v. Whitwell, 4 Pick. Tufts, 6 Blaokf. 136; Witzelv. MaiT,

466; Lillard v. Whittaker, 3 Bibb, 93; 46 Pa. St. 463; Muggridge v. Evileth,

Watts V. Potter, 3 Mason, 77; Dil- 9 Met. 233; Codman v. Fi-eeman, 3

lenback V. Jerome, 7 Cow. 294; In- Cush. 306; Brown v. Thomas, 26 Miss,

gram v. Eankin, 47 Wis. 406; Baker 335; Howe v. Farrar, 44 Me. 233;

V. Drake, 53 N. Y. 211; Briscoe v. Aikin v. Buck, 1 Wend. 466.

McElween, 43 Miss. 556. 4 Beaty v. Gibbons, 16 East, 116;

2 Greening V. Wilkinson, 1 C. & P. Bro. Abr. Trespass, pi. 803, 346;
635. Toledo, etc. E. E. Co. v. John- 1 Add. on Torts, If 524.

4:74 TRESPASS TO PEESONAL PEOPEETT.

session, as by finding,' or for a temporary purpose, as bailee or
mortgagee,^ or has any other special property with possession,'
may not only bring this action against a stranger who has taken
possession without color of right, but may recover the fuU
value of the property. And though the plaintiff's possession
be tortious as to the true owner, he may recover against a
stranger who divests such possession.* Such persons being
bound to restore the property to the general owner, or to stand
responsible to him for its full value, have the right to recover
by that measure from the stranger who has wrongfully de-
prived them of it.'

The general owner of property, in the hands of a bailee at
the time of the taking, may also maintain trespass if he has a
present right to resume possession by the terms of the bailment,
or in consequence of the wrongful act of the bailee or of the
defendant.* In either case, only one recovery can be had;
whether the action is brought by the special or general owner, the
recovery of full value by him ousts the other of his right of
action; otherwise the trespasser would be liable to make a
second satisfaction for the injury.' One tenant in common
is not under such ulterior responsibility to his co-tenant, as
special owners are to the general owner, and therefore his
recovery will be limited to his interest.'

"Where the action is between the general and special owner
directly, or between others claiming under or in privity with

lAmory V. Delamirie, 1 Str. 504. ^ Scott v. Bryson, 74 111. 430;,

SBrowning v. Skellman, 34 N. J.' McOlure v. HiU, 36 Ark. 268; Hoyt"

L. 351; Swire v. Leach, 18 0. B. N. v. Glisten, 13 John. 141; Hendricks

S. 479; Heydon and Smith's Case, 13 v. Decker, 35 Barb. 298; Brown v.

Coke, 69; Burton v.Hnghes, 9 Moore, Wai-e, 25 Me. 411; Potter v. Wash-

339; Sutton v. Buck, 3 Taunt. 307; burn, 13 Vt. 558; Carson v. Prater, 6

Lyle V. Barker, 5 Bin. 457; White v. Cold. 565; Criner v. Pike, 3 Head,

"Webb, 15 Conn. 303; Harker v. De- 398; Fletcher v. Cole, 26 Vt. 170.

ment, 9 GiU, 7; Faulkner V. Brown, 5 Harker v. Dement, 9 GiU, 7;

13 Wend. 63; Outoalt v. Darling, 35 Story on Baihn. § 280.

N. J. L. 448; UUman v. Barnard, 7 61 Add. on Torts, If 534; Scott v.

Gray, 554; Burke v. Savage, 13 Newington, 1 M. & Rob. 253.

Allen, 408; Adams v. O'Connor, 100 'Luae v. Jones, 89 N. J. L. 707.

Mass. 515; Jones v. McNeil, 3 Bailey, * Sedgworth v. Overend, 7 T. R.

466; Alt V. Weidenburg, 6 Bosw. 176. 379; Harker v. Dement, supra.
3Luse V. Jones, 39 N. J. L. 707.

TEESPA8S TO PEESONAL PEOPEETT.

475

them ; between a plaintiff having a qualified interest and a de-
fendant who owns the residue, or has an interest in or a charge
upon it, the damages will be limited by the value of the plaint-
ifif's interest.!

If the property of which the owner is deprived is a market-
able commodity, its market value is the value he is entitled to
recover.^ And this price will govern though the property
would have been worth more to the plaintiff by reason of a
particular contract he had entered into.' It is held that the
retail price is not the measure of value. "Where a quantity of
merchandise is sued for, the retail price would be unjust ; for
the merchant, in fixing the retail pricej takes into consideration
not only the first cost of the goods, but store rent, clerk hire.

iBi-ierly V. KendaU, 17 Q. B. 937;
Huntley v. Baoon, 15 Conn. 367;
Chamberlain v. Shaw, 18 Pick. 279;
Schindel v. Schindel, 13 Md. 108;
Goulet V. Asseler, 33 N. Y. 335; Par-
ish V. Wheeler, 33 N. Y. 494;
Davidson v. Gunsally, 1 Mich. 388;
Treadwell v. Davis, ,34 Cal. 601;
Spicer V. Waters, 65 Barb. 327; Ward
V. Henry, 15 Wis. 339. In Noble v.
Kelly, 40 N. Y. 415, a sheriff with
three executions in his hands of dif-
ferent dates, against one K, levied
on and seized at one time, and by a
single act, certain gold coin of the
value of $1,000, the property of N.
N brought suit against him, in the
nature of trespass, naming him as
sheriff, and alleging the wrongful
seizure to have been by him claim-
ing *to act as sheriff, " and under
color of several pretended execu-
tions." The sheriff justified under
the -executions against K, setting
them forth particularly. Before the
trial, N executed to the sheriff a re-
lease, under seal, reciting a consid-
eration of ten dollars, i-eleasing him
as sheriff from aU manner of action
and actions, causes of action, suits,
sums of money, trespasses, dam-

ages, claims and -demands, whatso-
ever, he ever had, then had, or might
have, "by reason, on account, or in
consequence of any, or all and every,
of his acts and proceedings under
and by virtue, or in consequence of
the issuance and delivery to him of
an execution," describing one of the
executions in the sheriff's hands at
the time of the levy. This release
being pleaded by supplemental an-
swer, as a bar to the action, and a
release of the whole cause of action,
the court held it was neither; but
operated only as a release of the
damages sustained by the plaintiff
to the amount of the execution
specified; and that the plaintiff was
nevertheless entitled to recover as
damages the value of the coin seized,
after deducting the amount so cov-
ered by the release.

2 Coolidge V. Choate, 11 Met. 79;
Gardner v. Field, 1 Gray, 151; Bro-wn
V. Allen, 35 Iowa, 806; Suydam v.
Jenkins, 3 Sandf. 630; State v. Smith,
31 Mo. 566.

3 Bro-wn v. Allen, supra; Gardner
v. Field, 1 Gray, 151. But see Gau-
det V. France, L. E. 6 Q. B. 199.

476 TEESPASS TO PEESONAl PEOPEETT.

insurance, and probable amount of bad debts, and adds to all
this a percentage of profit.^ This must be understood of a
considerable quantity, not of a single article. The owner must
be entitled to recover at such rate as he would have to pay in
the nearest market where a like quantity could be bought, to
replace the property taken.^ The injury done by the taking of
the plaintiff's property may be enhanced by depriving him of
the opportunity or ability to make profits; an established
business may thus be destroyed. If he is able to show gains
thus prevented with the requisite certainty, he is entitled to
compensation for them.'

Where the property is not marketable, its value must be as-
certained by such proof as the nature of the case admits of.
One criterion of damage may be its actual value to him who
owns it; and this is the rule where it is chiefly or exclusively
valuable to him. Such articles as family pictures, plate and
heirlooms, should be valued with reasonable consideration of,
and sympathy with, the feelings of the owner.* "Where the
portrait of the owner's father was lost by the negligence of the
carrier, this rule was applied by the court, adding that in its
application the jury should take into account its cost, the prac-
ticability and expense of replacing it, and such other considerar
tions as in the particular case affect its value to the owner.*
The testimony of the plaintiff, that he had no other portrait

1 State V. Smith, 31 Mo. 566; But- retail merchant of fancy goods, and
ler V. Collins, 13 Cal. 457; Night- her business was thus entirely
ingale v. Scannell, 18 Oal. 315. broken up. The attachment was

2 Cassia v. Marshall, 18 Cal. 689; set aside and trespass brought for
Waters v. Langdon, 16 Vt. 570; the goods. It was held that the
Star key V. Kelley, 50 N. Y. 677. plaintiflE was entitled "to recover

3 Thomas v. Isett, 1 G. Greene, as part of her damages the fair re-
470; Freidenheit v. Edmundson, 36 tail value of her goods unlawfully
Mo. 236; Allred v. Bray, 41 Mo. 484; taken." Reynolds, C, for the court,
Milburn v. Beach, 14 Mo. 104; Luse remarked: " That was the nature of
V. Jones, 39 N. J. L. 707; Strasberger her business as a merchant, and the
V. Barber, 38 Md. 103; Davenport v. goods were, doubtless, purchased
Ledger, 80 lU. 574; Oviate v. Pond, with reference to it." SeeWehlev.
29 Conn. 479. In Wehle v. Butler, Haviland, 69 N. Y. 448.

61 N. Y. 245, on an irregular attach- i Suydam v. Jenkins, 3 Sandf. 630;

ment, the party therein named as Spicer v. "Waters, 65 Barb. 227.

creditor caused a stock of goods to 5 Green v. Boston, etc. E. B. Co.

be seized; they were the stock of a 138 Mass. 331.

TEBSPAS8 TO PEESONAL PEOPEETT. 477

of his father, was held to bear on the question of the actual
value to him, and was competent. In an action for conversion
of plates for printing labels and advertisements of great value
to the owner, but of very trifling value to others, the measure
of damages was held to be the value to him ; and that in esti-
mating this, the cost of replacing the plates might be consid-
ered.i Where trespass was brought for destroying a picture on
exhibition, and it appeared that it was libelous to the defend-
ant and his sister, under the general issue, the plaintiff was
only allowed to recover for the canvas and paint. Lord EUen-
borough held that, because it was libelous, it could not be
valued as a work of art.^ The recovery measured by the value
and interest is not peculiar to trespass, and requires no further
elucidation in this connection.'

Special ajstd coitseqtjential damages. — The value and inter-
est are not always a compensation for the injury ; as, if one
take from his neighbor the beasts of the plow in seed time, or
the implements of husbandry in harvest, whereby he is pre-
vented from sowing his seed or reaping his corn, it is obvious
that the value of the thing taken may be the smallest part of
the injury.* "Where a plaintiff owned a fishery and net on a
river; had men employed to assist him in fishing; and while
his net was out in the river the defendant ran his vessel through
and injured it so as to delay his use of it, it was held that in
addition to the damage to the net, the plaintiff was entitled to
show these facts, and also the facts concerning the running of
shad and the number caught on the preceding day, with a view
to compensation for the loss of the benefits of the use. " The
whole loss sustained," say the court, " is to be taken into view ;
and this depends on its use, its profits, the particular season or
time, or occasion of the injury done ; and the benefits or ad-
vantages lost .thereby. And if so, all these must necessarily be
proved, and submitted to the consideration of the jury." ' The
defendant stopped the plaintiff's team and took out one horse,

iStickney v. AUen, 10 Gray, 353. « WooUey v. Carter, 7 N. J. L. 85.

2DuBost V. Beresford, 3 Camp. 'Post v. Munn, 4 N. J. L. 61;

511. Sniveley v. Fahnestock, 18 Md.

'See Vol. I, pp. 173, 174. 391.

^78 TRESPASS TO PERSONAL PEOPERTT.

thereby not only depriving him of the service of that animal,
but subjecting him to delay and trouble in respect to the others
in the team, and his journey. The court held that in this
action he could recover not only for the force and breach of
the peace, but for stopping his team in order to take the horse.'
In estimating the damages for a wrongful seizure of the furni-
ture of a boarding house, it has been held proper to prove that
there were guests in the house, and that applicants for board
had to be turned away before, with reasonable diligence, the
house could be refurnished, with a view to showing annoyance
and injury to business to increase damages.^

The defendant will be liable for such consequential damages,
resulting from his interference with the plaintiflf's property, as
might reasonably be expected by the defendant in the usual and
natural course of things to ensue from his act, whether his in-
terference be to take and carry away, or to injure or destroy it.'
"Where a horse was injured by a collision, the damage was held
to include the diminution of. his market value, sums paid, and
the value of services performed, in a reasonable attempt to cur©
him ; the loss of the use while the horse was under treatment,
altogether not exceeding the value of the horse.* But the hire
of another horse in the meantime cannot be included.' N"o al-
lowance can be made for the expenses of the litigation to pro-
cure redress for the injuiy by trespass beyond taxable costs;
they are regarded as full compensation.* Such expenses cannot

1 Shaf er v. Smith, 7 Har. & J. 67. 6 Greenfield Bank v. Leavitt, 17

2Luse V. Jones, 39 N. J. L. 707; Pick. 1; Falk v. Waterman, 49 Cal.

Davenport v. Ledger, 80 111. 574. 224; St. Peter's Church v. Beach, 26

3See Vol. I, p. 71. McAfee v. Conn. 355; Fairbanks v. Witter, 18

CrofEord, 13 How. U. S. 447; John- Wis. 287; Park v. McDaniels, 37Vt.

son v. Courts, 3 Har. & McHen. 510; 594; Barnard v. Poor, 21 Pick. 378;

Oleson V. Brown, 41 Wis. 413; Me- Eutland, etc. R. »E. Co. v. Bank of

tallio, etc. Co. V. FitchburgR. R. Co. M. 32 Vt. 639; Kelly v. Rogers, 21

109 Mass. 277; Bishop v. WiUiamson, Minn. 146; Harris v. Eldred, 43 Vt.

11 Me. 495; Atchison v. Steamboat, 39; Earl y. Tupper, 45 Vt. 375; Good

14 Mo. 63. Y. Mylin, 8 Pa. St. 51; HoweU v.

<Gillett V. Western R. R. Co. 8 Scoggins, 48 Cal. 355; Stopp v.

Allen, 560. Smith, 71 Pa. St. 385; Hatch y. Hart,

5 Hughes Y. Quenten, 8 C. & P. 2 Mich. 289; Warren v. Cole, 15

708; Barrows Y. Amaud, 8 Q; B. 595; Mich. 265. In Harris y. Eldred, su-

Edwards v. Beebe, 48 Barb. 106. pra, the owner of property which

TRESPASS TO PEESONAL PEOPEETT.

479

be allowed even in cases where exemplary damages may be
assessed ; ' but it is otherwise in some of the states.^

In an early Connecticut case, trespass was brought for carry-
ing away a spar which the plaintiff had procured to be used as
a mast for a vessel he was building. The fact of the taking of
the spar having been established, the plaintiff offered to prove,
in aggravation of damages, that he was building a cutter, and
had procured the spar for her mast; that there was no other
spar on Connecticut river suitable for such purpose, and that
these facts were known to the defendant ; that the taking was
malicious, and with intent to obstruct the plaintiff, and he was
obstructed and delayed in the building for several months.
The evidence was rejected, and this was held error, and Smith,
J., remarked, speaking for the court : " In actions founded on
tort, the first object of the jury should be to remunerate the
injured party for all the real damage he has sustained. In
doing this the value of the article taken or destroyed forms

had been wrongfully taken from
him, sought, in an action for the
tort, to recover, am.ong other dam-
ages, the expenses of a legal pro-
ceeding in New York, by which he
regained possession. They were dis-
allowed; not on the assumption that
they were recovered or recoverable
in the suit in New York. They
were deemed not allowable equally
whether the laws of New York pro-
vided for costs to the prevailing
party in such proceedings or not;
because the costs of another action
are not allowable. It is difficult to
reconcile the reasoning on which
this conclusion was reached with
the doctrine of Greenfield Bank .v.
Leavitt, supra. That case recog-
nizes the right of the injured party
to employ judicious agencies to re-
cover his property, and to recover
the expenses in an action for the
wrongful taking. The law is settled
in favor of their allowance. Why
discriminate against the expenses of

a judicious and appropriate proceed-
ing in court to obtain possession, if
they are not measurable by taxa-
tion and to be collected as costs in
that proceeding ?

1 Falk V. Waterman, 49 Cal. 234;
Earl V. Tupper, 45 Vt. 275; Howell
V. Scoggins, 48 Cal. 355.

2 Dibble v. Morris, 26 Conn. 416;
Seeman v. Feeney, 19 Minn. 79; Ti-
tus V. Corkins, 21 Kans. 722; Roberts
V. Mason, 10 Ohio St. 277; MarshaU
V. Bitner, 17 Ala. 833; Bracken v.
Neill, 15 Tex. 109; New Orleans, etc.
R. R. Co. V. AUbritton, 88 Miss. 243;
Thompson v. Powning, 15 Nev. 210.
The code of Georgia, § 2942, pro-
vides that the expenses of litiga-
tion are not generally allowed as
part of the damages; but if the de-
fendant has acted in bad faith or
has been stubbornly litigious, or has
caused the plaintiff unnecessary
trouble and expense, the jury may
allow them. Guernsey v. SheiUman,
59 Ga. 797.

480

TEESPASa TO PEESONAL PEOPEETT.

one item ; there may be others ; and in this case I think there
were others. The interruption and delay which occurred in
the building of a cutter might be, and probably was, a serious
injury; and to show that this interruption and delay was a
necessary consequence of the trespass, it was proper to prove
that no other mast could be procured on the river ; for if it
had been an article easily to be obtained, and like many
others could be procured at any time in the market, no such
interruption or delay could be attributed to the taking of it.
. . .1 have no doubt that the damages claimed in this
case were sufficiently immediate. If a man should with force
take the horse of another, while from home on a journey, the
interruption of the journey, and the delay occasioned by it,
would not be too remote to be assessed by way of damages.
I can see no difference between that case and many others of
the same sort which might be put, if further illustrations were
necessary, and the present. The damage is the natural, and
necessary consequence of the trespass and cannot be attributed
essentially to any other cause." '

Expenses to eecovee oe eestoeb the peopeett. — If the
owner regains possession, or the property is restored to and
accepted by him, it wiU go in mitigation ; then his claim for
damages will be for the taking and detention.^ The owner
may reasonably exert himself to recapture his property.' He
is entitled to compensation for such exertions, and also for
moneys expended for the same purpose in a judicious and
reasonable manner — in necessary purchases of the property,*
in satisfying charges thereon,' or in offering and paying a
reasonable reward for its return.'

1 Churchill v. Watson, 5 Day, 140
McAfee v. Crofford, 13 How. IT. S,
447.

SEeynolds v. Shaler, 5 Cow. 336:
Murray v. Burling, 10 John. 173
Walker v. Fuller, 39 Ark. 448; Jones
V. McNeil, 3 Bailey, 466; Barrelett v,
Bengard, 71 LI. 380; Hanmer v.
Wilsey, 17 Wend. 91; Coffin v. Field
7 Cush. 355; Kaley v. Shed, 10 Met,
317; Clapp v. Thomas, 7 Alien, 188,

'Bennett v. Lockwood, 30 Wend.
333.

«Keene v. Dilke, 4 Exch. 388.

sWoodham v. Gelston, 1 John.
134; Beadle v. Whitlock, 64 Barb.
387.

6 Greenfield Bank v. Leavitt, 17
Pick. 1. In this case it was held
that if return of the property is
obtained by the offer and payment
of a reasonable reward, this amount,

TRESPASS TO PEESONAL PKOPKETY. 48 1

Mitigation op damages. — Any appropriation of the property
or its proceeds by the owner, after the tortious taking, is equiv-
alent to a return to the extent that the owner thus gets the
benefit of it. Whatever such benefit, it goes in mitigation. If
returned at a different place, the loss in value on that account
must be compensated.' So if in consequence of the defendant's
wrong a sale must be made, the net proceeds are deducted by
way of mitigation.' And if the owner purchase the property at
a sale made by the defendant, or from his vendee, at less than its
value, the amount paid on such purchase, instead of the value, will
be considered in the estimate of damages,' and the application
of the amount paid by him on a judgment against himwill make
no difference with the measure of damages, for the seizure and
sale being wrongful, his purchase is not a consent to such appli-
cation.^ One whose property was wrongfully taken from him
replevied it ; but being nonsuited in the replevin suit, the statu-
tory judgment which the defendant in that action was entitled
to claim was rendered against him for the value of the prop-
erty. He thereupon sued in trespass for the taking of the
property ; and it was held that he was entitled to recover in this
suit not only for the detention of the property while the defend-
ant had it, but also its value as assessed in favor of the defendattfe
in the replevin suit.^

with interest from the time of pay- damage. Murray v. Burling, 10 '
ment, is to be deducted from^ the > John. 176. As where one take* an-

mitigating value of the property other's horse and leaves him at an

restored. And the court say: "It inn, and the owner reclaims him,

is well settled, that if property for subject to the charge for his keep-

which an action is brought should ing. The damages are for the in-

be returned to, and received by, the jury suffered, notwithstanding the

plaintiff, it shall go in mitigation owner has regained his property."
of damages. But if it become sub- i Bates v. Clark, 95 U. S. 204; Den-

jected to a charge after the conver- nison v. Hyde, 6 Conn. 507.
sion, and before it was returned; 2 Pacific Ins. Co. v. Oonard, Bald,

if, for example, the conversion 137; affirmed, 6 Pet. 363.
were of a watch, which the defend- ' Sprague v. Brown, 40 Wis. 613;

ant threw into a well, and the Parham v. McMurray, 33 Ark. 361;

plaintiff hired a man to descend Baker v. Freeman, 9 Wend. 336;

into the well and get it, the expense Hurlburt v. Green, 41 Vt. 490.
of reclaiming it should be deducted * Parham v. McMurray, supra,
from the value when returned. It ^Havilandv. Parker,. 11, Mich. 103.
is the charge which regulates the
Vol. Ill— 31

4S2 TEESPASS TO I'EESONAL PBOPERTY.

Where the property is valuable for use while in the defend-
ant's possession, interest is not necessarily the compensation for
the detention ; the owner may recover what the use was worth.
The owner is entitled to compensation for the value of such use.'
If the defendant has mads a profitable use of it, he should not
have any benefit from his own wrong, but that profit should
inure to the owner.^ The return of the property, in whatever
way it occurs, only goes in mitigation. This goes no further
than such return operates to place the injured party in as good
condition as before the trespass was committed. If the prop-
erty has been injured in the taking, or while in the defendant's
possession, or its market value lias declined, the loss falls on the
trespasser.' '

Wheee the peopeett taken is applied undee legal peocess
TO ownee's benefit. — The wrongdoer is entitled to no deduc-
tion from the damages for applying the property or its proceeds
to the owner's benefit without his consent, unless by execution
of valid legal process or authority. In that case it is said
his consent is implied. It would probably be quite as correct
to say that in that instance his consent is unnecessary. The law
has intervened and disposed of the property ; and having right-
fully appropriated it to paj' a debt of the owner, he has recov-
ered satisfaction for its value, and ought not again to recover
the same value.* If after the wrongful taking the property be
seized to pay the owner's tax or debt, and is so applied, that
application of it will inure to the benefit of the tortious taker
in mitigation of damages.^ This is the general doctrine, and

lEwing V. Blount, 20 Ala. 694; Lucas v. Trumbull, 15 Gray, 306;

Post V. Munn, 4 N. J. L. 61; Farrell Belano v. Curtis, 7 Allen, 470; Per-

V. Colwell, 30 N. J. L. 123. ham v. Coney, 117 Mass. 103; Perkins

2Suydamv. Jenkins, 3 SaudC. 620; v. Freeman, 26 111. 477; Hallett v.

Beadle v. Whitlock, 64 Barb. 287. Novion, 14 John. 273: Cook v. Har-

3 Lucas V. Trumbull, 15 Gray, 308; tie, 8 C. & P. 568; Curtis v. Ward, 20
Ewing V. Blount, 20 Ala. 694; Conn. 204; Burn v. Morris, 3 Cr. &
Perham v. Coney, 117 Mass. 103; M. 579; Hepburn v. Sewell, 5 Har. &
Ban-elett V. Bengard, 71 III. 280; Mo- J. 211; Doolittle v. McCuUough, 7
Invoy V. Dye, 47 Pa. St. 118. Ohio St. 299; Cook v. Loomis, 26

4 Bates V. Courtwright, 36 m. 518. Conn. 483; Sprague v. Brown, 40
sDailey v. Crowley, 5 Lans. 301; Wis. 612; Johannesson v. Borschse-

Pierce v. Benjamin, 14 Pick. 856; nius, 35 Wis. 131; Cooper v. New-

TRESPASS TO PERSONAL PROPERTT. 483

applies whether the process on which the property is disposed
of is for the satisfaction of a debt due the wrongdoer himself
or a third person. But an important exception is made in New
York, Michigan, and perhaps Maryland. The wrongdoer can-
not there, as the law is also in England, avail himself, by way
of mitigation of damages, of any appropriation to the owner's
benefit, by seizure under legal process or otherwise, without his
consent, where the process or appropriation is procured for the
wrongdoer's benefit or for his debt, or by his agency or procure-
ment for the debt of any other person.*

Damages against trespasser from the beginning. — Void
process, or any legal authority abused in the taking or subse-
quent treatment of the property, will not only afford no justi-
fication to the party acting under it, but he will be precluded
by his -wrongful action from setting up any application of the
property or money, so obtained, to the owner's benefit, without
his consent, by way of mitigation of damages. Thus, in tres-
pass for taking goods under process upon a regular judgment,
but in a place to which the process did not run, the owner was
permitted to recover the whole value, and not merely the dam-
age sustained by the taking in a wrong place.^ In another
case, the defendant, who was landlord to the plaintiff, had, in
order to make a distress, forcibly and illegally entered the de-
mised premises, and there seized the latter's goods. It was held
that the plaintiff was entitled to recover the full value, and not
that value minus the rent.' Cockburn, 0. J., said : " It must
be taken that if a man under color of legal authority, as in the
case of distress for rent, does that which makes him a trespasser
db initio, he is in the same position as a stranger, who, without

man, 45 N. H. 339; Stewart v. Martin, "Wehle v. Haviland, 43 How. Pr. 899;

16 Vt. 397; Montgomery v. Wilson, Wanamaker v. Bower, 36 Md. 42.

48 Vt. 616. See ante, p. 581. See Edmundson v. Nuttall, 7 C. B.

1 "Wehle V. Butlfer, 61 N. Y. 345; N. 8. 380; Swire v. Leach, 18 C. B.

Ball V. Liney, 48 N. Y. 6; Otis v. N. S. 479. See post, pp. 531-537.

Jones, 21 Wend. 394; Lyon v. Yates, 2Sewell v. Champion, 6 A. & El.

53 Barb. 337; Perk v. Lemon, 1 Lans. 407.

395; Shen-yv. Schuyler, 2 Hill, 304; 3 Attack v. Bramwell, 3 B. & S.

Higgins V. Whitney, 34 Wend. 379; 530.
Ward V. Benson, 31 How. Pr. 411;

484 TEESPASS TO PERSONAL PEOPEETY.

any legal authority whatever, breaks into a house and seizes the
goods of another. . . . The defendant has taken the plaint-
iff's goods, it may be under color of legal authority, but in
point of law he has taken them, not under a distress, but under
a trespass, and it does not lie in his mouth to say that, by tak-
ing them, and appropriating a part of them in satisfaction of
his rent, he has fro tanto done good to the plaintiff. The man
whose premises are broken into, and whose goods have been
seized, has a right to say, ' Let me be put into the position in
which I stood before your illegal act. I will not accept at your
hands the benefit you say you have done me by it.' " Oromp-
ton, J., was of the same opinion, and thus declared his view of
the law : " A landlord has by law the special privilege of pay-
ing himself his rent by seizing his tenant's goods ; and where
he takes that proceeding in a way not authorized, he becomes
a trespasser from the beginning ; all the acts he does are tres-
passes ; he is a trespasser, not only in entering, but in seizing
and disposing of the goods taken, and the ordinary rule is, that
the injured party shall recover the full value. . . . This
case is a bare tort, under color of which the defendant has
helped himself to the plaintiff's goods, and he has no more right
to put against their value the rent due to him, than he would
to put any other debt. The interest of the tenant was the real
value of the goods ; the plaintiff had no real charge or lien
upon them; and, therefore, that value was the measure of
damages." ^

If a defendant is a trespasser from the beginning, his defense
Avholly fails, and he is liable to pay the same sum in damages
which he would be compelled to pay if he had gone on without
any precept or pretense of authority, and done all the acts
proved upon him.^ But an abuse of process only subjects to a
loss of the protection of that particular process, and of the
rights depending on it. If property is lawfully attached, no

1 White V. Binstead, 76 E. C. L. a trespasser from the beginning, see

303; Gillard v. Brittan, 8 M. & W. note to Barrett v. White, H Am.

575. Compare Chinnery v. Viall, 5 Deo. 365.

H. & N. 288; Mickles v. Miles, 1 ^ Per Green, J., Barrett v. White,

Grant (Pa.), 330. As to -what is such 3 N. H. 310.
an abuse of process as will make one

TEESPASS TO PERSONAL PEOPEETT. 485

abuse of execution will make the officer chargeable as a tres-
passer in making the attachment; and hence the damages
would be assessed on the basis of the attached property being
subject to the lien.' So when a landlord, who had a right to
distrain growing crops, made such a distraint, but subsequently
illegally sold them, and they were harvested and taken away by
the purchaser, his illegal act of sale did not affect his lien, and
as no actual damage resulted from the sale and harvesting, he
was only entitled to nominal damages.^ If the abuse of
authority or process is only an excess as to a separable part of
his action under it, he will be a trespasser from the beginning
only as to that part. Where the defendant drew beer out of
one of several barrels that he had taken, he was a trespasser
only as to that barrel.' And where six looms were inventoried
with other property in a distress for rent,- and the defendant had
no authority to take the looms, it was held that taking them
did not affect his authority in respect to the other property.*

The trespasser may also show in mitigation of damages
that the plaintiff was not the owner of the property taken,
and that after the taking it was reclaimed by the true owner
or has been taken on legal process against him ; ' also that since
the defendant's taking the right of the plaintiff in the property
has ceased.*

The facts and circumstances attending the trespass, as has
already been stated, may always be proved, that the jury may
understand its intrinsic character; to enable the plaintiff to
show aggravations, and bad motive; and to enable the defend-
ant to controvert these; but the defendant, if guilty of the
trespass, is bound to make reparation for the actual injury.
Absence of bad motive and absence of all aggravations cannot
relieve him from making;,full compensation for property taken,
destroyed or injured.'

iHeald v. Sargeant, 15 Vt. 506. 'Squire v. Hollenbeck, 9 Pick.

See Van Brunt v. Schenck, 11 John. 551; Hanson v. Herrick, 100 Mass.

377; Osgood v. Carver, 43 Conn. 34 323.

2 Proudlove v. Twemlow, 1 Cr. & * Id. ; Perry v. Chandler, 3 Cush.
M. 326. 337; Borlander v. Greatry, 36 Cal.

3 Dod V. Monger, 6 Mod. 315. 110; Wannamaker t. Bower, 36
< Harvey v. Pocock, 11 M. & W. Md. 43; Bower v. Dew, 11 M. & W.

740; Keen v. Priest, 4 H. & N. 336; 635; Criner v. Pike, 3 Head, 398.
Eowley v. Rice, 11 Met. 337. ' Harker v. Dement, 9 Gill, 7

486 TRESPASS TO PERSONAL PEOPEETT.

An admission of counsel on the trial of an action of trespass,
that the defendant acted without malice, will preclude the
plaintifif from claiming vindictive damages; and, therefore,
evidence on the part of the defendant in the nature of justifi-
cation of his tortious act is inadmissible by way of mitigation.^
Evidence in respect to the motive by which the defendant was
influenced is only material on the part of the defendant when
it is introduced to repel an attempt hy the plaintiff to recover
exemplary damages.*

iHoyt V. Gelston, 13 John. 141, ^McCanbiev. Davies, 6 East, 538.
561.

CONVEEBION. 48T

CHAPTER XVIIL

CONVERSION.

The action of trover — The general rule of damages — Proof of value —
Interest — When the property converted had to be sold — Where the
property has no market value — Property of fluctuating value — Where
the value of the converted property has been, increased by the defend-
ant— Special and consequential damages — Exemplary damages may
be recovered — For conversion of money securities, stocks, deeds and
other documents — How damages affected by the nature of the plaintiff^s
interest — Mitigation of damages.

The action oe teotek. — The common law action of trover
may be brought against any person who has had in his posses-
sion, by any means whatever, the personal property of another,
and sold or used the same without the consent of the owner ; or
refused to deliver the same when demanded. The injury is
done by the conversion and deprivation of the plaintiif's prop-
erty, and is the gist of the action ; and the statement of the
finding or trover is now immaterial, and not traversable ; and
the fact of conversion does not necessarily import an acquisition
of property by the defendant.^ Lord Mansfield thus defines
the action: " in form it (i. e. the trover) is a fiction; in substa/noe
it is a remedy to recover the value of personal chattels wrong-
fully converted by another to his own use; the form supposes
that the defendant might have come lawfully by it ; and if he
did not, yet by bringing this action the plaintiff waives the
trespass ; no damages are recoverable for the act of taking ; all
must be for the act of converting. This is the tort or mali-
ficmm, and to entitle the plaintiff to recover two things are
necessary; first, property in the plaintiff; secondly, a wrongful
conversion by the defendant." ^ It lies only for proper ty of a
personal nature ; not tangible property only, but all property
of- a personal nature which may be converted ; it lies for paper
representatives of value, choses in action and corporate stock.'

1 1 Chitty PI. 146. ter v. Kuhn, 96 U. S. 87. But see

2 Id.; Cooper V. Chitty, 1 Burr. 31. Sewall v. Lancaster Bank, 17 S. &

sAyres v. French, 41 Conn. 151; E. 285; Neiler v. Kelley, 69 Pa. St.

Payne v. EUiot, 54 Gal. 341 ; McAllis- 403.

48a,

CO^'VEESION,

The action is based upon title ; the plaintiif must be the gen-
eral owner, or have some special property in the subject of the
action; he must have also the actual possession or a right to the
present possession at the time of the conversion.' By recovery
of the value, and satisfaction of the judgment, the title is trans-
ferred to the defendant ; it is then vested in him as of the date
of the conversion.^

The genbkal eule of damages. — The general rule of dam-
ages in England and in this country is the value at the timo
and place of conversion ; and, in this country, at least, interest
is added as matter of law.^ This rule is based on the assump-
tion that the value of the property is beneficiall}'' equal to the
property itself ; and that interest compensates for the delay in

1 Smith V. Plomer, 15 East, 607;
Fairbank v. Phelps, 23 Pick. 535;
Burton v. Tannehill, 6 Blaokf. 470;
Caldwell v. Cowan, 9 Yerg. 363;
Lewis V. Mobley, 4 Dev. & Batt. 333;
Grant v. King, 14 Vt. 367; Ames v.
Palmer, 43 Me. 197; Curd v. Wunder,
5 Ohio St. 92; Thayer v. Hutchinson,
13 Vt. 507; SGreenlf. Ev. §640.

2 Morris v. Robinson, 3 B. & C.
196; Hepburn v. Sewell, 5 Har. & J.
311; Arnold v. Kelly, 4 W. Va. 642;
Osterhout v. Roberts, 8 Cow. 43;
Stirling v. Garritee, 18 Md. 468;
Wright V. Walker, Mart. & Hayw.
167; Brinsraead v. Harrison, L. R. 6
C. P. 584. Settling a trespass, how-
ever, consisting of cutting down
trees, does not have this effect of
transferring the title to the trees
cut. Betts V. Church, 5 John. 348.

^Robinson v. Hartridge, 18 Fla.
501; Spencer v. Vance, 57 Mo. 427;
Cole V. Ross, 9 B. Mon. 393; Spicer
V. Waters, 65 Barb. 237; Briscoe v.
McElween, 43 Miss. 556; Dixon v.
Caldwell, 15 Ohio St. 413; New York
Guaranty, etc. Co. v. Flynn, 65 Barb.
365; Fowler v. Merrill, 11 How. U.
S. 375; Watt v. Potter, 3 Mason, 77;
Polk V. Allen, 19 Mo, 467; Bourne v.

Ashley, 1 Low. 27; Jones v. Allen,
1 Head, 636; Allen v. Dykers, 8 Hill,
593; Lee v. Mathews, 10 Ala. 883;
Moore v. Aldrich, 35 Tex. Sup.
376; Ripley v. Davis, 15 Mich. 75;
Final v. Backus, 18 id. 318; Barry v.
Bennett, 7 Met. 354; Johnson v.
Sumner, 1 Met. 173; Falk v. Fletcher,
18 C. B, N. S. 403; Taylor v.
Ketchum, 5 Robt. 507; Sellcirk v.
Cobb, 13 Gray, 313; Agnew v. John-
son, 33 Pa. St. 471; Phillips v. Spey-
ers, 49 N. Y. 658; Tyng v. Commer-
cial Warehouse Co. 58 id. 308;
Andrews v. Durant, 18 id. 496;
Ormsby v. Vermont C. M. Co. 56
id. 633; Douglass v. Kraft, 9 Cal.
563; Yater v. Mullen, 24 Ind. 377;
Dillenbaok v. Jerome, 7 Cow. 298;
Rensselaer Glass Factory Co. v.
Reid, 5 Cow. 587; Dennis v. Barber,
6 S. & R. 430; Jacoby v. Laussatt,
id. 300; Hurd v. Hubbell, 36 Conn.
389; Cook v. Loomis, id. 483; Lyon
v. Gormly, 68 Pa. St. 261; StirHng
V. Garritee, 18 Md. 4^8; O'Meara v.
North Am. M. Co. 2 Nev. 112; Car-
lyon V. Lannan, 4 Nev. 158; Boylan
V. Huguet, 8 Nev. 345; Homer v.
Hathaway, 33 Cal. 117; Page v.
Fowler, 89 id. 412; Riley v. Martin,

OOXVEESICX. iS9

payment of that value.* This assumption is more particularly
true where the property converted is marketable goods and
commodities which can be bought and sold at pleasure, at prices
that are easily ascertained, and subject to but slight fluctuations.^
If there were no fluctuations it would be immaterial to the
equivalence of compensation when the value is taken except as
to interest. But there is a logical as well as a legal relation
between the conversion and the assessment of value to require
them to be coincident ; a natural connection between the wrong
done and the retributive or compensatory assessment of dam-
ages ; therefore the value should be ascertained at the time of
the conversion.

The conversion may occur, first, by a wrongful taking ; sec-
ond, by a wrongful use or appropriation after obtaining a lawful
possession ; and, thirdly, by a wrongful detention. To be a cer-
tain legal measure of damages, it should be applied inflexibly
to the first act of conversion ;< especially if there be no subse-
quent pursuit of the property or assertion of right to it in specie.
Xo change of the property by the wrongdoer should sufifice to
give the owner a new cause of action, or a new date for the
valuation of the property.* After a conversion, a sale by the

35 Ga. 136; Grant v. King, 14 Vt. v. Dalrymple, 23 Hd. 269; Dows v.

367; Crumb V. Oais, 38 id. 566; Ken- National Bank, 91 U. S. 618; Tome

nedyv. Strong, 14 John. 128; Eybum v. Dubois, 6 Wall. 548; Newman v.

V. Pryor, 14 Ark. 505; Hatcher t. Kane, 9 Nev. 234; Foote v. ilerriU,

Pilham, 31 Tex. 201: Jenkins v. 54 X. H. 490; O'Meara v. North

McConico, 26 Ala. 213; Robinson v. Am. M. Go. 3 Nev. 112. Eob-

Barrows, 48 ile. 186; Sanders inson v. Barrows, 48 Me. 186. A

V. Vance, 7 T. B. Mon. 209; Clark v. departure from this rule has been

Whitaker, 19 Conn. 319; Linville v. coincident with or the occasion of

Black, 5 Dana, 177; Commercial the conflict of decision relative to

Bank v. Jones, 18 Tex. 811; Davis the meafiure of damages. See Ellis

V. Fairclough, 63 Mo. 61; Daniel v. v. Wire, 33 Ind. 127; Final v.

Holland, 4 J. J. Jlarsh. 26; King v. Backus, 18 Mich. 218. In this latter

Ham, 6 Allen, 298; LiUard v. Whit- case, trover was brought for saw

taker, 3 Bibb, 92; ScuU v. Briddle, logs cut from timber on the plaiat-

2 Wash. C. C. 150; Williams v. iffs land, and transported to another

Crum, 27 Ala. 468; Kennedy v. county where they were sawed into

Whitwell, 4 Pick. 466. lumber. Cooley, C. J., said: "The

1 Ewing V. Blount, 30 Ala. 694 actual change in the character of the

" Bank of Montgomery v. Beese, property appears to have taken place

26 Pa. St. 143. when they were manufactured into

'See Baltimore Marine Ins. Co. lumber there; and although the

4:90 CONVEESION.

defendant at a price greater than the value at the time of
the conversion should not change the rule; and it has been held
that it does not.^ And it is equally the rule to take the price at
the time of the conversion when there is a subsequent decUne
in the value .^

Peoof of value. — The value is to be proved as in other cases
where it is in question.' The finder of a jewel took it to a
goldsmith to learn what it was ; the goldsmith returned the
socket, but retained and refused to deliver the jewel. In trover
by the finder, after evidence of the value of the finest jewel
Avhich would fit the socket, the court directed the jury, that
unless the defendant, the goldsmith, produced the jewel, and
showed that it was not of the finest water, they should pre-
sume the strongest against him, and make the value of the best
jewel that would fit the socket the measure of damages.^ This
was by application of the maxim, omnia prmsumv/ntMr contra
spoUatorem.^ Where foreign goods which have passed through
the custom house are in question, it has been held in New
York that the custom house valuation may be introduced as evi-
dence of v^lue.^ If there is only a distant market, to which

owner of the land- from which they 2 Devlin v. Pike, 5 Daly, 85.

w^ere taken might have treated their ^Yo\. I, p. 798.

removal from the land as a conver- * Armoi-y v. Delamirie, 1 Str. 505.

sion, he was not compellable to do * Hargreaves v. Hutchinson, 3 A.

so; but might have followed the & E. 12; Curry v. Wilson, 48 Ala.

logs and reclaimed them at Saginaw. 638.

This being so, the plaintiff had a ^Caffev. Bertrand, How. App. Cas.

right to treat the time of the manu- 224. If a creditor having an abso-

f aoture of the logs into lumber as lute deed of land from his debtor as

the period of conversion, and to I'e- security, convey the land to a bona

cover their value accordingly." This fide purchaser, he is liable to the

reasoning favors the recovery of an debtor for the proceeds of the sale,

intermediate value, and without re- or the value of the land, at the lat-

striction of time, if the wrongdoer ter's election, less the amount of the

changes the property, or from time debt. Meehan v. Forrester, 52 N. Y.

to time exercises some new domin- 277. Land sold under a judgment

ion over the property which alone in fraud of the bankrupt law, the

would suffice to constitute a conver- assignee may recover for at its value,

sion. and he is not limited in his recov-

1 Kennedy v. Whitwell, 4 Pick, ery to what it sold for. Clarion

466; Baker v. Wheeler, 8 Wend. Bank v. Jones, 21 Wall. 825. See

508; Whitehouse v. Atkinson, 3 C. Norman v. Cunningham, 5 Gratt.

& P. 344. 63.

C0NVEE8I0N.

491

the goods are destined, the value there may be taken with
proper deductions of expenses which must be incurred and are
usually incident to make that market available. Thus in a
proceeding in the nature of trover for the conversion of a whale
in Okholsk sea, the value was determined by the market at New
Bedford, which was the home port of both vessels involved, by
deducting the expense of cutting in, boiling, freight and insur-
ance.i So in trover for the capture on the high seas of a cargo
bound for New York, the value at the time and place of the
capture was arrived at by adopting New York prices, with de-
duction of a reasonable premium of insurance, and also adding
damages equal to interest.^ An intermediate consignee who
converts the property consigned, is liable to the value at the
place of destination.'

The market value will govern rather than any special value
to the owner, arising from his having contracted it or otherwise,
the defendant not being apprised of such special value.^ If
there is a market value at the place of conversion, it will be
adopted, though the property is intended to be shipped for sale
to another place.* The master of a ship which became disabled
on the voyage made an unauthorized sale of his cargo at an
intermediate port, and it sold low, in trover the jury were
directed to give as damages the invoice price and the amount
paid for freight.^ The market price for like property, bought
and sold in like quantity, should be given. Stocks of goods
cannot be recovered for at retail prices.'' In trover for a
quantity of tallow, in Vermont, there being evidence that it
was merchantable, it was held admissible to show the retail
price of such tallow at the time and place of the conversion.'

1 Bourne v. Ashley, 1 Low. 27; 6 Spicer v. Waters, 65 Barb. 237.

Saunders v. Clark, 106 Mass. 331. «Ewbaiikv. Nutting, 7 C. B. 797.

See Cockbum v. Ashland Lumber ^ Wehle v. Haviland, 69 N. Y. 448,

Co. 54 Wis. 619. overruling on this point Wehle v.

2HaUett v. Novion, 14 John. 373. Butler, 61 N. Y. 245; State v.

3 Farwell v. Price, 30 Mo. 587. Smith, 81 Mo. 566; Butler v. Col-

4 Brown v. Allen, 35 Iowa, 806; lins, 12 Cal. 457; Nightingale v.
Gardner v. Field, 1 Gray, 151; Watt Scannell, 18 Cal. 315. See Haskell
r. Potter, 3 Mason, 177. But see v. Hunter, 23 Mich. 305.

France v. Gaudet, L. E. 6 Q. B. 8 Waters v. Langdon, 16 Vt. 570.
199.

i92 CONVEESIOK.

If fixtures are severed from the freehold, and trover is brought
for them, their value as chattels only, and not as fixtures, can
be recovered.' In the comprehensive code action, the technical
impediments sometimes encountered in the prosecution of com-
mon law actions, in the way of embracing in one suit all the
injurious elements of a wrong, do not exist.^ Accordingly, facts
connected with a wrongful taking which would be admissible
and relevant in an action of trespass, and teiifi. to increase
damages, may be alleged and proved in an action for the taking
and conversion of property. Thus in an action for the unlaw-
ful taking and conversion of a quantity of household goods,
including carpets, upon the question of damages as to the
carpets, the charge to the jury was approved which directed
them to inquire what would be the value to a party who
wanted to get the same articles again ; that it was proper to
include not only their worth in the market, but also the value
of the labor in cutting, making and putting them down.' But
when the property so in place can no longer be there used by
the owner, and he is subject to summary removal, its value will
be estimated, in case of conversion, with reference to these
facts ; they will be estimated in the condition in which they
will be when removed, or as subject to the obligation or neces-
sity of removal.*

Interest. — In England the allowance of interest, under the
operation of the statute of 3 and 4 "Wm. IV,' is a matter of
discretion with the jury. "With us it is generally held to be
matter of right from the time of the valuation ; it is considered
a constituent part of the indemnity which a party entitled to
recover the value may claim ; and that it is the duty of the
court to direct the jury to allow it from the date of conversion.*

1 Clark V. Halford, 3 C. & K. 540. Hyde v. Stone, 7 Wend. 354; Baker
See Ayer t. Bartlett, 9 Pick. 156. v. Wheeler, 8 Wend. 505; Dillenback

2 Clark V. Bates, 1 Dak. 43; Rhoda v. Jerome, 7 Cow. 394; Stevens v.
V. Alameda Co. 58 Cal. 357. Low, 3 Hill, 183; Chauncey v.

3 Starkey v. Kelly, 50 N. Y. 677. Yeaton, 1 N. H. 151; McCormick v.
iMoorev. Wood, 13 Abb. 898. Penn. C. E. R. Co. 49 N. Y. 308;
B Ch. 43, § 39. Hamer v. Hathaway, 88 Cal. 117;
6 Suydam v. Jenkins, 3 Sandf . 630 Northern Transp. Co. v. SeUick,

et seq. ; Wilson v. Conine, 3 John. 53 El. 249; Tarpley v. Wilson, 33
280; Bissell v. Hopkins, 4 Cow. 53; Miss. 467.

CONVEESION.

493

The plaintiff should not be permitted to recover, besides the
value of animals or slaves and interest, their hire, or the value
of their services or use, nor in lieu of interest.* In some cases
this has been allowed.*

When the peopebtt conveeted had to be sold. — Where
the plaintiff held the property as sheriff or assignee, and would
have been obliged to sell at auction if the defendant had not
taken it, and the conversion has been followed by a sale, there
does not appear to be any reason or precedent for adopting
any different measure of damages or proof of value on that
account, if the plaintiff is not restricted to some special value
or mode of proof. It was remarked in one such case,' that it
often happens that a jury considers the sum at which the goods
were actually sold at auction as a fair measure of damages.
The owner was entitled to remove buildings standing upon
ground condemned for a street; he neglected to remove them,
and the public authorities, desiring to use the ground, disposed
of the buildings by a public sale. It was held that the plaint-
iff, by his neglect to remove the buildings, consented to the
mode adopted to dispose of them; therefore, in an action for
the conversion, his recovery was limited to the net proceeds of
that sale.* In an English nisi prius case a distinction appears
to have been recognized in case of property which had to be
sold. Goods were sold, after bankruptcy, by a sheriff, but in
good faith. The assignees were held to be entitled only to an
amount equal to the proceeds, less the expenses of selling.
As the assignees would be bound to sell, the jury were allowed
a discretion to deduct the expenses.' But in a later case, the
court considered that if the trustee in bankruptcy elected to
treat the sale as a tort, he was entitled to the full value of the
goods, and any damages resulting to the estate from the sale ;
that he was not confined to the proceeds, except upon a ratifi-
cation of the sale.*

iPolk V. AUen, 19 Mo. 467; Fail v. ' Whitehouse v. Atkinson, 3 C. &

Presley, 50 Ala. 343; Frey v. Drahos, P. 344.

7 Neb. 194. « Peters v. Mayor, etc. 8 Hun, 405.

2Dealy V. Lance, 3 Spears, 487; 5 Clark v. Nicholson, 6 C. & P. 713.

Schley V. Lyon, 6 Ga. 530; Banks v. « Smith v. Baker, L. R. 8 C. P.

Hatton, 1 Nott & McC. 331. See 850; aarion Bank v. Jones, 31 Wall.

Hair v. Little, 28 Ala. 336. 338.

494 CONTEESION.

WhEEE the PEOPElJTT HAS NO MAEKET VALUE. This SUbjeot

has been considered in other parts of this work, and it is not
necessary now to enter upon it at large.^ If the property has
no market value at the time and place of conversion, either
because of its limited production, or because it is of such a
nature that there can be no general demand for it, and it is
more particularly valuable to the owner than any other, it may
be estimated with reference to its value to the owner.^ A wine
merchant having obtained from a wine broker samples of wine
then lying at a wharf, and which the broker had agreed to sell
at 14s. per dozen, sold it to the captain of a ship about to sail,
at 245. per dozen, to be delivered on board the next day. The
merchant obtained the delivery warrants from the broker and
claimed the wine from the wharfinger, but he refused to deliver
it. No other wine of the same brand and quahty was to be
had in the market, and the merchant was held entitled to re-
cover in trover the actual value of the wine to him, which at
the time of the conversion was 24s. per dozen, he having made
a lona fide sale of it at that price.' Mellor, J., said: '"Under
ordinary circumstances, the direction to the jury would simply
be to ascertain the value of the goods at the time of the con-
version ; and in case the plaintiff could by going into the mar-
ket have purchased other goods of like quality and description,
the price at which that could have been done would be the
measure of damages. It was, however, admitted on the trial,
in the present case, that course could not have been pursued,
inasmuch as champagne of the like quality and description
could not have been purchased in the market so as to enable
the plaintiff to fulfil his contract with Captain H. We are of
opinion that the true rule is to ascertain the actual value of the
goods at the time of the conversion ; and that a hona fide sale
having been made to a solvent customer at 34s. per dozen, which
would have been realized had the plaint,ifl been able to obtain
delivery from the defendants, the champagne had, owing to
these circumstances, acquired the actual value of 24s. per dozen ;

lAnte, p. 476; Vol. II, pp. 368, Mass. 321; Stickney v. Allerii 10

378. Gray, 353; Sturges v. Keith, 57 111.

^Suydam v. Jenkins, 3 Sandf. 463.

620; Spicer v. Waters, 65 Barb. 337; 3 France v. Gaudet, L. R. 6 Q. B.

Green v. Boston, etc. R. R. Co. 138 199.

CONVERSION. 495

and we think that, in the present case, that ought to be the
measure applied ; and that a jury would not only have been
justified in ascertaining that to be the value, but ought, where
the transaction was iona fide, to have taken that as a measure
of damages, and ... we think we ought to say that such
is the proper measure of damages. . . .

" We are not prepared to say that there is any analogy be-
tween the case of contract . . in which two parties making
a contract for the sale and delivery of a specific chattel, the
vendee gives notice to the vendor of the precise object of the
purchase, and a case like the present. In the case of contract,
special damages, reasonably resulting from the breach of it,
may be considered within the contemplation of the parties.
In case of trover, it is not in general special damages which can
be recovered, but a special value attached by special circum-
stances to the article converted ; the conversion consists m with-
holding from another property to the possession of which he is
vmrnediateh/ entitled, and the circumstances which affix the
value are then determined ; no notice to the wrongdoer could
then affect the value, although it might affect his conduct ; but
upon what principle is notice necessary to a man who ex hypoth-
esei is a wrongdoer? In such a case as the present, the actual
value is fixed by circumstances at the time of the demand, and
no notice of the special circumstances could then affect the act>
ual value of the goods wil;hheld from the rightful owner, who
thereby sustains ' an actual present loss,' which appears to us
to be a convertible term with actual value." '

1 The learned judge further distin- however, we are inclined to think

guished the value from special that either express notice must be

damage by observing: "It is not given, or arise out of the circum-

necessary to determine whether no- stances of the case. This point was

tice is or is not necessary in trover, not determined in Bodley v. Rey-

in order to enable the plaintiff to nolds, 8 Q. B. 779, approved in Wood

recover special damage, which can- v. Bell, 5 E. & B. 772, but we think

not form part of the actual present there must have been evidence of

value of the thing converted, as in knowledge on the part of the de-

the case of withholding the tools of fendant, that, in the nature of things,

a man's trade, in which the damage inconvenience beyond the loss of

arising from the deprivation of his the tools must have been occasioned

property is not, and apparently can- to the plaintiff." See Seymour v.

not be fixed at the time of the con- Ives, 46 Conn. 109.
version of the tools. In that case,

496

CONTEESION.

Peopeety of fluctuating value. — As to the measure of
damages for the conversion of such property there has been
much conflict of opinion. The cases are numerous, and a re-
view of them in detail would be prolix and unprofitable. The
principal difference is that the courts in some of the states ad-
here to the general rule of damages where such property is in
question, allowing the value at the time of the conversion and
interest, and whether property is converted or stocks.^ And
in others, the courts allow the highest market value be-
tween the time of the conversion and the commencement of
suit or the trial ; but some of the latter annex the limitation
that the suit be commenced within a reasonable time and be
prosecuted to trial with proper diligence.^

iStUrges V. Keith, 57 111. 451; Mo-
Kenney v. Haines, 63 Me. 74; Fisher
V. Brown, 104 Mass. 259; Pinkerton
V. Railroad Co. 4a N. H. 463; Third
Nat. Bank v. Boyd, 44 Md. 47; Boy-
Ian -y. Huguet, 8 Nev. 845; Bates v.
Stansell, 19 Mich. 91.

2 Clark V. Pinney, 7 Cow. 681;
Stapleton v. King, 40 Iowa, 278;
Tatum V. Manning, 9 Ala. 14
Guerry v. Kerton, 3 Rich. 507;
ing V. Blount, 30 Ala. 694; Jenkins
V. McConioo, 26 id. 213; Kid v.
MitcheU, 1 Nott & McC. 834; Kent
V. Ginter, 33 Ind. 1; Stephenson v.
Price, 30 Tex. 715; Hatcher t. Pel-
ham. 31 id. 301; Johnson v. Marshall,
34 Ala. 531; Freer v. Cowles, 44 id.
314. In Boylan v. Huguet, supra.
Whitman, C. J., said: "That this is
the rule in New York, subject to
some meaningless exceptions, such
as bringing suit within reasonable
time, etc., there is no doubt. That
some other states, notably Iowa,
Pennsylvania and California, have
substantially adopted this rule, is
true. Connecticut is sometimes
ranked in the same line, but that is
a mistake. St. Peter's Church v.
Beach, 36 Conn. 355. California has
endeavored to modify in some de-
gree (Page v. Fowler, 39 Cal. 413),

and New York shows its determina-
tion to recede, upon occasion made,
in the following language of the
entire court of appeals, by Church,
C. J., pronouncing a recent opin-
ion: ',An unqualified rule, giving a
plaintiff in all cases of conversion
le benefit of the highest price to
the time of trial, I am persuaded
cannot be upheld by any sound
principle of reason or justice. Nor
does the qualification suggested in
some of the opinions, that the action
must be commenced within a reason-
able time, and prosecuted with
reasonable diligence, relieve it of its
objectionable character. Without
intending to discuss this question at
this time, we deem it proper to say
that while the decisions and
opinions of our predecessors will
receive the utmost respect and con-
sideration, we do not regard the rule
referred to so firmly settled by au-
thoi'ity as to be beyond the reach of
review, whenever an occasion shall
render it necessary.' Matthews v.
Coe, 49 N. Y. 57. This is only dic-
tum; but such dictum is very om-
inous of the fate of the New York
rule.

" It,is not surprising that there is
a desire to escape effects which are

C0HVEE8I0N.

497

The cases which, originated and have maintained this excep-
tion to the general rule, have proceeded upon the plausible prin-
ciple that the owner who has been tortiously deprived of his
property should have the benefit of any subsequent increase in
value, and not the wrongdoer ; that where the advance is owing
to general causes, it would be unjust to allow the latter to deter-
mine the date of fixing the value that he should pay by a tort,
as he might select a time of great depression to convert the

sometimes so absurd. As in this
case, the first suit and recovery were
for some $8,000; had that judgment
stood, as it probably would have
done but for the motion of appel-
lants, the law would have declared
that respondent was fully compen-
sated for his loss consequent upon
the wrong-doing of appellants; but
that judgment having been set aside,
it took over three times that amount
to afford compensation only a few
months after. In other words, dam-
ages were given which were purely
speculative, which were not only
not proven, but which were against
all probable presumption, as human
experience teaches that the man
who sells his stock at the highest
price is the rare exception to the
generahty of dealers. Yet the
measure was correct if the rule be
so; the suit had been brought sea-
sonably, and prosecuted with dili-
gence.

" Looking at the assumed basis of
this rule, it is impossible to add any-
thing to the exhaustive resume of
the decisions said to constitute its
foundation, as given in Suydam v.
Jenkins, 3 Sandf . 614; but it is curi-
ous, and perhaps not uninstructive,
to re-glance at them for a moment.
And first, the stock cases, so-caUed,
which were writs of inquiry to as-
sess damages on bonds given to re-
place stock; and they hold that if
the stock has risen in value since the
Vol. Ill — 33

day when it should have been de-
livered, the price at the time of trial
is to be the measure of damages.
Shepherd v. Johnson, 2 Eaat, 211;
McAi-thur V. Seaforth, 3 Taunt. 357;
Donnes v. Back, 1 Stark. 318; Harri-
son V. Harrison, 1 C. & P. 413; Owen
V. Kouth, 14 C. B. 337. This upon
the theory that the plaintiff wanted
to keep his stock, and therefore could
only be indemnified by .a verdict for
money sufficient to replace it, as the
defendant was bound to do. None
of these cases hold, and McArthur v..
Seaforth expressly negatives the
idea that the highest price at any
intermediate day can be allowed.

"This rule was followed in this,
state in an equity case to compel ther
transfer of certain shares of stock
(O'Meara v. North America Mining
Co. 3 Nev. 113), and js undoubtedly
correct under similar circumstances
either at law or in equity; but how
it can justify the measure of dam-
ages allowed in this cas& is. inexpli-
cable; for here and in like cases
courts never would allow the con-
verted property to be restored in
specie, except where it might have
been of such nature that its value
could not have been changed ; and
the real question to be determined
almost invariably is its worth, not
that the party delinquent may re-
place it, as he would have been
allowed to do in the cases cited, but
that the injuied party may be in-

498

CONVEESIOir.

property, and by having the benefit of a future appreciation
derive great gains by his own wrong. To prevent this seeming
injustice, the owner at the time of the trial has been allowed a
retrospection of the intermediate market, and to recover the
highest price reached during that period. This would not .be
unfair to the defendant nor more than a just indemnity to the
owner, if it were shown by the evidence that that was his real
loss ; that had the defendant done nothing to prevent his retain-

demnified for its loss. When ? Why,
when lie lost it, not before nor
after, but at the time when the loss
occurred.

"There are a few other decisions
which seem to have been rendered
rather upon the desire to do justice
in the particular case than upon
general principles, and which are
hardly precedents for anything. In
Greening v. .Wilkinson, 1 C. & P.
635, trover for East India Company's
warrants for cotton, the highest
price either at time of conversion
or subsequently, at jury's option,
was given. Of this case Judge
Duer says in Suydam v. Jenkins,
supra: ' It is, however, only a nisi
prius decision, and the report is not
only brief, but we apprehend imper-
fect; material facts seem to be omit-
ted, nor is it stated what was the
verdict finally rendered.' That this
is not the accepted rule appears
from the uncontradicted remarks of
counsel in Elliot v. Hughes, cited
post. In Archer v. Williams, 2 C. &
K. 36, action for the wrongful de-
tention of scrip, CresweU, J., di-
rected the jury to find the highest
price between conversion and trial;
this direction they disobeyed; and
finally, in making up the bUl of ex-
ceptions, the instruction was con-
sidered to have been that more than
nominal damages were to be allowed;
so that case is not authority in point.
In Shaw v. HoUand, 15 M. & W.

145, an action for non-delivery of
railway shares, the same rule was
applied as in Gainsf ord v. Carroll, 3
B. & C. 624, for non-delivery of
goods; i. e., the difference between
the contract price and the market
price on the day when the con-
tract was broken; making the dis-
tinction, however, which is often
found, but which upon reflection
will be seen to be none, that the
money not having been paid, it was
in the power of the vendee to go
into the market and buy, and thus
save himself, as if he was called
upon to do so, and might not rely
upon his contract. In Mercer v.
Jones, 8 Camp. 477, Lord Ellenbor-
ough lays down the rule in trover,
'that the plaintiff is entitled to
damages equal to the value of the
article converted at the time of the
conversion,' and applying it to the
case in hand (trover for bills of ex-
change), disallowed interest after
demand and refusal to deliver. Of
this case, Abbott, C. J., is reported
to have said in Greening v. Wilkin-
son, that it was hardly law. Thus
the wisest disagree.

" In a recent case at nisi jpriits,
the highest price of goods between
the agreed date of delivery and the
time of trial was given; and the
case is worthy to be quoted some-
what lengthily, as presenting a com-
ical instance of reasoning in a circle
to make a rule. Remembering that

CONVEESION.

499

ing the property, he would have sold it and realized that price ;
or that the defendant has in fact realized it. But the owner is
more than compensated when he is allowed to recover on re-
view of the market more than he would have sold for during
the same period. By allowing him uniformly the highest inter-
mediate market price, he is saved from all hazard of mistake in
this regard, and the wrongdoer is made to bear it without any
possibiHty of gain for his sagacity, if he has sold at the right

the New York rule is fathered on
English decisions, hear counsel.
The action was for non-delivery of
hops contracted at five pounds ten
shillings the hundred weight; they
had risen from the time of delivery
to seven pounds ten shillings, at
which price they continued till the
day of the trial. To the offer by
plaintiff of evidence to that effect,
Joseph Brown (with whom was
Shee, Sergt.) objected that such evi-
dence was not admissible, as a series
of cases had decided that the meas-
ure of damages for the non-delivery
of goods purchased was the market
price at the time of the breach of
the contract.

" McMahon (with whom was
Digby Seymour) submitted that the
rule applied only where the goods
were not paid for at the time of the
purchase, in which case it was said
that the buyer, not having parted
with his money, could go with it
into the market and buy at the cur-
rent price; but that a different rule
prevailed where, as in the present
case, the price was paid at the time
of purchase. There was no case in
which this precise point had been
decided in the courts of this coun-
try, though there were several de-
cisions upon it in the American
courts. The nearest analogous cases
in our courts were those relating to
the loan of stock, in which it was
decided that on the failure to return

it, the lender was entitled to recover
the highest price up to the day of
trial. . . . His lordship (Byles, J.)
said ... he would rule that
the plaintiff was entitled to recover
the valvie of the hops at the price
of the present day, but would give
the defendant leave to move to re-
duce the damages if the court
should think he was wrong. EUiot
V. Hughes, 3 F. & F. 387. No mo-
tion was made to reduce; so the
case stands decided upon American
authority, there being confessedly
none English; while, on the other
hand, the American cases claim
English parentage.

" The fact is, there is no such well
established rule. There have been
exceptional instances of granting
this measure of damages, probably
with the laudable desire of doing
exact justice at the moment in
an individual case. There has also
been an attempt to make these ex-
ceptions the rule; but that has not
prevailed, nor should it; for the pur-
pose of the law is to make the near-
est practicable approach to justice
in all cases; and that can only be
attained by the preservation of
fundamental principles. What are
they in cases like the one at bar?
To that question there can be but
one answer : All the authorities con-
cur. Complete indemnity to the
party injured, but no punishment
to the wrongdoer.

500 COKVEESION.

time; and without premium or compensation to mitigate his
loss in being obliged to indemnify the owner, if he makes the
common mistake of selling too soon or too late. These obvious
considerations have prevented the adoption, as a uniform and
invariable measure of damages, of the highest intermediate value,
where it has been fluctuating. In some states where the courts
were once committed to this exceptional rule, cases have since
arisen in which its application would be so manifestly unjust,
that it has been reconsidered and substantially abandoned.
This has notably occurred in ITew York and California. In
Baker v. Drake,^ the court review the previous decisions in that
state on this general question, and subject them to the test of
the fundamental principle on which damages are assessed,
namely : that in civil actions the rule of damages does not de-
pend on the form of the action ; that whether it be contract or
tbrt, the proper measure of damages, except where punitory
damages are allowed, is a just .indemnity to the party injured
for the loss which is the natural, reasonable and proximate
result of the wrongful act complained of, and which a proper
degree of prudence on the part of the person complaining would
not have averted. And the court reached the conclusion that a
fixed, unqualified rule giving the plaintiff in all cases of conver-
sion the highest market price from the time of the conversion
to the time of the trial, cannot be applied upon any sound prin-
ciple of reason or justice. The case was against a broker who
had purchased stock for a customer, the plaintiff, not as an in-
vestment but upon speculation, the latter furnishing a small
amount as a margin, and the former supplying the residue of
the capital embarked in the speculation. The broker made an
unauthorized sale of the stock ; and it was held that if, upon
being advised of the sale, the customer desired further to prose-
cute the adventure, he had a right to disaffirm the sale and to

" To accomplish this end, all dam- detention of that value, which is

ages must be given which necessa- legal interest from conversion to

rily flow from the wrongful act. judgment, and in addition any

Those are the value of the property special damage which may legiti-

at the time of conversion, for that mately arise out of any matters in

is what one has found and the other existence at the date of the tort.''

lost, together with damages for the 1 53 N. Y. 311; S. C. 66 id. 518.

OOSTESSIOS.

501

require the broker to replace the stock; and upon his failure or
refusal to do this, that the renaedy of the principal was to re-
place it himself ; and that the advance in the market price from
the time of the sale up to a reasonable time to replace it after
notice of- the sale, would afford a complete indemnity, and was
the proper measure of damages. The case of Markham v.
Jaudon,^ so far as it relates to the rule of damages, was overruled.
Later decisions have approved and followed Baker v. Drake.^

In California the rule of the highest intermediate value was
twice held, and in the last instance it was treated as the doctrine
of the state.' But a later case subjected that rule to an ordeal
that exploded it. This case was Page v. Fowler.* The prop-
erty in question was hay ; it had been wrongfully taken by the
defendant in 1863, when it was worth from three to five dollars
per ton ; but at an expense of something over five dollars per
ton in transporting it, it might have been sold for twelve dollars
and fifty cents per ton. In the following year there was great
scarcity of hay and the price rose to about forty doUars per ton.
The case was tried in November, 1869; and the jury were in-
structed that the plaintiff was entitled to the highest market
value between the taking and the trial, and interest. On
appeal, the supreme court, by Temple, J., said : " When we con-
sider that the object to be attained by this rule is indemnity
for loss actually sustained, the result in this case is sufficiently
starthng. But the rule is claimed to be of universal applica-
tion, and as to a large class of personal property, to wit, per-
ishable articles, its operation is still more manifestly unjust.
If a quantity of fruit — strawberries, for instance — in the sea-
son of their greatest abundance, were taken under circumstances
which would entitle the owner to indemnity only, and a suit to
recover their value were immediately commenced, the trial would
not be likely to occur for many months. In the meantime,
the season of plenty has passed, and the fruit bears an extra-

141 N. Y. 335. id. 307; Harris v. Tumbridge, 83 id.

- Ormsby v. Vt. Copper M. Co. 56 99, 100; Gruman v. Smith, 81 N. Y.

N. Y. 633; Tyng v. Commercial 37.

Warehouse Co. 58 id. 308; Meohan- 3 Douglass v. Kraft, 9 Cal. 563;

jcs', etc. Bank v. .Farmers', etc. Hamer v. Hathaway, 33 id. 117.

Bank, 60 id. 40; Thayer v. Manley, 73 « 39 Cal. 413.

502 CONVEESION.

ordinary price. JSTevertheless. by this rule, he is permitted to
recover the enhanced value which he could never have realized,
and this under pretense that it is necessary to indemnify him
for his actual loss. This is, of course, an extreme case, and may
be said to prove only that there should be exceptions to the
rule ; but I think that the rule is necessarily liable to work in-
justice in every case. In the cases where it has been enforced,
it is said to apply only to articles which fluctuate in value. If
there is anything which can be said to have a market value which
does not fluctuate, of course it can make no difference when
the value is ascertained. This distinction, therefore, might as
well be omitted, and the rule applied indiscriminately to all
descriptions of personal property. If goods belonging to a
merchant, and designed for immediate sale, were taken, the trial
of a suit brought to recover their value might, for reasons well
understood by every member of the bar, and in the usual
course of things, be postponed for years. The highest price
might be ten years after the sale, and yet it would be morally
certain that, had the goods not been taken, the owner would
have disposed of them within the next few months. It is ob-
vious that the damages in such a case (and the supposed case is
the general rule) might be grossly unjust, and have very little
reference to the loss actually sustained.

" Without the possibility of loss, the owner is allowed the
range of the market for many years in which to choose his
price, and perhaps realizes enormous profits in the face of proof
to a moral certainty that, had he kept the goods, he would not,
and perhaps could not, have received them. The best possible
speculation would be to have one's property taken by a respon-
sible person, and this under a rule which only indemnifies for
actual loss, and does not permit speculative or hypothetical
damages, and in which nothing is exacted as a punishment to
the wrongdoer.

" The English rule, so far as I can discover, has always been
to leave to the jury, as a matter of discretion, the question as
to the time the property should be valued, except in the case of
stocks, when the value at the time of trial was the measure of
damages. In the United States, on the other hand, it has
always been considered a rule of law, and the jury are allowed

CONVEESIOK. 503

no discretion in the matter. The doctrine is, therefore, as I
think, of American origin, and it may be remarked that all the
cases concur in admitting that the general rule is that the dam-
ages are to be measured by the value of the property at the
time it was taken, the doctrine in question being an exception
to the rule ; and though the exception has, perhaps, become the
rule, it may be well to bear in mind that it originated in an excep-
tion made on the ground that, in certain cases (where the mar-
ket value is fluctuating), the prevailing rule did not do full
justice. The exception ought not, therefore, to be carried be-
yond the purpose for which it was made. That being accom-
plished, the ordinary rule should prevail. The reason for it
must have been that, in the usual course of trade or business, it
was that the owner would have realized the enhanced value
if he had not been deprived of his property. All the cases are
upon the ground that otherwise he would not be completely
indemnified. It could not have been intended to give him
profits it is certain he would not have realized. . . .

" In many of the cases it is said that the plaintiff will be
allowed the highest price intermediate the taking and the trial,
if the suit has been commenced within a reasonable time, and
prosecuted without unreasonable delay, and no intimation is
made as to what the rule would be if the suit were not com-
menced within a reasonable time ; but it is evident that the
question of damages ought not to be the same in either case.
The time of the commencement of the action or trial would
not seem to have any natural or logical connection or relation
to the question of damages ; and the question as to whether a
suit was or was not commenced within a reasonable time
would rarely, if ever, depend upon any fact which would affect
the indemnity to which the plaintiff is entitled. The reasonabl'e
time mentioned in the cases cannot mean a reasonable time
within which to commence the action, independently of the
question of damages. It must mean a time within which it
would be reasonable to allow the plaintiff to take the highest
market price as the measure of his damage. In other words,
the rule deducible from the authorities is, that in cases affectino-
property of a fluctuating value, where exemplary damages are
not allowed, the correct naeasure of damages is the highest

504 I CONVERSION.

market value within a reasonable time after the property was
taken, with interest computed from the time such value was
estimated.' The rule thus stated may be somewhat indefinite,
but it is certainly not more so than the rule in the ITew York
cases, which have reference to the commencement of the action,
or its diligent prosecution ; and the rule thus stated has this
advantage, that what is a reasonable time would always be de-
termined with reference to the question of indemnity ; and if
the old standard of value at the time of the taking be departed
from, I can think of no rule more definite which would not be
arbitrary and liable to work injustice." ^

In 'New York there were many decisions, prior to Baker v.
Drake, which adopted or affirmed the rule of the highest inter-
mediate value.' But while this course of decision was in
progress, other cases were decided in that state somewhat out
of harmony with it, and in accord with the later adjudications.
In one case there had been a wrongful sale of stock by a pledgee.^
Part of the stock was demanded afterwards, and the damages
for the conversion of that part was held to be its value at the
date of the demand, with interest. Another part was not de-
manded, and for its conversion its value within a reasonable
time after the wrongful sale was allowed, the pledgee being
allowed to deduct its cost, which he had paid for the plaintiff.
In another case,* a factor at Buffalo had wheat on consign-
ment from his principal, who directed him to sell it at a

1 See Scott v. Rogers, 31 N. T. See Barrante v. Garratt, 50 Cal. 112;
676. Fairbanks v. WiUiams, 58 id. 241.

2 By the California code of 1873, A similar rule has been adopted
§ 3336. it is declared that the meas- by statute in Georgia. Code 1873,
ure of detriment for conversion of § 3077.

personal property is presumed to be, 3 West v. Wentworth, 3 Cow. 82;

1, the value of the property at the Clark v. Pumey, 7 Cow. 681; Blot

time of the conversion, with inter- v. Boiceau, 3 N. Y. 85; Romaine

est from that time; or, where the v. Van Allen, 26 id. 309; Wilson v.

action has been prosecuted with Mathews, 24 Barb. 295; Burt v.

reasonable diligence, the highest Dutoher, 84 N. Y. 493; Willard v.

market value between the conver- Bridge, 4 Barb. 361; Markham v.

sion and the verdict, without inter- Jaudon, 41 N. Y. 335; Lobdell

est, at the option of the injui-ed v. Stowell, 51 N. Y. 70; Lawrence v.

party; and 3, a fair compensation Maxwell, 6 Lans. 469.

for the time and money properly * Brass v. Worth, 40 Barb. 648.

expended in pursuit of the property. ^ Scott v. Rogers, 31 N. Y. 676.

COHTEESION. 505

specified price on a given day, or, if not sold at that day, to
ship it to New York. The factor sold it the day after that
specified. If the directions of the principal had been followed,
the wheat would have reached ISTew York between the 27th
apd the 31st of July, at an expense for transportation of fifteen
cents per bushel. The New York market fluctuated, between July '
2Sth and November 29th, from $1.25 to $1.65 per bushel. The
unauthorized sale was treated as a conversion, and the measure
of damages was held to be the difference between the price for
which the wheat was sold, the proceeds of the unauthorized
sale having been paid over, and what it was worth during a
reasonable time afterwards, which was held to embrace the
residue of the season to November 29th, when navigation of
the river and canal closed. Had it appeared at what time
the plaintiff intended to seU, after the arrival of the wheat in
New York, the damages would have been computed with ref-
erence to the value at that time. In another case,i where a
pledgee converted, the pledge, which consisted of warehouse
receipts for corn, the court, by Church, 0. J., referring to the
rule of the highest intermediate value, said : " Whatever may
be said of the propriety of such a rule in any case not special
and exceptional in its circumstances, it should not be applied
in a case like this. The price was fixed a year and a half after
the original action was commenced. There is not the slightest
evidence that the plaintiff or his assignor contemplated or
desired to keep the corn. On the contrary, it affirmatively
appears that the intention was to sell it when it reached $1
a bushel, and such was the agreement, while the price allowed
was $1.45. Besides, the evidence shows that it would have
been difficult, if not impossible, to have preserved i1> until the
time when the price was fixed. . . . An unqualified rule
giving a plaintiff in all cases of conversion the highest price to
the time of trial, I am persuaded cannot be upheld upon any
sound principle of reason or justice. Nor does the qualification
suggested in some of the opinion'^, that the action must be
comnjenced within a reasonable time and prosecuted with
reasonable diligence, relieve it of its objectionable character."

1 Matthews v. Coe, 49 N. Y., 57.

506 CONVEESIOH-.

Ill a case still earlier than these,' Mr. Justice Duer delivered
a masterly opinion which contains a thorough discussion of the
law of compensation for the loss of personal property by tort
and breach of contract, upon principle and authority in oppo-
sition to the rule of the intermediate highest value, except
upon proof of such facts as makes it manifest that it is a just
indemnity for the owner's actual loss, or gives him a value
which the wrongdoer actually obtained or might have realized.
He says : " It seems to us exceedingly clear that the highest
price for which the property could have been sold, at any time
after the right of action accrued, and before the entry of judg-
ment, cannot, except in special cases, be justly considered as
the measure of damages. "Whenever the evidence justifies the
conclusion that a higher price would have been obtained by
the owner had he kept the possession, or has been obtained by
the wrongdoer, we have admitted and shown that it ought to be
included in the estimate of damages; in the first case, as a por-
tion of the indemnity to which the owner is entitled ; and, in
the second, as a profit which the wrongdoer cannot be per-
mitted to retain; but we cannot admit that the same rule is to
be followed where nothing more is shown than a bare possibil-
ity that the highest price would have been realized, and still
less where it is proved that it would not have been obtained by
the owner, and has not been obtained by the wrongdoer. Its
allowance in these cases would in truth impose a penalty upon
the wrongdoer, and render the damages vindictive instead of
remunerative ; and it must be remembered that we are treat-
ing exclusively of the cases in which vindictive damages are
not claimed, or, if claimed, ought not to be given."

In Pennsylvania, the point under discussion has had pretty
nearly the same history, beginning with Bank of Montgomery
V. Eeese.^ In that case, the court held that where bank stock
has been wrongfully withheld from a party entitled to it, the
measure of damages, where the consideration for the stock has
been paid, is' the highest market value between the breach and
the trial, together with the bonus and dividends which have

iSuydam v. Jenkins, 3 Sandf. 226 Pa. St. 143. See Musgrave v.
614. Beckendorfif, 53 Pa. St. 310.

OONTERSION.

507

been received in the meantime ; but wliere the consideration has
not been paid, the plaintiff should be allowed the difference
between it and the value of the stock, together with the dif-
ference between the interest on the consideration and the divi-
dends on the stock. Strong reasons are given why the general
rule should not apply where the articles could not be procured
elsewhere, and from the restrictions on its production, or other
causes, its price is subject to very considerable fluctuations.
But the conclusion that the loss is the highest intermediate
value is not so satisfactorily sustainec^ where it* rests on infer-
ence alone that the owner would have realized it. It is true,
as said in Harrison v. Harrison,^ that " justice is not done if
you do not place the plaintiff in the same situation in which
he would have been if the stock had been replaced at the stip-
ulated time ; " but it does not maintain this measure of redress
except in a retributive rather than a compensatory sense, to say
we cannot act upon the possibility of his not keeping it, or
that, if it was stock bought on speculation to be sold at the
best opportunity, it will be assumed that but for the defend-
ant's wrong the plaintiff would so have disposed of it. The
English decisions referred to may have proceeded, and there is
reason to suppose they did, on the reasonable presumption,
from prevalent habit, that the stock was intended as a perma-
nent investment, and therefore would be kept until the trial.
That presumption is quite unlike one that if stock is bought to
be sold again for profit, the holder will sell when the market is
the most favorable. This Pennsylvania case is subsequently re-
ferred to as laying down a principle exclusively applicable to a
party who is bound by a contract or trust duty to deliver stock.^
And finally that the rule here laid down has no application to
trover, and does not apply to ordinary stock contracts. That
it applies between trustee and beneficiary, or to cases where
justice cannot be reached by the ordinary measure of damages.'
The general rule may safely and justly be departed from or
supplemented, when that rule would fail to furnish adequate

1 1 C. & P. 413. glish, 86 Pa. St. 347; North v. Phil-

2NeUer v. Kelley, 69 Pa. St. 403; lips, 89 id. 350; Wagner v. Peterson,

Work V. Bennett, 70 id. 484. 83 id. 338.
3 Huntingdon, etc. Coal Co. v. En-

508 CONTEESIOBT.

compensation for the entire injury; as if there be a subsequent
increase in price, which the plaintiff would have obtained, or
which the defendant has obtained.^ And if he still has the
property in his possession at the time of the trial, there is no
injustice in compelling him to pay what it is worth at that
time. The subject of special and consequential damages will
be considered farther on.

The measure of damages in trespass, trover or replevin for
the loss of property is generally the same as that which a
vendee, who has paid ;for the property, is entitled to recover
against a vendor for its non-deUvery. The rule applied in one
such action is cited freely in the others. The English oases make
a difference between vendor and purchaser when the vendee has
paid the price in advance. Therefore the rule there is tlie same
for a conversion of the plaintiff's stock, and where he sues for a
breach of a contract to replace stock or for non -delivery of
stock contracted and paid for — its value at the time of the
trial,^ if the price has advanced ; otherwise, the plaintiff will
be entitled to the value at the time of the conversion.' It has
there been held that where a bond is given by the borrower of
a sum of stock, to secure the replacement of the stock, and
payment in the meantime of a sum equal to the interest and
dividends, and a bonus is afterwards declared upon the stock,
the lender has an equity to be placed in the same situation as
if the stock had remained in his hands, and is consequently en-
titled to the replacement of the original stock increased by the
amount of the bonus, and to the dividends in the meantime as
well upon the bonus as upon the original stock.^ This is a
reasonable measure of damages on the footing of the English
ventures in stock as an investment ; but affords no support to
the rule of the highest intermediate value not maintained to
the time of the trial.

iSymes v. Oliver, 13 Mich. 9; ' Forrest v. Elwes, 4 Ves. Jr. 493;
Ewart V. Kerr, 3 McMuU. 141; De Sanders v. Kentish, 8 T. B. 163; Mat-
Clerq v. Mungin, 46 111. 113. ter of Baha, etc. R. R. Co. L. E. 3

2 Shepherd v. Johnson, 3 East, 311
McArthur v. Seaforth, 3 Taunt. 357:
Harrison v. Harrison, 1 C. & P. 413;
Shaw V. HoUaiid, 15 M. & W. 145
Owen V. Routh, 14 C. B. 337.

B. 584.

* Vaughan v. Wood, 1 Mylne & K.
408.

OONVEESION.

509

The rule in Forth Carolina is peculiar. The value at the
trial is the measure of damage, and though the property may
have suffered injury or deterioration, the defendant has the
option to surrender it, and damages may be assessed for the
detention, including compensation for the diminution of value. ^

Wheke the value of the converted peopbett has been
iNCEEASED BY THE DEFENDANT. — If the wrougdoer take the
propertj'- in one condition, and by bestowing labor upon it puts
it in another and better condition, and thus makes it more val-
uable, is he chargeable in an action for the conversion with the
improved value? The general rule in trover — the value at the
time and place of conversion, with interest — would exclude any
such question by the very logic of the remedy. But under the
more flexible rule of reaching the real equity of the particular
case, or under the rule of giving the highest intermediate value,
it has often been a grave practical question. The improved
value is recoverable in some states upon general principles,
and in others to some extent by statute. Thus where timber
has been taken and converted into wood ; wood into coal ; logs
into lumber; corn into whisky, or the like, the value in the
latest and most improved and valuable form has been recovered.^

' Boylston's Ins. Co. v. Davis, 70 466, this rule was maintained in an

N. C. 485. action against wilful and negligent

2Betts V. Lee, 5, John. 348; Curtis trespassers on the government land.

V. Groat, 6 John. 168; Brown v. Sax, The court say: " Where timber has

7 Cow. 95; Riddle v. Driver, 13 Ala. been cut into logs upon the public
590; Rice v. HoUenbeck, 19 Barb, lands, by a person who knows that
664; Walther v. Wetmore, IE. D. the lands belong to the government.
Smith, 7; Silsbury v. MoCoon, 3 N. or who has no reasonable ground to
Y. 379; S. C. 6 Hun, 435; 4 Denio, believe that it belongs to him, or to
333; Babcock v. GiU, 10 John. 387; some one under whom he claims,
Nesbitt V. St. Paul Lumber Co. 31 anS. such logs are hauled to the
Minn. 491; Ellis v. Wire, 33 Ind. 137; watercourse, and rafted and taken
Symes v. Oliver, 13 Mich. 9; Final to a distant boom, by means of
V. Backus, 18 id. 318; Snyder v. Vaux, which labor of the wrongdoer their
3 Rawle, 438; Millar v. Humphries, value is much enhanced beyond
3 A. K. Marsh. 446; Smith v. Gon- their value when first severed from
der, 33 Ga. 853; Baker v. Wheeler, the freehold, die government may

8 Wend. 505; Davis v. Easley, 13 111. replevy such logs in ,he boom, or
193; Eastman v. Harris, 4 La. Ann. may maintain an action in the nat-
103. In Bly V. United States, 4 DiU. ure of trover for their value; and in

510

OONVEESION.

In Indiana, a crop of wlieat was wrongfully taken, harvested
and threshed ; and the wrongdoer was held liable for it at the

either case, may recover without de-
duction for the enhanced value
which may have been given to the
logs after their severance from the
freehold by the labor of the wrong-
doer. In such a case the govern-
ment is not confined to what is
called the 'stumpage' value, but
may recover the value of the logs in
the boom, as in such case the title of
the government to the logs thus out
continues as against the wrongdoer
and aU persons (Tome v. Dubois, 6
Wall. 548), until at least there has
been some greater transformation of
the original property than exists
while it remains in the shape of
logs; if the wrongdoer sells the logs
to a person who has no actual notice
that they were cut on the public
lands, still the government may
maintain replevin against such
vendee for the logs, if they are in
existence, or if he has sawed them
into lumber (which is a conversion
of the logs), the government may
recover from him the value of such
logs when so manufactured into
lumber, and is not confined to the
' stumpage ' value." The authorities
being conflicting, the court followed
the decision of the supreme court of
the state of Minnesota, where the
case arose (Nesbitt v. St. Paul Lum-
ber Co. 21 Minn. 491). They justi-
fied the rule as a proper one for the
protection of timber on the public
lands from wilful or negligent tres-
passers; and against their innocent
vendee as " a logical and necessary
result of the property in the logs
still remaining in the government."
They refer to several of the cases
above cited. See U. S. v. Mills, 9
Fed. Rep. 684; Schulenberg v. Har-
riman, 3 Dill. 398; S. C. 31 WaU. 44.

Referring to the English and Ameri-
can cases which confine the dam-
ages to the value of the original
property taken, it was remarked
that they "have generally arisen
between adjoining owners, and the
mitigated rule of damages which
they lay down may have been
adopted in consequence of the difici-
culty of ascertaining boundaries in
subterranean mines, and it does not
apply where the trespass is fraudu-
lent or wilful or negligent. At all
events the doctrine of those cases
should not be extended to cases of
wilful or negligent trespasses upon
the public timber lands of the gov-
ernment."

In Walther v. Wetmore, 1 B. D.
Smith, 7, it is held that because the
owner does not lose title to the
property by the wrongdoer improv-
ing it, and may retake or replevy it,
he is entitled to recover the im-
proved value in trover. Grant v.
Smith, 36 Mich. 301, is to the same
effect.

The following are sections of the
Minnesota Statutes: R. S. 350, sec.
39. In all cases of wrongful or un-
lawful taking, detention and con-
version of logs or timber, and inter-
mingling the same with other logs
and timber so that they cannot be
identified and separated therefrom
by the owner, the rule of the com-
mon law applicable to the case of a
wrongful and fraudulent confusion
of goods shall govicrn in determining
the right of property in respect to
said logs and timber.

Sec. 40. In cases where logs or
timber bearing the same mark, but
belonging to different owners in
severalty, have, without fault of
any of them, become so intermin-

CONVEESION.

511

highest market price betweea the taking and the sal^e made by
the wrongdoer, without any abatement or allowance for har-

gled that the particular or identical
logs or timber belonging to each
cannot be designated, each of such,
owners may, upon the failure of any-
one of them having the possession,
to make a just division thereof after
demand, bring and maintain against
such one in possession an action to
recover his pi-oportionate share of
said logs or timber, and in such
action he may claim and have the
immediate deliveiy of such quan-
tity of said mark of logs or timber
as shall equal his said share, in like
manner and with like force and
effect as though such quantity em-
braced his identical logs and timber
and no more.

Wisconsin statute — Rev. St. sec.
4269: "In all actions to recover
the possession or value of logs, tim-
ber or lumber, wrongfully cut upon
the land of the plaintiff, or to re-
cover damages for such trespass, the
highest market value of such logs,
timber or lumber, in whatever
place, shape or condition, manufact-
ured or unmanufactured, the same
shall have been, at any time before
the trial, while in possession of the
trespasser, or any purchaser from
him, with notice, shall be found or
awarded to the plaintiff, if he suc-
ceed, except as in this section pro-
vided. The defendant in any such
action may, within ten days after
the service of the complaint, serve
on the plaintiff his afiSdavit that
such cutting was done by mistake,
and therewith an offer, in writing,
to allow judgment to be taken
against him for the sum therein
specified, with costs. If the plaintiff
accept the offer and give notice
thereof, in writing, within ten days,
he may file the summons, complaint
and offer, with an affidavit of the

service of the notice of acceptance,
and the clerk must thereupon enter
judgment accordingly, which shall
be in full satisfaction of the matters
alleged in the complaint. If notice
of acceptance be not so given, the
affidavit of the defendant shaE be
deemed traversed. Upon the trial
the jury shall find specially upon
such issue, and also the true value
of such logs, timber or lumber when
so cut, as well as their highest mar-
ket value, aforesaid. If the jury
find such cutting was by mistake,
and the sum, exclusive of cost, for
which judgment was so offered, was
not less than the value of such logs,
timber or lumber when cut, with in-
terest from that time to the time of
such offer, and ten per centum as
damages upon the combined sum,
principal and interest, the plaintiff
shall have judgment for the amount
of such offer only, less the costs and
disbursements of the action since
the date of such offer, to be taxed
and deducted in favor of the defend-
ant. If the jury find such cutting
was by mistake, but the sum, exclu-
sive of costs, for which judgment
so offered, was less than such value,
and interest and ten per centum
damages combined, judgment shall
be awarded the plaintiff on the ver-
dict for the value found at time of
cutting, with interest f i-om the time
of such cutting, and ten per centum
thereon aforesaid, besides the cost
of the action. If there be several
defendants not alike liable, either, or
any, may serve such affidavit and
offer, and have a separate trial as
to him or them." See Tuttle v.
Wilson, 52 Wis. 643. This statute
does not apply to an innocent pur-
chaser. Wright V. Bolles W. W. Co.
50 Wis. 167,

512 CONVERSION.

vesting and threshing.' Similar rulings have been made in
other states.^ In such cases, the plaintiff, by such recovery,
is placed in a better situation than he would be in if the
wrong had not been committed. He is not entitled to re-
cover this increase of value as a necessary part of a perfect com-
pensation for the loss and injury which he suffered. It is said
that a wrongdoer cannot acquire title to another's property by
improving it. As a general proposition this is true ; but the prin-
ciple does not apply when the owner sues for a conversion, and
asks damages therefor. The injury then to be compensated is
not affected at all by the use which the defendant has subse-
quently made of the property. When found guilty of the
conversion, and the defendant pays the damages assessed there-
for, the law vests him with the title as of that date. By bring-
ing such an action the owner tacitly assents to this result.^
Instead of the value added by the defendant, the value at the
time and place of the conversion, with interest, is the rule
founded in sound principle and now supported by a decided
preponderance of authority. Maule, J., said upon this point : ''
" It may be that the wrongdoer .who acquires no property in the
chattel he converts, acquires no lien for what he expends on
it, and the owner may bring detinue or trover. But it does
not follow that if the owner brings trover, he is to recover the
full value of the thing in its improved state. The proper meas-
ure of damages, as it seems to me, is the amount of the pe-
cuniary loss the plaintiffs have sustained by the conversion."

Where the chattel has become such by a tortious sever-
ance from the realty, as where coal or minerals are 'taken
from a mine, or timber or fixtures are severed from the freehold,
the general rule is to allow the value immediately after the sev-
erance and w^hen the property first becomes a chattel.' In the
two California cases just cited below, the action was for mesne

1 Ellis v. Wire, 33 Ind. 127. Fett, 30 id. 481; Single v. Schneider,

2 Stuart V. Phelps, 39 Iowa, 14; 34 Wis. 301; 30 id. 570; Foote v.
Benjamin v. Benjamin, 15 Conn. 347. Merrill, 54 N. H. 490; Adams v.

3Ante, p. 488. Blodgett, 47 N. H. 219; TUden v.

i Eeid v. Fairbanks, 13 C. B. 692. Johnson, 53 Vt. 638; Stockbridge

» Moody V. Whitney, 38 Me. 174; Iron Co. v. Cone Iron Works, 103

Martin v. Porter, 5 M. & W. 351; Mass. 80; Winchester v. Craig, 33

Morgan v. Powell, 3 Q. B. 378; Maye Mich. 305; Firmin v. Firmin, 9 Hun,

V. Tappan, 33 Cal. 306; GoUer v, 571; McLean County C. Co. v. Long,

CONVEKSION. 513

profits or for injury to laad, and the rule of damages applied
was the value of the gold dust, less the expense of its extrac-
tion. In Maye v. Tappan, the court say the rule of damages
depends to some extent upon the form of the action; whether
the action is for an injury to the land itself or for conversion of
a chattel severed from the land. In that case the action was
for injury to the land. The same rule was laid down in Olaw-
ser v. Joplin M. Oo.^ In Pennsylvania, Michigan and Wiscon-
sin, the same rule has been applied in trover.^ In Forsyth v.
Wells, it vras held that the rule of the value after severance
would transfer to the plaintiff all the defendant's labor in min-
ing the coal which- was the subject of the action, and thus give
the plaintiff more than compensation for the injury done ; and
the court thus discuss -the relation of the rule of damages to the
form of action: "Yet we admit the accuracy of this con-
clusion if we may properly base it on the form, rather than on
the principle or purpose of the remedy. But this we may not
do ; and especially we may not sacrifice the principle to the
very form by which we are endeavoring to enforce it. Princi-
ples can never be realized without forms, and they are often
inevitably embarrassed by unfitting ones ; but still the fact that
the form is for the sake of the principle, and not the principle
for the form, requires that the form shall serve, not rule, -the
principle, and must be adapted to its office.

" Just compensation, in a special class of cases, is the princi-
ple of the action of trover, and a little study will show us that
it is no unyielding form, but adapts itself to a great variety of
circumstances. In its original purpose, and in strict form, it
is an action for the value of personal property lost by one

81 m. 359; Kier v. Peterson, 41 Pa. Lean, 171; Greeley v. Stillson, 27

St. 357; Heard v. James, 49 Miss. Mich. 154; Tome v. Dubois, 6 "VVaU.

336; Young v. Lloyd, 65 Pa. St. 199; 548; Potter v. Mardre, 74 N. C. 86;

Lyon V. Gormley, 53 Pa. St. 261; Wetherbee v. Green, 23 Mich. 311.

Clarke v. Holford, 2 0. & K. 540; 1 4 Dill. 469, note.

Bennett v. Thompson, 13 Ired. L. 2 Forsyth v. Wells, 41 Pa. St. 391;

146; Smith v. Gowder, 22 Ga. 353; Single v. Schneider, 30 Wis. 570; 24

Wood V. Morewood, 3 Q. B. 440, id. 399; Hungerford v. Bedford, 29

note; Gushing V. LongfeUow, 26 Me. id. 345; Winchester v. Craig, 33

806; United States v. Magoon, 3 Mc- Mich. 305.
Vol. Ill -33

514 CONVEESIOW.

and found by another, and converted to his own use. But
it is not thus restricted in practice; for it is continually-
applied to every form of wrongful conversion, and of wrongful
taking and conversion, and it affords compensation not only
for the value of the goods, but also for outrage and malice in
the taking and detention of them.^ Thus form yields to pur-
pose for the sake of completeness of remedy. Even the action
■ of replevin adapts itself thus.^ And so does trespass.'

"In very strict form, trespass is the proper remedy for a
wrongful taking of personal property, and for cutting timber,
or quarrying stone, or digging coal on another man's land
and carrying it away; and yet the trespass may be waived
and trover maintained without giving up any claim for any
outrage or violence in the act of taking.^ It is quite apparent,
therefore, that this form of action is not SD uniform and rigid
in its administration as to force upon us any given or arbitrary
measure of compensation. It is simply a form of reaching a
just compensation, according to circumstances, for goods wrong-
fully appropriated. "When there is no fraud, or violence, or
malice, the just value of the property is enough.'

" "When the taking and conversion are one act, or one con-
tinued series of acts, trespass is the more obvious and proper
remedy; but the law allows the waiver of the taking, so that
the party may sue in trover; and this is often convenient.
Sometimes it is even necessary ; because the plaintiff, with fuU
proof of the conversion, may fail to prove the taking by the
defendant. But when the law does allow this departure from
the strict form, it is not in order to enable the plaintiff, by his
own choice of actions, to increase his recovery beyond just
compensation, but only to give him a more convenient form
for recovering that much.

" Our case raises a question of taking by mere mistake, be-
cause of the uncertainty of boundaries ; and we must confine
ourselves to this. The many conflicting opinions on the meas-
ure of damages in cases of wilful wrong, and> especially the
very learned and thoughtful opinions in the case of Silsbury

1 6 S. & R. 436; 12 id. 93; 3 Watts, ' 7 Casey, 456.
S33. i 3 Barr, 13.

« 1 Jones, 381. 5 11 Casey, 38

CONTEESIOBT.

515

V. McOoon,^ warn us to be careful how we express ourselves on
that subject.

" "We do find cases of i/respass, where judges have adopted a
mode of calculating damages for taking coal, that is substan-
tially the same as the rule laid down by the Common Pleas
in this case, even where no wilful wrong was done, unless the
taking of the coal out by the plaintiff's entry was regarded as-
such. But even then we cannot avoid feeling that there is a
taint of arbitrariness in such a mode of calculation, because it
does not truly mete out just compensation.^ We prefer the
rule in "Wood v. Morewood,' where Parke, B., decided, in a case
of trover for taking coals, that if the defendant acted fairly and
honestly, in the fuU belief of his right, then the measure of
damages was the fair value of the coals, as if the coal field had
been purchased from the plaintiffs.*

" "Where the defendant's conduct, measured by the standard
of ordinary morality and care, which is the standard of the
law, is not chargeable with fraud, violence, or wilful negligence
or wrong, the value of the property taken and converted is the
measure of just compensation. If raw material has, after
appropriation and without such wrong, been changed by manu-
facture into a new species of property, as grain into whisky,
grapes into wine, furs into hats, hides into leather, or trees into
lumber, the law either refuses the action of trover for the new
article, or limits the recovery to the value of the original
^rticle.^

" "Where there is no wrongful purpose or wrongful negligence
in the defendant, compensation for the real injury done is the
purpose of all remedies ; and so long as we bear this in mind, •
we shall have but little difficulty in managing the forms of
actions so as to secure a fair result. If the defendant in this case
was guilty of no intentional wrong, he ought not to. have been
charged with the value of the coal after he had been at the
expense of mining it; but only with its value in place, and with
such, other damage to the land as his mining may have caused.

1 4 Denio, 323; and 3 Oomst. 379. * See also Bainbridge on Mines

2 5 M. & W. 357; 9 id. 637; 3 Q. B. and Minerals, 510; 17 Pick. 1.

383. And see 38 Eng. L. & E. 175. » 6 Hill, 435 and note; 31 Barb. 93;

3 3 Q. B. 440, note. 23 Conn. 533; 38 Me. 174.

516 coNVEEsioir.

Such would manifestly be the measure in trespass for mesne
profits." ^

"Where the plaintiff's timber standing was worth $1.50 per
thousand feet, and an expense of $9 had to be and was incurred
by the defendant in wrongfully cutting 'it into logs and trans-
porting them to a distant market where they were worth $12
per thousand, the plaintiff was held entitled in trover to recover
the value when taken, that is, the " stumpage " value, in the
ordinary market ; or the value at the place where it was mar-
keted less the sums expended in the cutting and transportation,
in thus putting the property in condition for sale, with interest
from the date of conversion.^

The value of property converted may be and often is enhanced
by transportation. This increase of value is no just cause for
an increase of damages to the owner ; for it is no additional
element in his pecuniary loss. He is, therefore, by the prevail-
ing course of decision, allowed only the value at the place as
well as time of conversion.'

"Where a conditional sale of cloths was made, and the pur-
chaser printed them but did not perfect his purchase, in trover
brought by the seller against one to whom the conditional
vendee had consigned the cloths to be sold, it was held the
plaintiff could recover in damages only the value of the goods
at the time they were delivered, not their value after they were
printed.* In trover for the conversion of a vessel which was

1 In Lyon. v. Gormley, 53 Pa. St. principle of Forsyth v. Wells lias

265, Strong, J., commenting on For- been followed in Pennsylvania,

syth V. Wells, nsed this language: Herdic v. Young, 55 Pa. St. 176;

"The decision was made by a bare Coleman's App. 63 Pa. St. 278;

m.ajority of the court, and it is to be Young v. Lloyd, 65 id. 199.

regarded as ruling nothing more 2 ■Winchester v. Craig, 33 Mich.

than the law as applicable to the 205.

circumstances of that case. There 3 Weymouth v. Chicago, etc. R.

the coal had been taken, under a mis- E. Co. 17 Wis. 550; Sanders v. Clark,

take of right, and the act complained 106 Mass. 331; Herdic v. Young, 55

of was substantially a trespass. Pa. St. 176; Tilden v. Johnson, 53

It was a case for compensation, and Vt. 628.

though it was held trover would lie, 4 Dresser Manuf . Co. v. Waterston,

the action was treated as an action 3 Met. 9; Abom v. Mason, 14Blatchf.

quare clausum fregit for an in- 405.
jury, not wanton." The rule, and

CONVERSION. 517

taken in an unfinished state and completed by the defendant,
it was held, in an action by a purchaser at a sale under execu-
tion, levied whUe it was in the unfinished state in which the
defendant took it, that the plaintiff was entitled only to the
value at the time of the levy.^ And a similar rule was applied
in England. The plaintiff had a bill of sale of a ship being
built to secure advances. The defendant converted her before
she was finished and afterwards completed her. The plaintiff
was held entitled to the value at the time of the conversion,
not her value at a subsequent time ; and he was held not enti-
tled to special damages for the loss of freight she might have
earned.^

This principle which confines the plaintiff's recovery to a
compensation for his actual loss, and therefore to the value of
his property at time of conversion, applies when its identity is
destroyed by a wrongful intermixture with other property, pro-
ducing what is commonly called a confusion of goods. If the
owner chooses to seek his remedy by an action for the conver-
sion of his goods, he is fully compensated when he recovers its
value at the time of s\ich a conversion, as when it occurs in any
other manner. By the general current of authority he is con-
fined to that measure of redress.' But where- this rule of strict
compensation, in this class of cases, does not prevail, and the
improved value may be taken where it has been enhanced by
the labor of the wrongdoer, the right of the owner to take the
entire property in which his goods are a part by a wrongful
admixture, is recognized and enforced.*

The cases which administer the mitigated rule, exempting
the wrongdoer from paying the owner the enhanced value
caused by his labor, or the loss of his property by its admix-
ture with that of another, confine it to the case of conversion
by mistake or in the bona fide assertion of his rights.' But

iGreenv.Hall, IHoust. (Del.)506. Schneider, 30 Wis. 570; Ryder v.

SReid V. Fairbanks, 13 C. B. 693. Hathaway, 31 Pick. 398.

SHesseltine v. Stockwell, 80 Me. ^Rice v. Hollenbeck, 19 Barb.

337; Moody t. Whitney, 38 Me. 174; 664; Walther y. Wetmore, 1 E. D.

per Campbell, J., in Stephenson v. Smith, 7; Silsbury v. McCoon, 6

Little, 10 Mich. 433; Wetherbee v. Hill, 435; 4 Denio, 333.

Green, 33 Mich. 311; Potter v. Mar- 8 Heard v. Jones, 49 Miss. 336; For-

dre, 74 N. 0. S6. See Single v. syth v. Wells, 41 Pa. St. 391.

518 OOMTVEESION.

there are iutimations in several cases that the value of the orig
inal property should be given as the measure of compensation
in all cases without regard to the wrong having been done wil-
fully or fraudulently.^ Damages beyond compensation by rea-
son of bad motive are vindictive in their nature, and it is
exceptional for the court, instead of the jury, to award them
as matter of law, and as a matter of right.^

Special ob consequential damages. — In England, and gen-
erally in this couhtry, special damages are recoverable in trover
if alleged in the declaration. In trover for a horse valued at
15Z., special damage was claimed for the hire of another. There
was some hesitation in recognizing the damage as recoverable,
and a compromise result foUowed in a judgment for 2bU
Where a carpenter's tools were the subject of the suit, the court
allowed special damages by reason of the plaintiff, a carpenter,
being prevented, in consequence, from working at his trade.*
In a subsequent case,* the court of Queen's Bench drew a dis-
tinction between special damage and special value, and said
they were inclined to think that to enable a plaintiff to recover
special damage which did not form part of the actual present
value of the goods, as in withholding the tools of a man's trade,
the defendant must have some notice of the inconvenience
likely to be occasioned. It has been held that if the goods have
been returned after conversion, and accepted by the plaintiff,
he can only recover nominal damages, unless he claims special
damages, and alleges them in his declaration.^ Such return
accepted is treated as if ordered by the court ; and therefore,
in the absence of allegations in the declaration, or conditions
agreed on at the acceptance, the latter is deemed an admission
that the property has been returned in the same phght as when
converted, and that no special damages have been suffered ; for

1 Single V. Schneider, 30 Wis. 570; See Saunders v. Brosius, 52 Mo. 50;
Potter V. Mardre, 74 N. C. 36; Moody Boy Ian v. Huguet, 8 Nev. 343.

V. Whitney, 38 Me. 174. See ante, ^Bodley v. Reynolds, 8 Q. B. 779.
vol. I, p. 168. 5 France r. Gaudet, L. R. 6 Q. B.

2 See Heard v. Jones, 49 Miss. 199.

336. oBarrelett v. Bengard, 71 111. 280;

3 See Hughes v. Quentin, 8 C. & P. Moon v. Raphael, 2 Bing. N. C. 310.
703; Barron v. Arnaud, 8 Q. B. 595.

CONVEKSIOfr.

519

only m such a case would the court stay proceedings on return
of the property.'

In Pennsylvania such damages are not regarded as special.-
In allowing proof that the defendant's detention prevented the
sale of the property when the market was high, and that the
plaintiff was injured by the subsequent decline, the court thus

iSee post, p. 531. In Moon v.
Eaphael, supra, the defendant, a
sheriff, who held goods, taken in exe-
cution, delivered them to plaintiflEs,
assignees of a bankrupt, after an ac-
tion of trover had been commenced
by them; the plaintiff accepted
the goods without condition; held,
that the^ could not recover in the
action more than nominal damages;
at all events not without alleging
special damages in the declaration.
Tindall, C. J., said: " If the defend-
ants had come to the court to stay
proceedings on the delivery of the
goods, the plaintiffs would not have
been compelled to accept them, un-
less they were in the same plight as
when they were taken, and no in-
jury had accrued to the plaintiffs.
But the plaintiffs have taken- upon
themselves to accept the goods,
without imposing any condition on
the defendants, and then proceed to
trial, as they had a right to do, to
recover their costs; in order to which,
according to the practice of a cen-
tury, the jury may, under such cir-
cumstances, give them nominal
damages. But the plaintiffs seek for
more; and, though no special dam-
age has been alleged in the declara-
tion, and the damage complained of
is not necessarily incidental to the
wrongful taking of the property,
they claim to recover the amount
of rent paid in respect of the prem-
ises on which the goods were de-
tained for the period during which
they were under detention. If an
action of trespass had been brought,

such an allegation of special damage
might perhaps have been sustained;
this, however, is an action of trover,
and the declaration, which is in the
common form, seeks only damages
for the detention of goods which
were delivered up before the trial.
But it is said that if damages may
•be recovered in trover where the
goods have been given up before the
action, by the stronger reason may
a plaintiff claim damages where in-
jury has resulted to him from the
conversion, and restoration of the
goods has not been made till after
the action commenced; and many
cases have been cited to that pur-
port, in all of which I am disposed
to agree. But in all of them the
damage was either an injury to the
property converted, or the actual
and necessary consequence of the
conversion. The case of Gibson v.
Humphrey does not much apply; it
only decides that the court will not
stay the proceedings on payment of
costs, except in cases where the de-
fendant has restored the chattel al-
leged to be converted, and where the
plaintiff claims no special damage;
or where, if the chattel was sold,
there is no dispute as to price. But
the injury of which the plaintiffs
complain, not being a damage neces-
sarily consequent on the wrongful
conversion of the goods, if it could
in any shape fall within the remedy
of an action for trover, ought at
least to have formed the subject of
a special allegation."
2 Rank v. Rank, 5 Pa. St. 211.

520 0ONVEESION-.

*

stated what is believed to be the theory of the American prac-
tice on this point : " The redelivery is the defense, and is evi-
dence for the defendant, not in bar of the action, but in
mitigation of the damages; and the plaintiff in reply may
surely present to the consideration of the jury the actual injury
resulting to him from the trover or conversion, in order to show
to what extent the damage should in justice be mitigated." '
Any damages claimed in addition to the value and interest are
necessarily special and must be alleged.* But the compensation
the plaintiff may be entitled to in place of the value by reason
of a return of the goods is not of this nature.

ExEMPLAET DAMAGES MAT BE EEoovEEED. — Where exemplary
dmnages are allowed, they are generally held recoverable in aR
actions of tort, where the wrong which is the gist of tie action
is committed wilfully or maliciously — is attended with the ag-
gravations which are treated as sufllcient ground in trespass to
justify such damages.^ In trover, where property has been
tortiously taken, the taking is not the gist of the action ; and
the manner of the taking is not usually considered for the pur-
pose of exemplary damages. It is otherwise, however, in
Pennsylvania.*

Foe CONVERSION of money SEOUErriES, stocks, deeds and
OTHER documents. — For conversion of money securities, the
owner is ^Wwiffl /(ZCTe entitled to their face value; that is the
presumptive value; and he will be entitled to recover the actual
value if in any manner shown.'

1 See post, p. 529. Bredow v. Mutual Sav. Inst. 28 Mo.

2 Vol. I, p. 763. 181; Craig v. MoHenry, 35 Pa. St.

aPrebble v. Kent, 10 Ind. 325

Forsyth v. WeUs, 41 Pa. St. 291

Neiler v. Kelley, 69 Pa. St. 403

Jacoby v. Laussatt, 6 S. & R. 300

Dennis v. Barber, 6 S. & E. 420:

120; Roberts v. Berdell, 61 Barb. 87;
Turner v. Retter, 58 111. 264; Dennis v.
Barber, 6 S. & R. 420 ; Menkens v. Men-
kens, 23 Mo. 252; McPeters v. Phillips,
46 Ala. 496; St. John v. O'Connel, 7

Berry v. Vantries, 12 S. & R. 89; Day Port. 476; Mercer v. Jones, 3 Camp.

V. Woodworth, 13 How. 363; Dibble 476; Wilson v. Conine, 2 John. 280;

V. Morris, 26 Conn. 416; Mowry v. ShotweU v. "Wendover, 1 id. 65;

Wood, 13 Wis. 413. Cortelyou v. Lansing, 3 Cai. Cas.

< See last note. 200; Ingalls v. Lord, 1 Cow. 240;

5 Latham v. Brown, 16 Iowa, 118; King v. Ham, 6 Allen, 298; Tying

Robinson v. Hurley, 11 id. 410; v. Commercial Warehouse Co. 58

CONTEKSION. 521

Stated accounts,^ and even accounts not stated, are held to sj
be within this rule ; but the presumption of the face value of| ^
an account, not stated, is not strong, and may be easily over-
thrown.2

Interest should be computed to the date of the conversion,
where the face value is recovered, and the converted security
bore interest; .and from the date of the conversion, interest as
damages on both should be computed to the date of the trial.^
The face value of a check which has been paid on a forged
indorsement is the measure of damages, after a refusal to sur-
render it on demand.*

The maker of a promissory note can maintain an action for
its conversion against one who, before it has any legal inception,
wrongfully negotiates it to a idna fide holder for value. He is
entitled to recover the full amount of the note, as damages,
without averring or proving that he has paid it to the holder. It
is sufficient that he is legally liable to pay it.* But where a
note having the plaintifif's name on it only as indorser, has
been as to him fraudulently transferred to a honafide holder, and
has not yet matured, such indorser is not entitled to maintain an
action before he has been called on for payment, or his liability
made absolute. He is not deemed yet to have suffered any
damage.* Trover may be brought by the acceptor for the con-
version of a paid bill of exchange ; nor is he confined to nomi-
nal damages ; he is entitled to recover in respect of the risk of
liability, although the bill is utterly valueless.' The obligee in
a bond may recover in this action against the obligor who tore

N. Y. 308; Fisher v. Brown, 104 See Doyle v. Bccles, 17 U. C. C. P.

Mass. 259; Potter v. Merchants' 644; Woodbame v. Scarborough, 20

Bant, 38 N. Y. 641; Seals v. Cum- Ohio St. 57.

mings, 8 Humph. 442; Canton v. s Roberts v. Berdell, 61 Barb. 37;

Smith, 65 Me. 203; Holt v. Van Eps, Clark v. Bates, 1 Dak. 42.

1 Dak. 306; Decker v. Matthews, 13 < Survey* v. Wells, Fargo & Co. 5

N. Y. 313; Evans v. Kymer, 1 B. & Col. 124.

Ad. 538; American ^Exp. Co. v. Par- 5 Decker v. Mathews, 13 N. Y. 318.

sons, 44 ni. 812. In Brightman v. <> Freeman v. Venner, 120 Mass.

Reeves, 21 Tex. 70, this presumption 424.

of face value was denied, and proof ' Dunne v. Thorpe, B. D. & 0. 128.

required of the actual value. See Hansard v. Eobinson, 7 B. & C.

1 0'Donoghue V. Corby, 33 Mo. 398. 90; Evans v. Kymer, 1 B. & Ad.

2 Sadler v. Bean, 37 Iowa, 439. 538; Stone v. Clough, 41 N. H. 290.

522 CONVEESIOK.

off his seal ; and the whole amount of the penalty, it appearing
'" that the condition had been broken to the damage of the
plaintiff to a still greater amount.^ In such a case no alterna-
tive can be given the defendant to deliver up the obligation in
discharge of dataages.^ It has been held that the owner may
recover for the conversion of a bond the sum he would be en-
titled to recover on it from the obligee.'

If the party liable on an instrument converts it, he is liable
to that measure of recovery, and the defense of insolvency has
no application.* So where a plaintiff sues for conversion of
notes made by himself, the measure of damages is the amount
due on them at the time of the trial, without reference to his
ability to pay.^ If a judgment has been recovered against him
on such notes, and he has paid it, the amount paid will be the
measure of damages.^ In other cases the insolvency of the par-
ties liable on the paper may be shown in mitigation of damages.'
If, on account of peculiar circumstances, the note of a person
having no property liable to execution would be available to
the owner for its full amount, he is entitled to recover it.'

The defendant has a right to show in reduction of damages
payment in whole or in part; the inability of the maker to pay;
a release of the maker from his undertaking ; the invalidity of
the instrument, or any other matter which wiU legitimately
affect or diminish its value.' But if the maker becomes insolv-
ent after the conversion, it wiU be no ground for mitigation of
damages.!"

1 Bank of Upper Canada v. Wid- 179; Cothran v. Hanover Nat. Bank,
mer, 3 Up. Can. Jur. O. S. 233. 40 N. Y. Super. Ct. 401.

2 Id. 8 Rose V. Lewis, 10 Mich. 483; Del-
SRomig V. Romig, 3 Eawle, 241; egal v. Naylor, 7 Bing. 460.

Delany v. HiU, 1 Pittsb. 28. 9 Booth v. Powers, 56 N. Y. 22;

4 Stephenson v. Tha;fer, 63 Me. Terry v. Allis, 20 Wis. 32; Ingalls v.
143. Lord, 1 Cow. 240; Brown v. Mont-

5 Bobbins v. Packard, 31 Vt. 570; gomery, 20 N. Y. 287; Fell v. Mc-
Thayer v. Manley, 73 N. Y. 305. Henry, 42 Pa. St. 41; King v. Ham,

6 Comstock V. Hier, 73 N. Y. 6 AUen, 298; Mathew v. Sherwell, 3
269. Taunt. 439; Robinson v. Hurley, 11

7 McPeters v. Phillips, 46 Ala. 496; Iowa, 410.

Potter V. Merchants' Bank, 28 N. Y. '" Knapp v. U. S. etc. Express Co.
641; Latham v. Brown, 16 Iowa, 118; 55 N. H. 348; King v. Ham, 6 Allen,
Zeiglerv. Wells, Fargo & Co. 23 Cal. 398.

CONVEEBION. 523

In trover for conversion, of an insurance policy, the rule of
damages is probably the same as if the action were by the in-
sured upon the policy ; subject to mitigation by evidence of the
insolvency of the insurer.^ In trover for a policy of insurance, it
appeared that it was void ; the plaintiff had assigned it as secu-
rity for a debt, and the pledgee, on receipt of a certain amount
from the insurer as a gratuity, had delivered it up to be can-
celed. It was held that the plaintiff was entitled to only nomi-
nal damages for the value of the parchment ; he was not entitled
to the full amount of the policy, for it was confessedly bad, nor
to the sum paid the defendant, for it was merely a gratuity.-
In one case trover was sustained for a policy which was never
effected. An agent had been employed to procure insurance,
and he reported that he had done so, when in fact he had not.
He was not permitted to gainsay his representation, and was
held to the same liabihty as an insurer, for the same indemnity
the plaintiff would have had if the representation had been
true.'

Damages for conversion of deeds and other instruments will
be allowed according to the loss in the particular case. If the
party deprived of a deed is in possession of all the deed is
intended to convey, the damages are less than when he is out
of possession.* In the latter case the jury may give the fuU
value of the estate as damages, but these are generally reduced
to a small sum on the deeds being given up.* "Where the obligor
in a bond to convey land has converted the bond, the measure
of damages has been held to be the value of the land. This may
justly be awarded, for recovery and satisfaction woif .d extin-
guish the equitable interest, and thus have the same effect to
transfer title as in other oases.* But where the conversion of a
deed will not affect the owner's title, and the wrong is not one
for which punitive damages can be given, the proper measure of
damages is such a sum as will recompense the plaintiff for any

1 Kohne v. Insurance Co. 1 Wash. ■* Lloyd v., Sadlier, 7 Ir. Jur. N. S.
C. C. 93. See Chicago Building So. 15.

V. Crowell, 65 111. 453. ' Loosemore v. Radford, 9 M. &

2 Wills V. Wells, 8 Taunt. 364. W. 657; Coombe v. Sansom, 1 D. &

3 Harding v. Carter, Park on In- E. 301.

surance, 5. * Clowes v. Hawley, 13 John. 483.

524 CONVERSION.

actual loss he may have sustained, and for his trouble and ex-
pense of going into a court of equity or elsewhere to establish
and perpetuate the evidence of his title.^ A having agreed to
purchase of B the remainder of a term, the latter delivered to
him the lease in order that he might get an assignment made
out. A then obtained an enlargement of the term from the
original landlord, and refused to accept an assignment or pay
the full price agreed on, because B's under-tenant had removed
some fixtures. It was held that B might 'insist on A accepting
the assignment, and after demand and refusal of the lease
might maintain trover for it and recover the agreed price as
damages.^

How DAMAGES APFECTED BY THE NATUEE OF THE PLAENTTFr's

iNTEEBST. — To entitle a plaintiff in trover to recover the f uU
value of the property from one who converts it, he must be the
owner of the property, or, if not the owner, have a right of
possession with responsibility over to the general owner. The
goods must be stated in the declaration to be the goods of the
plaintiff. He must have the title or right of possession at
the time of the conversion.' Property in a third person, with
whom the wrongdoer is in no privity, wiU. be wholly unavail-
ing to one who tortiously invades actual possession, or to rebut
a right inferable from actual possession. Actual possession not
wrongful as to the defendant wiU be sufficient to maintain the
action, unless the plaintiff has possession as a mere servant to
somebody else.^ But under a plea which puts the plaintiff's
possession and property in issue at the time of the conversion,
the defendant may show title in a third person. Such proof
tends to controvert the plaintiff's title ; and where the defend-
ant has a right of possession derived from the general owner,

1 Mowry v. Wood, 13 Wis. 413. Phelps, 22 Pick. 538; Ames y.

2 Parry v. Frame, 2 Bos. & P. Palmer, 42 Me. 197.

451. * Freshwater v. Nichols, 7 Jones'

SThayer v. Hutchinson, 13 Vt. L. 251; Bartlett v. Hoyt, 29 N. H.

507; Kemp v. Thompson, 17 Ala. 9; 317; Harris v. Smith, 3 S. & R. '.0;

Pattison v. Adams, 7 Hill, 126; Bond Hampton v. Brown, 13 Ired. L. IS:

V. MitcheU, 3 Barb. 304; Curd v. Gruman t. Smith, 81 N. T. 37.
Wunder, 5 Ohio St. 92; Fairbank v.

CONVEESION. 525

or has acted by his authority, or has responded to him, he is
entitled to set up his title.^

If the plaintiff is not possessed of the full title, but he has
actual possession with responsibility over to the true owner for
the property, or has any special possessory title, however tem-
porary, if it existed at the time of the conversion, he may re-
cover the full value as against a mere stranger or wrongdoer.^
But if the plaintiff, having but a limited title, brings his action
against one having the remaining interest, or against one
claiming under such residuary owner, the plaintiff can then re-
cover only according to his interest.' The defendant hired to
the plaintiff a negro for two years, and put him in possession ;
soon afterwards the defendant got possession of the negro and
sold him. In trover it was held the hirer was entitled to re-
cover the difference between the amount fixed as hire, and the
profits of the negro's labor for the stipulated term.^ The holder
of a lien, seeking to enforce it against the owner, or who sues
the owner or one claiming under him, for injury to or conver-
sion of the property, can only recover the value of his lien.^

A party who has a lien on or other special interest in property,
and converts it, is liable to the owner for its value, but is enti-
tled to recoup the value of his special property.' This right
of recoupment may be extended under the American authori-
ties to cases or to counterclaims where there is no lien or special

1 Bates V. Stanton, 1 Duer, 79; Tenney v. State Bank, 20 "Wis. 153;

Beach v. Berdell, 3 Duer, 337; Edson Briggs v. Boston, etc. R. R. Co. 6

V. Weston, 7 Cow. 378; King v. AUen, 346; Case v. Hart, 11 Ohio,

Richards, 6 "Whart. 418; Ogle v. At- 364; Peebles v. Boston, etc. R. R.

kinson, 5 Taunt. 759; Sheridan v. Co. 113 Mass. 498.

New Quay Co. 4 0. B. N. 8. 618; -iCompton v. Martin, 5Rich. L. 14.

Floyd v. Bovard, 16 W. & S. 76; 5 Hays v. Riddle, 1 Sandf. 248;

White V. Teal, 13 A. & B. 114; Syl- Bailey v. Godfrey, 54 lU. 507; Shel-

vester v. Girard, 4 Rawle, 185. don v. Southern Exp. Co. 48 Ga.

2 Mechanics' & Tr. Bank v. Farm- 625; Spoor v. Holland, 8 Wend. 445;

ers' & M. Bank, 60 N. Y. 40; Btick Ward v. Henry, 15 Wis. 339.

V. Remsen, 34 N. Y. 883; Treadwell s jarvis v. Rogers," 15 Mass. 389;

V. Davis, 34 Cal. 601; Davidson v. Stearns v. Marsh, 4 Denio, 337; Bel-

GunsoUy, 1 Mich. 388; McGowen den v. Perkins, 78 lU. 449; Wheeler

V. Young, 2 Stew. 276; Pomeroy v. v. Pereles, 43 Wis. 333; Chad wick

Smith, 17 Pick. 85; Gruman v. v. Lamb, 39 Barb. 518; McOalla v.

Smith, 81 N. Y. 37. Qark, 55 Ga. 53.

3 Fowler v. Gilman, 13 Met. 367;

526

CONVEESION.

property. The right of recoupmeut does not depend on a lien/
as we shall have occasion to notice under the next head.' In
short, if the plaintiff, not being completely the owner, has the
possession, or the right of possession as to the defendant, at
the time of the conversion, so that he is under a contract obli-
gation to preserve the property and deliver it to the owner, or
is liable to him for it, however that liability may arise, he is
entitled to recover the full value.

On the other hand, if he is not completely and absolutely the
owner and is under no such obligation or liability, he can re-
cover only the value of his own interest. The suit then, in
some sort, accomplishes a partition ; the plaintiff takes his part
in value, and leaves the residue in the hands of the defendant.
And in actions by the general owner, or one recovering in that
right, the defendant is entitled to recoup for his special interest,
whatever it may be, and for anj'' cross demand growing out
of the same transaction, whether it be a lien or interest or
not. And he is, besides, entitled to mitigations, which we shall
, . presently consider, arising from the principle of limiting the
plaintiff's compensation to his actual loss. He may show that
the plaintiff has not suffered so great a loss as his case, on his
proof, imports, by reason of other facts which are part of the
res gestcB; he may show payments or other acts done by the de-
fendant in connection with the wrong of the conversion which
have the effect to lessen the injury or partially to compensate it.
"Where the vendee in a conditional sale sold the property be-
fore he acquired the title. by fulfilling the condition of paying
for it, the vendor in trover was held entitled to recover the full
value without any deduction for payments received by him
from his vendee.' But in Pennsylvania, where the party mak-
ing the conditional purchase was the defendant, the plaintiff
was held only entitled to recover the value of his beneficial in-
terest; the defendant was allowed the benefit of his payments.
As trover is an equitable action, this appears more just and in

1 Baltimore Ins. Co. v. Dalrymple, Co. 6 Allen, 346; Parish v. "Wheeler,
25 Md. 369; Johnson v. Stear, 15 C. 23 N. Y. 494.

B. N. S. 330. 3 Brown v. Haynes, 52 Me. 578;

2 See Briggs v. Boston, etc. E. E. Buckmaster v. Smith, 22 Vt, 203;

Smith V. Foster, 18 Vt, 183.

CONVEESION. S27

accordance with the principle of limiting recovery to just com-
pensation.* The same rule has been laid down and applied in
Georgia and Michigan.^ A piano was sold conditionally, and
title was to pass on all the payments being made. After a
large part of the purchase money had been paid, the vendor
sued for conversion of the instrument. The court held that
the payments would go in mitigation ; and that the defendant
was also entitled to recoup the damages, if any, for breach of
the warranties in the contract of sale.' A vendee of goods re-
ceived them at a stipulated price, payable in certain indorsed
notes, /on condition that within a given period he should deliver
the notes or return the goods; he afterwards refused to do
either, and the vendor sued him for the goods in trover. It was
held that the measure of damages was the actual value of the
goods and interest ; and that the vendee was not concluded by
the agreed price. Under such circumstances it was thought
that the agreed price was high evidence of actual value as
against the wrongdoer, and should not be reduced except upon
strong proof. Had the vendor, instead of electing to disaffirm
the contract, sued in assumpsit, he would have been entitled to
the agreed? price; though subject even then to a deduction, if
it turned out that the notes stipulated for were of less value.*

"Where one of several part owners sues a stranger for conver-
sion of the common property, he can only recover in respect of
his part, and the damages will be apportioned.

MiTiGATioiir OF DAMAGES. — If the caso is such that the plaint-
iff can be fully compensated by a sum of money less than the
full value of the property which was converted, the recovery
will be limited to the amount that will suffice for complete in-
demnity. The plaintiff will be confined to compensation com-
mensurate with the actual injury." The recovery is so reduced

1 Farmers' Bank v. McKee, 3 Pa. ^ Guilford v. McKinley, supra.
St. 318; Rose t. Story, 1 Pa. St. 190. ^ Stevens v. Low, 3 Hill, 133.
See Andrews v. Durant, 18 N. Y. ^ Noland v. Johnson, 5 J. J. Marsh.

4gg_ 351; PoweU v. Glenn, 21 Ala. 458.

2Gui]ford V. McKinley,61 Ga. 330; 6 Cook v. Loorais, 36 Conn. 483;

Boutell V. Wame, 63 Mo. 350; John- Chamberlin v. Shaw, 18 Pick. 378.
Eton V. 'Whittemore, 37 Mich. 463.

528 CONVEESIOlf.

when the plaintiff has only a special property subject to which
the defendant is entitled to the goods." Courts of law, in ac-
tions of trover, are authorized to investigate the justice and
equity of the particular case, in a manner and upon principles
similar to those by which, in such courts, the defense of partial
failure of consideration is sustained.^ "Where an officer was
sued by the debtor for attaching exempt property, and such
officer, by direction of the creditor who had become the legal
owner of a mortgage of such property, sold it on the mortgage,
and applied the proceeds thereon, it was held that the sum so
applied should go in mitigation of damages.'

A special agent to whom a bill of lading was sent, with in-
structions to deliver it to a purchaser on his paying a forthcom-
ing draft for the price, delivered it on a mere acceptance of the
draft, and the purchaser obtained the goods from a common
carrier on paying the freight ; such purchaser then pledged the
goods to the defendant. The latter was held liable for their value
at the time of the conversion, less the freight paid by the
pledgor ; but no deduction was allowed for commissions which
would have been due to the pledgor if the goods had been dis-
posed of according to the owner's instruction.* The right to
recoup for freight wrongfully paid has been denied in New
York."

If after the conversion of property it goes back into the
possession of the plaintiff, and he accepts it, this will go in
mitigation of damages, even though no agreement be shown on
the part of the plaintiff that he will receive it.* So, if the
property have gone to the plaintiff's use with his consent, ex-

ild.; Hyde v. Cooksen, .31 Barb. 5-Walther v. Wetmore, 1 E. D.

93; Pierce v. Benjamin, 14 Pick. Smith, 7.

356. 6 Yale v. Saunders, 16 Vt. 343;

2McGowen r. Young, 3 Stew. & Sparks v. Purdy, 11 Mo. 319; Eey-

Port. 160; Bates v. Murphy, id. 161. nolds v. Shuler, 5 Cow. 833; Easton

See Wilson v. Conine, 3 John. 380. v. Woods, 1 Mo. 506; Brady v.

s Cooper v. Newman, 45 N. H. 839. Whitney, 34 Mich. 154; Dailey v.

4 Stollenwerck v. Thacher, 115 Crowley, 5 Lans. 301; Wheelock v.

Ma^. 334; Covell v. Hill, 6 N. Y. Wheelwright, 5 Mass. 104; Cook

374; Whitney v. Beckford, 105 Mass. v. Loomis, 36 Conn. 483; Hepburn

367; Peebles v. Boston, etc. R. E. v. Sewell, 5 Har. & J. 311. In

Co. 113 Mass. 498. Sprague v. McKinsie, 68 Barb. 60, it

CONVEESION. 629

pressed or implied, that fact may be shown in mitigation.' ' An .
offer to return the goods, after conversion, is of no avail.^ But I
in an action for conversion of machinery in a workshop, it not
appearing that the defendant had ever appropriated it to his
own use, or removed it, or had actual possession of it, otherwise
than by being in the rightful possession of the workshop ; and
the alleged conversion consisting in a refusal to allow the
plaintiff to remove the machinery on demand ; a subsequent
notice to the plaintiff by the defendant that he relinquished all
claim to the machinery, was held should be considered in miti-
gation.' If the plaintiff sell the property after conversion, it
has been held he can recover ho more than nominal damages.*
"Where the property is returned an action may, notwith-
standing, be brought for the conversion, and the measure of
damages, as generally held, is the market value at the time of
the conversion, less the market value at the time of the return.'
It has been so held in Pennsylvania, and that these are not
special damages which should be specially alleged in the dec-
laration.*

The reason of the rule that the value of the goods, with
* «
appeared that B converted A's horse sequence of the plaintiff having
by selling it to D. Without delay taken her, there would have been an
A took the horse from D; then sued apparent equity in confining the
B in trover for it. It was held that plaintiff's recovery to the actuals, not
he was entitled to recover the full to nominal damages; but thei-e was
value, and that evidence of the retak- no pretense on the part of the de-
ing was not admissible in mitigation; fendant that he had repaid his
Cady, J., said: " He (defendant) did vendee the money which he had re-
nothing between the time he con- ceived for the mare, or that he was
verted the mare and the trial of the liable to repay it, in consequence of
cause in the court of common pleas the plaintiff's having retaken her."
in satisfaction of the plaintiff's de- This reasoning is open to comment,
mand against him; nor did the iPlevin v. Henshall, 10 Bing. 24;
plaintiff do anything to the defend- Irish v. Cloyes, 8 Vt. 80. See Locke
ant to cancel the demand which he v. Garrett, 16 Ala. 698.
had for the conversion of the mare; 2 Norman v. Rogers, 29 Ark. 365;
but the plaintiff took the mare by Stiokney v. Allen, 10 Gray, 352.
force from the defendant's vendee, 3 Delano v. Curtis, 7 Allen, 470.
and that act, the court instructed the * Brady v. Whitney, 34 Mich. 154.
jury, reduced the plaintiflf's demand 5 Lucas v. Trumbull, 15 Gray, 306;
to nominal damages. Had the de- Ewing v. Blount, 20 Ala. 694; Irish
fendant been compelled to repay his v. Cloyes, 8 Vt. 30.
vendee the value of the mare in con- 6 Bank v. Bank, 5^a.. St. 311.
Vol. Ill— 34

530 CONVEESION.

interest, is the measure of damages, where the property has
not been restored to the owner, is, that the value of the goods
is equal to the goods themselves; and interest on the value is
the legal damage for withholding such value. But where the
property is returned to the owner, the reason for allowing
interest ceases after that time ; and in place of interest for its
previous detention, compensation for the use, if valuable, should
be allowed.*

If the property is injured, or suffers any deterioration from
any cause, after the conversion, it is the loss of the wrongdoer,
and the owner may recover for it in trover.^ In such case, he
cannot compel the owner to receive back the property ; and if
he does so, he only receives it in mitigation of damages, for
what it is then worth.' One who hires a horse to go to a cer-
tain place, and drives him beyond, is guilty of a conversion,
and he is liable for any decrease in the value of the horse
occurring after that point, although it happen by the fault of
the horse.* If the property, after conversion, be destroyed, or
taken by an officer on process against a third person, it is
the loss of the wrongdoer, as far as the owner is concerned ; the
cause of action in his favor is complete at the time and by the
act of conversion, and if he is not able to return the property
in some mode to the owner, he can have no mitigation of dam-
ages, but they will be computed by the general rule of the
value at the date of conversion, and interest.'
A If there was a wilful taking of the property, or a wilful
refusal to surrender it on demand, or the property has suffered
any injury or deterioration in value, the defendant cannot com-
pel the plaintiff to accept the property in mitigation of damages.*

lEwing V. Blount, 30 Ala. 694; ^Perham v. Coney, 117 Mass. 102.

Post V. Munn, 4 N. J. L. 61; Parrel 5 Ball v. Lenig, 48 N. Y. 6; Wehle

V. Calwell, 30 N. J. L. 123. t. Butler, 61 N. Y. 245.

2 Jamison v. Hendricks, 2 Black, ^ Hart v. Skinner, 16 Vt. 138; Yale
94. T. Saunders, 16 Vt. 243, note; Fisher

3 Beach v. Earitan, etc. R. R. Co. v. Prince, 8 Burr. 1363; Olivant v.
37 N. Y. 457; Mullen v. Ensley, 8 Perineau, 3 Str. 1191; Shotwell v.
Humph. 428; Hooks v. Smith, 18 Wendover, 1 John. 65; Green v.
Ala. 338; Freer v. Cowles, 44 Ala. Sperry, 16 Vt. 390.

314; Gray v. Crocheron, 8 Port. 191;
Seay v. Marks, 33 Ala. 532.

CONVERSION. 631

But if the property came lawfully into the defendant's posses-
sion, and his refusal to surrender was qiialified, or the conversion
technical only, or without intentional wrong on the part of the
defendant ; and the property remains strictly in the same condi-
tion as before the conversion, the defendant may compel the
plaintiff to accept it in mitigation.' In a late case in Wiscon-
sin,^ the court, by Taylor, J., say: "It has been a well estab-
lished rule in the courts of England, for more than a century,
that in actions of trover the court will, under certain circum-
stances, permit the defendant, after suit brought, to bring the
property claimed into court for the defendant, with the costs up
to that time, and will then order a stay of proceedings, or per-
mit the defendant to proceed with the action at the risk of
having the costs finally adjudged against him, unless he is able
to show that he has been specially damaged by the conversion
of the property by the defendant, in addition to its value at the
time of its return. Or the courts will, in a proper case after
verdict, upon a tender of the property, reduce the verdict to
nominal damages." It is a practice wRich has been recognized
in several of the states.'

The application for such an order is addressed to the discre-
tion of the court.* The action must be for a specific chattel,
quantity and quality, and unattended with any circumstances
that enhance the damages above the real value ; it must be a
case where the real and ascertained value is the sole measure of
damages.'

The wrongdoer cannot entitle himself to a reduction of dam-
ages by applying the property or its proceeds to the plaintiff's

1 Pickering v. Truste, 7 T. E. 53
Earle v. Holderness, 4 Bing. 463:
Tucker v. Wright, 3 Bing. 601
Whitten v. FuUer, 2 W. Bl. 903;

483; Rogers v. Crombie, 4 Greenlf.
274; Tracey v. Good, 1 Clark (Pa.),
473; Shotwell v. "Wend over, 1 John.
65; Stevens v. Low, 3 HiU, 132;

Hayward v. Seaward, 1 Moore & Thayer v. Manley, 8 Hun, 550.
Scott 459. * Hart v. Skinner, supra; Churchill

2 Churchill v. Welsh, 47 Wis. 39. v. Welsh, supra.

SBucklinrv. Beals, 38Vt. 658;Hart 5 Fisher v. Prince, 3 Burr. 1864;

V. Skinner, 16 Vt. 138; Rutland, etc. Whitten v. Fuller, 2 W. Bl. 902;

R. R. Co. V. Bank of Middlebury, 32 Tucker v. Wright, 3 Bing. 601; Gib-

Vt. 639; Cook v. Loonais, 26 Conn, son v. Humphrey, 1 Cr. & M. 544.

532

CONTEKSIOIT.

use without his consent.^ And the fact that the i defendant was
a creditor of the plaintiff and took the property to satisfy the
debt, or under a void process, or by a void service of a valid
process, for such a purpose, will not in England, and in some of
the states of the Union, mitigate the injury or reduce the

damages.'

1 Wanamaker v. Bower, 36 Md. 42;
So-n-ell V. Champion, 6 A. & E. 407;
Northrap v. McG-iU, 37 Mich. 234;
Daltonv. Laudahn, id. 529; Bringard
-V. Stellwagen, 41 id. 54.

SKeUey v. Archer, 48 Barb. 68;
Butts V. Edwai-ds, 3 Deuio, 164; Earl
V. Spooner, 3 Denio, 346; Gillard v.
Brittan, 8 M. & W. 576; White v.
Brinstead, 76 E. C. L. 338; Attack
V. BramweU, 8 B. & S. 530; East v.
Pace, 57 Ala. 531 ; Northrop v. Mc-
Gill, 37 Mich. 234. In Edmondson
T. NuttaU, 17 C. B. N. S. 280, it ap-
peared that the plaintifE had certain
looms in the defendant's mill, and
demanded possession of them, the
defendant having no right to detain
them. The defendant, however, hav-
ing obtained a judgment against the
plaintiff in the county court, in re-
spect of wliich he would be entitled
to issue execution against him on
the next day, refused to deliver
them up, and the .looms were taken
in execution on the following morn-
ing, and sold. In an action for this
wrongful conversion: Held, that the
liability of the looms to the county
court process, and the fact that by
the wrongful seizure the plaintiff's
debt was (apparently) satisfied, were
not circumstances which the jury
could take into consideration in
estimating the damages.

"Williams, J., said: " It was clearly
established that the goods were
wrongfully seized by the defendant.
But it is contended that the. rule,

which is beyond all question a prima
facie rule, that for an act of this sort
the plaintiff is entitled to recover as
damages the full value of the goods
seized, ought not to prevail here, be-
cause the defendant shows mitigat-
ing circumstances, viz., that, after
he had been guUty of wrongfully
converting the goods of the plaint-
iff, he caused them to be applied so
as to be apparently a satisfaction of
a judgment debt due to himself. In
other w^ords, the defendant insists,
that, because with the proceeds of
the plaintiff's goods, which he so
wrongfully converted, he has satis-
fied his own debt, that fact must be
taken into consideration by the jury
in ascertaining what measure of
damages the plaintiff ought to re-
ceive for the wrong done to him. I
utterly decline to acknowledge the
soundness of that argument. There
is nothing unlawful in a man's with-
drawing his goods for thepui-pose of
avoiding an impending execution.
He may choose to apply them in
satisfaction of the claim of another
creditor; and this be has a perfect
right by law to do, apart from any
question arising under the bankrupt
or insolvency law. It is clearly no
ground for mitigation of damages
for the defendant to say that he has
chosen to detain the plaintiff's goods
in order that he may seize them and
apply the proceeds in satisfaction of
his own debt. If he might do this,
what is there to prevent his doing

CONTEESIOBT.

633

A different and more liberal rule generally prevails in this
country. Where the defendant, in an honest and lona fide en-
deavor to enforce a right, or a supposed right, or to exercise a
'power, deals with the property in such a manner as constitutes
a conversion, either because the right or the power was whoUy
or partially wanting, or has been exceeded or irregularly as-

so for the purpose of satisfying his
friend's execution which he knows
to be outstanding? The case has
been likened to that of the redelivery
of the thing converted, which is al-
lowed to go in mitigktion of dam-
ages. . . . Here, however, the
goods were never redelivered to the
plaintiff. He never had power to do
as he pleased with them. There is
no ground whatever for saying that
the defendant e'^er restored to the
plaintiff the control over his goods.
Contrary to the plaintiff's wishes, he
devoted them to the payment of his
own debt. Then comes the main
argument. It was said, that, if the
plaintiff were allowed to recover by
way of damages in this action, the
fuU value of the goods, the conse-
quence will be that the goods wiU
be, by virtue of the judgment and
execution, regarded as having been
the property of the defendant from
the time of the conversion. The
obvious answer to that is, that, in
the result, the seizure of these goods
wiU not have operated in satisfac-
tion of so much of the debt due to
the defendant upon his judgment in
the county court. The execution,
having been satisfied so far out of
what turns out to have been the ex-
ecution creditor's own goods, is no
satisfaction at aU, and the now de-
fendant may go to the county court
and obtain leave to issue fresh
process. There is no ground for
urging what has been done in miti-
gation of damages."
Waies, J.: . . . "Such cir-

cumstances may exist either where
the plaintiff has only a limited in-
terest in the goods at the time of the
conversion, or where the defendant
has a lien upon them, or, as in
Brierly v. Kendall, where the plaint-
iff had a defeasible right to the pos-
session of them. There is nothing
to make this case an exception from
th^ general rule, that the plaintiff is
entitled to recover all he has lost by
the defendant's wrongful act. Then,
there is the case in which the goods
wrongfully seized have been after-
wards returned. The cases of
Fouldes V. Willoughby, S M. & W.
540, and Harvey v. Pocock, 11 M. &
W. 740, afford a f amUiar illustration
of the rule. The circumstances I
have referred to have from very
early times been considered admis-
sible in mitigation of damages, be-
cause the plaintiff has had part
satisfaction for the wrong. If the
goods have been restored, and the
plaintiff has consented to take them
back in discharge of the claim, that
might perhaps be pleaded by way of
accord and satisfaction; if not, it
would go in reduction of the amount
of damages to which the plaintiff
would be entitled for the wrongful
conversion. There, is also another
case in which a mitigation of dam-
ages is allowed upon a very peculiar
ground — the case of one who, as
executor de son tort, has dealt with
the goods of the deceased in a due
course of administration, and relies
on that as an answer to an action
brought against him by the real

534

CONVEESION.

serted or exercised, the courts generally consider the whole
transaction, and award only such damages as are necessary for
complete reparation. Thus, in disposing of property right-
fully distrained for rent, a necessary step was omitted, which
made the sale irregular, legally a conversion ; but the defend-
ant was permitted to recoup the rent which the sale was made

executor appointed under the will.
There, the character of the act of
wrong is determined at the time it is
done. The law, however, regards it
with so much favor, that, if the real
executor would have done the same,
no recovery is allowed against the
executor de son tort in respect of
damages for that part of the estate
which has been so applied. In all
these cases, the damages are allowed
to be mitigated, either in respect of
the interest of the plaintiff in the
goods being less, or of his having
already received a partial satisfac-
tion of the damages, or of the act
being an act having a rightful char-
acter in respect of the persons to-
wards whom it is done and in whose
favor it operates at the time. But
that principle cannot apply here,
where the plaintiff had an unquali-
fied right at the time to do as he
liked with the goods, and the act of
the defendant was wrongful and
without any justification. I cannot
help thinking that we should be vio-
lating the rule of law which prohib-
its a man from taking advantage of
his own vpTong, if we were to hold
that the defendant's execution was
to have a greater advantage or be
more beneficial to him. by reason of
his wrongful act in seizing and de-
taining the plaintiff's goo'ls for the
purpose of making them amenable
thereto. There clearly was nothing
like a redelivery of 'the goods to the
plaintiff here. So long as law shall
endure, parties cannot be allowed to
be judges or bailiffs in their own

cases. In all cases save the excep-
tional one of distress, the final proc-
ess of the law is to be executed by
the officers of the law. A person
who has in violation of the law
taken upon himself to seize goods
which he has no right to, ought not
to be allowed to come and ask for
any favor or encoui-agement, which
we should in effect be allowing if we
held that the subsequent seizure
under the county-court process
could qualify the defendant's wrong-
ful act of detaining the goods on
the previous day. I observe that
my Brother Blackburn did not ex-
press any opinion on the point of
law at the trial. He left the matter
to the jury, not with a direction
such as he would have given them
in the case of a plaintiff having but
a limited interest in the goods, or of
a defendant having a lien, or in the
case of a redelivery; but he simply
told them that they might take the
fact of the plaintiff having the benefit
of the proceeds in reduction of his
debt into account in estimating the
damages. He evidently felt the
difficulty of stating that as a propo-
sition of law. To hold that the de-
fendant is entitled to have the fact
of the goods being liable to the
county-court process taken into con-
sideration in estimating the dam-
ages in this action, would be giving
him a greater advantage than the
law would give him in the ordinary
case of a lien, or in the other cases
which I have put. Considering what
violence might ensue if a creditor

OONVEESION. 535

ifi satisfy, or to have it deducted in mitigation.^ An oflficer, by-
abuse of his process of execution, was held to be a trespasser
from the beginning, but he was allowed in mitigation to prove
*he amount of the proceeds he had applied on the judgment.^
A tax collector became a purchaser at his own sale, which was
held voidable for that reason ; but in trover by the owner, for
the property, against the collector, the amount of the tax paid
was deducted from the damages.^ An officer sold without giv-
ing notice, and he was held liable as for a conversion ; but the
proceeds having been applied to his debt, the owner was held
entitled to recover only the damages he suffered from the fail-
ure to give such notice; this damage was supposed to be that a
lesfi price was obtained for the property.'*

la an action of trover against an attaching creditor and the
officer, it appeared that after the attachment of the property
the attachment was abandoned, and the indorsement of service
erased. Without surrendering the property, it was taken on a
new writ for the same creditor and the same debt, and, after
judgment, sold on execution and the proceeds applied to satisfy
it. The action was brought for a conversion by the. original
taking. As the defendants could not justify, they suffered
judgment by default, and on the assessment of damages they
claimed the right to show such subsequent disposition of the
property in mitigation, and were allowed to do so; and the

were allowed, for the purpose of se- action brought against him by the

curing his debt, to resort to an act buyer for the trespass, insisted that

unlawful at the time, and to justify the jury might, in estimating the

it afterwards by something which damages to which the plaintiff was

did not then exist, I think we are entitled, allow the value of the

not warranted in allowing the in- goods so unpaid for in mitigation,

choate right of the defendant to But the court of exchequer took a

have execution against the goods in different view of the matter, and

question to operate in reduction of held, for reasons which are equally

tlie damages which the plaintiff is applicable here, that the defendant

entitled to for the wrongful seizure, must pay by way of damages for his

There is a case where this doctrine unlawful act the full value of the

was attempted to be carried to a very goods seized."

great length. I aUude to the case of i Tripp v. Grouner, 60 lU. 474.

GiUard v. Brittan, 8 M. & W. 575. 2 Lamb v. Day, 8 Vt. 407.

There, the seller of goods which had 3 pierce v. Benjamin, 14 Pick. 356.

not been paid for, retook them by * Wright v. Spencer, 1 Stew. 576.
violence from the buyer, and, in an

536 CONVERSION.

court, by Waite, J., say: "If goods' are tortiously taken, and
a creditor of the owner afterwards attaches them, and disposes
of them according to law, and applies the proceeds in satisfac-
tion of a judgment against the owner, such proceeding may
be shown, not as a justification of the taking, but in mitiga-
tion of damages. For it Avould be palpably unjust for the
owner to receive the full value of his goods in their application
to the payment of his debts, and then afterwards recover that
value from another, who has received no substantial benefit
from his property. This rule is not only in conformity with
justice, but has the sanction of authority." ^ The case was
held to be within the reason of that rule, although the subse-
quent process was in favor of one of the defendants, and exe-
cuted by the other. "The plaintiff," the learned judge
continued, " has no more right to complain of a second attach-
ment than he would if made by any other creditor, or if there
had been no previous taking of the property. When the goods
were attached the second time, the copy left in service with
him showed their situation. It was then at his option to regain
the possession either by writ of replevin or by payment of the
debt upon which they vrere attached, or suffer them to be ap-
plied in satisfaction of that debt. Had he obtained his goods
in either of the former modes, it would hardly be claimed that
he could afterwards recover their value of the defendants. The
same result ought to follow if he suffers them to be appUed in
due form of law to the payment of his debt." This is in ac-
cordance with the course of decision in some other states.^ If

1 Curtis V. "Ward, 20 Conn. 204; and must be specially pleaded.
Bates V. Courtright, 36 111. 518. In Murray v. Burling, 10 John. 173;
Wehle V. Butler, 13 Abb. N. S. 139, Baker v. Freeman, 9 Wend. 39; Bald-
it was held that evidence of pay- win v. Porter, 12 Conn. 473; Ford v.
ment, or of application of the fund Williams, 34 N. Y. 359; Hurlburt v.
in suit to plaintiff's benefit, cannot Green, 41 Vt. 490; Mclnvoy v. Dyer,
be introduced under a general denial 47 Pa. St. 118; Jamoaco v. Simpson,
(in code pleading); that if a defend- 19 C. B. N. S. 453; Kaley v. Shed,
ant. when sued for a conversion of 10 Met. 317; Ward v. Benson, 31
goods, sets up a subsequent valid How. Pr. 411.

sale on execution, in favor of the 2 Stewart v. Martin, 16 Vt. 397;

defendant and against the plaintifE, Board v. Head, 3 Dana, 489; Hopple

it constitutes a defense, and does v. Higbee, 23 N. J. L. 342; Morrison

not go in mitigation of damages, v. Crawford, 7 Oregon, 478.

CONVEESION.

537

the plaintiff procure return of the property, he is entitled to
recover for time spent, and other outlays reasonably made to
procure it.^ He may recover for money paid to satisfy an ex-
action of one having the property, to obtain possession,^ or at
a wrongful public sale.' The sums so paid detract from the
benefit the defendant will derive by way of mitigation of dam-
ages from the return of the property. The defendant will be
entitled to a deduction from the damages which would other-
wise be recoverable for any partial satisfaction of the wrong
made by him, or by any of several jointly charged with or
guilty of the same conversion, and accepted by the plaintiff.
Where in such a case, against two, the plaintiff obtained judg-
ment by default against one, and withdrew his action against
the other upon receiving partial satisfaction, and agreeing no
further to prosecute him personally therefor, it was held that
damages might be assessed against the defaulted defendant for
the value of the converted property, deducting therefrom the
amount received by way of compromise from his co-defendant.*

1 Greenfield Bank v. Leavitt, 17 2 Keene v. Dilie, 4 Exoh. 388.

Pick. 1; Ewing v. Blount, 20 Ala. 'Hurlburt v. Green, 41 Vt. 490;

694; McDonald v. North, 47 Barb. Baldwin v. Porter, 13 Conn. 473.

530; Sprague v. Brown, 40 Wis. 613. ^Heyer v. Carr, 6 R. I. 45.
See Sprague v, McKenzie, 63 Barb.
60.

538 EEPLEVIK.

CHAPTER XIX.

REPLEVIN.

Section 1.

plaintiet's case.

Definitions — Measure of damages — Exemplary damages may he recovered —
Special and consequential damages — Recovery where the property has
not been obtained on the writ — Intermediate injury and depreciation —
Where the value of the property has been increased by the wrongdoer.

Definitions. — Eeplevin and detinue are common law actions
for recovery of specific personal property. The former en-
ables the plaintiff to obtain possession at the commencement
of the suit, on giving security to prosecute his action, and to
return the property if return be adjudged ; the other enforces
delivery of the property by the final judgment and the process
thereon. The remedy by claim and delivery, under the code,
combines substantially the advantages of both of these actions.^

Measure of damages. — "Where the plaintiff obtains posses-
sion of the property on his writ of replevin, as is usually the
fact where, the defendant has no legal right to retain it by
giving bond, and on the trial maintains his right to it, if the
property is obtained without injury or deterioration, he is only
entitled to damages for the caption and detention.

The ordinary measure of these damages is the interest on the
value of the property.^ This rule will be applied to securities
for money not bearing interest, the detention of which prevents
the owner from collecting the money they represent, or of
making demand so as to put them upon interest, if payment
should be delayed.' This rule, however, is not inflexible.

1 See McLaughlin v. Piatti, 27 Cal. Guaranty, etc. Co. v. Flynn, 55 N. Y.

451; Morgan v. Reynolds, 1 Mont. T. 653; McDonald v. Scaife, 11 Pa. St.

163. 381; Scott v. Elliott, 68 N. C. 215;

= Brizsee v. Maybee, 21 "Wend. 144; McDonald v. North, 47 Barb. 530;

State V. Smith, 31 Mo. 566; Bigelow Robinson v. Barrows, 48 Me. 186;

V. Doolittle, 36 Wis. 115; GiUies v. Oviatt v. Pond, 29 Conn. 479.

Wofford, 26 Tex. 76; New York 3 McCoy v. Cornell, 40 Iowa, 457.

539

Following the principle that the injured party is entitled to
just compensation only, when there is no injury, or but a slight
one, the damages will be only nominal, or according to the
injury actually sustained. If securities for money, bearing
interest at the legal rate, are detained, and the interest has not
been paid, no more than nominal damages can be recovered.^

Where corporate stock was the subject of the action, and by
statute the value at the date of the trial was the value recover-
able, it was held that in addition to this value the plaintiff was
entitled to the dividends that had been paid upon the stock as
damages for the detention.^

Interest on the value will not be adequate compensation,
and it is not the measure of damages where the use of the
property detained is valuable. The owner is entitled to recover
the value of the use, if he prefers it to interest, during the time
he was deprived of possession.^ Without alleging special dam-
ages, the plaintiff may recover in replevin such damages for the
detention of the property as the jury, upon all the evidence,
may be satisfied that the use of the property, considering its
nature and character, was worth during the time of the deten-
tion.^ Where the value at the time of the taking is adopted,
and interest is added to that, it is erroneous to give compensa-
tion also for the use between the taking and the trial.'

In replevin for materials, which before their removal com-
posed a fence attached to and a part of the realty, the plaintiff
can recover only the value of the materials after their removal,
and not the value of the fence as it stood before the removal.*

1 Bartlett v. Brickett, 14 AUen, 62. Chamberlain, 30 HI. 319; Dunnahoe

2Bercichv. Marye, 9Nev. 313. v. Williams, 24 Ark. 264. See

3 Odell V. Hole, 35 111. 204; Clark Twinam v. Swart, 4 Lans, 263.

V. Martin, 120 Mass. 543; Davis v. ^ Clark v. Martin, supra. It has

Davis, 30 Ga. 296; Morgan v. Reyn- been held that the failure to claim

olds, 1 Mont. T. 163; AUen v. Fox, damage in a declaration in replevin

51 N. Y. 563; CarroU v. Pathkiller, is a fatal defect. Faget v. Brayton,

3 Port. 379; Fralick v. Presley, 29 3 Har. & J. 350; Crosse v. Bilson,

Ala. 463; Dorsey v. Gassaway, 3 6 Mod. 102. See Smith v. Dodge,

Har. & J. 413; Scott v. Elliott, 63 N. 37 Mich. 354.

C. 215; aapp v. Walter, 3 Tex. 130; ' Bigelow v. Doolittle, 36 Wis. 115;

Clements v. Glass, 23 Ga. 395; But- Freeborn v. Norcross, 49 Cal. 313.

ler V. Mehrling, 15 111. 488; Maohfette «Pennybecker v. McDougal, 48

V. Wanless, 2 Col. 180; Hanover v. Cal. 160.
Bartels, 3 Col. 514; McGavock v.

540 EEPLEVIN.

Where an engine was the subject of the action, it was held that
damages for the use could not be recovered during the time of
the detention, without a showing that, but for the detention, the
owner was in a situation to use it.' He may recover for the
use of a horse while it is detained, but not in addition for
the natural depreciation in the value while in the defendant's
possession.^

EXBMPLAET DAMAGES MAT BE EEOOVEEBD. Such damages

may be recovered where the taking is accompanied with out-
rage and insult, or the detention is aggravated by bad faith and
oppression.' On the question of damages, the means by which
the goods have been taken or retained wiU be considered. In
Pennsylvania, damages beyond the value of the property may
be given in replevin, where the taking was accompanied with
any wrong or outrage, though the declaration contain no count
for special damages, nor any averment of such aggravation ; *
and the same rule has been recognized in Mississippi ' and New
Tork.«

Where the owner of Sioux half-breed scrip is wrongfully de-
prived of the same, he may recover its value to him, although
the scrip, being unassignable, is valueless in the hands of third
persons, and notwithstanding duplicates might be obtained
from the land office at Washington on proof of the loss of the
originals. A wrongdoer, it was held, will not be permitted to
resort to such a defense.'

Special and consequential damages. — These may be recov-
ered by the plaintiff in replevin, arising naturally and proxi-
mately from a wrongful caption or detention.' In such an
action to recover possession of a heifer which was secretly taken

1 Barney v. Douglass, 32 Wis. 464. * Schofleld v. Ferrers, 46 Pa. St.

2 OdeU V. Hole, 25 lU. 304; May- 438.

berry v. CaifEee, 7 Cold. 117. 5 Burrage v. Melson, 48 Miss.

3 Heard v. James, 49 Miss. 336; 837.

Craig V. Kline, 65 Pa. St. 399; Scho- « Cable v. Dakin, 30 "Wend. 173;

field T. Ferrers, 46 Pa. St. 438; Bur- Brizsee v. Maybee, 21 Wend. 144.

rage v. Melson, 48 Miss. 337; Cable 7 Bradley v. Gamelle, 7 Minn. 331.

V. Dakin, 30 Wend. 173; McDonald s Sohofield v. Ferrers, supra.
V. Scaife, 11 Pa. St. 881.

plaintitf's case. 541

from the possession of the plaintiff by the defendant, damages
were held recoverable for time spent and expenses incurred by
the plaintiff in searching for the heifer, after she was taken by
the defendant ; but such damages should be specially alleged.'
In Wisconsin, a complaint under the code, being in the statu-
tory form (which does not allege damages), will let in proof of
special damages for the detention, as the statute provides for
their recovery. For that reason, the rule that special damages
must be alleged is, to that, extent, inapplicable. In replevin for
a horse, it was held the plaintiff might recover as damages, not
only the value of the use of the animal during the time it was
unjustly detained, but, if injured while so detained by defend-
ant's neglect, the plaintiff's expenses in taking care of and doc-
toring the animal, in excess of what those expenses would have
been, but for the injury, and for the loss of the animal's serv-
ices after the plaintiff had gained possession, as well as for the
permanent depreciation of its value, resulting from the injury.^

Kecoveet wheee thi! peopeett has not been obtained on
THE WEIT. — The plaintiff may still proceed with his action
where he does not obtain the property, and he will be entitled
to recover, in addition to damages, the property, or its value.
If he is entitled to recover the value, the measure of damages
is the same as in trover or trespass.' . But the value and dam-
ages must be proved ; otherwise the plaintiff will recover only
nominal damages.*

In several of the states, the defendant has a right to retain
the property by giving a counter bond, either to pay for the
property or to deliver it, if the plaintiff shall succeed in estab-
lishing a right to it. In Pennsylvania, the defendant has an
election to deliver the property on the writ when the sheriff
calk for it, or to retain it by giving security. If the property
be delivered to the plaintiff, and he sustains his action, the de-
fendant is answerable in damages for the taking and detention

1 Miller v. Garling, 13 How. Pr. Frazier v. Fredericks, 34 N. J. L.

203; Blackwell v. Acton, 38 Ind. 425; 162.

MitcheU Y. Burch, 36 Ind. 539. *Phenix v. Clark, 3 Mich. 327;

2Zitske Y. Goldberg, 88 Wis. 316. Seabury v. Ross, 69 111. 533; Mann v.

3 Bigelow V. Doolittle/36 Wis. 115; Grove, 4 Heisk. 403.

542 EEPLEVnir.

up to the time of delivery. If the property be retained, he is
answerable in addition for the full value. In either case, the
action thenceforth proceeds for damages alone. The property
itself can in no event be recovered at law from the defendant;
nor can he tender it afterwards, in discharge of the action, or
even in satisfaction pro tanto of the damages claimed.^ The
claim and delivery of the code as generally adopted, allows the
defendant to retain the property by executing the counter bond.
The judgment, if given for the plaintiff, where this right of the
defendant to retain the property has been exercised, is in the
alternative after the model of the judgment in detinue ; it is
for delivery of the property, or for the value, if delivery can-
not be had ; and for damages absolutely. The value is found,
and usually of the date of the trial. But the statutes are not
entirely uniform on these points, nor the decisions, where the
statutes are similar.

In Missouri, the plaintiff, if he succeeds, has the choice of
taking the property or its value. And by the value is meant
the value at the time of the valuation by the jury.*

In IsTew York, this option does not exist ; at the termination
of the suit by judgment in his favor, the plaintiff must take
the property if the defendant has it, and will permit him to
take it.' The jury are required to assess the value of the prop-
erty and the damages for the detention. The value is assessed
of the date of the trial ; and any intermediate deterioration or
depreciation must be recovered for as damages.* The value at
the time of the trial is the usual subject of the inquiry, and the
proper subject of proof. Such value is to be accepted as a sub-
stitute for the property itself, if the sheriff cannot deliver pos-
session, and it should be the equivalent thereof.' An action of
claim and delivery may be brought against a wrongdoer,
although he has parted with the possession of the property
before the commencement of the action. If the jury find that
the obtaining and sending away the property were fraudulent,

1 Fisher v. WhoaUing, 25 Pa. St. Fitehugh v. "Wiman, 9 N. Y. 559;
197; Schofield v. Ferrers, 46 Pa. St. Brewster v. Silliman, 38 N. Y. 423.
438. lid.; Allen v. Fox, 51 N. Y. 563.

2 Pope V. Jenkins, 80 Mo. 538. 5 Brewster v. Silliman, supra.
SDwight V. Enos, 9 N. Y. 470;

PLArNTIFF's CASE. 543

the plaintiff has a right to recover their value if possession
cannot be delivered.^

In Minnesota the alternative form of the judgment is re-
quired.^ It is there held not to be necessary for the jury to
assess the value of several articles, in question, separately;
unless requested by the plaintiff, with a view to obtaining a
part of the property where all cannot be delivered on final
process.' "Where part has been replevied and a part not, only
the value of the latter need be found.* And the value is to be
assessed at the time of the wrongful taking or detention. If
the defendant recovers, the value is fixed at the time the prop-
erty is replevied from him.^

In Tennessee, where the sheriff returns that he cannot get
possession of the property described in the writ, and has made
known the contents of the writ to the defendant, the plaintiff
may elect to declare in trover or detinue, and proceed as in the
form of action selected.'

In Nevada, the judgment for the plaintiff, in claim and de-
livery, where the property has remained in the possession of
the defendant, is for the property, or for the value if delivery
cannot be had. The defendant has a right to deliver it instead
of paying the value.'' The value is there fixed at the time of
trial.*

In this contrariety of "practice it is important to observe, with
reference to the subject of damages, the distinction' between
those cases in which the actual pursuit of the property in specie
ceases upon the return of the writ showing that it has not been
obtained, either because it has beea eloined, or retained by exe-
cution of a counter bond, and those cases in which the plaintiff
continues the pursuit until the final judgment. At conimon law,
if the plaintiff declares in the detinuit, he can recover damages
for the detention only until replevin, though he should prov*

1 EUis V. Lersner, 48 Barb. 539. Ins. & T. Co. v. Alexander, 10

2 Berthold v. Fox, 13 Minn. 51. Humph. 378.

3 CaldweU v. Bruggerman, 4 Minn. i Lambert v. McFarland, 3 Nev. 58;
270. Carson v. Applegarth, 6 Nev. 187;

*Hecldin v. Ess, 16 Minn. 51. Buckley v. Buckley, 12 Nev. 428.

5 Sherman v. Clark, 24 Minn. « O'Meara v. North Am. M. Co. 2
37. Nev. 112; Bercich v. Marye, 9 Nev.

6 Act of 1816, ch. 65; Nashville 312.

544 EEPLETEJ.

the property still in the defendant's possession.' Such declara-
tion implies that the property has been taken and delivered to
the plaintiff, and that the detention does not continue. The
declaration depends on the return of the sheriff. If that shows
that he has replevied the property, and delivered it to the
plaintiff, his declaration is necessarily in the detwiuit, for he has
got the property, and complains only of the taking and deten-
tion until replevied. If, however, the return shows that* the
property has not been delivered to the plaintiff, the declaration
is in the detinet and goes for damages including the value of
the property.^ Then the action is like trespass or trover; solely
an action for damages ; it is in effect trespass when the plaint-
iff was deprived of the property by a tortious taking ; trover,
if the wrong consists in an unlawful detention merely. The
measure of damages is the same as in those actions upon the
same state of facts. The same proof is admissible for compen-
satory and exemplary damages. The defendant is charged, by
the rule generally recognized, with the value at the time of the
taking or conversion and interest from that time to the trial.'

There is no principle upon which the defendant can be
charged with the use of the property, though valuable, after
the date at which he is charged with .the value ; for that would
involve the inconsistency of allowing the plaintiff compensation
for the use of the property after he will-have ceased to be the
owner on the satisfaction of the judgment. The same consid-
eration is adverse to allowing him any benefit from any subse-
quent appreciation in market value, or by the defendant's labor.
But other principles are invoked to sustain such recoveries.
One is that the defendant should not be permitted to make a
profit out of his own wrong. This principle is sound ; but it
is often loosely applied. If the wrongdoer is sued for the value
of property which he has taken and converted, it is in antici-
pation that the judgment will be collected or paid. When it is
satisfied, this principle does not derogate from the defendant's

1 Truitt V. ReviU, 4 Harr. (Del.) v. Ogden, 11 N. J. L. 370; Field v.

71. Post, 38 N. J. L. 346.

2 Id.; Kehoe V. Eduads, 69 HI. 351; sid.; Fisher v. Whollery, 25 Pa.

Karr v. Barstow, 24 111. 580; Frazier St. 197; Schofield v. Ferrers, 46 Pa.

V. Fredericks, 24 N. J. L. 163; Bruen St. 438; Heard v. James, 49 Miss. 236.

plaintiff's case. 545

title to the property, nor from the beneficial incidents of his
ownership. The owner is to have just compensation for the
injury ; this has been held to entitle him to any advance from
general causes in price that he would immediately have realized,
or which the defendant has or might have obtained. "When
any departure is properly allowed from the price at the time of
the taking or conversion, it is justified only on the ground of
giving full and adequate compensation. "When that is paid the
property belongs to the defendant, and by relation from the
time he was charged with, and convicted of, taking and con-
verting it. "Whatever use, otherwise, he can make of the prop-
erty, and whatever advantages he can derive from it, belong to
him, without any prejudice from the circumstance that his title
had a tortious inception. The plaintiff is entitled to the value
at the time of the wrongful appropriation, and to interest from
that date, at least ; and therefore is not affected by any depre-
ciation afterwards. If the property perishes, or is in any man-
ner injured, after the time when the defendant's title, by relation,
attaches, it is his loss, a loss incident to ownership.

Where the judgment in replevin is required, in case the prop-
erty has not been replevied and delivered to the plaintiff, to be
in the alternative, for delivery of the property, or for theralue
if delivery cannot be had, there is a strong implication that the
value shall be assessed at the time when such delivery is ad-
judged in favor of the prevailing party. The value is. the sub-
stitute for the delivery, and where the property is still within
the defendant's control it has been deemed proper in detinue,
from which this feature of the code remedy of claim and
delivery is derived, to magnify the estimate of value to insure
the actual delivery of the property.^ So it has been held proper
to reduce it under particular circumstances, on the principle of
limiting the compensation to the actual injury.* It is, however,
consonant to legal analogies to fix the value at the time when
delivery is required to be made, rather than at another time.'
But that is not the time to which the whole injury is referred ;

1 Goodman v. Floyd, 3 Humph. 59r 2 Single v. Schneider, 34 Wis. 899;

Mayberry v. Clifife, 7 Cold. 120; Buckley v. Buckley, 13 Nev. 433.

Cochrane v. Winbume, 13 Tex. 143; 3 Swift v. Barnes, 16 Pick. 194.
Hoeaer v. Kraeka, 39 Tex. 450.
Vol. 111 — 35

546 EEPLEVIK.

on the contrary, it is then merely adjusted and the due recom-
pense ascertained. The wrong is done when the taking or con-
version occurs; that wrong is a continuing one while the
property, belonging to the plaintiff, is tortiously withheld from
him. By the remedy for the recovery of specific property by
which he is entitled and obhged to resort to final process for
its delivery to him, he continues to assert a right to the prop-
erty until he voluntarily receives the val^e for it.

The law aims to compensate the entire injury. It is usually
satisfied if the plaintiff succeeds in obtaining the property, and
it comes to him in as good condition, not depreciated, but worth
as much as when taken, and he receives interest on its value ;
unless he has been put to greater expense and inconvenience from
being deprived of its use than the interest will compensate ; then
in lieu of interest he may recover the value of the use ; and where
this is allowed, there ought not to be any compensation for the
wear and depreciation naturally consequent upon such use.^ If
the defendant, by his wrongful conduct, has deteriorated the
property, or a loss on its value has proximately and with cer-
tainty resulted from the wrongful detention, that should be re-
covered for, in addition to the value, in order to give the owner
f uU indemnity. He is entitled to any advance in market value,
for it is an appreciation of his own property. But in some cases
where the alternative judgment is rendered, the value is fi:xed
at the inception of the wrong.^ This may be done without
materially changing the result, by keeping in view that the
time of trial is the day of final reckoning for surrender of title
if the property itself cannot be had. In making up the ac-
count the owner is credited with the value at the time of the
defendant's wrongful appropriation ; this cannot be diminished
by any injury to or depreciation of the property after that date,
for which the defendant is the responsible cause, and whether
any could occur for which he is not responsible, will be consid-
ered presently. But if it subsequently appreciates so that it is
worth more at the trial, the owner must consider himself
thereby injured, and add to the value noted at the date of the
conversion the amount of such appreciation ; so if the use of

1 OdeU V. Hole, 35 lU. 304 2 Sherman v. Clark, 24 Minn. 37.

plaintiff's case. 547

the property is worth more than the interest, he may elect to
consider himself more injured by loss of the use tha» the inter-
est will compensate, and claim the former. In this way, though
the computation is very illogical, the same practical result may
be reached.

Intermediate estjuet and depreciation. — The property may
suffer injury or depreciation in the hands of the defendant,
intermediate the taking or wrongful detention, and the bringing
of replevin when it is taken and delivered to the plaintiff; and
in other cases it may suffer injury and depreciation during the
pendency of the action, when the defendant retains the prop-
erty, and the plaintiff, on recovery, is obhged to take an alter-
native judgment. iThe question whether the plaintiff, if he
maintains his suit, must bear this loss, is the same in each of
these cases. It is a loss relative to the property while it belongs
to him by his original title and by the effect of the adjudication.

The defendant should be charged with this loss if he is the
occasion of it ; he should be held responsible for it, if it is the
natural and proximate consequence of the wrongful taking or
detention ; or jf in like manner it resulted from any subsequent
act or negligence on his part, during such detention. Such a
ground of liability existed in some of the cases which are
sometimes cited to support a broader responsibility. A stock
of merchandise is likely to suffer deterioration by seizure, re-
moval and detention.^ A loss may also result, in such case,
from keeping the stock from market through the proper season
for sale. As the defendant, in the cases supposed, retains the
property upon an honest claim of ownership, he should preserve,
manage and dispose of it as men having such property ordina-
rily do to make it most beneficial to them. On this principle,
if it has a usable value he is charged with it ; so if it is kept as
a commodity for sale, he may be presumed to dispose of it at a
reasonable time judiciously.^

There are cases which hold and some dicta in the books
favoring the doctrine that the wrongdoer must make good aU
injury to the property and aU deterioration which it suffers

1 Rowley v. Gibbs, 14 John. 385; 2 Gfordon v. Jenney, 16 Mass. 465.
Beveridge v. Welch, 7 Wis. 394.

64:8 EEPLEVIlf.

while lie detains it, whether such damage accrues through his
fault or not. The owner can hold him responsible for such loss
by suing in trespass or trover ; for by that form of action the
plaintiff gives effect to the wrongful taking or conversion to
clothe the wrongdoer with the title from the date of his
wrongful interference with the property; the wrongdoer is
charged with the property at the time he takes or detains it ;
and the effect of recovery in such actions, followed by satisfac-
tion, is to make him the owner from that time. Hence the sub-
sequent loss, though wholly by accident, falls upon him as the
owner. It is optional with the injured party to acquiesce in
such taking or detention to make it a disposition of his prop-
erty ; by bringing trespass or trover he does so, even though he
takes back the property ; for when it is retui-ned in such cases,
it does not affect the cause of action, and only goes in mitiga-
tion of damages. But by bringing replevin, he expresses his
determination not to acquiesce ; his determination is to recover
his property, and there is no interruption of his ownership ; he
continues his pursuit of the property in specie till the judgment.
Every question affecting his indemnity, therefore, is to be
decided on the theory and assumption of his continued and
uninterrupted title to it. If it has suffered injury or deteriora-
tion, he must bear the loss as an incident of ownership, unless
he can make a case for charging it upon some other person.
He must be able to show that such loss naturally and proxi-
mately resulted from the defendant's act, or he cannot hold hinl
liable for it; unless, indeed, there is some consideration of
policy that imposes the loss on the defendant on some other
terms. In an early Kentucky case,' the court held, in such an
action, for a slave, that though the defendant acquired the
possession of the slave rightfully, yet, if he continued the de-
tention after suit brought to recover such slave, the possession
became wrongful ; that he who wrongfully detains the property
of another does it at his own peril, and will be responsible to
the proprietor, though the property be destroyed by accident,
or taken from him by violence. And that doctrine seems to
have become the settled law of that state,^ as weU as of

1 Carrel v. Early, 4 Bibb, 370. 333; Gentry v. Burnett, 6 T. B. Mon.

2 Caldwell v. Fenwlck, 3 Dana, 115; Soott v. Hughes, 9 B. Mon. 104.

plaintiff's 'CASE. 549

Alabama. ^ A case in the latter state was commenced in 1861,
for the recovery of certain slaves. The action was of the
nature of detinue, and, therefore, did not disturb the de-
fendant's possession during the progress of the case. It was
tried in 1866, and the plaintiff succeeded in establishing his
title. The judgment was for the delivery of the property,
or the payment of the alternate value, assessed at $20,000;
although pending the suit, general emancipation had taken
effect, of which the court had, of course, judicial notice.
This change in the status of the subject was treated, not as a
determination of the plaintiff's title to the several negroes
named in the declaration, but as a death or destruction of the
property ; and that because it occurred while the defendant had
a wrongful possession, he was liable for the value; and the
value, not when the delivery was ordered, but at any time be-
tween the commencement of the suit and its termination.^
Walker, C. J., said : " When an owner's property has been con-
verted, there immediately springs up in his favor a right to
have its value; and that right may be enforced in an action of
trover, without the peril of defeat by the death or destruction
of the property. If, in detinue, a recovery of the property or
its alternate value is prevented by its death or destruction, it is
obvious that that form of action is inadequate to redress the
wrong or enforce the right in its full extent. The plaintiff
mast yield his desire to obtain the specific property, or he must
incur the peril of losing it in the possession of the tortfeasor.
The policy of this court has been so to shape its adjudications,
in reference to the action of detinue, as to encourage the de-
livery of property wrongfully withheld. This policy, which
seems to us to be wise, would not be consulted by placing the
subject of litigation at the hazard of the owner, and relieving
the wrongdoer from responsibility. Indeed, the contrary policy,
when the property is of a perishable nature, would enable the
defendant, by retaining the possession, and prolonging the liti-
gation, to defeat the plaintiff's right to enjoy his own property."
The plaintiff was a mortgagee, and it was plausibly said that,

1 White V. Ross, 5 Stew. & P. 133; 2 Rose v. Pearson, 41 Ala. 693. See
Rose V. Pearson, 41 Ala. 693; Fragin Johnson v. Marshall, 34 Ala. 523.
V, Pearson, 43 Ala. 335:

530 EEPLBvm.

if he had obtained the possession, he might have sold it and
realized its full value. And the learned judge further re-
marked: "It is unjust and unconscientious, under such circum-
stances, that the loss, if it had resulted from death, should fall
upon the plaintiff."

In the case pf Suydam v. Jenkins, which is noted for furnish-
ing the opportunity, improved by a learned jurist, to write one
of the best judicial opinions on the law of compensation to be
found in the English language, Duer, J., expressed himself
strongly in favor of the same doctrine. He said : " We cannot
think tliat a wrongdoer is ever to be treated as a mere bailee,
and that the property in his possession is to any extent at the
risk of the owner. We have seen that the defendant in trover
or trespass is in all cases responsible for the value of the prop-
erty when taken' or converted, and certainly it has never been
supposed that he can discharge himself from this responsibility,
in whole or in part, by showing that the property had been
destroyed or injured by an inevitable accident, after he had
obtained its possession. A plaintiff who, without right or title,
has seized the property of another by a writ of replevin, is as
much a wrongdoer as a defendant in trover. No reason can be
given why his liability should be less extensive ; and in fact,
when the replevin suit is terminated, although he cannot be
treated as a trespasser, he may be sued in trover at the election
of the defendant.' The decision in Carpenter v. Stevens^ is
plainly inconsistent with the prior decision of the same court in
Rowley v. Gibbs,' in which the defendants in a replevin, in addi-
tion to a return of the goods, were held to be entitled to dam-
ages for a deterioration in their value from the time of the
replevy, although it was not pretended that the decrease in value
was attributable in any degree to the act or default of the plaint-
iff, and it is irreconcilable with numerous cases in which it has
been held expressly or by implication, that, in a suit upon the
replevin bond, the value of the property, as fixed by the penalty
, of the bond, is at the election of the plaintiff, the measure of
damages." ^ The question is the same, and is here treated as

1 Yates v. Fassett, 5 Denio, 31. * Citing Middleton v. Bryan, 3 M.

2 12 Wend. 589. & S. 158; Mattoon v. Pearce, 13 Mass.

3 14 J. E. 385. 406; Huggleford v. Ford, 11 Pick.

plaintiff's case. S51

identical, where the plaintiff has obtained the property by his
writ of replevin, and the defendant succeeds in his defense, and
is entitled to a return, or the value, at his election.

In Massachusetts, the replevin bond was formerly, by statute,
expressly conditioned for return of the goods in like good order
and condition as when taken ; and when that special require-
ment was dropped, by revision, no change was deemed to have
been contemplated.' Therefore the defendant was entitled at
least to have the property or what it was worth when taken ;
but being entitled to the property itself, its value when de-
manded on the writ of restitution could be recovered.^ In Maine
the bond requires the property to be returned in like good order
and condition as when taken.' But there the plaintifif, in re-
plevin, was held not Hable for a horse which died, without his
fault, while he held it pending the suit, on a judgment being
recovered by the defendant for a return. This was held in an
action on the replevin bond. Such a loss of property had been
previously held available to exonerate a receiptor,* and also an
officer having the property in custody on mesne process ; * and
the same principle was deemed applicable to a plaintifif in re-
plevin, because his possession was a lawful one. The court say,
by Kent, J. : "The distinction, in fact, is, that in the case at
bar the replevin suit was instituted on the day the animal was
seized on execution by the officer, for the purpose of selling it
to satisfy the same. It is urged that this distinction is vital, on
the ground that, if the replevin suit had not been interposed,
the animal would have been sold in four days, and the proceeds
thus secured to the creditors, whereas, in the cases cited, the
animal was attached on mesne process, and held only as security
to await final judgment, the animal dying before such judg-
ment." After adverting to the grounds on which those cases
were decided, and that of Carpenter v. Stevens,* the learned

233; Wood v. Braynard, 9 Pick. 333; i See Parker v. Simonds, 8 Met.

Barnes v. Bartlett, 15 Pick. 71; 305.

Brizsee v. Maybee, 31 Wend. 144; - Swift v. Barnes, 16 Pick. 194.

McCabe v. Morehead, 1 W. & S. 513. 3 Berry v. Hoeflfner, 56 Me. 170.

To these may be added as support- * Shaw v. Laughten, 30 Me. 366.

ing the same view, Young v. WUlett, 5 Melvin v. Winslow, 10 Me. 897.

8 Bosw. 486; Mayberry v.CIiffe, 7 « 13 Wend. 589.
Cold. 117.

552 EEPLETIN.

judge continued : " The result from these authorities seems to
be, that the writ of replevin is one authorized by law to enable
a party, who in good faith asserts a claim of title or right of
possession in a chattel, to have his claim investigated and deter-
mined judicially." The property is treated as, in a certain
sense, in the custody of the law. "The party who replevies,
having given the bond required by the statute, is not a wrong-
doer, if he acts fairly, although the result may show that he was
mistaken in his belief of his right of property." ^ Why should
not the same reasoning apply in favor of a defendant who got
, possession and retains it, in good faith, and in a manner which
would be justified if " his belief of his right of property " had
been well founded, though the result of the suit may show that
he was mistaken? No rule can be adopted, in such a case, for
the purpose of deterring one who believes himself to be the
owner from exercising an owner's dominion and right of pos-
session. He is technically a wrongdoer if he fails to maintain
his title ; and he is such, if he gets possession by a writ of re-
plevin without having a right and title which will sustain it.
Where there is an honest dispute about the ownership of spe-
cific property, and the parties determine to contest to obtain .and
retain it in specie, rather than for the value, one or the other
must hold while the controversy is being settled ; and if, in such
a case, it perishes without the custodian's fault, it seems more
just to regard the loss as one which must be borne by him who
is really the owner. The subject of the controversy ceases to
exist ; and as it has gone out of existence without either's fault,
why, from that point, should not the controversy cease, and be
confined to the adjustment of compensation to the owner for
any detention which occurred before that time ?

It has been held in Missouri that if slaves are sued for, and
they die in the hands of the defendant during the pendency of-
such a suit, the plaintiff has no just claim for more than dam-
ages for the detention up to the time of the death ; that if the
depreciation or death be produced by the defendant's illtreat-
ment or neglect ; or if the slaves be sold to another, the rule
might be otherwise.^ Napton, J., said: "In relation to the

1 Walker y. Osgood, 53 Me. 433. 2 Pope v. Jenkins, 30 Mo. 538.

'653

death of three of the slaves sued for, which occurred after the
institution of the suit, and was suggested by a supplemental
answer, the question presented is not free from difficulty and
doubt, and, it must be confessed, has been very differently viewed
by different courts. Our opinion, however, will be based prin-
cipally upon our statute which regulates the action brought in
this case, and upon what we believe to be principles of sound
public policy and natural equity. . . . Before the adoption
of our present code of practice, which abohshes the forms and
names of actions as known to the common law, there was a
distinction between detinue and trover, although in many cases
it was at the option of the plaintiff to bring whichever he pre-
ferred. In trover, the plaintiff admitted the title to the prop-
erty sued for to be in the defendant, and only asked damages
for the conversion, which he asserted was wrongful. In deti-
nue the plaintiff claimed to be the owner stiU, and demanded
the specific property detained. As an act of God does an in-
, jury to no one, though it may occasion a loss, the loss of course
falls upon the owner, and, therefore, where detinue was brought,
and an accidental loss occurred by the death of the property
sued for, it must fall upon the plaintiff, if determined to be the
owner. But it was otherwise in trover where the plaintiff ad-
mitted the change of title, and only claimed damages for its
conversion; there the loss would be the defendant's, upon the
same principle that it would be the plaintiff's in detinue." ' A
plaintiff in replevin, retaining the articles replevied untU judg-
ment in the suit, cannot claim damages for any depreciation in
their value during that period, because he may sell them im-
mediately, in such manner as wiU ascertain their value, for
which alone he is answerable on his bond.^

Wheee the value op the peopeett has been inoeeased by
THE WEONGDOEE, — If a wrongdoer has taken or converted the
property without wilful fault, and by labor or money has im-
proved it, and. thus added to its value, if its identity has not

iBethea v. McLennon, 1 Ired. Drahos, 7 Neb. 194; Parker v. Si-

530; Austin t. Jones, Gilmer (Va), monds, 8 Met. 205. See Boylston

341, per Coalter, J.; Buckley v. Ins. Co. v. Davis, 70 N. C. 485.

Buckley, 12 Nev. 433; Frey v. ^ Gordon v. Jenney, 16 Mass. 465.

554 BEPLEmr.

been destroyed the right of the owner to retake it, subject to
some fixed, and some vague and unsettled limitations, is uni-
versally admitted. Extreme cases can be mentioned, where the
exercise of the right would be very unjust, where a retaking
would give the owner more than he ought to have, and impose
an undeserved loss on the wrongdoer. This injustice, when it
occurs, results from necessity ; for the owner cannot be divested
of his property without his consent or fault, and no wrongdoer
can divest him by any unauthorized act done to the property
which does not destroy its legal identity. While the owner's right
subsists he cannot take his own without taking also the labor
which has been bestowed upon it; therefore the wrongdoer,
however innocent of intentional wrong, is unfortunate in hav-
ing inseparably annexed his work to another's property, so that
the latter must take it when he asserts his right to enjoy his
own. The loss to the wrongdoer does not result from any
principle or rule of damages, but from the exercise of an un-
doubted right of property.

We have seen that where trover is brought for a conversion,
which has been succeeded by such improvement of the property,
the plaintiff is confined in his recovery to the value of the
property in the place or condition in which the defendant took
or converted it.^ The damages are measured against such a
wrongdoer on the principle of compensation ; and they do not
include the value added by the labor of a wrongdoer who has
improved the property under a mistaken belief that he owned
it. The same rule has been applied in replevin where the de-
fendant has retained the property — logs made from timber by
him — and the value is assessed as a part of the damages.^
Agnew, J., said : " It is in the power of the defendant in re-
plevin to relinquish that proportion of its value which his labor
or money has added to it, by suffering the sheriff to return it
to the owner. But this result depends on himself. If he claim
the additional value, it is always his right to retain the property
by giving a property bond, and the effect of a verdict for dam-
ages in favor of the plaintiff is to transfer the title to the de-

1 See ante, p. 509. ^Herdio v. Young, 55 Pa. St.

176.

plaintiff's case. 555

fendant. If, therefore, he denies that his trespass was wilful
and wanton, and claims a right to the additional value given to
the chattel by his labor and money in converting and trans-
porting it to the place where it is replevied, he has it in his
power to bring the damages of the plaintiff to their true stand-
ard. In a case of inadvertent trespass, or one done under a
hona fide, but mistaken, belief of right, this would generally be
the value of the logs at the boom (the place of replevy), less the
cost of cutting, handling and driving to the boom. Such a
standard of damages, growing out of the nature of the act, and
of the form of action, is reasonable, and does justice to both
parties. It saves the otherwise innocent defendant his labor
and money, and gives the owner the enhancement of the value
of his property growing out of other circumstances, such as a rise
in the market price, a difference in price between localities or
other adventitious causes." The same ruling has been made in
"Wisconsin, though the judgment is there a judgment for deliv-
ery of the property if delivery can be had, and otherwise for
the value.^

In Michigan, where the writ of replevin is peremptory for
delivery of the property to the plaintiff on his executing the
requisite bond, it has been held that where the property had
been taken by the wrongdoer in good faith and immensely im-
proved by converting it into a new species of property, as tim-
ber into hoops, replevin would not lie; that the defendant's
labor had added such value to the original material that the
latter was a mere incident, and to prevent the injustice of al-
lowing the owner in such a case to retake it by judicial proc-
ess, and thus obtain so much more than compensation, and
subject the defendant to a loss so disproportioned to the injury
he had done to the owner, it should be deemed that the identity
of the property was lost.^

1 Single V. Schneider, 24 Wis. 299; aWetherbee v. Green, 23 Mich.
S. 0. 30 Wis. 570. See Brewster v. 311.
Silliman, 38 N. Y. 433. '

556 EBPLEvm.

Section 2.
dependant's case.

Successful defendant's common law and statutory rights — A plaintiff ob-
taining possession by replevin and failing in his suit, a wrongdoer —
Measure of damages — Special and consequential damages — Mitiga-
tion of damages — Sow recovdry affected by special interest of the
prevailing party — Reeoupmient — Recoveries when part of property
found for each party.

Successful defendaj^tt's common law and statutoey eights. —
Damages in favor of a defendant, from whom property has
been taken by a writ of replevin, were not allowed at common
law, but merely a judgment for return of the property.^ But
this deficiency has been remedied to some extent in England,
and fully in this country, generally, by statute. Defendants
are not only allowed a return of the property, but are permitted
to recover in the replevin suit the value of the property under
some conditions in lieu of the property itself, and damages for
the detention.^ The defendant wiU be entitled to a return on

1 White T. Lloyd, 3 Blaokf. 390; property. 3 Bao. Abr. tit. Costs (F),

Parnell v. Hampton, 10 Ired. 463. 53; Turner v. Gallillee, Hard. 153.

In Hopewell v. Price, 2 Har. & Gr. "In the cases falling within the

275, Archer, J.: " The question pre- statutes above referred to, the dam-

sented for the consideration of the ages recovered are such as are sus-

court in this case is whether upon a tained before the institution of the

plea of property found for a defend- suit. But to allow damages in this

ant in replevin, he is entitled to an case, would be to give them for the

order in the nature of a writ of in- injury arising from the institution

quiry to assess the damages by him of the suit, and the detention of the

sustained in consequence of the loss pi-operty by the plaintiff from that

of possession by the execution of time, which would be a novel pro-

the wi-it of replevin ceeding, and justified by no analogy

The common law did not give dam- of law. The remedy of the defendant

ages in replevin to a defendant; but will be found by a suit on the re-

they were allowed to certain de- plevin bond executed by the plaint-

fendants by the statutes of 7 Hen. iff, the condition of which is

VIII, cli. 4, and 21 Hen. VIII, ch. sufiiciently comprehensive to indem-

19. But these statutes only gave nify the defendant from any injury

damages to avowants, and other he may sustain by a nonsuit."

persons making conusance, or justi- 2 gee Whitwell v. WeUs, 24 Pick.

fying as bailiff in replevin for rents -25; Brown v. Stanford, 22 Ark. 76;

or services, and they have not been Pierce v. Van Dyke, 6 HUl, 613. In

extended to defendants claiming School District v. Shoemaker, 5 Neb.

defendaijt's case.

557

any termination of the plaintiff's case for irregularity before
pleading ; and afterwards, where the defendant succeeds upon
such an issue as gives him a right to a return.^

36, it was held under the code in
that state, in an action of replevin,
if the jury find in favor of the de-
fendant, they must assess for him
such damages as they shall think
just and proper, wliether he pleads
a general denial, new matter as a
defense, or a demand for damages.
1 Gould V. Barnard, 3 Mass. 199;
HiU V. Bloomer, 1 Pin. (Wis.) 463;
Hopkins v. Burney, 3 Fla. 43. In
Fleet V. Lockwood, 17 Conn. 333, it
was held that an avowry, or sugges-
tion in the nature of an avowry, by
the defendant in replevin, is not
necessary to authorize the court to
render a judgment of return, where
the writ is abated or set aside on ac-
count of an irregularity or defect
in the replevin process. For if there
were any such pleading on the part
of the defendant, or any suggestion
of that nature, there could be no in-
quiry as to the truth thereon; for it
''woiUd not only be unreasonable,
but inconsistent, to absolve the de-
fendant from answering the charge
of the plaintiff, by abating the writ,
and, at the same time, to compel
him to try the merits of the cause
with the plaintiff," citing Potter v.
North, 1 Saund. 347, and note 1;
Cross V. Bilson, 6 Mod. 103; Anon.
1 Vent. 137; Foot's Case, 1 Salk. 98;
Anon. id. 94. In this case, Storrs, J.,
said: "It is true, that the general
rule, as stated in the books, is, sub-
stantially, that in order to entitle the
defendant to a return, where the
issue is found in his favor, it must
appear, either from the pleadings,
whether in abatement or bar, or by
a proper suggestion, that he has a
right to such return; and it is also

stated that there is a distinction be-
tween pleas in abatement in actions
of replevin and other actions, for
that in the latter, the pleas go merely
to the writ, and the defendant is
placed in statu quo, by its abate-
ment; whereas, in replevin, the de-
fendant, by merely abating the writ,
is not reinstated in his possession of
it, and in order to obtain such pos-
session, by the awarding of a return,
must show that he is entitled to the
possession. The terms in which we
find these principles laid down, do
not import that they were designed
to embrace, nor are the authorities
relied on applicable to, cases where
property is irregularly replevied; on
the contrary, in all the cases cited in
support or illustration of these rules,
stated thus generally, the process of
replevin was regular, and, conse-
quently, the delivery of the property
under it; and the writ was abated
for other causes than its defective-
ness or irregularity. The writ and
the proceedings under it being
regular and valid, it might well
be held, according to the theory of
this species of action, that the de-
fendant, seeking a return of the
property, had become, as well as the
plaintiff, seeking damages, an actor
or plaintiff, and should therefore
show a right to a return. But the
propriety of considering the defend-
ant a plaintiff or actor in any such
sense, or of putting him to the vin-
dication of his title, before the prop-
erty has been regularly taken from
him, is not perceptible. Nor is there
any more reason why he should be
required to avow or make title, in
such case, than where the plaintiff

558

KEPLEVm.

A PLAINTEFF OBTAINING POSSESSION BY REPLEVIN AND FAILING

IN HIS SUIT, A WEONGDOEE.' — Dispossessing a defendant of per-
sonal property by means of a writ of replevin is in legal con-
templation a wrong, where the plaintiff does not prosecute his
writ and suit to effect ; and subjects the plaintiff to damages
for the taking and detention on the same principles that govern
the recovery of damages in favor of a prevailing plaintiff
against a defendant. But the redress which a defendant can
obtain in the replevin suit, beyond a return of the property, on
a discontinuance, nonsuit or trial, depends upon local statute.
He is, however, generally allowed to recover damages where
he is entitled to a return; ^ but not everywhere.'

becomes nonsuited before declara-
tion, where in England it is well
settled, that the defendant need not
avow; and the reason given is, be-
cause the plaintiff has given him. no
opportunity to do so. 18 Vin. Abr.
586, 591-3; Parker v. Mellor, Garth.
398; S. C. 1 Ld. Raym. 317; Butcher
V. Porter, id. 343; S. C. Shower, 400;
Salkold V. Skelton, Cro. Jac. 519;
Wildman v. North, 3 Lev. 93; S. C.
notnine; Wildman v. Norton, 1
Vent. 349; Allen v. Darby, 1 Show.
99." See Hartgraves v. Duval, 6
Ark. 506.

1 See post, p. 559.

2Mikesill v. Chaney, 6 Ind. 53;
Ramsey v. Thomas, 45 Mo. Ill; Berg-
hoff V. Heckwolf, 26 Mo. 511; Col-
lins v. Hough, 36 Mo. 149; Smith v.
Winston, 10 Mo. 399; Dickinson v.
Woland, 7 Ark. 36; Haviland v.
Parker, 11 Mich. 103; Campbell
V. Head, 13 111. 133; Broadwell v.
Paradice, 81 lU. 474; Hooker v.
Hammill, 7 Neb. 231; Gould v. Scan-
neU, 13 Cal. 430; Bonner v. Coleman,
3 B. Mon. 464; Smith v. Snyder, 15
Wend. 334. Where the writ was
void because the property was not
described in it as required by the
statute, an assessment of damages
was refused; for the right to an as-

sessment given by the statute was
limited to cases where the property
is described in the writ. Parsell v.
Circuit Judge, 39 Mich. 543.

3 In Collamer v. Page, 35 Vt. 387,
a replevin suit for a flock of sheep
was dismissed because brought in
the wrong county. The error in the
proceedings was treated as an irreg-
ularity, not a want of jurisdiction
of the subject matter. It was held
to be the duty of the court to render
judgment for return of the property,
and vidthout any plea or avowry
by the defendant, and that the
plaintiff had no right to contest
such a judgment on the ground that
he owned the property. But a judg-
ment of return, in such a case, was
held not conclusive of the right in
another action. And the court also
held, that after a dismissal of the
plaintiff's action on some ground not
relating to the merits of the case,
the defendant is not entitled to have
his right to damages for the taking
and detention, or improper use of
the replevied property, tried or ad-
judicated. The damages sought to
be recovered was wool shorn from
the sheep after the replevy. See
Hood V. Breman, 3 Mich. 160; Havi-
land V. Parker, 11 Mich. 103.

defendant's case.

559

Measuee of damages. — "When the defendant is entitled to
return, and damages for the detention, the general measure of
damages is interest on the value to the date of the judgment.'
He is entitled to damages for the interruption of his possession,
the loss of the use of the goods from the time they were re-
plevied till their restoration, and for any deterioration result-
ing from the taking, detention, or the defendant's misuse or
want of oare.^ The replevin is to him a wrong;, and he is en-
titled to damages on the same principles as a plaintiff.* If the

In Ware River E. R. v. Vibbard,
114 Mass. 458, the court refused an
order for return upon this state of
facts. Motion was made after non-
suit in replevin for the return of
the property, which was a large
quantity of imported railroad iron,
and for damages for its detention.
It appeared, by the officer's return,
that he had replevied the iron, and
delivered it to the plaintiff, and, by
an indorsement upon the writ, that
the plaintiff had received it; but it
also appeared that from the time of
its importation by the defendant, it
had been in bond under the laws of
the United States; that the plaintiff
had never obtained actual posses-
sion, the warehouse receipt and the
custom-house delivery order, the
possession of which the parties re-
garded as a necessary means of ob-
taining possession, and without
which the warehouseman refused
to deliver, being in the posses-
sion of the defendant, who re-
fused to transfer them to the
plaintiff; held, that the defendant
having prevented the plaintiff's
obtaining actual possession of the
property, was not entitled to dam-
ages for its detention; and that,
as there had never been an actual
change of possession, an order for
return was unnecessary.

1 Suydam v. Jenkins, 3 Sandf. 614;
Smith V. Dillingham, 33 Me. 384;

Barnes v. Bartlett, 15 Pick. 71; Mc-
Cabe V. Morehead, 1 W. & S. 513;
Wood V. Braynard, 9 Pick. 323;
Miller v. Whitson, 40 Mo. 97; Hooker
V. Hammill, 7 Neb. 331; Moore v.
Kopner, 7 Neb. 291; Hurd v. GaUa-
her, 14 Iowa, 394; Washington Ice
Co. V. Webster, 62 Me. 341. In
Atherton v. Fowler, 46 Cal. 333, the
action was brought for hay in May,
1868, and the plaintiff obtained pos-
session at the commencement of the
suit, and the suit was finally tried
in April, 1871. The defendant ob-
tained a verdict, and judgment
thereon was rendered in October,
1872. The value of the hay was
taken in pursuance of the opinion
in Page v. Fowler, 39 Cal. 413, about
a year subsequent to the taking by
the replevin, with a view to giving
the owner the price he would have
realized if he had kept it, and inter-
est on that value from, the com-
mencement of the suit; held, it was
erroneous to add interest from a date
prior to that when the value was
taken. Ir^erest was computed on
the verdict to the date of the judg-
ment, and this was held erroneous.
But see McCarty v. Quimby, 13
Kans. 494; Smith v. Robey, 6 Heisk.
546.

zwhitwell V. Wells, 34 Pick. 35;
Beveredge v. Welch, 7 Wis. 394.

3 Suydam v. Jenkins, 3 Sandf. 614;
Berghoff v. Heckwolf, 26 Mo. 513;

660

EEPLEVIH.

property is valuable for use, the value of the use may be re-
covered instead of interest.^

In some. of the states, judgment for return is not rendered,
but a judgment for the value, and it is assessed at the time of
the replevy, together with interest.'* In others, the value is
assessed for an alternative judgment, to be paid or collected, if
return cannot be had ; or because it can be and is waived. In
the former case it is assessed at the date of the trial ; ' in the
other, when taken, and then interest is added.*

Where thQ alternative judgment is given, the value being
collectible only on the contingency of the specific property not
being delivered or returned, must be separately assessed.'

The party injured is entitled to full indemnity for the injury
he suffers in consequence of being deprived of his goods by
means of a replevin ; and the time when their value will be
estimated, and the manner of the estimate, may be varied to
meet any peculiarities of the case, with a view to adjusting the
compensation to the actual loss.^ Such damages are frequently

Fallon V. Manning, 35 Mo. 374; Mc-
Ai;thur v. Lane, 15 Me. 345; Pierce
V. Van Dyke, 6 Hill, 613; Dawson v.
"Wetherbee, 3 Allen, 461; Jansen v,
Eflfey, 10 Iowa, 237; Wilkins v. Trey-
nor, 14 Iowa, 391. See ante, p. 550.

1 Allen V. Fox, 51 N. Y. 563. See
ante, p. 539.

2Messer v. Bailey, 81 N. H. 9;
KendaU v. Fitts, 33 N. H. 1; Bell v.
Bartlett, 7 N. H. 178.

3 Walls V. Johnson, 16 Ind. 374.
In Treman v. Morris, 9 Bradw. (111.)
337, it was held that the defendant
was entitled to the value of the prop-
erty when taken, and interest from
that time; and if the property in-
creased in value, the increase at the
date of the order for return should
also be added.

4Woodburn v. Cogdal, 39 Mo. 333;
Miller v; Whitson, 40 Mo. 97;
Hutchins v. Buckner, 8 Mo. App.
595; Berthold v. Fox, 13 Minn. 501;
Brizsee v. Maybee, 31 Wend. 144;

McCabe v. Morehead, 1 W. ^ S.
513; Swift V. Barnes, 16 Pick. 194;
Ormsbee v. Davis, 18 Conn. 555;
Walker v. Osgood, 53 Me. 423; Smith
V. Dillingham, 33 Me. 884; West v.
CaldweU, 23 N. J. L. 786; Huggle-
ford V. Ford, 11 Pick. 323; Hopkins
V. Ladd, 85 lU. 178; Barnes v. Bart-
lett, 15 Pick. 71; Hurd v. GaUaher,
14 Iowa, 394; Middleton v. Biyan,
3 M. & S. 155; Story v. O'Dea, 33
Ind. 836. In Darling v. Tegler, 30
Mich. 54, it was held that where
judgment is given in favor of a de-
fendant for the value of his special
interest, that includes all his dam-
ages, and to give other damages is
erroneous.

sSayers v. Holmes, 2 Cold. 359;
Pickett v. Bridges, 10 Humph. 172.

6 Parker v. Simonds, 8 Met. 205;
Eaton V. Caldwell, 3 Minn. 134;
Berry v. Vantries, 13 S. & R. 89;
Backenstoss v. Stabler, 33 Pa. St.
357.

561

recovered most beneficially in an action on the bond, as where
there is a judgment for return simply, and return is not effected.^
But this is not always the case, since the scope of recovery de-
pends on the terms and comprehensiveness of the obligation
and the statute governing the remedies.^

Special and consequential damages. — In the action of re-
plevin under statutes or a practice allowing a recovery of the
damages for detention, special and consequential damages, and
even exemplary damages,' may be recovered. The expenses of
procuring teams and appurtenances, actually incurred for the
purpose of removing ice, the subject of the suit, were allowed
to be recovered as part of the damages, they having been ren-
dered useless by the wrongful replevin.*

A manufacturer from whom the entire machinery of his
cloth printing factory, in running order, and actual use, was re-
plevied, including steam apparatus for supplying the power,
took judgment for a return, and for damages assessed by com-
puting interest on the appraised value of the property from the-
date of the writ to that of the judgment, under an agreemenit
expressly provided to be without prejudiceto his action on the
replevin bond. On demand of the officer upon the writ of re-
turn, tender was made of all the machinery except the steam
apparatus, with an offer to pay the value of that or replace it.
The tender was not accepted ; and the writ was returned in no >
part satisfied, and suit brought on the bond. It was held, .
1, that the officer had a right to treat the property as an organ-
ized whole, and refuse the offer to return part of it ; 2, thatv
the manufacturer's claim for damages in the action of replevin
included compensation for the general inconvenience and loss
resulting from the interruption of his possession, and for the
expense, trouble and delay of restoring the factory to. its former
condition, as well as interest on the value of the property;

lYol. II, pp. 45-49; Swift v. ^See White v. VanHjuten.SLMo.

Barnes, 16 Pick. 194; Howe v. Hand- 577.

ley, 28 Me. 351; Smith v. Billing- SMcCabe v. Moreheadj.l.W. & S.

ham, 33 Me. 384. See Hemstead v. 518; Cable v. Dakin, 2e.Wend.'173;

Colbum, 5 Cr. C. C. 655;" also Nick- Brizsee v. Maybee, 21 Wend. 144.

erson v. Cal, Stage C!o. 10 Cal. * Washington Ice Co. -Vi Webster,

520. 63 Me. 341.
Vol. Ill— 36

562 EBPLEVIN.

but 3, that the claim was an entire claim, and no portion of it
recoverable in the suit on the bond, notwithstanding the proviso
in the agreement under which he took his Judgment ; and 4,
that the measure of his damages in the suit on the bond was
the ' sum which, under the ordinary circumstances attending a
sale, might reasonably be agreed on as a fair price for the prop-
erty between a seller desirous of selling, and a bu3''er desirous
of buying it as a whole, to be used in the place from which it
was taken and for the purposes for which it was intended and
arranged.'

An interesting case arose in Nevada illustrating, and con-
taining an instructive discussion of, the distinction between
matters which must be estimated as part of the value, if return
cannot be had, and damages which are to be paid or collected
in any event. An action of replevin was brought for a band
of sheep, and was pending for several years. The defendant,
in her answer, claimed to be the owner of the property, and
demanded a return. She succeeded in establishing her title,
and was entitled to that judgment. During the pendency of
the action, the band, which was large, was largely increased by
lambs ; and the plaintiff yearly derived considerable sums from
the wool which he sheared and marketed; and during this
period many of the sheep died without his fault, and he
bestowed much care, labor and attention, and incurred consid-
erable expense, in the keeping, preservation and management
of the flock, and in shearing and marketing the wool. These
facts were the subject of supplemental answers. The trial
court treated not only the band replevied, but the Iambs added
by natural increase, and the wool shorn after the plaintiff got
possession, as constituent parts of the property in controversy,
and adjudged a return of each separately, or, if return could
not be had, that their value respectively be collected. Evi-
dence of the necessary cost and expense of keeping and preserv-
ing the band, raising the lambs, shearing and marketing the
■wool, etc., was rejected.' On appeal, it was held that the

1 Stevens v. Tuite, 104 Mass. 338. personal property, judgment for the

2 The following is section 202 of plaintifE may be for the possession,
the Nevada practice act: "In an or the value thereof in case a deliv-
action to recover the possession of ery cannot be had, and damages for

defendant's case. 563

judgment was erroneous ; that the lambs were a constituent
part of the property, and might be included in the judgment
for return, and the alternate value be paid; but that the wool
must be recovered for as damages for the use of the property,
and from these damages should be deducted the reasonable
and necessary labor and expense of keeping, preserving and
managing the flock, and shearing and marketing the wool.
It was also considered that the plaintiff should not be charged
with the loss of such sheep as had died without his fault.'
Leonard, J., speaking for a majority of the court, said: "If
the original band belongs to the respondent, it is certain that
she has jigMs in the lambs and wool which the law will
protect in this or a subsequent action. All the rights of the
parties should be settled in on« action, if this can be done with-
out doing violence to well established rules of practice, or going
counter to provisions of law. As a rule in actions of this char-
acter, and such is the case here, all, or nearly all, damages for
detention, or for the use of the property, accrue after the
defendant files his answer. In such cases he is unable to insert
in his pleadings even a proper general allegation of damages ;
and certainly in cases where he is obliged to plead speciaU
causes of damages, he oftentimes may be unable to frame his
pleadings so as to obtain full compensation for the injury.
And yet the statute declares that he may have damages for
taking and withholding the property, or the value of its use in
every case. . . . It is plain that the ' damages for taking
and withholding' referred to are such as accrue after the
action is commenbed. They are damages which accrue after
the property has been delivered to the plaintiff, and that can
never be done until after the commencement of the action.
So, aside from the general rule allowing damages accruing after
the commencement of the action, where the subsequent dam-
ages are the mere incident or accessory of the principal thing

the detention, or the value of the erty, or the value thereof in case a

use thereof. If the property have return cannot be had, and damages

been delivered to the plaintiff, and for the taking and withholding the

the defendant clairos a return same, or the value of the use

thereof, judgment for the defendant thereof."

may be for the return of the prop- i Buckley v. Buckley, 18 Nev, 433.

5Qi: EEPLEVIN.

demanded, or where no subsequent action can be maintained
for them, it is plain that the statute, in a proper case, and with
proper pleadings, permits judgment in favor of defendant for
damages that accrue subsequent to the commencement of the
action on account of the wrongful taking and withholding of
the property in dispute by the plaintiff. Admitting as a fact,
then, that the original band belonged to respondent at the
time they were replevied by the plaintiff, as the jury found,
and so continued until the trial, it follows that respondent was
entitled to judgment for their return, if a return could be had ;
otherwise, their value, together with such damages as with
their return in one case, or their value in the other, was neces-
sary in order to completely indemnify her on account of the
wrongful act of the appellant. And under the maxim partus
seqidtur ventrem, her rights relative to the increase were pre-
cisely the same as those just stated concerning the original
flock." ' The learned judge quoted what was said in Jordan v.
Thomas as follows : " It may be true, as a general proposition,
that things which did not exist at the commencement of the
suit could not be embraced in the judgment of the court. But
this rule, however correct it may be as a general rule, can have
no application to that which is merely an incident to the sub-
ject matter of the suit. For instance, a suit may be com-
menced to enforce the payment of a debt the day after it is
due. No interest has then accrued, yet interest is recovered,
not that it existed when the suit was commenced, but because
it is an incident to the subject matter. So in regard to the hire
of slaves, to recover which an action is brought ; and, indeed, we
may say in regard to everything which is but an incident, or
profits accruing pending the litigation. When, therefore, the
jury determined the plaintiff's rights to the slave, they at the
same time determined that which was incidental to the right.
The title to the mother carried with it a title to her offspring
when born. Having a right to the mother, the plaintiff could
recover that which the mother produced pending the suit, and
the only question which could arise would be whether it was

1 Newman v. Jackson, 13 Wheat, MoVaughten v. Elder, 3 Brev. S. C.
570; Seay v. Bacon, 4 Sneed, 103; 13; Tyson v. Simpson, 3 Hayw. N.
Jordan v, Thomas, 31 Miss. 558; C. 331.

DEFENDANT S CASE.

5G5

even necessary to name the offspring in the judgment of the
court."

Referring to the other subject of the judgment below, the
wool, he continued: "But respondent could not recover a
vaUd judgment for the wool itself, for the reason that the
moment it was shorn it became separate and independent
property; and thereafter, in this action, brought prior to
shearing, to recover the sheep, etc., it could no more be recov-
ered in specie than could wool shorn from other sheep belonging
to respondent, but in the wrongful possession of appellant.
As to the wool, respondent's remedy was a judgment in dam-
ages for taking and withholding the sheep, or for the value of
their use. If the property sued for had been milch cows, it
■would hardly be claimed that judgment for a return of their
mili:, or the butter or cheese made therefrom, would be proper
in an action to recover the cows. In that case respondent's
remedy would have been a judgment in damages for withhold-
ing the cows, or for the value of their use. It is equally so in
this case as to the wool.

" Briefly stated, then, conceding the verdict of the jury to j
be correct as to the ownership of the original flock, respondent |
was entitled to a judgment for the return of them, and the *
increase, if a return could be had, together with such damages
as were necessary, if any, with the return, to indemnify her
for all certain, actual losses sustained on account of the unlaw-
ful taking and withholding, or on account of the use of the
sheep.

" If a return could not be had, she was entitled to judgment
for the value of such portion of the original band and increase
as appellant was bound to return or pay for, together with such
damages as were necessary, with the value, to indemnify her
for all certain actual losses sustained." Eeturning to the as-
signment of error for rejection of testimony of the cost and ex-
pense of plaintiff's care and labor in the management of the
sheep, shearing and marketing the wool, as well as to the general
question of damages, the learned judge said : " What the rule
may be where the elements of fraud, malice and wrong accom-
pany the taking, it is unnecessary to inquire, for in this case no
facts appear which take it out of the general rule stated. We

566 EEPLEVIIT. *

find no evidence that in commencing the action, and taking
possession of the original band, according to the forms of law,
or the subsequent retention of the property in controversy, ap-
pellant was actuated by any improper motive, or that he inten-
tionally committed a wrong upon respondent. . . .

" Upon the question of ' damage for taking and withholding
the property, or the value of its use,' we shall therefore con-
sider the case stripped of all elements of exaggeration on the
part of appellant.

" What then were the rights of the respective parties in the
matter of damages, considering the value of the property in
dispute, as found by the jury, satisfactory to both parties ? . . .
The law aims to make good the certain, natural and proximate
losses of the one, but there it stops, unless after fuD. compensa-
tion is made there yet remains in the hands of the other a pe-
cuniary benefit or profit. In such case we think with the court
in Suydam v. Jenkins," the wrongdoer should be required to
pay beyond indemnification to the extent of his gains. Hfo
person should be permitted to enrich himself by the wrongful
use of another's property, no matter how innocent his inten-
tions may have been in taking and withholding it ; and cer-
tainly, if he has acted in good faith, with equal truth it may
be said that he should not be compelled, at a personal sacrifice,
to pay beyond the actual damage sustained in consequence of
his conduct. This case is, in many respects, analogous to that
class of cases, above referred to, where the property honestly,
but wrongfully converted, has been improved, and its intrinsic
value enhanced, by the labor and expenditure of a wrongdoer.
The value of the band at the time of trial was much greater
than that of the original fiock, and the value of the wool
being added, the difference is increased still more. In such
cases, it is by no means an unvarying rule in trover even to
give to the successful party the benefit of the proper necessary
labor and expenditure of the other, in addition to his real dam-
ages ; and in replevin, when punitory damages are not allow-
able, if a return cannot be had, the rule very generally adopted,
and certainly the one most consonant with the principle of

1 3 Sandf . 614

defendant's case. 567

•

awarding complete indemnity to the owner, and doing no in-
justice to the wrongdoer, is to allow the latter out of the en-
hanced value aU of his legitimate outlay, or such portion as
remains after the indemnification of the former is assured.
There are reported cases which not only give to the rightful
owner the property itself, in its improved state, if a return can
be had, but also its enhanced value if it cannot be returned, with-
out any deduction for the expenditure of the wrongdoer, after
the true owner has been fully compensated for his actual dam-
ages. To this rule we cannot give our concurrence, in cases
like this, for it would confer upon one party more than he can
in justice demand, and take from the other that.which he has
a right to call his own.

"It is generally and perhaps always true, so long as the
identification is practicable, or until the original property
taken becomes of insignificant importance in comparison with
the article in its improved and altered condition, that the owner
is entitled to that of which he has been wrongfully deprived
without making compensation to the wrongdoer for his ex-
penditure, for the reason that as a rule the property to which
he is entitled, and of which he has been deprived without fault
on his part, cannot be separated from that portion which is not
in fact his, and, in order to take the former, he is compelled to
take the latter. Under such circumstances, the wrongdoer
must lose, and the rightful owner gain. But when compen-
sation in money is to be given for the property taken, together
with damages for taking and withholding the same, or for the
value of its use, a different rule in reason and justice should,
and in our opinion does, obtain, by great weight of authorities.
In such case, the rights of the respective parties can and should
be protected.^ Applying these principles to this case, if a re-
turn could not be had, and considering respondent's admissions
as to the losses. of sheep from year to year, she was entitled to

1 Single V. Schneider, 34 Wis. 300; 311; Herdic v. Young, 55 Pa. St. 178;

30 id. 570: Hungerford v. Bedford, Curtis v. "Ward, 30 Conn. 306. Note

39 Wis. 345; Suydam v. Jenkins, 3 to Bake* v. Wheeler, 8 Wend. 508;

Sandf. 614; Moody v. Whitney, 38 Sedgw. on Meas. Dam. 501, and

Me. 178; Hyde v. Cookson, 31 Barb, note 3.
103; Wetherbee v. Green, 33 Mich.

588 REPLEVIN.

judgment for the value of the original flock and their increase,
less such losses as occurred, together with a sum equal to legal
interest upon such values, from the time appellant became pos-
sessed of the original band and the increase respectively, as
damage for the taking and withholding the property, or for
the value of its use ; for to this much, at least, the rightful
owner is always entitled in an action of this kind. From the
balance of the value of the entire flock and the wool, at
the time of trial, if in possession of appellant, and if not, the
'amount received therefor by him, or the amount he could have
received, appellant was entitled to deduct his proper legitimate
expenses in the care and support of the sheep, their shearing
and the disposition of the wool; and the remainder, if any,
should have been added as damages to the amount already de-
ducted, equal to interest, making respondent's entire damages
for the taking and withholding the" sheep, or for the value of
their use. If a return could have been had, it should have
been left to the jury to decide according to the principles
herein stated, whether or not respondent, in addition to a
return, was entitled to damages, and if so, the amount. If
the value of the flock to be returned was less at the time of
the trial than the aggregate value of the original band and the
increase (the necessary losses being deducted), together with
legal interest upon the value of the original band, and of the in-
crease from the time appellant became possessed of each, re-
spectively, until the trial, then certainly she was entitled to the
difference in addition to a return, and after deducting such dif-
ference, if any, from the value of the wool, appellant should
have been allowed from the bab.nce his proper necessary ex-
penditures, and the remainder, added to the difference just
stated, should have been awarded to respondent as dam-

iBeatty, J., dissented from some only the original flock but also their

of the views of the majority, and in natural increase, in an action

the following excerpt from his opin- brought before the birth of the

ion the grounds of his dissent are young; and whether or not it is nec-

pithily stated: " I think it is a cor- essary in such a case for the owner

rect doctrine that he whose breed- to file a supplemental complaint or

ing ewes have been wrongfully answer, setting up the fact of such

taken, may recover in specie not natural increase, it is at least certain

defendaitt's case,

569

The defendant is entitled to damages for the time the sheriff
holds the property for the plaintiff to give security, where he

that, if he is permitted to do so,
that furnishes no ground of com-
plaint to the opposite party.

"The principle from which this
conclusion follows is, that the iden-
tity of the flock remains notwith-
standing its natural increase and
decrease; lamhs may be bom and
old Bheep may die, but the flock re-
mains the identical thing it was in
the beginning. If this is the prin-
ciple, and I can conceive of no other,
upon which a recovery of the flock
in sfiecie can be allowed, there are
other consequences ■which also nec-
essarily flow from its adoption. One
is that where proof of the value of
the flock is made at the time of the
trial, account must be taken, not
only of the natural increase of the
flock, but also of its natural decrease.
If the value of the lambs is taken
into the account, the value of the
old sheep that have died from nat-
ural causes must be deducted. Up
to this point I understand there is
no difference between myself and
the court. But I go further. The
verdict of the jury in cases of this
character, when it is in favor of the
party out of possession of the prop-
erty, must include a finding as to
the value of the property and as to
the damages of the owner on ac-
account of the taking and detention.
This is what the jury has to decide,
and it is all it has to decide. It is
not called upon to determine, and it
cannot determine, whether a return
of the property can be had or not,
and it cannot, therefore, assess dam-
ages in an amount to fit the case of
a return, and in another amount to
fit the case where a return of the
property cannot be had. The value
of the property must be fixed in one

sum without any alternative, and
the amount of the damages must be
fixed in one sum without any alter-
native. This I understand to be the
law, and this so far as I know is the
universal practice. I have seen no
procedure for a judgment awarding
damages in one amount to be re-
covered with the property, and dam-
ages in a different amount to be re-
covered with its assessed value in
case a return cannot be had. . . .
" At what time is the condition
and value of the property to be es-
timated ? It has been twice decided
in this court, and as I think cor-
rectly decided, that the condition of
the property at the time of the trial
can alone be considered in assessing
its value — its value at the date of
the trial is the value which the jury
must fix by its verdict. Bercich v.
Marye, 9 Nev. 312; O'Meara v. North
Am. M. Co. 3 Nev. 113. Applying
the rule of these decisions to this
case, it appears clear to my mind
that the jury should have assessed
the value of this fiock of sheep in
its condition at the time of the trial
In doing so they were bound to make
allowance not only for the natural
losses by the death of the old sheep,
but for the actual decrease of the
flock from whatever cause, accident,
sales or wilful destruction by the
wrongdoer. The only flock of sheep
that could be returned was the
actual flock in existence and capable
of identification; and the only value
that could be assessed to be recov-
ered as an alternative, in case a re-
turn could not be had, was the value
of that actual fiock. To hold other-
wise would lead to this consequence:
Either that the damages would have
to be assessed in two different

570

EEPLinrEf.

fails to furnisli it, aoad the property is returned to the defend-
ant, and he recovers in the action. He is entitled to daanages

suios — one to be recovered in case
the property was returned, and the
other in case it was not returned —
or else the amount actually received
by the defendant would vary accord-
ing to her ability or inability to find
and identify her sheep, or according
to the choice of the plaintiff to return
the property or to pay its assessed
value. To my mind it seems to be
an absurd conclusion that the
amount of compensation to be re-
covered by the injured party in
cases of this kind is to be left to de-
pend on his good or bad luck after
judgment, and as for a judgment
for damages in alternative amounts,
there is, as I have said, no precedent
for such i\ judgment, to my knowl-
edge, and there is no provision for
such a judgment in the statute,

" Assuming then that the duty of
the jury was to find the value of the
flock as it existed, capable of iden-
tification, at the time of the trial,
the other special finding which they
■were required to make was the dam-
age which the plaintiff had suffered
by reason of the taking and deten-
tion of the property.

" Her damages consisted, in case
the value of the flock at the time of
the trial was less than that of the
original flock at the time of the
taking, of the amount of such de-
preciation, plus the interest on the
original value, or the amount of the
depreciation plus the value of the
use of the flock, if that was proved
to be greater than the interest. In
case the value of the flock at the
time of the trial w^s greater than
that of the original flock at the time
of the taking, then her dfunages
would have been the amount of
legal interest, or the value of the use

of the flock, if that was greater
than the interest, less the amount
of the appreciation in the value of
the property. If the value of the
flock at the time of the trial was
greater than its original value, to-
gether with the interest or the value
of the use, then she was entitled to
no damages.

" It is at this point that the widest
divergence of opinion occurs be-
tween myself and the court. We
are entirely agreed that the rule of
the statute is plain; that aside'from
such special damages as may be re-
covered for depreciation in the value
of the property between the time of
taking and the trial, the owner is
not entitled to recover both interest
on its value, and the value of its use.
We agree that he may have interest
at least, and, if he proves that the
value of the use is greater than inter-
est, that he may recover that in the
place of, but not in addition to, in-
terest. What we differ about is the
practical operation of the rule an-
nounced in the majority opinion,
that the defendant, if she was the
owner of the sheep, was entitled to
recover at least the value of the
original flock and of the increase,
together with interest on such
values. In my opinion this is allow-
ing double damages — interest and
value of use. The increase of a
flock by breeding is a part of the use
of the flock just as much as the
shearing of the wool is a jiart of the
vise. He who gets the increase gets
the value of the use as much as he
who gets the value of tlie wool that
is shorn. Interest is allowed as
damages on the theory tliat the
owner might have sold his property
and invested the value at interest;

defendant's case. 671

for that disturbance of his possession; and he may recover in-
terest on the value and any depreciation in consequence of the
taking and the expense of replacing the property.'

Mitigation of damages. — The plaintiff may show on assess-
ment of value and damages under a judgment for return and
for damages for detention, that shortly after the delivery of the
property to him, the defendant repossessed himself of the greater
part of it.^

It is held in some states, that where the property replevied is
an animal, and dies, without the fault of the plaintiff, while in
his possession, pending the suit, that fact may be proved to ex-
onerate him from a liability for the value.' In Arkansas it was
held that death of the property after judgment does not relieve
the party bound to deliver.* And in Kentucky and Alabama,
the party having a wrongful possession is held liable for the
property, though it perish without his fault.'

In Illinois it was held that where a replevin suit is dismissed,
and the court proceeds to assess the plaintiff's damages for the
detention of the property, it is competent for the plaintiff to
prove that the defendant is a mere pledgee of the property, to
secure a debt from the plaintiff, as the defendant would not
in such a case be entitled to recover anything for its use.^ In
Michigan, where a plaintiff is nonsuited, the defendant has, by
statute, a right to a return of the property, or to waive return
and recover the value. If he waive a return, he is entitled to a

the value of the use is allowed upon replevin, for taking am informal
the theory that he woiilcl have kept bond, after obtaining a dismissal of
his property and got the advantage the action on that ground. The
of its use. He is allowed, in claiming court held that the officer might
damages, to take either position, but show, in mitigation, that the prop-
he cannot take both. No man can erty replevied, at the time of the
sell his flock and invest the proceeds service of replevin, was, and has
at interest, and at the same time since remained, the property and in
keep his flock and get the increase.'' the possession of the plaintiff in the
See Sherman v. Clark, 24 Minn. 37. replevin.

1 Morris v. Baker, 5 Wis. 389. 3 Walker v. Osgood, 53 Me. 423.

2DeWitt V. Morris, 13 Wend. 496. See ante, pp. 548, 549.

In Case v. Babbett, 16 Gray, 378, the ^May v. Jameson, 11 Ark, 388.

action was against the officer who ^ See ante, pp. 547-553.

served the writ, by the defendant in « McArthur v. Howett, 73 El. 358.

0(J EErLEVIN.

judgment for its full value; and in an action on the replevin
bond afterwards, the measure of damages is the amount of the
judgment ; and the obligors cannot show, in mitigation of dam-
ages, that the defendant in replevin was but a part owner of the
property.^

How EEOOVEEY APFECTED BT SPECIAL INTEREST OF THE PEEVAIL-

iNG PAETT. — Where the plaintiff or defendant is entitled to
recover the value, the same principles apply as in trover or tres-
pass, in regard to recovering full value or only that of his
special interest. If the party made liable is a stranger, and has
no right or title whatever in the property, the judgment wiU
be for the fuU value to the party whose possession or right
of possession has been invaded.^ If a party has a general or
special property in goods, either alone or in connection with
others, he can maintain an action of replevin in the detinet
against a stranger ; and the mere fact that the plaintiff owns the
property with others, and not alone, is no bar to the action,
either under the plea of non-detinet, or when it is specially
pleaded ; but it is proper matter of a plea in abatement.^ On
the other hand, where the party recovering has but a limited
interest, and is under no duty to account for any surplus to any
other party, and the defendant represents that residue, the
recovery wiH be limited to the special interest of the prevailing
party.*

If the defendant's right of possession expires before trial, judg-
ment for return will not be ordered, and damages for detention
will be limited accordingly.' The same rule applies to a plaint-
iff when he is entitled to recover value and damages ; he can
only recover the value of the right while it existed, and damages
for detention.*

1 Williams V. Vail, 9 Mich. 162. "Wolfley v. Rising, 12 Kans. 535;

2 First Nat. Bank v. Crowley, 24 Weber v. Henry, 16 Mich. 399; Jen-

Mich. 492; Frei v. Vogel, 40 Mo. 149
Delworth v. MoKelvey, 30 Mo. 149
Nelson v. Leichtenmeyer, 49 Mo. 56

nings V. Johnson, 17 Ohio, 154;
Scrugham v. Carter, 12 Wend. 131;
Dodge V. Chandler, 13 Minn. 114;

Fallen V. Manning, 35 Mo. 271; Morss Walrath v. Campbell, 28 Mich. 111.

V. Stone, 5 Barb. 516. See Veazie v. Somerby, 5 AUen, 280.

3 Wright V. Bennett, 3 Barb. 451. 5 Wheeler v. Train, 4 Pick. 168.

* Union L. Co. v. Tronson, 36 Wis. ^ Barham v. Massey, 5 Ired. 192.
126; Hass v. Prescott, 88 Wis. 146;

■defendant's case. 573

Eecoupment. — Set-off does not exist in replevin, but when
the goods are the subject of a lien or charge, the charge upon
them may be enforced by way of recoupment ; for the charge
is inseparable from the thing itself, and, therefore, when the
value of the thing is to be allowed in damages, the charge may
be admitted to reduce the damages by way of recoupment, in
order to do justice to both parties.^ So where property is dis-
trained for rent, and replevied, the plaintiff may answer the
justification of seizure for rent by way of recoupment, that the
landlord has failed to keep his covenants in the lease.^

Paet of peopeett found foe each paety. — On the issue
made by the plea of property in the defendant, a jury may find
that a part of the property belonged to the plaintiff, and assess
damages for its detention ; and that the residue of the property
did not belong to the plaintiff, and assess damages for the de-
fendant. In such case, the verdict is considered as rendered
upon an issue, because effect is given to it in the same manner
as though the declaration had contained two counts for [the
respective articles, or the defendant had avowed for each sepa-
rately.' Each party may have judgment for damages and
costs as far as he is successful.* And doubtless the general
power of the court will extend to the setting off of these mu-
tual recoveries, and issuing execution for the balance, where no
reason exists for a contrary course.'

1 Macky v. DiUinger, 73 Pa. St. 85; 3 "Williams v. Beede, 15 N. H. 483;

Babb V. Talcott, 47 Mo. 343. Powell v. Hinsdale, 5 Mass. 343.

2Lindley v. Miller, 67 lU. 348; * Id.; Brown v. Smith, 1 N. H. 36;

Fairman v. Flack, 5 Watts, 516; Wright v. Mathews, 3 Blackf. 187;

■ Phillips V. Monges, 4 Whart. 336; Clark v. Keith, 9 Ohio, 72; Seymour

Peck V. Brewer, 48 111. 55; Peterson v. BiUings, 13 Wend. 386; Vallum

V. Haight, 3 Whart. 150; Warner v. v. Simpson, 3 Bos. & P. 368; Mc-

Caulk, 8 Whart. 193; Nichols v. barren v. Thompson, 40 Me. 384;

Dusenbury, 3 N. Y. 388; Guthman v. Poor v. Woodburn, 35 Vt. 339.

Castleberry, 49 Ga. 273; Wade v. » Poor v. Woodburn, supra.
HaUigan, 16 111. 507; Hatfield v. Ful-
lerton, 34 111. 379.

574 FEAUD.

CHAPTEK XX

FRAUD.

Scope of the natural and proximate consequences — False representations —
Measure of damages — Exemplary damages.

Scope of the natueal and peoximate consequences. — Fraud
is an odious tort ; and when actual injury proceeds from it,
damages are allowed as for other tortious injuries. It is neces-
sary to a cause of action for fraud that it cause actual injury ;
damage is of the gist of the action in such cases. In other
words, fraud and damage must concur to give a cause of action.'
Sometimes the wrong is done chiefly by the defendant ; at other
times the injured party is duped into becoming the immediate
and unwilling agent to consummate it. He is entitled to re-
cover compensation for the injury, including all the natural and
proximate consequences of the fraud. In determining the
scope of these consequences, the law applies no new principle ;
but that which guides and controls the inquiry of damages in
all cases of tort, namely, that the wrongdoer is answerable for
all those consequences of his misconduct which happen in the
natural course of things, and were to be expected to ensue ac-
cording to the general experience of mankind.^

Whenever one person, by any breach of confidence, decep-
tion or departure from the course of fair dealing, deprives
another of his property, or any pecuniary advantage, the law
gives the latter adequate compensation for the injury in dam-
ages as for a fraud. If the plaintiff, or injured party, is not
chargeable with negligence in yielding to the deceit, it is imma-
terial whether the party who practices the fraud is the chief
actor in causing the loss, or whether the injured party, while
under the influence of the deception, contributes to his own in-
jury in a manner which was antecedently probable and might
and should have been foreseen. A few examples will make

iZabriskie v. Smith, 13 N. Y. 333; Vail, 6 John. 181; Tryon v. Whit-
Bennett V. Terrill, 30 Ga. 83; Hanson marsh, 1 Met. 1.
V. Edgerly, 39 N. H. 343; Upton v. 2 Vol. I, p. 31.

FEAUD.

575

these propositions clear. An auctioneer pretended to liave re-
ceived a bid, not actually made, and thus run up the price of
the property he was employed to sell, from $20,000, which was
the last real bid, to $iO,000. The vendue had no knowledge
of this deception, and he brought suit for redress, and it was
decreed that the vendor should refund $20,000, the excess above
the highest real bid.^ A broker undertook to invest money for
a customer upon a safe bond, well secured by mortgage ; he
was employed by and received remuneration from a borrower,
which he did not disclose to the lender ; he falsely represented
to such lender that a security offered was ample. Such broker
was held liable to make good the loss arising from the insuf-
ficiency of the security.^ Another broker was employed to
sell certain rejil estate, under a contract by which he was to
have as his commission all he could obtain above $6,000. He
procured G to become a joint purchaser with himself for
$8,000, concealing from him that he was acting as the vendor's
agent. After the consummation of the sale by which the
vendor convej'^ed three-fourths to G, who paid $6,000, and one-
fourth to the broker, who paid $2,000, and which was, accord-
ing to the vendor's agreement, refunded to him as commission,
it was held that the transaction as between the broker and G-.
was a fraud on the latter, and that the law would not permit
thfe broker to retain the advantage of such fraud.'

"Where several persons are engaged in a joint enterprise for
their mutual benefit, each has a right to demand and expect
from his associates good faith in all that relates to their common
interest ; and no one of them will be permitted to take to him-
self a secret and separate advantage to the prejudice of the
others ; and where, unknown to his associates, one causes to be
transferred to the association, property previously purchased by
himself, at a price exceeding that paid by him therefor, he is
accountable to his associates for the profits thus made. Thus,
four persons owning and having interests in certain oil lands
which cost them about $30,000, agreed to combine their
interests to organize a company and transfer their interests

iVeazie V. "Williams, 8 How. 134. Bq. 14; Bacon v. Bronson, 7 John.
2 TurnbuU v. Gadsden, 3 Strobh. Ch. 194.

3 Grant v. Hardy, 33 Wis. 668.

576 FEAUD.

thereto at a large price above the cost, and divide the prof-
its. To carry out this purpose they procured a subscription
paper to be drawn up, by which the subscribers agreed to pay
the sums subscribed for " the purchase of property," specifying
therein the lands above mentioned, at the sum of $125,000.
Each of them subscribed $5,000, and caused certain others to
sign as decoy subscriptions for about one-half the amount to be
subscribed. These subscriptions were not intended to be paid,
and were not in fact paid, although so marked. The plaintiffs,
induced by the fraudulent assurances of one of the originators
of the scheme and of their agent, that the lands originally cost
$125,000, and upon the belief that they became subscribers, on
a footing of equality with the others, subscribed also and paid
in their subscriptions, as did others, to the amount required.
The moneys so paid were received and divided by the four as-
sociates. A company was thereupon organized, the property
transferred to it, and the stock taken in payment and divided
among the subscribers, as well those who had not as those who
had, paid, in proportion to their subscriptions. The plaintiffs
subsequently made loans to the company, and under executions
issued upon judgments rendered thereon, sold a portion of the
lands. In an action for the fraud, it was held that said four as-
sociates were each and all liable. 1st, because the putting the
subscription paper in circulation with their names subscribed,
under the circumstances stated, was a gross fraud upon every
subscriber ignorant of the facts ; 2d, because the original pur-
chases inured to the benefit of 'the iona fide subscribers, and in
receiving and dividing the large profits a fraud was perpetrated
upon them ; 3d, because the four associates might be regarded
as partners in that adventure ; and all were responsible for false
representations made by either or by their agent; that the
plaintiffs could not, on account of such fraud, recover all the
moneys paid by them, because they could not restore said asso-
ciates to the position they were in before the transfer to the
company; but that such, associates could be required to account
for the profits made upon the lands thus fraudulently appropri-
ated, and the plaintiffs could recover their pro rata share.

1 Getty V. Devlin, 54 N. Y. 403.

FEATJD. O < 1

In sach cases the fraud consists in the ■wrongdoer appropriat-
ing to himself, by deceptive practices, profits belonging to the
injured party ; the undue gain of the defrauding party is the
amount of the injury to the defrauded party. The latter is in
aU cases entitled to be made good for the injury suffered, and
the advantage gained by the fraud is not the measure of that
injury, though, as in the foregoing instances, the gain of one
and the loss to the other may be the same amount. An inter-
esting and instructive case arose in JSTew Jei-sey, and was de-
cided in the court of errors and appeals of that state in 1869.
As an example, it illustrates the scope of natural and proximate
consequences taken into account to give compensation for injury
and loss caused by fraud. The defendant had purchased in
connection with another party a tract of oil lands. Proposing
to form an oil company, he applied to the plaintiff and solicited
him to become a member. The defendant represented that the
original cost of the land was $28,000, and that the scheme
would require a working capital of $4,000, making the amount
of immediate investment $32,000. His proposition was to di-
vide the property into eight shares of $4,000 each, and one of
which he offered to the plaintiff, who accepted and paid for it.
In a few months the associates finding themselves in debt, each
paid in the further sum of $500. A small portion of the prop-
erty was subsequently sold with the assent of all the members
for $16,000. The property purchased, originally, had been con-
veyed to the defendant in trust for the members of the
association. The speculation turned out a failure. The false
representation relied on to support an action for fraud, was that
relating to the cost of the property. The real price paid did
not exceed $18,000. Other facts in the case are referred to as
giving this false representation force to induce the plaintiff to
make the purchase, and to give the price paid. The trial court
instructed the jury that the proper measure of damages was
the entire loss sustained by the plaintiff in the transaction, into
which he was inveigled by the fraud of the defendant. A ver-
dict was given accordingly, but erroneously ignoring the value
of the plaintiff's interest in the land standing in the defend-
ant's name in trust. The defendant contended for reversal on

the ground that the proper measure of damages was one-eighth
Vol. Ill — 37

578 FEATJD.

of the difference between $18,000, the real cost of the property,
and $28,000, the false price, constituting the fraudulent repre-
sentation. Beasley, C. J., said: "I can find nothing in the
reason of the thing, nor in the precedents, for the adoption of
such a standard. Eegarding this case simply as a sale of lands,
which is the view most favorable to the contention, this rule
could not be, in any case, applied with propriety. The princi-
ple of justice, as I understand the law, is, that the party injured
is to be compensated, to the extent that redress is awarded
judicially, for the actual loss sustained. The effort is to reach
this measure as near as possible, and, unless in cases fit for puni-
tive damages, nothing more than this is to be given. But the
criterion contended for is in no sense compensation, but a mere
arbitrary amount, bearing, it may be, no just relation to the
quantum of damage. . . . Nor can I perceive how this rule
sought to be established can properly be received for the pur-
pose of establishing the ultimate limit to which damages- are to
extend. There appears no reason for circumscribing the dam-
ages of a vendee of property to the difference between the
actual and represented cost price of the property. It is obvious
thai often his loss will exceed such bound. If the fraudulent
representation has been the efficient cause of the purchase, the
actual loss sustained would seem .to be the proper and usual
measure of redress. But if, on the other hand, the effect of the
fraud has been merely to induce the payment of a larger price
than otherwise would have been paid, then there would seem
to be some substantial ground for the theory that the sum re-
covered should be the sum comprised in the over-estimate of the
cost of the property. In this latter case, upon the assumption
that the sale would have taken place if the truth had been
known, all that the fraud produced is the payment by the
vendee of an excessive price ; the reduction, therefore, of such
excess would afford a fair reparation. But where the sale itself
is the product of fraud, the vendee may either repudiate the
.contract, or claim, by way of damages, the difference between
the price paid by him and the real value of the property which
he has acquired. This I regard as the general and well estab-
lished rule.

"But the present case has peculiar characteristics which

FEA'UD. 579

seem to require a modmoation of the ordinary rule by which
damages are measured in cases of fraudulent sales. The plaint-
iff, in this instance, by reason of the fault of the defendant,
became something more than a mere purchaser of real estate.
By the fraudulent practice of the defendant, the plaintiff was
induced to embark in a speculation. . . . The original
understanding was that the land was to be held and iniproved,
and a company was to be formed. The land was retained,
except a small portion sold with the assent of all the parties,
officers appointed and expenses incurred. These steps were
taken in conformity with the scheme of proceeding adopted by
the parties in the inception of the business. Starting, then,
from the position that the jury, on the trial of this cause, have
found the fact that the plaintiff was induced to enter into this
speculation by the falsehood of the defendant, it seems to me
clear that, in conformity to well settled rules, we must hold
the defendant answerable for the loss of the moneys which the
plaintiff, without fault on his part, lost in this speculation.

" The rule to be applied in cases of this character is, that the
defendant is responsible for those results, injurious to the
plaintiff, which must be presumed to have been within his con-
templation at the time of the commission of the fraud. When
the defendant unlawfully enticed the plaintiff into his specula-
tion, he was aware that the plaintiff would put at risk such
sums as he might commit to the venture. With this knowledge,
by false pretenses, he drew the plaintiff in. On what principle
is it, then, that the wrongdoer is not to be made to answer for
the loss which he must have foreseen as probable, and which
would not have happened without his fault? I think clearly
these damages are not too remote. . . . The test is that
these results are proximate, which the wrongdoer, from his
position, must have contemplated as the probable consequence
of his fraud or breach of contract." ^

The foregoing case suggests the remark that courts differ as
to the effect of a misrepresentation of the cost of property by
a vendor,^ and that, if such misrepresentation is held to be a

1 Crater v. Binninger, 33 N. J. L. 63; Sanford v. Handy, -28 Wend. 360;
513. Medbury v. Watson, 6 Met. 346.

2 Van Epps t. Harrison, 5 Hill,

580 FBAITD.

fraud, its effect in inducing the payment of a larger price is for
the jury. There is certainly no legal relation between the
amount of such over-statement and the price the defrauded
party is thereby induced to pay ; in other words, upon the proof
of the misrepresentation, a court cannot say, as matter of law,
what amount, if anything, the vendee as a consequence con-
sented to pay. There is, therefore, great force to the remarks
made in the course of the chancellor's opinion in the same case.
He said : " I think the rule laid down, although the proper rule
in some cases, is not the rule to be applied in this case. The
proper rule, upon principles of equity and justice, to be applied
in all cases of fraudulent misrepresentations in sales, is to assess
damages to the amount of the loss that was occasioned by the
misrepresentation. In some cases these are the same as the
loss in the whole transaction, in others not. They may be
less or greater. They may be serious in amount when the
whole transaction proves profitable ; they may be slight when
the loss in the operation is great.

" If a vendor represents that the assessment on lots sold are
all paid, and the representation is false, the purchaser can re-
cover if the assessments are but $500, and he makes a profit of
$5,000 on the transaction. The true rule is the loss occasioned
by the fraud and falsehood. This is the rule laid down by the
supreme court of ]S"ew York in an able opinion by Justice
Cowen in Gary v. Gruman,! and in the opinion of Justice Bron-
son in Van Epps v. Harrison,^ and by the supreme court of
Massachusetts in Medbury v. Watson.' The rule laid down in
many cases of sale, that the damages should be the difference
in the value of the thing sold, as it was represented to be, and
the value as it really was at the sale, is upon this principle.*
But that rule will not apply here, nor in many other cases.
In this case the land was just as valuable if Binninger paid
only the price that he did pay, as if he had paid the price he
alleged he had paid. The principle is the same in all cases, but
the rule or manner of applying it must differ with the circum-
stances of each case.

i4Hm,627. » 6 Met. 257.

25 Hill, 63. «StUes v. White, 11 Met. 358.

FRAUD.

581

" In this case Crater was willing to go in with Binninger at
the cost price. Had Binninger told him truly that the cost was
$18,000, he would no doubt have been willing to go in at that
price, and would have paid at that rate ; and if any subsequent
loss was sustained, would have had no claim against Binninger ;
and the true measure of damages appears to me to be the
excess which he was induced to pay by the false and fraudulent
representation of Binninger. If that was the difference be-
tween $18,000 and $28,0P0, the one-eighth would be $1,250,
which, with the interest, would be the real damage. And
the plaintiff would be entitled to recover these damages,
although he had made double the amount out of the enterprise
as clear profits. If, however, the jury should believe that
Crater, if he had been told the real price, would not have
entered into the transaction at that price, but would have taken
a share in the lands only at the higher price, then his embarking
in the transaction at all was the result of the fraud of Binnin-
ger, and the rule of the judge at the trial was the correct one,
but it should have been so stated to the jury." ^

"Where a vendor selling a mare falsely and fraudulently
represented her to be perfectly gentle and kind, and the pur-
chaser, confiding in the truth of the representation, attempted
to drive the mare, soon after the purchase, before a buggy, and
the mare, by running and kicking, broke the buggy, and he
broke one of his legs in jumping to the ground to save himself,
he was held entitled to recover, among other things, for the
injury to himself and to the buggy, if the jury should find that
such injuries resulted from the viciousness of the mare, and
were the probable and natural consequences of the defendant's
fraud.^ The same rule and scope of responsibility is recognized
in cases of sales of domestic animals known by the vendor to
have a contagious disease, and either warranting the animals to
be sound, or even concealing the fact of the animals having
si^ich disease. The association of such animals with others is a
probable consequence of the sale, and the ignorance of the
purchaser that the animals have the disease; and, therefore,

1 See Eohrschneider v. Bjaicker- 2 Sharon v. Moeher, 17 Barb. 518.
bocker L. Ins. Co. 76 N. Y. 316.

582 TEAUD.

such a sale is a fraud, and the vendor is held liable for any loss
in respect to the animals sold, as well as by communication of
the disease to other animals.^ Where the plaintiff had invented
ascertain medicine, and the defendant prepared an inferior arti-
cle, which he sold as and for the medicine of the plaintiff, it was
held to be a fraud for whicli the plaintiff might maintain an ac-
tion without proof of special damage.^ The purchaser of a ves-
sel, falsely represented by the seller to be eighteen instead of
twenty-eight years old, having sent her to sea before he had
knowledge that such representation was false, was held entitled
to recover as part of his damages those occasioned by so send-
ing her to sea, she having been condemned in a foreign port.^

False eepeesentations. — A large part of the cases of fraud,
in which damages are sought, are those where the deceit con-
sists of false representations. The principle of compensation
for the injury readily adapts itself to each individual case,
though the class is of infinite variety; it embraces very obvi-
ously the direct and immediate injury; it extends also, as has
been shown, to all the natural and proximate consequences, and
these are construed to comprehend all those which ensue
naturally from the fraud, and could be foreseen as its probable
effect, according to the usual course of events and the general
experience. A count for deceit averring that the defendant,
who was employed by the plaintiff to procure a lease, repre-
sented to the plaintiff that the lessor required a premium of
1501., whereas he in fact only required 100^., whereby the de-
fendant fraudulently obtained from the plaintiff 50Z., which he
converted to his own use, was held sufficient.* A fraudulent
misrepresentation may result from a person's conduct, as well
as be made in words ; it is then usually a fraudulent conceal-
ment. Thus a vendor is liable in an action for deceit if he sells
an article having a secret defect rendering it essentially less

iMuUett V. Mason, L. R. 1 C. P. 518; Johnson v. Wallower, 18 Minn.

559; Wintz v. Morrison, 17 Tex. 372; 288; S. C. 15 Minn. 472.

Jeffrey v. Bigelow, 13 Wend. 518; 2 Thomson v. Winchester, 19 Pick.

Faris v. Lewis, 3 B. Mon. 375; Brad- 314.

ley V. Eea, 14 Allen, 20; Marsh v. s Tuckwell v. Lambert, 5 Gush. 23.

Webber, 13 Minn. 109; S. C. 16 id. ^Pewtress v. Austiu, 6 Taunt. 523.
418; Langdon v. Sherrod, 31 Iowa,

FBAUD. 583

valuable than it appears, for such price as the article appears
to be worth. Knowing the defect and not revealing it, and
knowing or believing that the purchaser would not buy if he
knew of its existence, is a fraud. ^ Wherever confidence is re-
posed the law exacts frank truthfulness, requires the truth and
the whole truth. In Bench v. Sheldon ^ the court say : " In the
case of the sale of property, the law presumes that the pur-
chaser reposes confidence in the vendor as bo aU. such defects as
are not within the reach of ordinary observation, and therefore
it imposes upon the vendor the duty to disclose fully and fairly
his knowledge of all such defects." ' Where one undertakes to
recommend another as worthy of credit, either voluntarily, or
in answer to inquiry, even statements which imply only a
favorable opinion, if there be a suppression of facts known to
the person making such recommendation, and material as tend-
ing to contradict the opinion, wOl amount to a fraud if made
with intent to deceive, and the person relying upon them is
injured.^ So selling a note which the seller had fraudulently
procured to be indorsed by a, minor, is an implied assertion of
the hability of such indorser that he is a person who could
bind himself. Any person buying the note, relying upon that
indorsement, may have an action on the case for the injury he
sustains from the falsity of such representation.' The action
lies for selling land which has no existence.^

It was decided long ago in Pasley v. Freeman,'^ that a false
affirmation made by the defendant with intent to defraud the
plaintifif, whereby the plaintiff received damage, is the ground
of an action in the nature of deceit ; and that it is not neces-
sary that the defendant should be benefited by the deceit, or
that he should collude with the person who received the benefit.
The doctrine of this case is now universally acknowledged.'

1 Paddock v. Strowbridge, 39 Vt. dington, 7 Wend. 9; Corbett v. Gil-

470; Brown v. Gray, 6 Jones L. 103. bert, 34 Ga. 454; Viele v. Goss, 49

See Paul v. Hadley, 33 Barb. 521. Barb. 96.

2 14 Barb. 66, 73. sLobdeU v. Baker, 3 Met. 469; S.

SNickley v. Thomas, 33 Barb. 654; C. 1 id. 193.

Stevens v. FuUer, 8 N. H. 463. e Warden v. Fosdick, 13 John.

< Eyre v. Dunsford, 1 East, 337; 335.

Ward V. Center, 3 John. 371; Upton ^3 t. R. 51.

>. Vail, 6 John. 181; AUen v. Ad- ^Haycraft v. Creasy, 3 East, 93;

584 FEAUD.

"Where a person pretending to be the agent of the injured
party, when he was not, collected money of trespassers, they
were held entitled to recover back the money so paid.^ All false
affirmations, however, made with such intent, even relied on,
and damage ensuing, will not support an action. The repre-
sentation must be as to a past or existing fact substantially or
materially affecting the interests of the other party, and re-
lating to a matter as to which he may be presumed to repose
confidence, and is thereby in fact deceived.^ The representa-
tion must be of facts, as contradistinguished from statements
of opinion or judgment. The mere affirmation or expression
of opinion by a seller in regard to the property he is attempts
ing to sell, or of a purchaser in regard to the value of the
property or chose in action he desires the seller to take in
payment for property he is attempting to buy, can never be
safely relied on by the other party. To such affirmations the
maxim caveat emptor applies. The party to whom they are
made has no right to rely upon them, and although false and
intended to deceive, the party who confides in them is not
entitled to relief.'

To entitle a party to maintain an action for deceit by means
of false representations, he must, among other things, show
that the defendant made false and fraudulent assertions in
regard to some fact or facts material to the transaction in
which he was defrauded by means of which he was induced
to enter into it. The misrepresentation must relate to
alleged facts, or to the condition of things as then existent.
It is not every misrepresentation, relating to the subject
matter of the contract, which will render it void, or enable
the aggrieved party to maintain an action for deceit. It must
be as to matters of fact, substantially affecting Ms interests,

Eussell V. Clark, 7 Cranch, 69; Up- Benton v. Pratt, 2 Wend. 385;

ton V. Vail, 6 John. 181; Patten v. Belcher v. Costello, 123 Mass. 189;

Gumey, 17 Mass. 183; Medbury v. Mason v. Raplee, 66 Barb. 183; Ver-

Watson, 6 Met. 346; Ewins v. Cal- non v. Keys, 13 East, 633.
houn, 7 Vt. 79; Hubbard v. Briggs, ' Homer v. Perkins, supra; Med-

81 N. Y. 539. buiy v. Watson, 6 Met. 346; Man-

1 Wells V. Waterhouse, 33 Me. 131. ning v. Albee, 11 Allen, 530; Veasey

2 Homer v. Perkins, 134 Mass. 431; v. Doton, 3 Allen, 380.
Hazard v. Irwin, 18 Pick. 105;

FEAUD. 5S3

not as to matters of opinion, judgment, probability or expecita/-
tion.^ Kb presentations made in respect to a fact to transpire in
the future must be a mere promise or an opinion, and will not
of themselves support an action for fraud,^ though a party may
be liable for fraud by obtaining property on promises which he
never intends to fulfil.' Fraud cannot be predicated of misrep-
resentations of the law, however false they may be, and whether
the deception is by misrepresentation or suppression of the
truth. Every person is bound to know the law.^ If the repre-
sentations were of such a nature that they will bear either the
interpretation that they were intended as a mere expression of
opinion, or as a statement of facts, the question of the actual
intention must be decided by the jury.* But to justify a find-
ing that they were representations of fact, they must be state-
ments susceptible of knowledge as distinguished from matters
of mere behef or opinion." The representations must relate to
material facts and have been relied upon.' What facts are
material is matter of law. A misrepresentation of such facts
may induce a party to enter into a contract, when he would not
have entered into it at all if he had known the truth ; or the
falsehood may have had the effect of enhancing the price, or
subjecting him to some specific loss on some detail of the trans-
action. The nature and effect of the representations in these
aspects will be important on the question of damages.* It is

1 Long V. Woodman, 58 Me. 49. treated as mere expressions of opin-

2 Gallager v. Brunei, 6 Cow. 347; ion, but of a fact. Bacon v. Frisbie,
Markel v. Moudy, 11 Neb. 313. 15 Hun, 56; Nowlin y. Snow, 40

3 Oldham v. Bentley, 6 B. Mon. Mich. 699; Dwight v. Chase, 3 111.
430;Schufeldtv. Sohintzler,31Hun, App. 67; Medbury v. Watson, 6
463; Johnson v. MoneU, 3 Keyes, Met. 346.

663; Eaton, etc. Co. v. Avery, 83 N. « Morse v. Shaw, supra; Safford v.

Y. 31; Burrill T. Stevens, 73 Me. 395; Grout, 130 Mass. 30; Litchfield v.

Durell V. Hale, 1 Paige, 493; Buckley Hutchinson, supra.

V. Artcher, 31 Barb. 585; Nichols v. 7 DobeU v. Stevens, 3 B. & C. 623;

Pinner, 18 N. Y. 306; Rawdon v. Bower v. Fenn, 90 Pa. St. 359; Mar-

Blatchford, 1 Sandf. Ch. 344; Morrill kel v. Moudy, 11 Neb. 313; McAleer

V. Blackman, 43 Conn. 334. v. Horsey, 35 Md. 439; Stafford v.

*Burtv. Bowles, 69 Ind. 1. Maus, 38 Iowa, 133; Crosland v.

sTeague v. Irwin, 137 Mass. 317; HaU, 33 N. J. Eq. Ill; Stout v. Mer-

Litchfield v. Hutchinson, 117 id. 195; riU, 85 Iowa, 47.

Morse v. Shaw, 134 id. 59. When « Crater v. Binninger, 33 N. J. L.

representations of value are not 5131

586 FEAUD.

not necessary that the false representations be the sole induce-
ment to the act of the injured party from which the injury
arises.^ It has been held in Nevada that where misrepresenta-
tions made by a seller are shown to be material and false, it is
for him to show that the buyer did not rely upon them, and
that without them the purchase would have been made.^

It is a question of some importance in all such cases whether
the injured party was negligent in not availing himself of other
means of information, and whether he exercised due caution in
acting upon the representations, and this question is generally
for the jury.' If the facts are not known to him, and he has
not equal means of knowing the truth, there is no legal duty
not to rely on the statements of the other party.* "Where the
representations related to the size and location of lots which
were the subject of negotiation, it was held in Minnesota, that
the plaintiff could not be charged with negligence for relying
upon the representations instead of consulting the recorded
plat.' In Illinois, it was held that where the land relative to
which the representations were made was only six miles away,
the plaintiff had a right to rely on the representations.* And
so in Massachusetts, where the matters were peculiarly, though
not exclusively, within the knowledge of the defendant.'' The
purchaser of an interest in goods has a right to rely on the
seller's representations that he is the owner ; and he is not neg-
ligent if he fail to test the correctness of such representations.^
The court say : " "We are not inclined to encourage falsehood
and dishonesty, by protecting one who is guilty of such fraud,
on the ground that his victim had faith in his word, and for
that reason did not pursue inquiries that would have disclosed
the falsehood." ' The constructive notice by the record of a
mortgage will not deprive a purchaser of the right to rely on
the vendor's . positive statements, fraudulently made, that the

1 Shaw V. Stine, 8 Bosw. 157. « Nolte v. Eeiohelm, 96 111. 435.

2 Fishback v. Miller, 15 Nev. 438. ' Nowlan v. Cain, 3 Allen, 361.

3 Roberts v. Plaisted, 63 Me. 335; ' SHale v. Philbrick, 43 Iowa, 81.
Savage v. Stevens, 136 Mass. 307; ^ Bondurant v. Crawford, 33 Iowa,
Greene v. HaUenbaok, 34 Hun, 116. 40; Van Epps v. Harrison, 5 Hill, 63;

*ld. Bank of Woodland v. Hiatt, 58 Cal.

s Porter V. Fletcher, 35 Mian. 498. S34.

FEAxm. 587

property is unincumbered, nor will it prevent him from suing
for the false representations.^ The representations may be
shown though the parties contracted in writing, and con-
cerning a matter within* the statute of frauds, and the writing
is silent on the subject of the representations.^ The action will
lie for false and fraudulent representations, whether there is a
warranty or not.^ And damages for such fraud may be recov-
ered whether the agreement be rescinded or not.*

To constitute a basis for damages the representations must
not only be false but fraudulent. If the person making the
representations which are material, and which he intends shall
influence another, knows them to be false, the case is clear.*
Some question has been raised whether positive representations
made without knowledge, and believed to be true by the party
making themj v/ill sustain an action for damages in the nature
of deceit. But the doctrine which seems supported by a great
weight of authority is, that if a person states as of his own
knowledge material facts which are susceptible of knowledge
to one who relies and acts upon them as true, it is no defense,
if the representations are false, to an action for deceit, that the
person making them believed them to be true.^ The falsity and

1 Weber v. Weber, 47 Mich. 569. * Litchfield v. Hutchinson, 117

2Nowlan v. Cain, supra; Lumm Mass. 195; MUlikenv. Tliorndike, 103

V. Port Deposit, etc. Asso. 49 Md. id. 383; Savage v. Stevens, 126 Mass.

233; Dobell v. Stevens, 3 B. & O. 207; Hazard v. Irvdn, 18 Pick. 105;

633. Page v. Bent, 2 Met. 374; Bird v.

3 Walton V. Jordan, 33 Ga. 420; Kleiner, 41 Wis. 134; Cotzhausen v.
Cravens v. Gant, 4 T. B. Mon. 136; Simon, 47 Wis. 103; Bennett v. Jud-
S. C. 2 id. 117. See Van Vleet v. son, 31 N. Y. 338; Bower v. Fenn,
McLean, 23 Hun, 307. 90 Pa. St. 359; Snyder v. Findley, 1

4 Warren v. Cole, 15 Mich. 365; N. J. L. 48; Buford v. CaldweUj 3
Mullen V. Old Colony E. E. Co. 137 Mo. 477; Eaton v. Winnie, 20 Mich.
Mass. 86; Dayton v. Monroe, 47 156; Hamilton v. Billengsley, 87
Mich. 193; Krumm v. Beach, 35 Mich. 107; Baughman v. Gould, 45
Hun, 393; Gould v. Cayuga Co. Nat. Mich. 481; Beatty v. Ebury, L. R. 7
Bank, 86 N. Y. 75; AUaire v. Whit- H. L. 103; Beebe v. Knapp, 28 Mich,
ney, 1 Hill, 484; Whitney v. Allaire, 53; Bankhead v. Alloway, 6 Cold.
1 N. Y. 305; Ely v. Mumford, 47 56; Cabot v. Christie, 43 Vt. 131;
Barb. 639; Sallund v. Johnson, 37 Wheelden v. Lowell, 50 Me. 499;
Minn. 453; Miller v. Barber, 66 N. Thomas v. McCann, 4 B. Mon. 601;
Y. 538; MerriU v. Nightingale, 39 Boyd v. Browne, 6 Pa. St. 310; Lock-
"VVis. 337. ridge v. Foster, 5 111. 56; Van Ars-

5 Page V. Bent, 3 Met. 374. dale v. Howard, 5 Ala. 596; Munroe

5S3 FEAUD.

fraud consist in representing that he knows the facts to be true
of his own knowledge when he has not such knowledge.' For
false warranty an action for damages in tort will lie, and ac-
cording to the general course of decision, it is not necessary to
allege or prove that the defendant knew the warranty to be
false.^

It is not necessary that the false representations be made to
deceive the plaintiff in particular ; nor that the deceiving party
obtain for himself the benefit he intended as the result of the
deception. 0 made a sale of what purported to be certificates
of stock in an incorporated company organized for the manu-
facture of artificial stone. He was aided in making this sale
by circulars made by the defendants, as the officers of the sup-
posed company, falsely stating its incorporation, purposes and
prospects. In an action brought by the purchaser against these
officers for the misrepresentation which these circulars contained,
contributing to deceive the plaintiff, and to induce him to make
the purchase, in the belief, contrary to the fact, that such com-
pany had a lawful existence, and for assuming to be and to act
as the officers of a duly incorporated company, and in issuing
certificates of capital stock, it was held that they were liable to

V. Pritchett, 16 id. 785; Parham v. lieve at the time he made them, that

Eandolph, 4How. (Miss.) 435; Phil- the representations made by him

lips V. Jones, 12 Neb. 213; Bank of were false, and that they were for

Woodland v. Hiatt, 58 Cal. 234; Tay- that reason fraudulently made, or

lor V. Leith, 26 Ohio St. 438; Dufl v. that he assumed or intended to con-

WiUiams, 85 Pa. St. 490; McKoun vey the impression that he had act-

V. Furgason, 47 Iowa, 636; Dunn v. ual knowledge of their truth, though

White, 63 Mo. 181; Wharf v. Roberts, ooncious that he had no such knowl-

88IU. 426. Some cases in New York edge. See Stitt v. Little, 63 N. Y.

do not seem to be fully in accord 427; Lindsay v. Mulgueen, 26 Hun,

with the proposition in the text. 485.

Craig V. Ward, 3 Keyes, 387; Marsh i Litchfield v. Hutchinson, supra;

V. Tealker, 40 N. Y. 563; Van Vleet Page v. Bent, 3 Met. 371; Stone v.

V. McLean, 23 Hun, 206; Meyer v. Denny, 4 Met. 151; Milliken v.

Camden, 45 N. Y. 169; Oberlander v. Thomdike, 103 Mass. 383; Fisher v.

Spiers, id. 175. But in Wakeman v. Mellen, id. 503.

Dalley, 51 id. 37, the court held that 2 Williamson v. Allison, 3 East,

an action founded upon the deceit 446; Fowler v. Abrams, 3 E. D.

and fraud of the defendant cannot be Smith, 1; Carter v. Glass, 44 Mich,

maintained in the absence of proof 154»
that he believed or had reason to be-

FEAUD.

589

him for the damages he thereby sustained, though the defend-
ants had no intent to defraud him in particular. And it was
held, also, that it was not necessary to show that they were in-
terested in the sale.^ Wherer a member of a firm made to a
mercantile agency statements known by him to be false, as to
the capital invested in the firm business, with the intent that
the statements should be communicated to persons interested in
ascertaining the pecuniary responsibility of the firm, designing
thus to procure credits with and to defraud such persons, and such
statements were communicated to one who, in reliance thereon,
sold goods to the firm upon credit, it was held that an action
for deceit could be maintained by such vendor against the part-
ner who made such representations.^ Chancellor "Walworth
said upon this point: "It is not necessary that the defendant
should have had any particular individual in view as the person
who was to be defrauded." And again: ""Where a party plans
a deliberate fraud, and furnishes the means to another to carry
that plan into effect upon some one of a particular class of per-
sons, . . it is idle to contend that he is not answerable for
the consequences, because he did not know upon what partic-
ular individual of the class the fraud would be perpetrated." ^

The measttee of damages. — Following the principle that the
recovery should be commensurate with the injury, if one is
fraudulently induced to enter into a contract from which ex-
penditures have naturally succeeded ; or in consequence of which
he has been compelled to pay money, these expenditures will be
elements of damage.^ The party guilty of the fraud is to be
charged with such damages as have naturally and. proximately
resulted therefrom.' He is to make good his representations as
though he had given a warranty to that effect. He is to make
compensation for the difference between the real state of the
case and what it was represented to be. Thus, in case of sales

iFennv. Curtis, 23 Hun, 384; Hub- SAddington v. AUen, 11 Wend,

bard v. Briggs, 31 N. Y. 518; Mead 874

V. Mali, 15 How. Pr. 847; Cross v. < Crater v. Binninger, 83 N. J. L.

Sackett, 6 Abb. Pr. 347; Scott v. 513; Suydam v. Watts, 4 McLean,

Dixon, 29 L. J. Ex. 63. 163.

3 Eaton, etc. Co. v. Avery, 83 N. 5 Benton v. Pratt, 3 Wend. 385.
Y. 31.

590 FEAUD.

where there is a fraudulently false representation of quantity,
quality or title, the measure of damages is the difference in value
between that which is actual and that which was represented
to exist.^ And interest, at least, in the discretion of the jury,
on this difference, may be added.^

For fraudulently inducing a person to purchase a note of an
insolvent as good, he is entitled to recover the full amount pay-
able by its terms.' In an action for damages for false represen-
tations it appeared that the defendant had sold the plaintiff a
lot knowing that he intended to build a dwelling house upon it,
and had falsely represented that there was a street upon the
north side of the lot ; that the plaintiff after purchasing erected
a valuable house for residence on the lot, relying upon such
representation. It was held that the plaintiff was entitled to
recover as special damages in addition to the difference in the
value of the lot, the difference in the market value of the house
as a residence, with a street as represented, and without such
street, it appearing that the public records did not show the
condition of the property with respect to streets.* A purchase
was made of land lying near the city of Albany for the declared

1 Morse V. Hutchins, 103 Mass. 439; Fisk v. Hicks, 31 id. 535; Can- v.
MiUer v. Barber, 66 N. Y. 558; Eus- Moore, 41 id. 181; Stiles t. White,
seU V. aark, 7 Cranch, 69; Sibley 11 Met. 356; Soliund v. Johnson, 37
V. Hulbert, 15 Gray, 509; Neff v. Minn. 455; Wright v. Roach, 57 Me.
aute, 12 Barb. 466; TackweU v. 600; Hiner v. Richter, 51 m. 299;
Lambert, 5 Cush. 23; Burpee v. Page v. Wells, 87 Mich. 415; HamU-
Sparhawk, 97 Mass. 342; Beau v. ton v. Billingsley, 37 Mich. 107;
WeUs, 28 Barb. 465; Rheem v. Nau- Parker v. Walker, 13 Rich. L. 138;
gatuck W. Co. 33 Pa. St. 356; Piatt Foster v. Kennedy, 38 Ala. 359;
V. Brown, 30 Conn. 336; Quimby v. Gaulden v. Shehee, 24 Ga. 438; War-
Carter, 30 Me. 218; Kidney v. Stod- ren v. Cole, 15 Mich. 365; Brown v.
dard, 7 Met. 252; Briggs v. Brushar Woods, 3 Cold. 183; Ahrensv. Adler,
ber,43 Mich. 330; KendaU V.Wilson, 33 Cal. 608; MoneU v. Golden, 13
41 Vt. 567; Ferris v. Comstock, 33 John. 395; Davis v. Elliott, 15 Gray,
Conn. 513; Markel v. Moudy, 11 90. See Rice v. White, 4 Leigh,
Neb. 213; Crosland v. HaU, 33 N. J. 474.

Eq. Ill; White v. Smith, 54 Iowa, 2 Wright v. Roach, 57 Me. 600;

333; Mason v. Raplee, 65 Barb. 180; Morse v. Hutchins, 102 Mass. 439.

aark V. Baii-d, 9 N. Y. 183; Clare 3 Sibley v. Hulbert, 15 Gray, 509;

V. Maynard, 7 C. & P. 743; Ives v. Ne£E v. Clute, 13 Barb. 466; Slinger-

Carter, 34 Conn. 393; Campbell v. land v. Bennett, 65 N. Y. 611. See

Hillman, 15 B. Mon. 508; Page v. Clayton v. O'Connor, 35 Ga. 198.

Parker, 43 N. H. 363; S. C. 40 id. 47; * White v. Smith, 54 Iowa, 333.

FEATJD. 591

purpose of laying it out into building lots, and the vendor fraud-
ulently represented it to be even and requiring no grading.
The property was not adapted by location for the purpose the
vendor bought it for, but not having rescinded the contract of
purchase, on the ground of fraud, the court held he was entitled
to recoup damages for the fraud. On the question of damages
the court say : " The cause must, as far as practicable, be tried
just as it would have been tried the day after the contract was
made, if the question had arisen at that time. The jury must
assume, what the parties then believed, that the land was valu-
able as the site of a town, and then inquire how much less the
land was worth for building purposes, taking the surface as it
actually existed, than it would have been worth for those pur-
poses had the plaintiff's representations concerning the surface
been true. One mode of arriving at the correct result, and per-
haps the only one, would be to inquire into the probable expense
of reducing and conforming the surface of the ground to a con-
dition corresponding with the plaintiff's representation. This
would, I think, give the correct rule of damages." ' Where one,
with intent to cheat and defraud another, induces him by fraud-
ulent means and representations to purchase for value stock
which he knows to be worthless, he is hable for the damages sus-
tained whether the purchase is made from him or from another.
The measure of damages is the difference between the value of
the stock, as the condition of the company issuing it really
was, and what it would be if the condition of the company had
been as the purchaser was fraudulently induced to believe it was.
The market price of the stock about the time, or soon after the
purchase, is strong evidence of its value, and in the absence of
other proof will control. But where the real pecuniary con-
dition of the company is shown, from which it appears that
the stock was worthless, such market price is entitled to no
weight upon the question of value. The purchaser, after dis-
covery of its worthlessness, is not bound to mitigate the loss
by himself cheating some other ignorant purchaser.^

In some cases the rule in question between a defrauded pur-
chaser and the defrauding vendor is stated to be the difference

1 Van Epps v. Hairison, 5 Hill, 63. 2 Hubbard v. Briggs, 31 N. Y. 581.

592 FRAUD.

between the real value and the amount which the former was
induced to pay.' This rule is based on the assumption that the
amount paid is the measure of the value as fixed by the parties;
but a party purchasing does not buy to sell again at the same
price, and to compel him arbitrarily to accept compensation by
that standard is to deprive him of such benefit of his purchase
as the state of the market would have enabled him to reaUze if
there had been no f raud.^ As said by Mr. Justice Gray,' " to
allow the plaintiff only the difference between the real value
of the property and the price which he was induced to pay for
it, would be to make any advantage lawfully secured to the in-
nocent purchaser in the original bargain inure to the wrong-
doer ; and, in proportion as the original price was low, would
afford a protection to the party who had broken, at the ex-
pense of the party who was ready to abide by, the terms of the
contract." The amount paid is evidence of the value, but on
principle, and according to the general course of decision, it is
not conclusive of the value as it was represented to be.*

This general rule does not embrace all the damages which a
defrauded vendee may suffer in all cases. In the case of Shnger-
land V. Bennett,' the defendant induced the plaintiff to purchase,
as good, a note against an irresponsible party. The pur-
chaser brought suit and obtained judgment on the note, but was
unable to collect it. In an action for the fraud, it was held that
the costs of obtaining this judgment were not proper elements
of damage ; that they were not the proximate result or natural
consequence of the fraud. The correctness of this conclusion
may well be doubted. If these costs were incurred judiciousl}^
and in good faith to enforce the demand as being such as it was
represented to be, certainly they were the natural and probable

1 Clayton v. O'Ooniier, 35 Ga. 193; S. C. 43 id. 363; Tuttle v. Brown, 4

Hallam v. Todhunter, 34 Iowa, 166; Gray, 457; Woodward v. Thatcher,

Hiner v. Richter, 51 111. 399. 31 Vt. 580; Sherwood v. Sutton, 5

2ReggioY. Braggiotti, 7 Gush. 166, Mason, 1; Muller v. Eno, 14 N. Y.

169. 597; Drew v. Beall, 63 lU. 164; Loder

3 Morse V. Hutching, 103 Mass. 440. v. Kekule, 3 C. B. N. S. 128; Dingle

4 Stiles V. White, 11 Met. 356; Gary v. Hare, 7 id. 145; Jones v. Clarke,
V. Gruman, 4 HiU, 635; Fisk v. 8 Q. B. 194. See Thompson v. Shep-
Hicks, 31 N. H. 535; Carr v. Moore, lar, 73 Pa. St. 160.

41 id. 181; Page v. Parker, 40 id. 47; 6 66 N. Y. 611.

FEAUD. 593

effect of the sale, as good, of a note against a debtor unable to
pay. A warranty of title justifies a suit or a defense to main-
tain it, and if the title fails the costs and expenses are proper
items of damage in an action upon the warranty.' So where a
person falsely pretends to be the agent of the owner and makes
a contract for the sale of his property, the purchaser is entitled
to recover the costs of an unsuccessful suit to enforce the con-
tract against the supposed principal.^

One who has been fraudulently induced to buy animals falsely
represented or warranted to be sound, but having disease, may
recover as damages for the fraud not only the loss or deprecia-
tion of the animals by reason of the disease, but the trouble and
expense of attempting their cure ; and if in reliance upon the
warranty or representation such animals have been associated
with others, and communicated the disease to them, the loss or
depreciation of the latter, as well as the expense and trouble of
their treatment for cure, may also be recovered.' The recovery
may include compensation for personal injuries and incidental
expenses, where such injuries result from the ordinary use of'
warranted property and the warranty proves false.*

The defrauded party may, on discovery of the fraud, restore
what he has received and rescind the contract, and recover
back what he has paid ; or on such rescission sue for the f uaud.^

If he affirms the contract and sues for the fraud,, he is. not
necessarily entitled to recover for all he has done or paid' on i
the contract, for he may have derived some benefit from it.
But when the contract is repudiated on account of the fraud, .
the defrauded party is entitled to be put in statu quo, and,
where this cannot be literally accomplished it may be done by.
damages. Thus, a defendant represented the water power con-i
nected with his tannery to be sufficient to work it continuously «
throughout the year, and the plaintiff having no- knowledge of

iVol. I, pp. 141, 142; Vol. II, p. v. Wallace, 11 Ind. 113; Pinney v.

419. Andrus, 41 Vt. 631;..
2 Vol. I, p. 140. 4 Sharon v. Mosher, 17 Barb. 518;

sgherrod V. Langdon, 31 Iowa, George v. Skivington, ,L..R.:5Ex. 1;

518; Marsh v. Webber, 16 Minn. 418:
Wintz V. Morrison, 17 Tex. 373
Johnson v. WaUomer, 18 Minn. 388:
Brown v. Wood, 3 Cold. 183; Rose 29 Ga. 461.
Vol. Ill— 38

Thomas v. Winchester, 6 ,N. Y. 397. .
8 Warren t. Cole, . 15 ■ Mich. 265 ^
Atlanta, eta E.,R..Co. v. Hodnett;

594 FEAUD.

the premises, and relying upon this representation, was thereby
induced to purchase ; thereupon, after taking a bond for it and
giving his notes for the price, he entered into possession, and
under the advice of the defendant expended large sums in
repairs. The water failing, he abandoned the property and
notified the defendant that he considered the contract of pur-
chase rescinded. The defendant resumed possession and had
the benefit of the repairs. And it was held that assumpsit
would lie to recover for such repairs ; that the law would, under
such circumstances, imply a promise to pay for them.^ ■'^

For the fraud of falsely representing a third person to be
worthy of credit, whereby the person deceived by such repre-
sentations has been induced to sell goods to such third person,
he being insolvent, the vendor is entitled to recover the value
of the goods sold.^

Damages for fraud must be shown with reasonable certainty.
Remote, coiitingent and conjectural losses will not be taken
into consideration. For the fraud of inducing by false repre-
sentation the payee of a note secured by mortgage to indorse
it in blank, by means whereof it has got into the hands of a
bona fide holder, there can be no recovery until such indorser
has actually paid the note. Until then he will suffer no injury.
The mortgage debt may be made out of the security or the
maker of the note.' But all such liability to loss from fraud
as a ground of damage is not rejected as conjectural and con-
tingent. It has been held in New York,:* that if a vendor
fraudulently represents goods sold to be his own, when he
knows them to belong to a stranger, an action oa the case lies
to recover damages therefor, though the real owner has not re-
covered the property nor the vendee suffered any actual damage.
tA recovery was had on the basis of an unsatisfied liability in
Kenyon v. Woodruff,^ and upon very safe principles. The de-
fendants by fraud induced the plaintiff innocently to take and
remove and thereby convert the property of a third person for
their benefit. They took upon themselves the defense of an

iFarris V. Ware, 60 Me.'482. 'Freeman v. Venner, 120 Mass.

2Vielev. Goss, 49 Barb. 96; Bean 434.
V. WeUs, 28 id. 466; Eheem v. Nau- * Case v. Hall, 34 "Wend. 103.
gatuck W. Co. 33 Pa. St. 356. ■ 5 33 Mich. 810.

FRAUD.

595

action, of trover brought against him by the true owner, and
judgment therein was recovered, which he had abundant prop-
erty to satisfy. They were held liable to him for the amount of
that judgment, and interest upon it, though it had not been
collected or paid. The court held that there was no analogy
between the relations of these parties and the relations which
exist between principal and surety. Graves, J., said : " The rela-
tion of principal and surety grows out of the consent of all the
parties, and the principles which belong to it, in regard to the
right of recovery over, can have no necessary application to a
case where the relation does not arise by consent, but is caused by
a positive wrong committed by one against another. It would
be very unreasonable to hold that where one is drawn by the
fraud of another to perform an act which gives a third party a
right of action against him, and which has eventuated in a
judgment which is indisputably collectible of him, the wrong-
doer may still insist that his responsibility to the party he has '
by his fraud caused to be accountable to the third party is re-
quired to be governed by those rules which naturally and justly
apply where one by choice assumes a relation of accountability
on behalf of one to another."

In an Iowa case,' the defendants had sold and assigned to the ''
plaintiff for a money consideration a bond of the school fund
commissioner, for a deed to a tract of school land. It appeared
that the interest for one year had not been paid by the defend-
ants, although they so represented when they assigned the
bond to the plaintiff. The trial court found that the plaintiff
had not paid that year's interest, but paid the defendants that
amount more than was due according to their agreement, and
that the county held the defendants' note, which contained
their obhgation to pay the interest. It was held that the
plaintiff was not entitled to recover for that interest, because
he had not paid it ; that he had not yet suffered any damage by
means of the defendants' representations. The court say : "He
has not yet paid the money due the school fund, nor is it al-
leged that the defendants are insolvent or unable to pay the
sum. Their note is with the proper officer, and the defendants

iKimmans v. Chandler, 13 Iowa, 32X

596 FEAUD.

are liable to an action thereon at any time. The plaintiff's re-
covery in this case would not prevent the school fund from
suing and recovering at any time for the same interest. The
defendants should not be made twice liable for the same debt."
It may be observed in respect to this case, that the defendants
could have protected themselves from the double liability to
pay by paying the interest in question to the school fund, even
after this action was brought, and therefore they were not, ex-
cept by their own fraud and negligence, placed in peril of a
double recovery. They having received from the plaintifif an
amount equal to that interest, on their false representation that
they had paid it, it would seem just that he should recover dam-
ages to an equal amount, since the defendants, on the action
being brought, persisted in the wrong by defending, instead of
making their representation good by immediate payment to the
school fund.^ In Bradley v. Fuller,^ the court held that a false
and fraudulent representation by which a creditor was induced
to abandon an intention to sue out an attachment against his
debtor, followed by a loss of his debt in consequence of other
creditors attaching aU his property, is not actionable ; that a
plaintiff, on that state of facts, has suffered no legal damage ;
that it must necessarily be uncertain whether the plaintiff would
have attached the property and applied it to his debt if the al-
leged representation had not been made.' It is not easy to per-
ceive why the execution of such an intention might not be
proved with sufficient certainty. It might almost be presumed
under the circumstances stated because of the interest of the
creditor to secure his debt. Eeadiness to perform a contract is
suflBcient to evince the intention of a party to fulfil it, so that
if the other by any act or omission prevent its performance, the
former may recover damages estimated on the assumption that
he would have proceeded. In Remington Sewing Machine Co.
V. Kezertee,* in a case where a surety was drawn into the exe-
cution of a contract by false representations or suppression of
the truth, it was held that the testimony of the surety was ad-
missible that he would not have become a surety if he had

1 See DuBne v. Thorpe, B. D. & O. 2 118 Mass. 239.
128; Barmon v. Lithauer, 4 Keyes, 3 See Vol. I, p. 53, note.
317. < 49 Wis, 409.

FEArD.

m

known the facts concealed. In a late Georgia case, the holder
of a deed tainted with usury stated at a sheriff's sale of the
land that he held an equitable mortgage on the premises for
$1,500, and the purchaser would buy subject to that incum-
brance. He bid in the land himself, knowing that $500 of the
§1,500 secured by his deed was for one year's interest on the
remaining $1,000. On evidence that another would have given
$500 more for the land at the sale, had. the truth been told, the
mortgagor was held entitled to recover that sum from the
buyer.* In Benton v. Pratt,^ it was held that where a contract
would have been fulfilled but for the false and fraudulent repre-
sentations of a third person, an action would lie against such
third person for the fraud, although the contract could not have
been enforced by action.'

A creditor at large, who has taken no proceedings against
his debtor to acquire a lien upon his property, cannot maintain
an action against a person who takes possession or converts the
debtor's property under a conveyance or transfer which is made
to hinder, delay and defraud his creditors.* Bat it is otherwise
if the creditor has a lien, and it is reduced in value by the ,
fraudulent conduct of another;* or if its release is procured by I
fraud.* So, a creditor may compel the fraudulent grantee of '
his debtor to account for the property after such creditor has
obtained a judgment, and under it a right to resort to the
equitable assets of his debtor.'

Plaintiffs who are jointly interested in the damages sought
to be recovered for fraud may join in the action.* Where there
were two purchasers of land which the vendor fraudulently
misrepresented as to size and location, it was held that such
purchasers might join though they have since made partition.'

1 Denham v. Kirkpatrick, 64 Gra. * Yates v. Joyce, 11 John. 136.

71. 6 Marshall v. Buchanan, 35 Cal.

2 3 Wend. 385. 264.

3 See Parks v. Alta CaL TeL Co. 13 ' Robinson v. Boyd, 17 Mich. 138.
Cal. 432. s Medbury v. Watson, 6 Met.

4Adler V. Fenton, 34 How. U. S. 257-8; Stiles v. White, 11 Met. 356.

407; Moran v. Dawes, Hopk. Ch. » Porter v. Fletcher, 25 Minn. 493.

365; Lamb v. Stone, 11 Pick. 537; See Patten v. Gumey, 17 Mass.

Wellington v. Small, 3 Oush. 145; 182.
Austin V. Barrows, 41 Conn. 387.

598 FEAUD.

Where fraud is the ground of action, the plaintiif must allege
all circumstances necessary for the support of the action with
such certainty that the defendant may know what he is called
on to answer.^ Evidence is admissible of only the false state-
ments alleged in the declaration.^

Exemplary damages foe feaitd. — There is not an entire
agreement of the authorities on the question whether exem-
plary damages may be allowed in actions for deceit ; nor are
the cases numerous in which the point has been considered.
On the principle upon which such damages are allowed where
the doctrine of punitory damages prevails, it is not easy to see
how such damages are to be excluded as matter of law, in cases
of wilful and deliberate fraud followed by actual damage.^

> Duffy V. Byrne, 7 Mo. App. 417. Head, 530; Oliver v. Chapman, 15

2 Jackson v. CoUins, 39 Mich. 557. Tex. 400; Piatt t. Brown, 30 Conn,

s Vol. I, p. 724; Nye v. Merriam, 336; Ives v. Carter, 24 id. 892. But

35 Vt. 438; Byram v. McGuire, 3 see Lane v. Wilcox, 55 Barb. 615.

INFEINGEMEIST OF PATENT EIGHTS. 599

CHAPTER XXI.

INFRINGEMENT OP PATENT RIGHTS.

Statutory provisions regulating remedies for — Damages recoverable in
actions at law — Compensation for infringement obtainable in equity.

PeoTISIONS of the PATENT ACTS EEGULATING EEMEDIES FOE IN-

FEiNGEMENT. — Pecuniary redress for infringement of patent
rights may be obtained pursuant to the legislation of congress
by actions at law and by suits in equity. In the former, dam-
ages may be recovered in an action on the case in the name of
the party interested, either as patentee, assignee or grantee.
And whenever in any such action a verdict is rendered for the
plaintiff, the court may enter judgment thereon for any sum
above the amount found by the verdict as the actual damages
sustained, according to the circumstances of the case, not ex-
ceedingj three times the amount of such verdict, together with
the cosrs.^ The legal remedy has been substantially the same
since the passage of the act of July 4, 1836.^ The equitable
remedy was enlarged by the act of 1870. It provides that upon
a decree being rendered in any such case for an infringement,
the complainant shall be entitled to recover, in addition to the
profits to be accounted for by the defendant, the damages the
complainant has sustained thereby ; and the court shall assess
the same, or cause the same to be assessed under its direction.
And the court shall have the same power to increase such dam-
ages in its discretion, as is given to increase the damages found
at law.' Mr. Justice CHfiford, in a late case,* thus summarized
the legal and equitable remedies for this wrong: " Prior to the
passage of the act of the 8th of July, 1870, two remedies were
open to the owner of a patent whose rights had been infringed,
and he had his election between the two ; he might proceed in
equity and recover the gains and profits which the infringer
had made by the unlawful use of his invention, the infringer in
such a suit being regarded as the trustee of the owner of the

1 Act of July 8, 1870; § 4919, R. S. >% 4931, R. S.

2 5 St. at Large, 133, sec. 14. ^BirdsaU v. Coolidge, 93 U. S. 68.

600 INFRINGEMENT OF PATENT EIGHTS.

•patent as respects such gains and profits ; or the owner of the
patent might sue at law, in which case he would be entitled to
recover, as damages, compensation for the pecuniary injury he
suffered by the infringement, without regard to the question
whether the defendant had gained or lost by his unlawful acts, —
the measure of damages in such case being not what the de-
fendants had gained, but what the plaintiff had lost.*

" Where the suit is at law, the measure of damages remains
unchanged to the present time, the rule still being that the
verdict of the jury must be for the actual damages sustained
by the plaintiff, subject to the right of the court to enter judg-
ment thereon for any sum above the verdict, not exceeding
three times that amount, together with costs.^

'• Damages of a compensatory character may also be allowed
to the complainant suing in equity, in certain cases, where the
gains and profits made by the respondent are clearly not suf-
ficient to compensate the complainant for the injury sustained
by the unlawful violation of the exclusive right secured to him
by the patent. Gains and profits are still the proper measure
of damages in equity suits, except in cases where the injur3'' sus-
tained by the infringement is plainly greater than the aggregate
of what was made by the respondent ; in which event the pro-
vision is, that the complainant ' shall be entitled to recover, in
addition to the profits to be accounted for by the respondent,
the damages he has sustained thereby.'

" Cases occurred under the prior patent act where manifest
injustice was done to the complainant in equity suits, by with-
holding from him a just compensation for the injury he sus-
tained by the unlawful invasion of his exclusive rights, even
when the final decree gave him all that the law allowed. Ex-
amples of the kind may be mentioned where the business of
the infringer was so improvidently conducted that it did not
yield any substantial profits, and cases where the products of
the patented improvements were sold greatly below their just
and market value, in order to compel the owner of the patent,
his assignees and licenseeSj to abandon the manufacture of the
patented product.

1 Curtis on Pat, (4th ed.) 461; 5 « 16 Stat. 207.
Stat. 133.

raFEINGEMENT OF PATENT EIGHTS. 601

"Courts could not, under that act, augment the allowance
made by the final decree, as in the case of a verdict of a
jury ; but the present patent act provides that the court shall
have the same powers to increase the decree, in its discretion,
that are given by the act to increase the damages found by
verdicts in actions at law. Such difficulties could never arise
in an action at law, nor can it now, as both the prior and pres-
ent patent acts authorize the court to enter judgment on the
verdict of the jury for any sum above the verdict, not exceed-
ing three times the amount. No discretion is vested in the
jury, but they are required to find the actual damages under-
proper instructions from the court." ^

Damage ebgovebable in actions at law. — Where, the
plaintiff has sought his profit in the form of a royalty paid by
his licensees, and there are no peculiar circumstances in the
case, the amount to be recovered will be regulated by that
standard,^ when a sufficient number of licenses or sales have
been made to establish a market value.' Whenever an inventor
finds it profitable to exercise his monopoly by selling licenses
to make or use his improvements, he has himself fixed the
average of his actual damage when his invention has been used
without his license. If he claims anything above that amount,
he is bound to substantiate his claim by clear and distinct evi-
dence.*

The foregoing rule of damages is deemed subordinate to the
measure fixed by the statute — the actual damages, — and there-
fore it will be departed from wherever the court can see that
it will give less or more than the actual damages.^ There is no
rule of damages that will equally apply to all cases. The mode
of ascertaining actual damages must necessarily depend on the
nature of the monopoly granted."

1 Day V. Woodworth, 13 How. 14; Suffolk Co. v. Hayden, 3 Wall.

372; Seymour v. McCormick, 16 id. 315; Livingston v. Jones, 3 Wall.

488. Jr. 330. See Bussey v. Excelsior M.

2Philp V. Nook, 17 Wall. 460; Co. 1 McCrary, 161.

Burdell v. Denig, 92 U. S. 716; Sey- < Seymour v. McCormick, 16 How.

mour V. McCormick, 16 How. 480; 480, 490.

Birdsall v. Coolidge, 93 U. S. 64. 5 id. ; Birdsall v. Coolidge, supra.

3 Packet Co. V. Sickles, 19 Wall. "Id.
611; Sickles v. Borden, 4 Blatchf.

603 nrarEiNGEMBNT of patent eights.

In cases where there is no established patent or license fee,
general evidence may be resorted to in order to get at the
measure of damages; then, evidence of the utility and advan-
tage of the invention over the old modes or devices that had
been used for working out similar results is competent and
appropriate.^ In some cases this advantage, or the value of the
use of the plaintiff's invention, is adopted as the measure of the
actual damages.^ A man who invents or discovers a new com-
bination of matter, such as vulcanized India rubber, or a valu-
able medicine, may find his profit to consist in a close monopoly,
forbidding any one to compete with him in the market, the
patentee being himself able to supply the whole demand at his
own price. If he should grant licenses to all who should desire
to manufacture his composition, mutual competition might de-
stroy the value of each license. This may be the case, also,
where the patentee is the inventor of an entire new machine.
If any person could use the invention or discovery by paying
what a jury might suppose to be the fair value of a license, it
is plain that competition would destroy the whole value of the
monopoly. In such case, the profit of the infringer may be
the only criterion of the actual damage to the patentee. It is,
however, only when, from the peculiar circumstances of the
case, no other rule can be found, that the defendant's profits
become the criterion of the plaintiff's loss.'

1 Suffolk Co. V. Hay den, 3 Wall. Miller, J., said: "The riUe in suits
315; Philp v. Nook, 17 Wall. 460. in equity of ascertaining by a ref-
The amount paid by the defendant erenoe to a master the profits which
for a license to use another patented the defendant has made by the use
Invention, which he used after he of the plaintiff's invention, stands
had ceased to infringe upon the on a different principle. It is that
plaintiff's patent, and as a substitute of converting the infringer into a
for the plaintiff's device, was held to trustee for the patentee as regards
be the proper measure of the value the profits thus made; and the ad-
of the plaintiff's invention to him. justment of those profits is subject
Sargent v. Yale Lock Manufacturing to all the equitable considerations
Co. 17 Blatchf . 249. which are necessary to do complete

2 Brodie v. Ophir S. M. Co. S Saw- justice between the parties, many
yer, 608; Carter v. Baker, 1 Sawyer, of which would be inappropriate in
537. a trial by jury. With these correot-

3 Seymour v. MoCormick, supra; ive powers, in the hands of the
Cowing v. Kamsey, 8 Blatchf. 36. chancellor, the rule of assuming
InPacketCo.v. Sickles, 19 Wall. 611, profits as the groundwork f or esti-

INFEINGEMENT OF PATENT EIGHTS.

603

In cases where profits are the proper measure, it is the
profits that the infringer makes, or ought to make, which gov-
ern, and not the profits which the plaintiff can show that he
might have made.^ The jury, in ascertaining the damages, are
not to estimate them for the whole term of the patent, hut
only for the period of the infringement : for the recovery does
not vest the infringer with the right to continue the use.^

The patentee may sue at law for the damages which he has
sustained, and these damages he is entitled to recover whether
the defendant has made any profits or not. In such an action it
is precisely what is lost to the plaintiff, and not what the defend-
ant has gained, which is the measure of the damages to be
awarded.'

mating the compensation due from
the infringer to the patentee has
produced results calculated to sug-
gest distrust of its universal applica-
tion even in courts of equity. Cei-
tainly any unnecessary relaxation
of the rule we have laid down in
courts of law, where the patentee
has been in the habit of selling his
invention, or licenses to use it, so
that a fair deduction can be made as
to the value which he and those
using it have established for it,
does not commend itself to our
judgment, nor is it encouraged by
our experience.

"The reason of this rule is still
stronger when the use of the pat-
ented invention has been with the
consent of the patentee, express or
implied, without any rate of com-
pensation fixed by the parties." In
the subsequent case of Burdell v.
Denig, 93 U. S. 716, the supreme
court, speaking by the same learned
judge, said: "Profits are not the pri-
mary or true criterion of damages
for infringement in actions at law.
That rule applies eminently and
mainly in cases in equity, and is
based upoij. the idea that the in-
fringer shaU be converted into a

trustee, as to these profits, for the
owner of the patent which he in-
fringes,— a principle which it is very
difficult to apply in a trial before a
jury, but quite appropriate on a
reference to a master, who can ex-
amine the defendant's books and
papers, and examine him on oath,
as well as all his clerks and em-
ployes. On the other hand, as we
have repeatedly held, sales of
licenses of machines, or of a royalty
established, constitutes the primary
and true criterion of damages in an
action at law.

" No doubt, in the absence of sat-
isfactory evidence of either class in
the forum to which it is most appi-o-
priate, the other may be resorted to
as one of the elements on which the
damages or the compensation may
be ascertained; but it cannot be ad-
mitted . . . that in an action at
law the profits which the other
party might have made is the pri-
mary or controlling measure of

lid.

2 Suffolk Co. V. Hayden, 3 Wall.
315. See Perrigo v. Spaulding, 13
Blatchf. 389.

3 Cowing V. Rumsey, 8 Blatchf. 36.

604 INFKINGEMENT OF PATENT EIGHTS.

"Where the defendant's profits are sought to be made the
measure of the plaintiff's recovery, it is a practical question,
the solution of which will determine that claim, or the extent
to which it may be maintained, whether the defendant has, by
the infringement, diverted the patronage of the plaintiff, or
diminished his profits from his invention. It was at one time
ruled at the circuit, that the law would presume that the plaint-
iff's profits were diminished in proportion to the profits made
by the infringer ;i but this was held erroneous in Seymour v.
McCormick.^ It is now settled that there is no such legal
inference or presumption. Actual damages are required to be
proved ; and they cannot be found unless the plaintiff furnishes
the jury some data for the computation.' The plaintiff must
show his damages by evidence. They must not be left to
conjecture. They must be proved, and not guessed.* But the
general principle stated in another place ' is not lost sight of
in this class of actions where the infringement was wanton,
or the evidence which will show more exactly the loss resulting
therefrom is peculiarly within the defendant's possession or
control. Under such circumstances the respondents ought to
be held to the most rigid accountability, and no intendment
ought to be made in their favor, founded on the alleged in-
conclusiveness of the plaintiff's proofs of loss. Such proof
ought to be considered and interpreted most liberally in the
plaintiff's favor, within the limit of an approximately accurate
ascertainment of his damages.* On the trial of an action for
the infringement of a patent for a writing fiuid, no proof was
given of the cost of the manufacture of the fluid, or of the sale
price ; but it was shown that sales were highly profitable, and
that the defendant had made and sold very large quantities.
The defendant gave no evidence of the amount of their manu-
factures or sales, or of the cost value of the article. The jury

iWUbur V. Beeoher, 2 Blatohf. 8 Blatchf. 36; PhOp v. Nook, 17

132; Buck v. Hermance, 1 id. 398; Wall. 460; Ingersoll v. Musgrove,

Hall V. Wiles, 2 id. 194. 14 Blatohf. 541.

2 16 How. 480. * Philp v. Nock, supra.

' Corporation of N. Y. v. Ransom, * Vol. I, p. 784.

23 How. 487; Seymour v. McCor- ^Bigelow Carpet Co. v. Dobson,

mick, supra; Blake v. Robertson, 13 Reporter, 265.
94 U. S. 728; Cowing v. Rumsey,

INFJJINGEMENT OF PATENT BIGHTS. 605

found a verdict for $2,000 for the plaintiff, and it was held that
it must stand, it not being one of palpable extravagance ; that
in such cases the plaintiff is not held to the most exact proof of
the amount of his damages, and the jury are warranted in
exercising a liberal discretion. If the defendant prefers to
leave the damages to general inference and the estimate of the
jury, when he might make the amount reasonably certain by
evidence on his part, the finding of the jury will not be inter-
fered with, except in a case of palpable extravagance.' The
damages will be computed on what the jury find from evidence
is the loss the plaintiff has in some way sustained in conse-
quence of the infringement. The profits of the defendant, to
the extent that the jury find that they represent a loss of profits
or gains which the plaintiff, but for the infringement, would
have realized, may be accepted as the measure of his loss, but
no further.^

Where the infringement is confined to a part of the thing
used or sold by the infringer, the recovery will be limited
accordingly. It cannot be as if the entire thing were covered
by the patent, or, where that is the case, as if the infringement
were as large as the monopoly.' The plaintiff is entitled to
recover in respect of any loss by reduction of the price of the
article containing his invention in consequence of the infringe-
ment.* But it was held in IngersoU v. Musgrove,* that where
the patentee claims, in a suit, damages for a reduction of his
price, caused by the defendant infringing the patent, he must
establish, by satisfactory evidence, not only that a reduction
of his prices was caused by the infringement, but how much
such reduction was; how much of it was occasioned by the acts
of the defendant, and how much of it was due to the fact that
the infringing article contained the invention. Such evidence
must not be estimate, conjecture and opinion, but must be
such as to afford a sound and safe basis of calculation.*

The only persons who can be held for damages for the

1 Stephens v. Felt, 2 Blatchf. 37. ♦Carter v. Baker, 1 Sawyer, 527.

2 Id. ; Pitts V. HaU, 2 Blatchf. 229; » 14 Blatchf. 541.

IngersoU v. Musgrove, 14 Blatchf. *See Buerk v. Imhaeuser, 14
541; Carter v. Baker, 1 Sawyer, 527. Blatchf. 19,
sPhilp V. Nock, supra,

coo ISFEIKGEMENT OF PATENT EIGHTS.

infringement of a patent are those who own, or have some
interest in, the business of making, using or selling the thing
which is an infringement; and an action at law cannot be
maintained against the directors, shareholders or workmen of a
corporation which infringes a patented improvement.' De-
mands for damages and for profits for past infringements are
assignable, and such assignee may recover for infringements
which occurred when he was not the owner of the patent.^

Interest on the bamages.— The damages in these cases
being unliquidated, interest is not generally allowed.' In one
case the jury were allowed to add interest from the commence-
ment of the action,* and in another to add interest in their
discretion, without restriction, to the time of commencing the
action.''

Exemplary damages. — The jury are required to find the
actual damages, and have no discretion, and can be allowed no
discretion, to go beyond that measure,^ nor allow counsel fees
as part of the actual damages.' The power to inflict such
damages is committed to the discretion and judgment of the
court within the limit of trebling the actual damages found by
the jury.* It is only exercised where special reasons are shown,
■ such as malice, insufficiency of the verdict, or the like.' It is a
power to be exercised in view of all the circumstances of the
case. It may be exercised to remunerate parties who have
been driven to litigation to sustain their patents by wanton and

1 United Nickel Co. v. Worthing- 5 Tatham v. Le Roy, 3 Blatchf.
toil, 13 Fed. Rep. 393. 478.

2 Consolidated Oil WeU Packer Co. « Day v. Woodworth, 13 How. 373;
V. Eaton, 13 Fed. Rep. 865; Dibble Birdsall v. Coolidge, 93 U. S. 64;
V. Augur, 7 Blatchf. 86; Gordon v. Seymour v. McCormick, 16 How.
Anthony, 16 id. 234. 480, 489; Buck v. Hermance, 1

3 Parks V. Booth, 103 U. S. 96; Blatchf. 398.

Silsby V. Foote, 30 How. 378, 386; ■ PhUp v. Nock, 17 WaU. 460; Day

Littlefield v. Perry, 21 Wall. 305, v. Woodworth, supra.

339; Mowry v. Whitney, 14 Wall. 8 id.

630. sSchwarzel v. Holenshade, 3

4 Pitts V. Hall, 3 Blatchf. 339. Bond, 39; S. C. 3 Fish, Pat. Cae.

116.

INFRINGEMENT OF PATENT EIGHTS. 607

persistent infringement.' It will not be exercised in favor of a
mere assignee of a right of action.*

Compensation foe infringement obtainable in eqihtt. — As
has been stated, the present patent law gives to the successful
plaintiff, in an equity suit for an infringement, the damages
which he has sustained in addition to the profits to be accounted
for by the defendant. As interpreted, this statute does not, in
every case, entitle the plaintiff to such damages; but only when
they are necessary to give him adequate compensation. If it
appears that the injuries which he sustained are greater than
the gains and profits realized by the defendant, then the plaintiff
is entitled to recover compensation in the form of damages for
the excess of the injuries sustained beyond the gains and profits
received by the defendant.' Where the infringement is not
wilful, it is only compensation for actual loss that can be recov-
ered in any event, or in any form.*

There was nothing in the statutes relating to patents before
the act of 1870, providing expressly for the recovery of the
gains and profits of an infringement of a patent by suit in
equity. The right must have been derived from the application
of the general principles of justice, as administered in courts of
equity, to the relations between the owners of patents and in-
fringers, created by the patent laws. The patentee owns the
monopoly of the patented invention. When an infringer eon-
verts any part of the monopoly into money, or into anything
else, the owner has the right to follow his property in its new
form. The person in whose hands it is, becomes his trustee ;
not because he was ever a trustee of the invention or momopoly,
or had any right whatever to dispose of it for the owner, but
because he had the money or other thing in his hands, which
the owner of the invention had the right to claim because the
invention brought it. It is what is received for the invention
that belongs to the owner of the patent, and, when that is not

1 Brodie v. Ophir S. M. Co. 5 Saw- 3 Buerk v. Imhaeuser, 14 Blatchf .

yer, 608. 19; Carew v. Boston Elastic F. Co.

2Schwarzel v. Holenshade, 3 8 Cliff. 356, 370; BirdsaUv. Coolidge,

Bond, 39; S. C. 3 Fish, Pat.' Cas. 93 U. S. 64.

116. ^Buerkv. Imhaeuser, supra.

COS IXI-KINGEMEXT OF PATENT EIGHTS.

mixed Avith what is received for anything else, there can be no
difficulty about how much the owner of the patent is entitled
to; when it is, the difficulty is wholly in making the sepa-
ration.i

The profits made in violation of a patent right, within the
meaning of the law, are to be computed and ascertained by
finding the difference between cost and yield. In estimating
the cost, the elements of price of materials, interest, expenses
of manufacture and sale, and other necessary expenditures, if
there be any, and bad debts, are to be taken into the account,
and usually nothing else. The calculation is to be made as a
manufacturer calculates the profits of his business. Profit is
the gain made upon any business or investment, when both the
receipts and payments are taken into the account. The rule is
founded in reason and justice. It compensates one party and
punishes the other. It makes the wrongdoer liable for actual,
not possible gains. The controlling consideration is, that he
shall not profit by his own wrong. A more favorable rule
would afford a premium to dishonesty, and invite to aggression.'
A decree enjoining infringement and for account of profits does
not subject the defendant to liability to more than the profits
he has actually realized ; it cannot be made to embrace others
which the defendant by diligence might have realized.'

1 Steam Stone Cutter Co. v. Wind- ized by the defendants for the work
sor Man. Co. 17 Blatchf. 34, 26; S. C. done by them, or by their servants,
18 id. 47; Littlefield v. Perry, 31 by means of the machines described
Wall. 205; Burdell v. Denig, 92 U. in the complainants' bill, comput-
S. 716; Packet Co. v. Sickles, 19 ing the same upon the principles set
Wall. 611; Livingston v. Wood- forth in the opinion of the court,
worth, 15 How. 546; Williams v. and that the account of such profits
Rome, etc. R. R. Co. 18 Blatchf. 181. commence from the date of the let-

2 Rubber Co. v. Goodyear, 9 Wall, ters patent issued with the amended
788, 804. specification.' The master, in this

3 Livingston v. Woodworth, 15 report, made in pursuance of the
How. 546. In this case Mr. Justice instructions just adverted to, admits
Daniel, delivering the opinion of the that the account is not constructed
court, said: " In the instructions upon the basis of actual gains and
to the master it will be seen that he profits acquired by the defendants
is ordered ' to ascertain and report by the use of the inhibited machine,
the amount of profits which may but upon the theory of awarding
have been, or with due diligence damages to the complainants for an
and prudence might have been, real- infringement of their monopoly.

INFKINGEMENT OF PATENT EIGHTS.

609

"Where contractors laid a pavement for a city which infringed
the patent of N, and the city paid them as much therefor as
the city would have had to pay IST had he done the work, thus
reahzing no proiits from the infringement, it was held that in a
suit in equity to recover profits against the city and the
contractors, the latter alone were responsible, although the

He admits, too, that the rate of
profits assumed by him was con-
jectural, and not governed by the
evidence; but he attempts to vindi-
cate the rule he had acted upon by
the declaration that he was not
aware that he had ' infused into the
case any element unfavorable to the
defendants. That by the decision
of the court they were trespassers
and wrongdoers, in the legal sense
of these words, and consequently in
a position to be mulcted in damages
greater than the profits they have
received; the rule being, not what
benefit they have received, but what •
injury the plaintiils have sustained.'
To what rule the master has refer-
ence in thus stating the grounds on
which his calculations have been
based, w^e do not know. "We are
aware of no rule which converts a
court of equity into an instrument
for the punishment of simple torts;
but upon this principle of chastise-
ment the master admits that he has
been led, in contravention of his
original view of the testimony, and
upon conjecture as to the reality of
the facts, and not upon facts them-
selves, to double the amount which
he had stated to be a compensation
to the plaintiffs below, and the com-
pensation prayed for by them, and
the circuit court has, by its decree,
pushed this principle to the ex-
treme, by adding to this amount the
penalty of interest thereon from the
time of filing the bill to the date of
the final decree.

"We think the second report of
Vol. Ill — 39

the master, and the final decree of
the circuit court, are warranted
neither by the prayer of the bill, by
the justice of the case, nor by the
well established rules of equity
jurisprudence.

"If the appellees, the plaintiffs
.below, had sustained an injury to
their legal rights, the courts of law
were open to them for redress, and
in those courts they might, accord-
ing to a practice which, however
doubtful in point of essential right,
is now too inveterate to be called in
question, have claimed not compen-
sation merely, but vengeance, for
such injury as they could show that
they had sustained. But before a
tribunal which refuses to listen even
to any save those whose acts and
motives are perfectly fair and lib-
eral, they cannot be permitted to
contravene the highest and most be-
nignant principle of the being and
constitution of that tribunal. There
they wiU be allowed to claim that
which, ex cequo et bono, is theirs,
and nothing beyond this.

" In the present case, it would be
peciiliarly harsh and oppressive,
were it consistent with equity prac-
tice, to visit upon the appellants
any consequences in the nature of a
penalty. It is clearly shown that
the appellants, in working their ma-
chine, were proceeding under an
authority equal to that (the same,
indeed) which bestowed on Wood-
worth and his assignees the right to
their monopoly. The appellants were
using a machine patented by the

610 INFRINGEMENT OF PATENT EIGHTS.

former might have been enjoined before the completion of
the work, and perhaps would have been liable in an action for
damages.' If an infringer has realized no profit from the use
of the invention, he cannot be called upon to respond for
profits ; the patentee in such a case is left to his remedy for
damages. A patentee is entitled to recover the profits that
have been actually realized from the use of his invention, al-
though from other causes the general business of the defendant,
in which the invention is employed, may not have resulted in
profits, — as where it is shown that his invention produced a
definite saving in the process of a manufacture. On the con-
trary, though the defendant's general business be ever so profit-
able, if the use of the invention has not contributed to the
profits, none can be recovered.^

Interest on capital stock and " manufacturer's profits " are
rejected, as not entering into the cost ; but wear and tear, and
repairs, and the value of the use of such real and personal
estate belonging to the infringer, such as shops, fixtures, and
machinery employed in making the infringing machines, may
properly be compensated as part of the cost.^ The amount
paid for insurance on such property, the insurance being for the

United States to Hutchinson, and ever for tlie exercise of such a

might well have supposed that the power. On the contrary, those cir-

right derived to them from such a cumstances exhibit in a clearer light

source was regular and legitimate, the propriety of restricting the ac-

They were, then, in no correct sense, count, in accordance with the

wanton infringers upon the rights prayer of the bill, to the actual gains

of Woodworth, or of those claim- and profits of the appellants (the

ing under him. So soon as the defendants below) during the time

originality and priority of the their machine was in operation, and

Woodworth patent was ascertained during no other period." Dean v.

by law, the appellants consented to Mason, 20 How. 198; Burdell v.

be perpetually enjoined from the Denig, 93 U. S. 716: Packet Co. v.

use of their machine (the Hutchin- Sickles, 19 "Wall. 611.

sonjnachine), and account for what- ' Elizabeth v. Pavement Co. 97 U.

ever gains and profits they had S. 136.

received from its use. Under these 2 id. ; Mowry v. Whitney, 14 Wall,

circumstances, were the infliction 434 ; Cawood Patent, 94 U. S. 695.

of damages by way of penalty ever 3 Rubber Co. v. Goodyear, 9 Wall.

consistent with the practice of 788, 804; Steam Stone Cutter Co. v,

courts of equity, there can be per- Windsor Man. Co. 17 Blatohf. 24.
eeived in this case no ground what-

I INTEINGEMENT OF PATENT EIGHTS. 611

safety of the property generally, and not for the benefit of the
manufacture of the infringing machines, will not be allowed as
an item of the cost ; nor is the amount paid for local taxes on
such property.! The infringer being a corporation may employ
stockholders in the infringing work or business, and their wages
or salaries paid in good faith for services actually rendered, and
not for the 'purpose of dividing or concealing profits, will be
allowed as part of the deductions to arrive at net profits.^ So,
if the defendant has cheapened the cost of producing the in-
fringing device by an improvement of his own, he is entitled to
a corresponding credit in the ascertainment of the profits.' It
is not the profits of the infringer's business, as a business, that
is to be considered, but the advantage derived by the infringer
in the diminished cost of carrying on the business by the use of
the invention. Thus, in the case of the Cawood Patent,^ it was
urged against the recovery of the profits found from the de-
fendants' infringing use of the plaintiff's patented invention
for mending the crushed and exfoliated ends of railroad rails,
that it would have been better for the defendants, if, instead of
repairing such rails, they had cut off the ends and relaid the
sound parts, or had caused the rails to be reroUed. Mr. Justice
Strong, delivering the opinion of the court, thus refers to and
answers this exception: "Experience, it is said, has proved that
repairing worn out ends of rails is not true economy, and hence
it is inferred that defendants have derived no profits from the
plaintiff's invention. The argument is plausible, but it is un-
sound. Assuming that experience has demonstrated what is
claimed, the defendants undertook to repair the injured rails.
They had the choice of repairing them on the common anvil,
or on the complainant's machine. By selecting the latter they
saved a large part of what they must have expended in the use
of the former. To that extent they had a positive advantage
growing out of their invasion of the complainant's patent. If
their general business was unprofitable, it was the less so in
consequence of their use of the plaintiff's property. They
gained, therefore, to the extent that they saved themselves from

1 Steam Stone Cutter Co. v. Wind- 3 Mason v. Graham, 33 Wall. 361.
sor Man. Co. 17 Blatchf. 24. * 94 U. S. 710.

2 Id.

612

mFEINGEMENT OF PATENT EI&HTS.

loss. In settling an account between a patentee and an in-
fringer of the patent, the question is not what profits the latter
has made in his business, or his manner of conducting it, but
what advantage he has derived from his use of the patented
invention." * The making and selling articles or machines which
are an infringement are so far separable, that, if there is a ben-
efit on one portion and loss on another, the owner of the patent
may claim the profits on those infringing machines which
yielded a profit, without any deduction for the losses sustained
by the infringer on others.^

1 Knox V. Great Western Q. M. Co.
6 Sawyer, 430. Where profits are
recovered for sales of an infringing
article, the right to the thing sold
must be parted solutio pretii emp-
tionis loco habetur. 2 Kent Com.
387. The recovery of such profits,
especially if followed by satisfac-
tion, will preclude the owner of the
patent from any action against the
purchaser of the infringing article,
and wiU prevent the original vendor,
when sued for the profits, from
availing himself of any supposed
liability to such purchasers to en-
hance the cost or dirtlinish the
profits. Steam Stone Cutter Co. v.
Windsor M. Co. 17 Blatchf . 34.

3 In Steam Stone Cutter Co. v.
Windsor Manufacturing Co. supra,
Wheeler, J., thus explains this
point: "Here the Windsor Manu-
facturing Co. made eleven sales of
eleven infringing machines, for
profit; and, whatever of that profit
arose from the appropriation of
these patented inventions by the
making and selling those machines,
the orator is entitled to hei-e, and no
more. Other machines wei-e made
by the defendant, embodying the
invention, which have been disposed
of without profit, or are still on
hand and cannot be disposed of, and
which, as they are left, involve se-
rious loss to the defendant: but

these facts do not vary the amount
received for those sold, on which
the profit was made. The defendant
did not make nor sell any of them
for the orator. The whole was done
on its own account, as part of its
own business, exclusively. Each
infringement was separate, and no
claim accrued in favor of the de-
fendant against the orator, on ac-
count of any of them. The losses
of unfortunate attempts were the
defendant's own losses, and there is
nothing to set off against the ora-
tor's right to the avails of the suc-
cessful attempts. If the defendant
had been acting for the orator, and
the whole enterprise, in connection
with making this kind of machines,
had been the enterprise of the ora-
tor, the net result would have been
what the orator would have to stand
to; but the enterprise was an enter-
prise of the defendant; none of the
machines were made by the defend-
ant for the orator; neither has the
orator adopted the making or seUing
any machine, as having been done
for itself. It had nothing to do with
any of the machines, except as they
included the patented invention, nor
with the sale of any of the machines,
except as the sale included so much
of the invention, and, as to that, it
only claims what the invention
brought, which is the same as if

INFEmGEMENT OF PATENT EIGHTS. 613

The account for profits of the infringement is not limited to
the commencement of the suit nor to the date of the decree.
In such cases it is held proper to extend the account down to
the accounting, unless the infringement has ceased before that
time. The rights of the parties are settled by the decree, and
nothing remains but to ascertain the damages and adjudge their
payment. This practice saves a multiplicity of suits, time and
expense, and promotes the ends of justice.^ In a late case
which was tried and decided in the district of California, one
exception to the master's report was that he should have lim-
ited his accounting to one furnace which contained the patented
invention constructed prior to the commencement of the suit,
and not extended it to two furnaces erected and used at the
same mine pending the suit ; that as to the latter the causes of
action had not arisen ; that they were not therefore involved
in that accounting. But the court overruled the exception, and '
Sawyer, J., said: "The suit is for an infringement of complain-
ant's patent by the use of his invention. It is not a matter of
any moment by what particular machine defendant accom-
plished the infringement. He was infringing at the commence-
ment of the suit, which is to obtain an account of profits
resulting from the infringement, and an injunction against
further infringement. Defendant continued the infringement
by using the same furnace then in use, and by constructing and
using others at the same mine. The profits resulting from the
infringement in the use of the invention are sought to be re-
covered. The supreme court has held that the accounting
should be continued down to the time of taking the account ;
and if so, I see no reason why it should not cover the profits of
the entire use of the invention, by whatever machine efi'ected,
as well as the profits resulting from the use of the particular
machine used at the time of the commencement of the suit.

anything else belonging to the ora- cost of the machines which the de-
tor had been put into and sold with f endant furnished, from the avails
the machines, and the orator claimed of the sales of the machines, includ-
what that brought. The orator ing the invention that belonged to
waives the tort, and proceeds for the orator." See S. C. 18 Blatchf. 47.
the money arising from the tort. i Rubber Co. v. Goodyear, 9 Wall.
The money arising here is what 800.
would be left, after deducting the

614 INFEINGEMENT OF PATENT EIGHTS.

If the infringement is by the manufacture and sale of the in-
vention, the accounting must necessarily extend to all sales to
the time of the accounting, or the accounting must stop at the
commencement of the action; for the same machine cannot
well be made and sold before the bringing of the suit, and
again after its commencement. I can perceive no reason for
applying a different rule in the case of the use of an invention
from that applicable to its manufacture and sale. Besides, an
injunction would certainly not be limited to the machine in use
before, or at the time of, the institution of the suit. I think
the accounting properly embraced all the machines containing
the invention used by the defendant at its mine down to the
time of accounting." ^

In cases where the patent is for a distinct miprovement, sep-
arable from the rest of the article, and not embracing the
whole,^ or is an inseparable improvement of it,' the profits must
be Umited accordingly.* The profits recoverable are only those
which have accrued from the use of the patented improvement ;
and in such case, the owner of the patent is not entitled to all
the profits made from the entire article.' And it is as true of a
process invented as an improvement in a manufacture, as it is
of an improvement in a machine, that an infringer is not liable
to the extent of his entire profits in the manufacture. The
question is, what advantage did the defendant derive from
using the plainti3!'s invention over what he had in using other
processes then open to the public and adequate to enable him
to obtain an equally beneficial result? The fruits of that ad-
vantage are his profits.^ In Mowry v. Whitney, the defendant
was charged by the master Vith $91,000 as profits arising from

iKnox V. GreatWestern Q. M. Co. gels v. Mast, 1 Mip. 434; Buerk v.

6 Sawyer, 430. Imliaeuser, 14 Blatchf. 19; Gould's

2 Buerk V. Imhaeuser, 14 Blatolif. Manuf'g Co. v. Cowing, 13 id. 343;
19; Tremolo Patent, S3 Wall. 518; S. O. 14 id. 815; Black v. Munson,
Mason v. Graham, id. 261. id. 365.

3 Gould's Man. Co. v. Cowing, 14 sid.

Blatchf. 315; Jones v. Morehead, 1 6 Mo wi-y v. Whitney, 14 Wall. 630;

Wall. 155. Littlefield v. Perry, 31 Wall. 305;

4Philp V. Nock, 17 Wall. 460; Sey- Knox v. Great Western Q. M. Co. 6

mour V. McCormiok, 16 How. 480, Sawyer, 430.
490; Jones v. Morehead, supra; In-

mFEINGEMENT OF PATENT EIGHTS. 615

the plaintiff's patent in manufacturing car wheels, which was
the profit obtained from the manufacture of the entire wheel.
Mr. Justice Strong, in dehvering the opinion of the court, said :
" It is clear that Whitney is not entitled to recover more than
the profits actually made in consequence of the use of his proc-
ess in the manufacture of nineteen thousand eight hundred
and nineteen wheels. It is the additional advantage the de-
fendant derived from the process — advantage beyond what he
had without it — for which he must account ; . . . but the
master charged the profit obtained from the entire wheel, in-
stead of that resulting from the use of Whitney's invention
in a part of the manufacture."

In Gould's Manufacturing C^ v. Cowing,^ the master re-
ported that the profits resulting from the patented portion of
the pump could not be separated from those resulting from any
other part of it ; because, making a comparison between the
machine as it stands with its patented improvements and what
would be left of the same machine if these patented improve-
ments were taken away, the machine would be valueless with-
out the improvements, and would, in fact, be no machine at all.
Therefore he reported as profits to be recovered the entire profits
of the pump. This was held erroneous. The court observed
that pumps have been in use since the earliest ages of the world.
After adverting to the part of the pump covered by the patent.
Hunt, J., said: "The portion of the pump in question which
belongs to or is included in the improvement of the plaintiffs is
very small, and a machine constructed upon other known prin-
ciples and devices applicable to pumps, omitting the plaintiffs'
improvement, would include nearly everything useful that is to
be found in the present machine. . . . The patentee takes
the well known portions of a pump used in pumping gas-oil,
with passages, valves, piston, chambers, openings, etc., as ordi-
narily made and used, and adds a chamber of an important
construction, as it is alleged, and a combination with certain
other parts described. Now, if this addition is not a new and
useful improvement, no damages can be claimed for its use. If
it is such an improvement, the improvement, in its nature and

1 13 Blatchf . 343.

616 INFRINGEMENT OF PATENT EIGHTS.

by law, is and must be capable of being described and pointed
out, and must be described and pointed out. Every skillful
mechanic must be able to learn from the patent itself precisely
what the monopoly covers.' If this alleged improvement is so
confounded with portions of the machine which are the subjects
of other patents, or which, from long continued use, are open to
the public, that it cannot be separated from them, or if, when
so separated, it has no value, it is not a patentable invention,
and no damages are due for its use. The decree in this case
has adjudged the patent in this case to be valid. In its nature,
therefore, it is, and must be, capable of separation and distinc-
tion from other portions of the machine." On appeal,^ the su-
preme court reversed the deo/ee on the accounting, and held
that the rule laid down in Mowry v. Whitney ' was applicable.
That rule gave the patentee the fruits of the advantage which
the defendant derived from using his invention over what he
had in using other processes open to the public and adequate to
enable him to obtain an equally beneficial result. "It does
not necessarily follow," Waite, C. J., said, "that where the
patent is for one of the constituent parts, and not for the whole
of a machine, the profits are to be confined to what can be
made by the manufacture and sale of the patented part sepa-
rately. If, without the improvement, a machine adapted to the
same uses can be made which will be valuable in the market,
and salable, then, as was further said in that case, the inquiry
is, ' What was the advantage in cost, in skill required, in con-
venience of operation or marketability,' gained by the use of
the patented improvement ? If the improvement is required to
adapt the machine to a particular use, and there is no other
way open to the public of supplying the demand for that use,
then it is clear the infringer has by his infringement secured
the advantage of a market he would not otherwise have had,
and that the fruits of this advantage are the entire profits he
has made in that market. Such we think is this case. Pumps
for all ordinary, and many extraordinary, uses were very old ;
but in the new developments of business, something was wanted

1 Act of July 8, 1870; § 3616, U. S. 2 105 U. S. 353.
St. at Large, 301. 8 14 Wall. 630.

INFEINGESII-NT OF PATENT EIGHTS. 617

to take gas from the casing of an oil well and conduct it safely
to the furnace of the engine. 'With that special purpose in
view,' this inventor took the well-known parts of an ordinary
double-action pump, changed some of them slightly in form,
added a new device, and produced something which would do
what was wanted. While nominally he only made an improve-
ment in pumps, he actually made an improved pump. For
ordinary uses the improvement added nothing to the value of
the old pump, but for the new and special purpose in view, the
old pump was useless without the improvement. The testimony
shows that there was no market for pumps adapted to this par-
ticular use, except in the oil-producing regions of Pennsylvania
and 'Canada. The demand was limited, as well as local. Less
than a thousand pumps actually supplied all who wanted them.
But for that particular use no other pump could at the time be
sold. If the appellants kept the control of its monopoly under
the patent, it alone had the advantage of this market. Unless
the appellees got the improved pump, they could not become
competitors in that field ; and just to the extent they got into
the field they drove the appellant out. Through their infringe-
ment they got the advantage of selling the pumps that had
upon them the patented improvement. Without it no such
sales would have been effected. The fruits of the advantage
they gained by their infringement were, therefore, necessarily
the profits they made on the entire sale.

" This is an exceptional case. A limited locality required a
particular kind of pump, to be used only in that locality for a
special purpose. The market was not only limited to a partic-
ular locality, but it was unusually limited in demand. A single
manufacturer, possessing the facilities the appellants had, could
easily, and with reasonable promptness, fill every order that
was made. There was no other pump that could successfully
compete with that controlled by the patent. Under these cir-
cumstances, it is easy to see that what was the appellees' gain in
this business must necessarily have been the appellant's loss, and
consequently the appellant's damages are to be measured by th«
appellees' profits from their business in that special and limited
market. This, as it seems to us, is the logical result of the rule

618 mFErCTGEMENT OF PATENT EIGHTS.

which has been stated. By infringing on the plaintiff's rights,
the appellees obtained the advantage of the increased market-
ability of their pump. The action of the court below, there-
fore, limiting the field of inquiry as to damages, cannot be
sustained."

In the case of a patent for an ornamental chair, as a new
article of manufacture, where there is a difference in kind be-
tween the patented chair and prior chairs, and where what was
open to the public could not make a chair like the patented arti-
cle in its peculiar characteristics, the patentee is not, in ascer-
taining the damages sustained by him by the infringement of
his patent, Umited to the advantage derived by the defendant
from using the peculiar features of the patented chair over "what
advantage he would have had from using what was so open to
the public.! The plaintiff is entitled to recover an equivalent
for any advantage which the defendant has derived from an
unlawful use of the patented invention, and this advantage ruay
be estimated either from profits made therefrom separately or
in combination with something else which the patent does not
cover. The profits will be computed in the manner best suited
to afford the injured party the full benefit of his patent, unlaw-
fully used, and a just indemnity for the injury he has thereby
sustained.^ If the improvement is only a constituent of a ma-
chine, but required to adopt the machine to a particular use,
and there is no other way open to the public of supplying the
demand for that use, then the infringer has, by his infringe-
ment, secured the advantage of a market he would not other-
wise have had, and the fruits of his advantage in that case are
the entire profits he had made in that market.' In response to
an order of reference to take an account of the plaintiff's dam-
ages and of the defendant's profits for infringement, the master
reported that there were no damages and no profits, but that
the plaintiff was entitled to compensation for the defendant's
use of his patent. It appeared that the use of the patent re-
stored the salable character of the article the defendant made,

'iMulford V. Pearce, 14 Blatohf. 'Gould's Manufacturing Co. v.
141. Cowing, supra.

2 Mason v. Graham, 33 Wall. 261.

INFEINGBMESTT OF PATENT EI&HTS. 619

and thus saved him from loss. It was held that the money-
value of this advantage could be recovered as compensation.'
Eemote profits or advantages of the infringement are not taken
iato account. * "Where the defendant, by the use of the plaintiff's
patented process for preserving fish, was enabled to withdraw
fish from the market, and thus obtain a higher price for his
unpreserved fish than he would otherwise have received,' it was
held that the profits resulting from such increased price were
too remote and indirect to be charged to the defendant as profits
realized from the infringement.^

In determining the profits from the infringement of a patent
which covers only a part of a machine or article made and sold,
a ratable proportion of the cost of production and sale must be
taken into the account. In the case of the Tremolo Patent,'
the defendants were vendors of musical instruments, including
organs and melodeons, which they purchased from the manu-
facturers. Some of these instruments contained the tremolo
attachment, and others did not. For those containing such
attachments they paid an additional price, and they sold them
also for an increased price. They were found guilty of infring-
ing the plaintiff's patent in making sales of the organs having
that attachment. In the ascertainment of the profits made by
the sale of the tremolo attachment, the defendants were allowed
by the master to prove the general expenses of their business
incurred in effecting the sales 9f all musical instruments, and to
deduct a ratable proportion from the profits made by the sale
of those attachments. It was contended in behalf of the plaint-
iff that the patent infringed was not for the tremolo itself, but
for the combination of the organ and tremolo, and it is argued
that if the defendants obtained an extra price for the organ
combined with the tremolo, without incurring any additional
expense, the whole of that extra price was obtained from the
addition of the combination ; also that the true rule in such a
case was, that if the infringing device is an integral part of the
whole instrument, without which it is incapable of use, and for
which a single charge is made, then in ascertaining profits on a

I Sargent v. Tale Lock Manuf . Co. 2 piper v. Brown, 1 Holmes, 196.
17 Blatchf. 349. 3 33 Wall. 518.

620 INFEINGEMENT OF PATENT EIGHTS.

part of the organization, general expenses should be apportioned
according to the cost, or by some other equitable rule. But
when the infringing device is an optional one, used or not at
pleasure, and an extra price is charged and received for it, when
used, the true profit made is the extra sum received for the addi^
tion, deducting only such expenses as are incurred by reason of
the addition. In answer to this argument the court say: "We
think such a rule, even if it sometimes may be just, is inapplica-
ble to the present case. "We cannot see why the general ex-
penses incurred by the defendants in carrying on their business,
such expenses as store rent, clerk hire, fuel, gas, porterage, etc.,
do not concern one part of their business as much as another.
It may be said that the selling a tremolo attachment did not
add to their expenses, and therefore that no part of those ex-
penses should be deducted from the price obtained for such an
attachment. This is, however, but a partial view. The store
rent, the clerk hire, etc., may, it is true, have been the same, if
that single attachment had never been bought or sold. So it is
true that the general expenses of their business would have been
the same, if instead of buying and selling one hundred organs,
they had bought and sold only ninety-nine. But will it be con-
tended that because buying and selling an additional organ
involved no increase of the general expenses, the price obtained
for that organ above the price paid was all profit ? Can any
part of the whole number sold be singled out as justly charge-
able with all the expenses of the business ? Assuredly no. The
organ with the tremolo attachment is a single piece of mechan-
ism, though composed of many parts. It was bought and sold
as a whole by the defendants. It may be said the general ex-
penses of the business would have been the same if any one of
these parts had been absent from the instrument sold. If, there-
fore, in estimating profits, every part is not chargeable with a
proportionate share of the expenses, no part can be. But such
a result would be an injustice that no one would defend. "We
think it very plain, therefore, that there was no error in the rule
adopted for the ascertainment of the profits made by the defend-
ants out of their infringement of the complainant's patent." ^

iSee Steam Stone Cutter Co. v. Windsor M. Co. 18 Blatchf. 47.

INFEINGEMENT OF PATENT EIGHTS. 621

The owner of the patent is entitled in equity to recover
profits made by the infringer, though such owner of the patent
was exercising his monopoly by granting of licenses. He is
not limited in that forum to such license fees, though such
profits exceed in amount what he would have realized in license
fees for what was done by the infringer. By the express pro-
visions of the statute the plaintiff is entitled to recover, in addi-
tion to the profits to be accounted for by the defendant, " the
damages sustained by the infringement." ^ This shows that,
in contemplation of law, the profits actually realized by the
infringer belong to the patentee, and that, when the profits
would not compensate for the damages sustained, as they might
not, in many cases, he is entitled to the damages beyond.^

The right given by the statute to recover in equity damages
besides profits is not intended to give the owner double com-
pensation ; but the net profits made from the unlawful use of
his invention, and such supplemental damages proved as will
make the decree on the whole a full compensation. If the
business of the infringer is so improvidently conducted that he
makes no substantial profits, the owner of the patent may have
his compensation calculated on the basis of a license fee.' In
the ascertainment of such damages there is required the same
certainty of proof as at law. Where there is a loss of profits
in the plaintiff's business by a 'diversion of his customers by
the defendant's sale of an infringing article or machine, or a
reduction of price from the same cause, damages may be re-
covered therefor.* It wiU not be presumed as matter of law,
but must be established as matter of fact, that because the de-
fendant has sold an infringing article there has been a corre-
sponding or any falhng off of the plaintiff's. business. In one
case,^ the court say: "It was not made to appear that the
plaintiff could have sold his watches to the persons who pur-
chased from the defendants. The watches have been adjudged

IR. S. §4921. 3 Marsh v. Seymour, 97 U. S. 348;

' 2Wooster v. Taylor, 14 Blatchf. Birdsall v. Coolidge, 93 id. 64.
403; Carew v. Boston, etc. Co. 3 * Buerk v. Imhaeuser, 14 BlatoM.
Cliff. 356; Williams v. Rome, etc. 19; Carter v. Baker, 1 Sawyer, 537;
R. R. Co. 18 Blatchf. 181. Birdsall v. Coolidge, supra.

5 Buerk v. Imhaeuser, supra.

622 mFEINGEMENT OF PATENT EIGHTS.

to be identical in principle, but they differ in structure and
appearance ; and it cannot be known that those who bought
the infringing article would have bought the plaintiff's watches
under any circumstances. The difference in structure, as well
as the difference in price, enter into that question, and no means
are afforded for determining it by proofs.^ Profits when recov-
ered being regarded as unliquidated damages, interest is not
usually allowed until they have been judiciaEy liquidated.^
Interest may be refused altogether, or allowed after interlocu-
tory decree, or after final decree, according to the circumstances
of the case."

1 Smith V. Pryor, 2 Sawyer, 461; Parks v. Booth, 10317. S. 96; Steam
Carter v. Baker, 1 id. 513; Seymour Stone Cutter Co. v. Windsor M. Co.
V. McCormiok, 16 How. 480; Inger- 17 Blatohf. 35; S. C. 18 id. 47; Lit-
soU V. Musgrove, 14 Blatchf. 541. tlefield v. Perry, 31 Wall. 305, 339.

2 Mowiy V. Whitney, 14 Wall. 653; See Silsby v. Foote, 30 How. 378.

tNTEINGEMBNT OF COPTBIGHT. 623

CHAPTEK XXII.

INFRINGEMENT OF COPYRIGHT.

Copyright is statutory — Compensatory and penal recoveries for infringe-
ment of copyright.

Copyright is statutory. — The law recognizes and protects
literary property, which is the right of the owner to possess,
use and dispose of intellectual productions.^ It is a property
which does not come into being until some mental conception
has been embodied in written or spoken language, or otherwise
signified as an intellectual creation in such manner as to be
capable of recognition and identification. It includes copyright,
playright and original proprietorship in works of art.^ It is
property held by a peculiar tenure. Whatever may have been
the English common law, it seem to have been long settled on
both sides of the Atlantic, that beyond an absolute right to
such productions before publication, the author or his assigns
has only such special right in them afterwards as is granted by*
statute.' An author has the same right to his unpublished

1 Drone on Copyr. 97. statuary, bas-reliefs, designs for or-

2 Lord Mansfield, in MiUar v. Tay- namenting any sm-faoe and conflgu-
lor, 4 Burr. 2396, said: " I use the ration of bodies; the third class
word ' copy ' in the technical sense comprehends machinery, tools, man-
in which that name or term has ufactures, compositions of matter,
been used for ages to signify an in- and processes or methods in the arts,
corporeal right to the sole printing According to the practice of legisla-
and publishing of somewhat intel- tion in England and America, the
leCtual, communicated by letters." term copyright is confined to the ex-

The intellectual productions to elusive right secured to the author
which the law extends protection or proprietor of a writing or draw-
are of three classes: First, writings ing which may be multiplied by {he
or drawings capable of being multi- arts of printing in any of its
plied by the arts of printing and en- branches. Property in other classes
graving; second, designs of form or of intellectual objects is usually se-
configuration capable of being re- cured by letters-patent, and the in-
produced upon the surface or in the terest is called patent-right. But
shape of bodies; third, inventions in the distinction is arbitrary and con-
what are called the useful arts. To ventional. Bouv. L. Die.
the first class belong books, maps, ' In 1874 the House of Iiords, in
charts, music, prints, and engrav- England, submitted to the judges
ings; to the second class belong three questions in Donaldsons v.

624

nra-EINGEMENT OF COPTEIGHT.

manuscripts as to any other property, and may resort to the
same legal and equitable remedies in case of actual or threat-
ened infractions. He may publish them or not as he chooses,
and may prevent any publication without his consent. But
when he has published them he is supposed to have thereby
obtained remuneration, and thenceforth he has no special prop-
erty in his productions; he then has no exclusive right to
multiply copies or to control the subsequent issue of copies by
others. The right to multiply copies, to the exclusion of others,
is the copyright, and is restricted and governed by the statutes
on that subject.!

Beokel, 4 Burr. 2408. 1. Whether,
at common law, an author of any
book or literary composition had the
sole right of first printing and pub-
lishing the same for sale; and might
bring an action against any person
who px'inted, published and sold the
same without his consent? 3. If
the author had such right originally,
did the law take it away upon his
0 printing and publishing such book
or literary composition; and might
any person afterwards reprint and
sell, for his own benefit, such book
or literary composition, against the
wiU of the author? 3. If such
action would have lain at common
law, is it taken away by the statute
of 8th of Anne? And is an author
by said statute precluded from every
remedy, except on the foundation of
the said statute, and on the terms
and conditions prescribed thereby ?
Nine of the twelve judges concurred
inpanswering the first in the afflrmar
tive; eight concurred in answering
the second in the negative, and were
equally divided on the third — and the
House of Lords decided afiirmative-
ly. Turner v. Eobinson, 10 Irish Ch.
N. S. 131, 510; Oliver v. Oliver, 11
C. B. N. S. 139; Prince Albert v.
Strange, 1 MacN. & G. 35; Wheaton
V. Peters, 8 Pet. 656; Boucicault v.
"Wood, 3 Biss. 33; Crowe v. Aiken,

id. 308; WaU v. Gordon, 13 Abb. N.
S. 349; Palmer v. Dewitt, 47 N. Y.
533; Stevens v. Gladding, 17 How.
U. S. 447; Little V. HaU, 18 How. TJ.
S. 165.

ild.; Short's Law of Lit. 48; Par-
ton V. Prang, 3 Cliff. 537; Bartlette
V. Crittenden, 4 McLean, 300; Paige
V. Banks, 13 Wall. 608; Carter v.
Bailey, 64 Me. 458; Banker v. Cald-
well, 3 Minn. 94; Kiernan v. Man-
hattan Q. T. Co. 50 How. Pr. 194.
In Drone on Copyright, p. 100, the
author says: " Property in intellect-
ual productions is recognized and
protected in England and the United
States, both by the common law
and by statute. But as the law is
n w expounded, there are important
differences between the statutory
and the common law right. The
former exists only in works which
have been published within the
meaning of the statute; and the lat-
ter, only in works which have not
been so published. In the former
case, ownership is limited to a term
of years; inthelatter itispei-petual.
The two rights do not co-exist in
the same composition; when the
statutory right begins, the common
law right ends. Both may be de-
feated by publication. Thus, when
a work is published "in print, the
owner's common law rights are lost;

INFEINGEMENT OF COPYEIGHT.

625

Compensatory and penal eecoteeies foe infeingement of
COPYEIGHT. — The present statute enacted by congress provides
a distinct remedy for infringement in respect to the different
classes of literary property, and according to the nature of the
wrong.^ After the title page has been deposited, the author can
maintain an action for an infringement or violation of his rights.^

and, unless the publication be in ac-
cordance with the requirements of
the statute, the statutory right is
not secured."

I § 4964. Every person who after
recording of the title of any book as
provided in this chapter, shall
within the term limited, and with-
out the consent of the proprietor of
the copyright first obtained in writ-
ing, signed in the presence of two
or more witnesses, print, publish or
import, or knowing the same to be
so printed, published or imported,
shall sell or expose to sale, any copy
of such book, shall forfeit every
copy thereof to such proprietor, and
shall also forfeit and pay such dam-
ages as may be recovered in a civil
action by such proprietor in any
court of competent jurisdiction.

§ 4967. Every person who shall
print or publish any manuscript
whatever, without the consent of
the author or proprietor first ob-
tained, if such author or proprietor
is a citizen of the United States, or
resident therein, shall be liable to
the author or proprietor for all dam-
ages occasioned by such injury.

§ 4965. If any person, after the
recording of the title of any map,
chart, musical composition, print,
cut, engraving, or photograph or
chromo, or of the description of any
painting, drawing, statue, statuary,
or model or design intended to be
perfected and executed as a work of
the fine arts, as provided in this
chapter, shaU, within the time lim-
ited, and without the consent of the
Vol. Ill — 40

proprietor of the copyright first ob-
tained in writing, signed in the pres-
ence of two or more witnesses,
engrave, etch, work, copy, print,
publish, or import, either in whole
or in part, or by varying the main
design, with intent to evade the
law, or, knowing the same to be so
printed, published or imported, shall
sell or expose to sale, any copy of
such map, or other article as afore-
said, he shall forfeit to the proprie-
tor all the plates on which the same
shall be copied, and every sheet
thereof, either copied or printed,
and shall further forfeit one dollar
for every sheet of the same found in
his possession, either printing, cop-
ied, published, imported, or exposed
for sale; and in the case of a paint-
ing, statue or statuary, he shall for-
feit ten dollars for every copy of the
same in his possession, or by him
sold or exposed for sale; one-half
thereof to the proprietor and the
other half to the use of the United
States.

§ 4966. Any person publicly per-
forming or representing any dra-
matic composition for which a copy-
right has been obtained, without the
consent of the proprietor thereof, or
his heirs, or assigns, shall be liable
for damages therefor, such damages
in all cases to be assessed at such
sum, not less than one hundred dol-
lars for the first, and fifty dollars
for every subsequent performance,
as to the court shall appear to be just.

2Eoberts v. Myers, 13 Law Eep.
398; Boucicault v. Wood, 3 Biss. 34.

626 IXFEINGEMENT OF COPYRIGHT.

But after publication, it must be shown as a condition of recov-
ery, that, within ten days from publication, he delivered at the
office of the librarian of congress, or deposited in the mail
properly addressed to that oflBcer, two copies of such copyright
book.1

The forfeitures declared in the statute can only be recovered
by actions at law.^ And it is so with regard to the damages,
other than profits as such.' In this particular the remedy in
equity is less comprehensive than that allowed by the statute
for infringement of patent rights. By the statute,* jurisdiction
is given to the courts of the United States of suits and actions
arising under the copyright laws, and power is given them to
grant injunctions according to the course and practice of courts
of equity, an incident of which is a right to an account of
profits.* In Stevens v. Gladding, the court refer to Colburn v.
Simms,^ in which the court said : " It is true that the court
does not, by an account, accurately measure the damage sus-
tained by the proprietor of an expensive work from the invasion
of his copyright by the publication of a cheaper book. It is
impossible to know how many copies of the dearer book are
excluded from sale by the interposition of the cheaper one. The
court, by the account, as the nearest approximation it can
make to justice, takes from the wrongdoer aU the profits he
has made by his piracy, and gives them to the party who has
been wronged. In doing this, the court may often give the in-
jured party more in fact than he is entitled to, for non constat
that a single additional copy of the more expensive book would
have been sold, if the injury by the sale of the cheaper had
not been committed. The court of equity, however, does not
give anything beyond the account." In the case of Stevens v.
Gladding, at the circuit,' the court held the owner of a copy-
right is entitled to the profits arising from the sales on com-
mission of pirated copies ; that a court of equity may decree
an account of such profits, as it would those realized by a part-

iMerrell v. Tice, 104 U. S. 557. 4§4970.

2 Stevens v. Cady, 2 Curt. 200; 5 Stevens v. Gladding, supra ;
Stevens v. Gladding, 17 How. U. S. Chapman v. Ferry, supra.

447. 62 Hare, 554.

3 Chapman v. Ferry, 12 Fed. Rep. f 2 Curt. 608.
693.

mFEESTGEMENT OF COPTBIGHT. 627

nership.i The case of Backus v, Gould * arose under the act of
1831, and in the argument of Mr. Bayard is a statement of the
Enghsh and American statutes on the subject of copyright, up
to that time. Section six of that act provided, among other
things, that the infringer " shall forfeit and pay fifty cents for
every sheet which may be found in his possession, either
printed, printing, published, imported, or exposed to sale, con-
trary to the intent of this act." It was held that this clause
was penal, and should be strictly construed ; therefore the pen-
alty was only collectible in respect of sheets found in the pos-
session of the infringer. The corresponding section in the
present patent law substitutes for the foregoing clause one for
the recovery of damages. But section four thousand nine
hundred and sixty-five contains a similar clause relative to
pirated maps, charts, musical compositions, prints, cuts, en-
gravings, photographs or chromos. There are not many decis-
ions in respect to damages at law, under the provisions of the
statute providing for their recovery. In Boucicault v. Wood,'
the court submitted the question of the amount generally to
the jury, stating that it is a question of proof, and upon that the
jury were to form their own conclusions as to the damages
the plaintiff had actually sustained. It is believed that the
same considerations that apply in legal actions for infringe-
ment of patent rights would apply. The injury is similar, and
such cases would appear to be analogous.

1 In this case, Curtis, J., said: "I has an allowance for the commis-
perceive no sound reasons for re- sions he has paid,because those sums,
stricting those gains to the differ- though part of the gross profits of
ence between the cost and the sale the sales, he has not received."
price of a map or book, or limiting In Pike v. Nicholas, L. E. 5 Ch.
the right to an account to those per- 260, note, V. Oh. James thus laid
sons who have sold the work solely down the rule of accounting in
on their own account. He who sells equity, in case of invasion of a
on commission does in truth sell on copyright: "The defendant is to
his own account, so far as he is en- account for every copy of his book
titled to a percentage on the amount sold, as if it had been a copy of the
of sales. What he so receives is the plaintiff's, and to pay the plaintiff
gross profit coming to him from the the profit which he would have re-
proceeds of the sale, and what he so ceived from the sale of so many
receives diminishes the net profit of additional copies."
him who employs him to sell. When 27 How. IT. S. 798,
the latter is called on to account, he ' 3 Biss. 34.

628 INFEINGBMENT OF TBADE MAEK8.

OHAPTEE XXIII.

INFEINGEMENT OF TRADE MARKS.

Nature of the right to trade marks, and of the tvrong of infringement —
The measure of dam,ages.

Nature of the eight to a trade mark, and of the weong
OF INFEINGEMENT.— This injury is one to the good will of a
business. Eedress for it by recovery of damages is founded on
the obvious principle that if one by any false pretense draws
away another's customers, either Avith intent to lessen the
latter's profits or to unlawfully appropriate them, he commits
a wrong for which compensation may be recovered proportioned
to the injury. This principle embraces all deceits by which
that injurious loss of business is accomplished. Thus, a mer-
chant designated his goods by a label which would not be pro-
tected as a trade mark ; the words in the label were not strictly
true, but contained nothing calculated to deceive or injure the
pubhc. Another merchant adopted the same label, placed it
upon inferior goods, which he put upon the market. It was
held that he was liable in an action in the nature of deceit ;
that specific damage need not be alleged or proved, as essential
to sustain the action, but the jury might give general damages.*

Everywhere courts of justice proceed upon the ground that
a party has a valuable interest in the good wiU of his trade, and
in the labels or trade mark which he adopts to enlarge and per-
petuate it.2 A dealer has a property in his trade mark. The
ownership is allowed him that he may have the exclusive bene-
fit of the reputation which his skiU has given to articles made
or sold by him, that no other person may be able to sell to the
public as his, that which is not his.' And there is no difference

1 Conrad v. Uhrig B. Co. 8 Mo. 'Id.; AmoskeagMan. Co. v. Spear,

App. 277; McLean v. Fleming, 96 2 Sandf. 599; Colloday v. Baird, 4

IT. S. 245; Wotherspoon v. Currie, Phila. 139; Partridge v. Menck, 2

L. R. 5 App. Cases, 508; Rogers v. Barb. Ch. 101; Walton v. Crowley,

Nowill, 6 Hare, 325; S. C. 5 M. G. & 3 Blatchf. 440; Levy v. Walker, 27

S. 109; Lee v. Haley, L. R. 5 Ch. Eng. R. 17, note.

App. 155. See Auburn, etc. P. R. sciark v. Clark, 25 Barb. 76; Will-

Co. V. Douglass, 12 Barb. 557. iams v. Johnson, 3 Bosw. 1; Dixon

INFEINGEMENT OF TEADE MAEKS. 629

between citizens and aliens in respect to their rights in trade
marks, and in being entitled to have such rights protected in
our courts.' The infringement of a trade mark causes injury
by legal presumption as the result of a fraudulent representar
tion that the infringer's use of that mark is the proprietor's use.
If it be a label or mark upon goods manufactured or sold, there
is in the infringer's use of it an implied representation by him
that his goods on which he places the label or mark are those of
the person who adopted the mark and has been accustomed to
designate his goods by it. Such infringement may injure the
proprietor of the mark in two ways : by dividing, and to some
extent diminishing the demand of him for his goods, and by
depreciating them by having their merits determined by the
I deceived consumers of or the dealers in the in*ferior article.^
The quality, however, of the simulated article is immaterial, ex-
cept as it afifeots the amount of the injury. The proprietor of
the trade mark suffers injury, and has an undoubted claim to
damages, if the natural effect of the transaction of the in-
fringer is to palm on the public a different article from that
"which they intended to buy, and to interfere with the right of
such proprietor to profits to which the reputation of his article
justly entitled him.' One commits a legal wrong when he
adopts a trade mark which is untrue and deceptive, to sell his
own goods as the goods of another, for thereby the latter- is
injured and the public deceived.*

The infringement is presumed to proceed from a fraudulent
purpose of inducing the pubhc, or those buying the article, to
believe that the -goods wrongfully designated by it are those

Crucible Co, v. Guggenheim, 3 field v. Payne, 4 B. & Ad. 410;

Brewster, 331; Derringer v. Plate, Southern v. How, Poph. 143; Gra-

39 Cal. 393; Marshall v. Pinkham, ham v. Plate, 40 Cal. 593; Taylor v.

53 Wis. 573; Congress Spring Co. v. Carpenter, 3 Woodb. & M. 1; Taylor

High Rock Spring Co. 45 N. Y. 391. v. Carpenter, 3 Sandf. Ch. 603, and

See Trade Mark Cases, 100 U. S. 83. note to Coats v. Holbrook, id. 599.

1 Taylor v. Carpenter, 3 Woodb. 3 Coats v. Holbrook, 3 Sandf. Ch.

&M. 1; Coats V. Holbrook, 3 Sandf. 586; Taylor v. Carpenter, id. 603,

Ch. 586. and note to Coats v. Holbrook, id.

aPeltz V. Eichele, 63 Mo. 171; Mor- 599; S. C. 11 Paige, 393.
ison V. Salmon, 3 M. & G. 885; ^Newman v. Alvord, 51N. Y. 195;

Blanchard v. Hill, 3 Atk. 484; Sin- Morison v. Salmon, 3 M. & G. 385.
gleton V. Bolton, 3 Doug. 393; Bio-

630

IN]?EINGEMENT OF TEADE MARKS.

made or sold by the owner of the trade mark, and to supplant
him in the good will of his trade.' Damages will be presumed
from infringement, and at least nominal damages can be recov-
ered.^ Positive proof of fraudulent intent on the part of the
infringer is not required where the infringement is clearly-
shown, as the liabihty of the infringer arises from the fact that
he is enabled, through the unwarranted use of tBe trade mark,
to sell a simulated article as and for the one which is genuine.'
It is sufficient to show the proprietary right of the plaintiff and
its actual infringement.*

The meastjee of damages.' — The compensation to the owner
of a trade mark, for the injury he suffers from a wrongful and
unauthorized oise of it by another, is ascertained and computed
on substantially the same principles as damages for infringe-
ment of patents and copyrights. In equity, where there is

1 Taylor v. Carpenter, 11 Paige,
393; S. O. 3 Sandf. Ch. 603; McLean
V. Fleming, 96 U. S. 345; Marsh v.
Billings, 7 Cush. 333; Thomson v.
Winchester, 19 Pick. 314; Blofield
V. Payne, supra; Eodgers v. NowiU,
5 M. G. & Scott, 109; CofEeen v.
Brunton, 4 McLean, 516. In the
case of Delaware Canal Co. v. Clark,
13 Wall. 311, Strong, J., said: "No
one can claim protection for the ex-
clusive use of a trade mark, oi^trade
name, which would practically give
him a monopoly in the sale of any
goods other than those produced by
himself. If he could, the public would
be injured rather than protected,
for competition would be destroyed.
Nor can a generic name, or a name
merely descriptive of an article of
trade, of its qualities, ingredients
and characteristics, be employed as
a trade mark, and the exclusive use
of it be entitled to legal protection.
. . . No one can apply the name of
a district of country to a well known
article of commerce and obtain
thereby such an exclusive right to
the application as to prevent others

inhabiting the district, or dealing in
similar articles coming from the dis-
trict, from truthfully using the same
designation. It is only when the
adoption or imitation of what is
claimed to be a trade mark amounts
to a false representation; express or
implied, designed or incidental, that
there is any title to relief against it."

2 Blofield V. Payne, 4 B. & Ad. 410.

3 McLean v. Fleming, 96 U. S. 353;
Wotherspoon v. Currie, L. E. 5 App.
Cas. 513; Davis v. Kendall, 3 R. I.
566.

« Colman v. Crump, 70 N. Y. 578;
American Grocer v. Grocer Pub. Co.
35 Hun, 403; Dale v. Smithson, 13
Abb. Pr. 337; Guilhon v. Lindo, 9
Bosw. 605; Kinshan v. Bolton, 15
Ir. Ch. N. S. 75; Filley v. Fassett,
44 Mo. 168; Stonebreaker v. Stone-
breaker, 33 Md. 353; Holmes v.
Holmes, etc. Co. 87 Conn. 378;
Edelsten v. Edelsten, 9 Jur. N. S.
479.

5 See Trade Mark Cases, 100 U. S.
83, declaring the trade mark legisla-
tion of congress unconstitutional.

nrFBmGEMENT OF TEADE MAEKS. 631

ground for invoking its jurisdiction, and an infringement has
been found and decreed, and there has been no unreasonable
delay in commencing the suit,^ an account of profits will be
decreed, which means the net profits the infringer has actually
realized-^ "Where a defendant is so ordered to account, he can-
not be charged with bad debts as profits ; and on the other
hand, he cannot charge the plaintiff with the cost of manu-
facturing the goods in respect of which the bad debts were
incurred.^

There is the same singularity of different modes of estimating
and proving compensation in equity and at law as exists in
case of infringement of the other rights referred to. The net
profits may be recovered in equity as profits made b}'- the use
of the plaintiff's property, and the defendant, as constructive
trustee, compelled to account for them. But at law only
damages can be recovered, and they will be measured by the
plaintiff's loss, and not by the defendant's gain ; the profits are
there held not to be the measure of damages, nor an element
of them, where there is any other method of ascertaining and
measuring them. Profits may, at law, be shown when necessary ;
they do not, however, measure the damages, except as they are
shown to represent loss to the plaintiff by a corresponding
decrease of profits in his own business, occasioned by such
competition. The defendant's profits, as such, do not at law, as
they do in equity, belong to the plaintiff. ISTor will the proof
of the defendant's profits warrant a legal presumption that the

1 Harrison v. Taylor, 11 Jur. N. S. hundred bottles. The evidence

408; S. C. 13 L. T. B. N. S. 339; shows that the sales of the plalnt-

Amoskeag Man. Co. t. Garner, 4 ififs, in Omaha, fell off during the

Am. L. Times, N. S. 1V6. time the defendants were manufact-

2Hostetter v. Vowinkle, 1 Dill, uring and selling their imitation

839; WUder v. Gay lor, 1 Blatchf. bitters even to a greater amount

511. In Hostetter v. Vowinkle, su- than this. I am satisfied that the

pra, the court seemed to limit the plaintiffs' sales have been lessened

profits to those realized on that at least to the extent of the two

amount of the infringer's trade hundred dozen bottles, and that

which represented the consequent their profits would have been on

diminution of the plaintiffs'. Dillon, each case of one dozen bottles, the

J., said: "From the evidence of sum of four dollars.''

one of the defendants, I find that he ^Edelsten v. Edelsten, 10 L. T. E.

admits sales to the extent of two N. S. 780

632 INFKINGEMENT OF TEADE MASKS.

plaintiff's loss is a corresponding amount. Perhaps the dif-
ference comes from a claim made in the one case of damages,
which is properly cognizable at law, and in the other a claim of
profits recoverable as the fruit of a constructive trust, cognizable
only in equity. On a bill in equity to restrain the infringement
of the plaintiff's trade mark a decree had been obtained for an
injunction. A decree for an account of profits had been
offered by the court, and refused by the plaintiff, who elected
to take in lieu thereof an inquiry as to damages for the defend-
ant's unlawful use of the trade mark. On that inquiry, the
plaintiff did not prove direct damages, and could not show to
what extent his trade mark had been used ; he claimed damages
equal to all the profits made by the defendant on all his sales
of the article on which the pirated trade mark was used, but
the court rejected this claim, holding that the plaintiff was
not so entitled ; that on such an inquiry the onus lies on the
plaintiff of proving some special damage, by loss of custom or
otherwise ; and that it will not be intended, in the absence of
evidence, that the amount of goods sold by the defendant by
the fraudulent use of the trade mark would otherwise have
been sold by the plaintiff.^

1 Leather Cloth Co. v. Hirsohfield, place, for the term of five years, nor

13 L. T. N. S. 427; S. C. L. E. 1 Eq. lend his influence, skUI, name or

299; Seymour v. McCormick, 16 countenance to any other party or

How. XT. S. 480; Ransom v. Mayor, parties so engaged, to the detriment

etc. 1 Fish, Pat. Cas. 252. In Peltz of the business so transferred." In

V. Eichele, 62 Mo. 171, it appeared about a year the defendant erected a

that the defendant, who was a man- new factory in the city of St. Louis,

ufacturer of and dealer in matches about six blocks from the one he

in the city of St. Louis, entered into sold to the plaintiif, and at once en-

a contract with the plaintiflE for the gaged in the manufacture and sale

sale to him, for a certain sum, his of matches under the name and

entire factory and stock in trade, style of P. Eichele & Co. The trial

together with the good will, propri- court instructed the jury that the

etary stamp, trade marks, brands, measure of damages is not the dif-

and the use of the names of A. ference of plaintiff's profits subse-

Eichele and A. Eichele & Co. em- quent to the re-entry of defendant

ployed by him in such business, into business, but only so much

This contract contained the follow- of this difference as was reaped by

ing covenant: "Said Eichele, fur- the defendant, and the proof of how

ther covenanting, agrees that he much was thus reaped by defendant

will not enter into the manufacture devolves on the plaintiff. That

of matches at this, or any other while, as part of the circumstantial

INFEINGEMENT OF TEADE TVtARKS.

633

The jury are to give the actual damages which the plaintiff
has sustained, — not vindictive nor speculative damages, but
such damages as the plaintiff, by his proof, has shown to the

proof in the cause, plaintiffs have
been permitted to show their sales
during the several years, the jury
are not to adopt, as the measure of
damages, the profits of one year
computed on sales compared with
those computed on the sales of an-
other year, unless they believe, from
the evidence, that the difference be-
tween the sales of the different
years had no other cause than that
the defendant ro-entered into the
business. Hence, if the jury be-
lieve, from the evidence, that the
customers who left plaintiffs to
return to defendant bought not
solely of defendant, but of other
parties, then tlie measure of dam-
ages would be only upon the sales
made by defendant, and proof of
this amount devolves on the plaint-
iff, and the jury, in the absence of
proof, cannot presume what amount
they were.

The plaintiff having obtained a
verdict and judgment, on the de-
fendant's appeal, the supi-eme court
afllrmed the judgment, and Hough,
J., said: "We have been referred to
a number of cases on the measure
of damages in patent and trade
mark cases, as containing the true
rule for our guidance in the case at
bar. These cases are somewhat sim-
ilar, but not analogous to the present
one. The rule adopted in cases for
the infringement of a patent is not
strictly applicable to a case for the
infringement of a trade mark; and
neither the rule appUcable in trade
marks, nor in patent cases, is fully
applicable to the case at bar. The
good will of a business as embodied
in a firm name, or in the labels
used, wiU be protected on principles

analogous to those applied in cases
of infringement of trade marks. It
is true that a trade mai'k is held by
some of the text writers, and, per-
haps, in some adjudicated cases, to
be a part of the good will, and nec-
essarily included in the sale thereof.

" The object in purchasing the
good will undoubtedly was to retain
the old customers of A. Eichele &
Co., and labels or wrappers bearing
the name of the firm, or other
brands or marks, by which the
goods manufactured by that firm
might be identified, are quasi trade
marks. But there is no allegation
that the good will transferred to the
plaintiffs was in any way injured or
impaired by defendant having used
his trade mark or labels.

" The profits made by the defend-
ants, therefore, to which the plaint-
iffs claim they are entitled, are not
the profits made on articles, the ex-
clusive right to manufacture and
sell which belonged to the plaintiffs,
nor the profits derived from the use
of a label or trade mark, the exclu-
sive right to which was in the
plaintiffs, though the exclusive
right to make the goods on which it
was used was not in the plaintiffs;
but the profits realized from the
general decline and diversion of the
plaintiffs' business, occasioned by
the defendant. If plaintiffs lost less
than the defendant made, they can-
not recover the whole of defendant's
profits; if the plaintiffs lost more
than the defendant made, they
would not be limited to defendant's
profits. What the plaintiffs have
lost by the defendant's breach of
covenant, and not what the defend-
ant has gained thereby, is the legal

634

INFBINGEMENT OF TRADE MAEKS.

satisfaction of the jury th.at he has actually sustained by the
infringement.! M agreed with S, the lessee of the Eevere
House, to keep good carriages, horses and drivers, on the arrival

measure of damages in this case.
If the plaintifEs had manufactured
matches to the utmost capacity of
their factory, and sold all they made
at unreduced prices, notwithstand-
ing the defendant may liave, in vio-
lation of his covenant, engaged in
the same business in St. Louis, and
realized large profits, the plaintifEs
could only have recovered nominal
damages, for, in that case, they
would have lost notliing. On the
other hand, if the defendant had in-
fringed the exclusive right of the
plaintiffs to manufacture and sell a
particular article, the defendant, in
an action against him for damages,
would be held to account to them
for all profits made by the manu-
facture and sale of such article, re-
gardless of the fact whether he
thereby interfered in any manner
with the plaintiff's business or his
customers, in any particular place,
or whether the product of the
plaintiffs' factory and their sales
were in any manner affected thereby
or not; and this is understood by us
to be the rule in patent cases. In
such cases, the entire profits are
taken, because the defendant has no
right at all to deal in the article, and
must account as a kind of trustee
for what he has made from another's
capital, while in the present case he
will be held to respond in damages
only for the injury he has inflicted
upon the plaintiffs by reason of his
dealing in the article at a particular
place in violation of his covenant.
In ascertaining the amount of this
damage, the profits made by the de-
fendant constitute an element, but
only such profits made by the de-

fendant as the plaintiffs have lost by
reason of the wrongful act of the
defendant complained of in the pe-
tition. In ascertaining the profits
lost to the plaintiffs, the profits made
by the defendant may properly be
given in evidence in connection with
the diversion of customers from
plaintiffs to defendant, and the
amount of their purchases, the prod-
uct of the plaintiffs' factory, and the
amount of their sales, and the re-
duction in price of the articles sold,
if any, in consequence of the un-
lawful competition of defendant.

" By the first instruction given at
the instance of the defendant, which
inaccurately stated the measure of
damages by confining it to profits,
but of which he has no reason to
complain, the burden of proof was
declared to be upon the plaintiffs to
prove what proportion of the profits,
received by the defendant, they
were entitled to recover as a part of
their loss; and the only question re-
maining to be considered in this con-
nection, is, whether there is any tes-
timony whatever tending to support
the verdict. ... It would be
impossible in a case like the present
for the plaintiffs to prove with ac-
curacy the damages tliey have sus-
tained; but the data from which the
jury might reasonably infer the
amount of their loss were in evi-
dence, and it is not for the defend-
ant to say that there was obscurity
in matters which it was peculiarly
within his power to make plain."

1 Ransom v. Mayor, etc. 1 Fish,
Pat. Cas. 252; Parker v. Hulme, id.
44.

nSTFEINGEMENT OF TEADE MAKES. 636

of certain specified trains, at a railroad station, to convey pas-
sengers to the Kevere House, and in consideration thereof, S
agreed to employ M to carry all the passengers from the Revere
House to the station, and authorized him to put upon his
coaches and the caps of his drivers, as a badge, the words
"Eevere House." A similar agreement, previously existing
between S and B, had been terminated by mutaal consent ; but
B continued to use the words " Eevere House " as a badge on
his coaches, and on the caps of his drivers, although requested
not to do so by S ; and his drivers called " Revere House " at
the station, and diverted passengers from M's coaches into B's.
In an action on the case, brought by M against B for using
said, badge and diverting passengers, it was held that M, by his
agreement with S, had an excSisive right to use the words
" Eevere House," for the purpose of indicating that he had the
patronage of that house for the conveyance of passengers ; that
if B used these words for the purpose of holding himself out
as having the patronage and confidence of that establishment,
and in that way to induce passengers to go in his coaches rather
than in Ws, this would be a fraud on the plaintiff, and a viola-
tion of his rights, for which the action would lie, without proof
of actual, specific damage, and that M would be entitled to re-
cover such damages as the jury, upon the whole evidence,
should be satisfied that he had sustained, and not merely for
the loss of such passengers as he could prove to have been
actually diverted from his coaches to the defendant's.'

It has sometimes been stated and held at law that the pro-
prietor of a trade mark may recover the value of the illegal
user while it continued, or in other words, the amount of
profits.^ In a comparatively late case in California,^ the court,
by Crockett, J., thus vindicates that measure and mode of re-
dress : " It is clearly in proof that the defendant has made a
profit of $1,770 by sale of pistols made in imitation of the
Derringer pistol, and bearing Derringer's trade mark stamped
thereon without his consent; and the court rendered a judg-
ment for this amount against the defendant. It is insisted, on

1 Marsh v. Billings, 7 Gushing, & M. 1; Guyon v. SerreU, 1 Blatchf.
833. 244.

2 Taylor v. Carpenter, 3 Woodb. 3 Graham v. Plate, 40 Cal. 593,

636 ESTFEDSTGEMBNT OF TEADE MAKES.

behjaJf of the defendant, that the profit realized by him from
sales of the spurious article under the simulated trade mark is
not a proper measure of damages. It is conceded that this
is the proper rule in an action for damages for the infringement
of a patent. It is said that the patentee, having the exclusive
right to manufacture and vend the patented article, is entitled,
legally and equitably, to aU the profits made by any one from
the manufacture and sale of it in violation of the rights of the
patentee; but one who has acquired an exclusive right to use a
particular trade mark has not thereby acquired an exclusive
right to make and vend the commodity to which the trade
mark is aflELxed; that any one has the right to make and vend
the same commodity, in exact imitation of that made by the
owner of the trade mark, and that the offense consists, not in
imitating the commodity, but the trade mark only. Hence, it
is argued, the profit made by a sale of the commodity ought
not to be a measure of the damages ; but the party is entitled to
only such damages as resulted from a piracy of the trade mark;
and the profit realized by a sale of the commodity does not es-
tablish the amount of this damage, which may be greater or
less than the amount of the profit. It is evident that the profit
realized by the wrongdoer is not the onl/y measure of damages.
The spurious article may have injured the credit of the genuine
one, and the profits of the owner of the trade mark may have
been greatly reduced, whilst the wrongdoer has made little or
no profit. But whilst the profit made by the latter does not
limit the recovery, the owner of the trade mark is entitled to
all the profit which was in fact realized. In sales made under
a simulated trade mark, it is impossible to decide how much of
the profit resulted from the intrinsic value of the commodity in
the market, and how much from thfe credit given to it by the
trade mark. In the very nature of the'case it would be impos-
sible to ascertain to what extent he could have effected sales,
and at what prices, except for the use of the trade mark. No
one wiU deny that on every principle of reason and justice the
owner of the trade mark is entitled to so much of the profit as
resulted from the trade mark. The difficulty lies in ascertaining
what proportion of the profit is due to the trade mark, and
what to the intrinsic value of the commodity ; and as this can-

nra'KINGEMENT OF TEADE MAKES.

637

not be ascertained with any reasonable certainty, it is more
consonant -with reason and justice that the owner of the trade
mark should have the whole profit than that he should be de-
prived of any part of it by the fraudulent act of the defendant.
It is the same principle which is applicable to a confusion of
goods. If one wrongfully mixes his own ^oods with those of
another, so that they cannot be distinguished and separated, he
shall lose the whole, for the reason that the fault is his ; and it
is but just that he should suffer the loss rather than an iano-
cent party, who in no way contributed to the wrong."

638 V SLAHDEE AlifD LIBEL.

CHAPTEK XXIY.

SLANDER AND LIBEL.

Section 1.

plaintiff's case.

Nature of the vrrong — Damages; general damages need not be proved —
Special damages — Exemplary damages may be recovered — Special
damages from publication of words not actionable in themselves —
Slander of title.

Natuee of the wrong. — The wrong now to be considered
is one by which the wrongdoer injures the reputation of an-
other by publishing a falsehood concerning him. The extent
of the injury, and the consequent right to damages therefor,
depend on how good the previous reputation of the injured
party was, and the- nature of the false charge made against
him. The law presumes, until the contrary is shown, that
every person is innocent ; that he has done nothing to forfeit
the good opinion of the community, and hence enjoys its
respect and confidence. The law regards this good reputation
as valuable to its possessor, and its preservation important to
his happiness. The public utterance of a false accusation by
which such good name is destroyed or sullied is, therefore, an
injury for which damages may be recovered.

Slander and libel are different names for the same wrong
committed in different ways. Slander is oral defamation pub-
lished without legij,l excuse, and libel is defamation published
by means of writing, printing, pictures, images, or anything
that is the object of the sense of sight.^

Certain vocal utterances are actionable ^e?* se; an action will
lie for them without any allegation or proof of actual damage,
because it is legally presumed that they cause injury as a
natural and immediate consequence. Other utterances of a
defamatory tendency are not so obviously injurious that injury
therefrom is presumed. When such defamation is the subject
of an action, special injury must be alleged and proved to sus-
tain the action.^

1 Cooley on Torts, 193. 2 Id. 203.

639

«
In the following cases the words falsely spoken are action-
able in themselves : First, where the words impute to another
the commission of some criminal offense involving moral tur-
pitude, for which, if the charge is true, he may be indicted and
punished ; or, as the test is more generally stated', where the
charge, if .true, must subject the party charged to indictment
for a crime involving moral turpitude, or subject him to infamous
punishment.^ The injury from such a slander consists not in tbe
exposure to prosecution for the implied crime, but the disgrace
and loss of reputation which the law presumes to result from such
imputation.^ It makes no difference that the person of whom
the words were spoken is not in the state where he is punishable
for the imputed crime ; for, though the crime have locality, the
effect of the imputation has not.' Second, where the words
falsely spoken of a person impute that he is infected with some
contagious disease, where, if the charge is true, it would
exclude him from society.* The charge must be such as can
have the effect mentioned after the words are spoken, and,
therefore, must impute the existence of the disease at the pres-
ent time.^ Third, where the words falsely spoken of a person
impute to him misconduct in office, or a want of fitness to
perform its duties, or those which pertain to his trade or pro-
fession.*

1 Pollard V. Lyon, 91 U. S. 335; 5 Taylor v. Hall, 3 Stra. 1189;
McCuen v. Ludlum, 17 N. J. L. Bruce v. Soule, 69 Me. 566; WiU-
13; Brooker v. Coffin, 5 John. 188; iams v. Holdredge, 33 Barb. 396;
Anonymous, 60 N. Y. 363; Hoag v. Carslake v. Mapledoram, 3 T. R.
Hatch, 33 Conn. 585; Davis v. 473; Nichols v. Guy, 3 Ind. 83; Kan-
Brown, 37 Ohio St. 336; Hollings- char v. Blinn, 3D Ohio St. 63; Irons
worth V. Shaw, 19 id. 430; Dial v. v. Field, 9 B. I. 316.

Holter, 6 id. 338; Montgomery v. « Pollard v. Lyon, supra; Camp v.

Deeley, 3 Wis. 709; Filber v. Dauter- Martin, 33 Conn. 86; Sumner t. Ut-

mann, 36 id. 518; Ranger v. Good- ley, 7 id. 358; Jones v. Diver, 33

rich, 17 id. 78; Miller v. Parish, Ind. 184; McMillan v. Birch, 1 Binn.

8 Pick. 384; Dottarer v. Bushey, 178; 3 Am. Deo. 436; Lewis v. Haw-
16 Pa. St. 304; StitzeE v. Reynolds, ley, 3 Day, 495; 8 Am. Dec. 131;
67 Pa. St. 54. Bvirtch v. Neckenon, 17 John. 317;

2 Cooley on Torts, 300; Davis v. Hogg v. Dorrah, 3 Port. 313; Hayner
Brown, 37 Ohio St. 336. v. Cowden, 37 Ohio St. 393; Good-

sshipp V. McCraw, 8 Murph. 463; enow v. Tappan, 1 Ohio, 38; Chad-

9 Am. Dec. 611. dock v. Briggs, 13 Mass. 348; Hartley
4 Pollard V. Lyon, supra; Feise v. v. Herring, 8 T. R. 130; Craig v.

Linder, 8 B. & P. 374, note a. , Brown, 5 Blackf. 44; Gove v.

640 SLAMBEE AND LIBEL.

To render the defamatory words of this latter class actionable
without averment or proof of special damage, they must apply to
the party defamed in respect to his oflBLce or employment, or to
his conduct relative thereto, and be calculated to prejudice him
in an office of which he is an incumbent, or a profession or call-
ing in which he is engaged.^

Blethen, 21 Minn. 80; Robbins v.
Tread way, 2 J. J. Marsh. 540; Oram
V. Franklin, 5 Blackf. 42; Lansing
V. Carpenter, 9 Wis. 540; Lindsey v.
Smith, 7 John. 359; Forward v.
Adams, 7 Wend. 204; Secor v. Har-
ris, 18 Barb. 425; Carroll v. White,
33 id. 615; Rice v. Cottrel, 5 R. I.
340; Garr v. Selden, 6 Barb. 416;
Ayre v. Craven, 2 Ad. & El. 7; Gall-
wey V. Marshall, 34 Eng. L. & Eq.
463.

1 Bellamy v. Burch, 16 M. & W.
590; Forward v. Adams, 7 Wend.
204; Edwards v. Howell, 10 Ired.
311; Allen V. HiUman, 13 Pick. 101;
Orr V. Skofield, 56 Me. 483; Whitte-
more v. Weiss, 33 Mich. 348; Backus
V. Richardson, 5 John. 476. The test
to bring a case within the first class
is arbitrary, and appears to have
been adopted for the purpose of
having a fixed and precise rule. It
is worthy of notice that notwith-
standing it is desirable to have a
definite rule, the law determines the
actionable character of other slan-
ders and of libel from their intrinsic
nature. The law of libel authorizes
the court to hold any matter libel-
ous and actionable per se when the
imputation is such as, if believed,
would naturally tend to expose the
plaintiff to public hatred, contempt
or ridicule, or exclusion from so-
ciety. So of other kinds of slander;
they are actionable per se if injuri-
ous to one in his ofiice, trade or pro-
fession, or tend to exclude him from
society for having an infectious dis-
ease. Their intrinsic character and

injurious tendency are recognized
and determined by the court. But
when the words, falsely spoken, im-
pute to him pestilent or flagrant
immorality, no matter how gross or
outrageous, if not made a crime,
indictable and punishable in the
temporal courts, they are not le-
gally presumed to be injurious,
although the judge who so declares
the law, and every juror who must
follow it as so declared, knows as a
man, that the imputation, to the ex-
tent that it is believed, will render
the defamed party odious, subject
him to contempt, and tend to exclu-
sion from decent society.

The case of Davis v. Brown, 37
Ohio St. 326, is an illustration of the
severe arbitrariness of the test re-
ferred to. The words spoken
charged the plaintiff with sodomy,
which was not at that time a crime
indictable and punishable by law.
The court say: "It is conceded that
the charge here is of the highest de-
gree of moral turpitude, and tends
to exclude a man from aU decent
society,'' and also that " in view of
the injurious consequences of such
a shocking charge, we confess to
being strongly tempted to make one
further innovation; but looking
back to that period of doubt and un-
certainty to which we have referred,
and remembering that it is of more
importance to have a rule well
understood and easily defined, of
practical application, and suffi-
ciently comprehensive to meet the
ordinary demands of justice, than

PLAINTIFF S CASE.

641

The wrong done by libel is like that done by slander ; but it
is defamation communicated and published in a form and man-
ner which imply more deliberation, and is likely to be more
widely disseminated and more lasting in detrimental effe6t.
For this reason there is broader scope of libelous matter which
is actionable ^e?- se; the law will presume damage from less seri-

to have one varying with the chang-
ing views of the judges, or variable
standards of moral conduct in differ-
ent communities, or at different
periods, we are unwilling to make
further innovation, but prefer to re-
mit the matter to the only proper
tribunal — the law-making power of
the state." Such an innovation was
made in an earlier case, that of
Malone v. Stewart, 15 Ohio, 319, in
which the court held and maintained
with vigorous logic, that to call a
woman a hermaphrodite is action-
able without alleging special dam-
ages; that words spoken of a female,
having a tendency to wound her
feeling, bring her into contempt,
and prevent her from occupying
such position in society as is her
right as a woman, are actionable in
themselves. Reed, J., delivering the
opinion of the court, said: "It is a
well established principle of law,
that words which impute a charge
necessarily tending to injure a man,
or his trade, or occupation or pro-
fession, or to exclude him from
society, are actionable in themselves.
A more gross or indelicate slander
could not well have been uttered
against a female — especially a young
girl — or one more calculated to
wound her feelings and do her mis-
chief. It unsexes her; makes her a
thing to be stared at; converts her
into a monster, whose very exist-
ence is shocking to nature; and
would be certain, among the young
and thoughtless, to bring her into
ridicule and contempt; and expludes
Vol. Ill— 41

her from social intercourse and all
hopes of marriage. It is infinitely
worse than a chai-ge of incontinence,
as to its injurious results, to the
feelings and prospects of the female.

"To hold that there was no
remedy for cases of this sort would
be an utter disgrace to the law and
ourselves. It is said, if the plaintiff
would inquh-e around, and if she
could ascertain that she had been
especially injured to a certain
amount, in dollars and cents, the
law would assist her to recover it; in
other words, that it is a case where-
the action must be sustained upon
the ground of special damage. It is
said the conimon law has not
gone further; that the English
courts have not gone further. It is
sufficient to reply, that this court
will not permit so gross a wrong to
pass without a reiaedy. We shall
apply the spirit of the law to em-
brace every case properly falling
within it. . . .

" The case falls clearly within the
oldest and soundest principles of the
law when properly understood and ,
rightly applied. It is admitted that
if words are spoken to injure a man,
to the value of a few dollars and
cents, in his trade, it is actionable;
but contended that to speak words
of a young girl, which necessarily
inflict the deepest wound upon her
feehngs, break up her hopes, and.
exclude her from society, is . not
actionable. Sisch, a^ conclusion can-
not be tolerated,. This court, in
protecting reputation)—- remedy for

642 SLANDER AND LIBEL.

ous matter when thus published than when orally uttered.
Though no special damage is alleged, and no averments of such
extrinsic facts as might be requisite to make the publication in
question import a charge of crime are made, the action is never-
theless maintainable if the published charge is such as, if be-
lieved, would naturally tend to expose the plaintiff to public
hatred, contempt or ridicule, or deprive him of the benefits of
public confidence and social intercourse.' The nature of the
charge must be such that the court can legally presume that
the plaintiff has been disgraced in the estimation of his acquaint-
ances, or of the public, or has suffered some other loss, either in
his property, character or business, or in his domestic or social
relations, in consequence of the publication.^

Malice, which is said to be the gist of the action for libel and
verbal slander, does not mean malice or ill-will towards the in-
dividuals affected in the ordinary sense of the term. In ordinary
cases of slander, the term maliciously means intentionally, and
wrongfully, without any legal ground of excuse. Malice is an
implication of law from the false and injurious nature of the
charge, and differs from actual malice and ill-will towards the
individual frequently given in evidence to enhance the damages.'
If a plaintiff has been injured in his character or feelings by an
unauthorized publication, it is the duty of a jury to award him
a full compensation in damages without reference to any partic-
ular ill-will entertained against him by the defendant. Actual
ill-will or malice will enhance the damages and may be shown
for that purpose ; but need not be shown to entitle the plaintiff
to recover.*

an injury to which is guarantied by son v. Trask, 6 Ohio, 531; Tappan v.
the constitution — will be careful Wilson, 7 id. 190; Smart v. Blanch-
that the judicial decisions of the ard, 42 N. H. 151; Price v. Whitely,
law shall reflect that same delicate 50 Mo. 439; Lindley v. Horton, 37
and profound respect of female Conn. 58; Cary v. Allen, 39 Wis. 481
character and feeling, which consti- Atwill v. Mackintosh, 120 Mass. 177
tutes the proudest and dearest char- Hand v. Winton, 38 N. J. L. 123:
acteristic of our people." It is sug- Cramer v. Noonan, 4 Wis. 281; San-
gestive that this case even in that derson v. Caldwell, 45 N. Y. 398.
state is treated as making an innova- 2 stone v. Cooper, 2 Denio, 399.
tion and as standing alone. Davis 3 King v. Root, 4 Wend. 118.
Y. Brown, supra. * King v. Root, supra; Langton v,
iTillson V. Robbins, 68 Me. 298; Hagerty, 35 Wis. 150. In Wilson v.
State V. Smily, 37 Ohio St, 83; Wat- Noonan, 35 Wis. 349, the court by

plaintiff's case.

«43

Damages ; general damages need not be peoved. — There
is no legal measure of damages in actions for such a wrong.
The amount which the injured party ought to recover is referred

Dixon, C. J., said "that malice or
bad intent is not an essential ele-
ment of the wi-ong of which the
plaintiflE complains [libel]; not a fact
which he must establish in order to
entitle himself to verdict and judg-
ment against the defendant in the
action. To this rule there is excep-
tion in but a single class of cases, "
those of privileged communications,
where malice, or, as it is sometimes
termed, express malice, must be
averred and proved. In certain
communications denominated priv-
ileged, namely, those which are
made in the course of judicial pro-
ceedings, and some others of a pub-
lic nature, there exists absolute
immunity from liability on the part
of the speaker or writer. See Larkin
V. Noonan, 19 Wis. 83, and authori-
ties cited. In all other actions for
libel and slander, malicious intent
constitutes no part of the issue, but
is or may be considered only as a
circumstance in aggravation of
damages. Actual damages, that is,
compensation for injury to the rep-
utation and injury to the feelings,
or for mental sufferings, so far as
the same can be measured in money,
to which may be added also any
pecuniary loss, in proper cases, or
where that ensues, may always be
recovered, regardless of the intent
or conception of mind with "which
the publication was made, or words
spoken, or whether such intent
was good or bad at the time in
the writer or speaker. If A untruly
says of B that he is a thief, in a
communication not privileged, then,
no matter that A may say so under
circumstances which induce him
truly and sincerely to believe that B

Is a thief, and v?hich show he is
actuated by no bad motive or evil
design to injure B, yet he is bound
to make reparation to B for such
loss or damage as B actually sus-
tains. . . Townshend on Slan-
der & L. §§ 83-93; Sans v. Joerris,
14 Wis. 663; Duncan v. Thwaites, 3
B. & C. 556, 585.

" Considering, therefore, the nat-
ure of the action, and that malice,
whether it be such as is inferred
from the libelous publication itself,
or such as is superadded or proved
by evidence of other facts and inci-
dents, is a mere circumstance in ag-
gravation, used only to enhance the
damages by way of punishment to
the defendant, and for public exam-
ple, it seems the moi'e appropriate
that evidence of the absence of it,
that is, direct evidence of the kind
here spoken of [the defendant's de-
nial of it as a witness], should be
admitted under the general denial
[in the answer]; and it seems also
the more clear that it was not the
intention of the provision of the
code . . to exclude it. Counsel
for the plaintiff contends, and he
sustains himself by numerous refer-
ences, that it is competent for the
plaintiff, without specific allegation
or anything in the complaint to
point to the facts to be proved, to
introduce evidence and accumulate
proofs of malice, aside from and be- ,
yond that to be implied from the
pubHcation itself, for the sole pur-
pose of enhancing the damages to
be recovered. If this is so, and we
do not question it, it is manifest, as
to the aggravating circumstances so
proved, that the plaintiff has de-
cided advantage over the defendant.

644

SLANDEK AND LIBEL.

to the sound discretion of the jury. The damages are intended
to repair the injury done; and all that the law can determine
in a given case is what facts proved may be taken into account,

who, when it comes to the mitigat-
ing circumstances relied upon by
him, must spread them upon the
record by proper allegations in his
answer. This may be looked upon
as a very unfair rule; and yet it
seems to follow from the provision
of the code in actions of this nature.
" And here it seems proper to cor-
rect what may be an erroneous im-
pression derived from the language
of the former opinion in this case
(37 Wis. 610, 611), that there is or
may be a distinction, in actions of
this kind, between express malice
or malice in fact, and implied mal-
ice or malice in law, such that
the former may be rebutted or dis-
proved, but that the latter admits
of no disproof or explanation. The
language also seems to proceed on
the theory that malice of some
kind, at least that which is called
implied, is necessary to sustain the
action. Rejecting that theory, as
we now do, it follows that we must
also reject the supposed distinction
between the different kinds of mal-
ice, which in truth seems never to
have rested on any good foundation.
Mr. Townshend, in the sections
above referred to, has exhausted the
learning upon this subject, and has
helped us to what we consider the
true explanation of the terms ' ex-
press malice ' and ' implied malice,'
ai3 used in the law. It is that given
by that distinguished lawyer, Nicho-
las HUl, in argument in Darry v.
The People, 10 N. Y. 133. Mr. HiU
says: ' The term express malice
originally meant malice proved in-
dependently of the mere act from
which death resulted, and implied
malice the reverse. They therefore

described only different modes of
proving actual guilt, not different
degrees of it; and they belonged to
the law of evidence, and not to a
definition of homicide. They did
not even indicate different degrees
of evidence, both kinds, when sufll-
cient, being conclusive until over-
come. And they were applicable to
every case where proof of the actual
intent was requisite to characterize
the offense.'

"And the same definition is given
by Selden, J., in Lewis v. Chapman,
16 N. Y. 373, which was an action
for libel. He says: 'It has been
sometimes divided into legal malice
or malice in law, and actual malice
or malice in fact. These terms
might seem to imply that the two
kinds of malice are different in
their nature. The true distinction,
however, is not in the malice itself,
but simply in the evidence by which
it is established. In all ordinary
cases, if the charge or imputation
complained of is injurious, and no
justifiable motive for making it is
apparent, malice is infeiTed from
the falsity of the charge. The law,
in such cases, does not impute mal-
ice not existing in fact, but pre-
sumes a malicious motive for
making a charge which is both false
and injurious, when no other motive
appears. Where, however, the cir-
cumstances show that the defend-
ant may reasonably be supposed to
have had a just and worthy motive
for making the charge, there the
law ceases to infer malice from the
mere falsity of the charge, and re-
quires from the plaintiff other proof
of its existence. It is actual malice
in either case; the proof only is dif-

plaintiff's case.

645

and what are fair considerations to influence their judgments.
They are to consider the plaintiff's injured feelings and tar-
nished reputation, taking into consideration the nature of the
imputation, the extent of its publicity, the character, condition
and influence of the parties.' "Where the publication is action-

ferent.'" Whether the alleged de-
famatory matter is actionable per se
or not is to be decided by the court.
Wagaman v. Byers, 17 Md. 183;
Hume V. Arrasmith, 1 Bibb, 165; 4
Am. Dec. 636.

iLittlejohn v. Greeley, 13 Abb. 41;
Fulkerson v. George, 8 id. 75; Flint
V. Clark, 13 Conn. 361; Markham v.
Russell, 13 Allen, 573. In True v.
Plumley, 86 Me. 466, the action was
brought by husband and wife for
slander of the latter, by charging
her with adultery and calling her a
whore. The trial court instructed
the jury in these words: "As to
damages, you will consider the
pain and anguish occasioned by de-
fendant's slander, the cost and
trouble, the suffering occasioned by
that slander, her prospects in life as
affected thereby, the wealth and po-
sition of the defendant, and his
power therefrom to injure, and give
such damage as she is entitled to."
On exceptions, this instruction,
among others, came under review.
The court, in its opinion delivered
by Apple ton, J., say: "Damages
are given as a compensation, recom-
pense or satisfaction to the plaintiff
for an injury actually received by
him from the defendant. They
should be precisely commensurate
with the injury; neither more nor
less; and this whether to his person
or to his estate. 3 Greenlf. Ev.
§258." After quoting some discord-
ant judicial declarations on the sub-
ject, the learned judge continues:
"Whatever rule may be the true
one, the plaintiffs are entitled to

such damages as upon the evidence
can be awarded in conformity there-
with, and not to damages assessed
upon other erroneous principles.
Now no rule was given to the jury.
Are they to be a law unto them-
selves, and freed from aU legal re-
straints to assess damages at their
own will and pleasure? The jury
were directed to give the plaintiffs
the damages to which they were en-
titled. To what are the plaintiffs
entitled? The question unanswered
recurs. To damages which are sim-
ply compensatory, and to the extent
of any injury sustained? to those
which would by way of example be
suflScient to deter others ? or to such
as, beside compensating, and deter- ,
ring by example, may impose a pun- -
ishment on the defendant as for a
crime ? thus infusing into the civil
proceedings the effect of a criminal
procedure, and erecting the jury
into a tribunal which shall in each
case impose a penalty. Either of
these principles might have been
adopted by the jury. Which, in
fact, they did adopt, we know not
and cannot know. As was remarked
by Rogers, J., in Rose v. Story, 1
Pa. St. 190, where somewhat similar
instructions were given, ' this is
giving them discretionary powers
without stint or limit, highly dan-
gerous to the rights of the defend-
ant. It is leaving them without any
rule whatever.' Most of the mat-
ters referred to in this instruction
might be regai'ded as elements
proper for the consideration of the
jury, but still some rule should have

Gl-6

SLANDER AND LIBEL.

able jper se, the legal presumption of damage goes to the jury,
and they, in view of the particular circumstances of the case, are
required, in the exercise of their judgment, to determine what

been given to the jury, unless the
law is that they are to determine
the damages without any restraints,
and in each case, according to their
arbitrary discretion.

"In actions brought to recover
damages for an injury to the per-
son or to the reputation, the in-
juries which may have arisen, as
well as those likely to occur, must
receive compensation in one and the
same suit, if at aU. The jury must
tegard the probable future as well
as the actual past. In no other way
can compensation be obtained. In
Gregory v. Williams, 1 Car. & Kir.
568, the instructions given were,
that, in estimating damages, the jury
might consider the prospective dam-
ages which might accrue from the
defendant's act. 'It is said,' re-
marked Bosanquet, J., in Ingram v.
Lawson, 8 Scott, 471, ' that the dam-
ages sustained at the time of the
commencement of the action is aU
that the plaintiff could recover, and
that the jury were erroneously di-
rected that they might take into
account the prospective injury. But
it appears to me that the jury were
warranted in proportioning the dam-
ages to the amount of injuiy that
would naturally result from the act
of the defendant, though it might
affect him at a subsequent period.' "
A new trial was granted because
the jury were instructed that " it
was not necessary defendant should
have any malice against the plaint-
iffs, or intention to injure them, to
maintain the suit; that, if defend-
ant's ' malice was entirely towards
another person, in slandering whom
he uttered the slanderous words
against the plaintiffs, the action was

maintainable, and the damages
would be just as great as if the
malice of the defendant had been
towards the plaintiff.' "

Referring to this instruction he
also said:

" Malice in its legal sense means a
wrongful act done intentionally,
without just cause or excuse. Com-
monwealth V. York, 9 Met. 115.
Doing a wrongful act, knowing it to
be such, constitutes malice. So far
as regards the maintenance of the
suit, it is equally maintainable
whether there be malice in fact or
not. But in a civil cause, where the
jury are to assess damages, nothing
is more clearly established by an
entire uniformity of decision, than
that damages in slander may be
increased upon proof of malice in
fact. The instruction of the court
amounts to this, that the same 'dam-
ages are to be given when malice in
fact exists, as when it is only an in-
ference from the speaking of the
words. Now such we do not con-
sider to be the law."

In Burt V. McBain, 29 Mich. 260,
which was slander by imputing to
the plaintiff, a female, a want of
chastity, these instructions to the
jury were approved on error: " You
should consider whether there is any
evidence showing express, positive
malice on the part of the plaintiff.
If you are satisfied by the testimony
in the case that she was governed
in the utterance of these words by
actual, existing malice, then the
compensation or award of damages
should be higher and more severe
than if you were satisfied that the
words were uttered without any
express malice. If they were

PLAErrrFF's case.

647

sum will afford proper reparation.^ To enable the jury justly to
determine the amount of damages, it is important to know what
effect can and should be given to the speaking or publishing the
same defamatory charges at other times than those stated in
the declaration. Such unalleged repetitions are generally al-
lowed to be proved ; ^ but in certain states it is held that they
are to be considered only as evidence of malice in the speaking
or publication charged, and cannot themselves be the ground of
additional damages, except as they increase the damages by
showing greater malice than would otherwise be implied.' For
this purpose it is held no objection to the proof of words not
charged in the declaration, that they have been charged and
recovered for in a previous action,* are words for which an ac-

thoughtlesely uttered, without any-
due consideration of the import of
the words, without any intent to
injure the plaintiff — if there is no
express malice proven in the case to
your satisfaction, you should give
less damages than you would if it
is proven. You should take another
matter into consideration in fixing
the amount of damages. Satisfy
your minds before fixing upon the
amount whether this defendant
originated this story herself, or
whether she simply repeated what
she heard. K she originated the
story, and it is false; if it was the
outgrowth of a wicked heart; if it
is the offspring of her own brain;
the coinage of her own mind; her
guilt would be greater than it would
be if she received it from some one
else, and simply gave further circu-
lation thoughtlessly, without any
design to injure, without any intent
to wrong. The proof upon this
point you should carefully consider,
and see to it that your verdict is not
as light in the one case as it would
be in the other."

i Miles V. Harrington, 8 Kan. 435;
Pool V. Devers, 30 Ala. 673; Alley

V. Neeley, 5 Blackf. 300; Herrick v.
Lapham, 10 John. 381.

2 Leonard v. Pope, 37 Mich. 148;
Barlow v. Brands, 15 N. J. L. 348
Cavanagh v. Austin, 43 Vt. 576
Stearns v. Cox, 17 Ohio, 590; State
V. JeandeU, 5 Harr. 475; Elliott v.
Boyles, 31 Pa. St. 65; Johnson v.
Brown, 57 Barb. 118; Alpin y. Mor-
ton, 31 Ohio St. 536; Delegall v.
Highley, 8 G. & P. 444; Perry v.
Breed, 117 Mass. 155; Severance v.
Hilton, 33 N. H. 389.

award v. Dick, 47 Conn. 300; Mc-
Almont v. McClelland, 14 S. & R.
359; Eobbins v. Fletcher, 101 Mass.
115; Meyer v. Bohlfing, 44 Ind. 338;
McGlemery v. Keeler, SBlaokf. 488;
Van Derveer v. Sutphin, 5 Ohio St.
394; Baldwin v. Soule, 6 Gray, 831;
Hinkle v. Davenport, 38 Iowa, 355;
Ellis V. Lindley, id. 461; Beardsley
V. Bridgman, 17 id. 390; Chamberlin
V. Vance, 51 CaJ. 75; Parmer v. An-
derson, 83 Ala. 78; Trabue v. Mays,
8 Dana, 138; Adkins v. Williams, 33
Ga. 333; Symonds v. Carter, 33 N.
H. 458; Markham v. Russell, 13
AUen, 573.

< Swift V. Dickerman, 31 Conn.
385.

64:8 8LANDEK AND LIBEL.

tion is barred by the statute of limitations,' or even spoken after
the commencement of the action.^

In Connecticut it is also held that of this nature is the al-
legation in the plea of the truth of the charge by way of justi-
fication made for the purpose of spreading and perpetuating
the slander ; it is only to be considered as so much more evi-
dence of mahce in the original speaking.' On this theory each
utterance or publication of the same charge must be regarded
as a distinct wrong ; but in practice it must be diflBcult, where
there is a succession of suits, to prevent double recoveries for
the same wrong, if all the repetitions of the same charge may
be proved in each case. In other states and in England such
testimony is admitted without restriction to increase damages.
All the utterances of the same charge constitute one slander,
as aU the copies of a newspaper containing a libel constitute
one publication. The frequency of the utterances, or the num-
ber of the issues of a newspaper, may be shown to prove the
extent of publicity given to the defamatory charge, and only
one recovery is allowed.* In Brunswick v. Harmer,* a news-
paper had published a libel more than six years before suit, and
the case was made out by the purchase of a single copy within
six years, and the court refused to confine the damages to the
injury arising out of publication by that single copy. In
Barwell v. Adkins,* suit was brought on a libelous article pub-
lished in a newspaper, and on the trial the judge allowed proof
of a second article published afterwards, reasserting the same
charges, and told the jury to take both paragraphs with them,
"and give the plaintiff such damages as they considered he was

1 Harmon v. Harmon, 61 Me. 233; Nojris v. Elliott, 39 Cal. 72; Bald-
Throgmortonv. Davis, 4Blackf. 174; win v. Soule, 6 Gray, 321; Thomp-
Lincoln v. Chrisman, 10 Leigh, 338. son v. Bowers, 1 Doug. (Mich.) 321)

2 Beardsley v. Bridgman, 17 Iowa, Mclntire v. Young, 6 Blackf . 496.
290; Schrimper V. Heilman, 24 Iowa, '"Ward v. Dick, supra.

505; Parmer v. Anderson, 33 Ala. *Fry v. Bennett, 28 N. Y. 324;

78; Hintle v. Davenport, 38 Iowa, Guthercole v. Miall, 15 M. & W. 319;

355; BodweU v. Swan, 3 Pick. 376; Defries v. Davis, 7 C. & P. 112.

ElUs V. Lindley, 38 Iowa, 461; Mc- ^14 Q. B. 185.

Almont V. McCleUand, 14 S. & R. n Man. &Gr. 807.
359; Smith v. Wyman, 16 Me. 18;

PLAINTIFF S CASE.

649

entitled to under the circumstances." ^ In Koot v. Lowndes,^
Bronson, J., said: ""When the plaintiff does not go beyond the
words laid in the declaration, I see no reason why he may not
show that these words have been spoken on a dozen different
occasions, although there may be but one count in the declara-
tion. If the defendant has told twenty persons, at as many
different times, that the plaintiff is a thief, it cannot be neces-
sary to insert twenty counts, precisely alike, for the purpose of
enabling the plaintiff to prove all the conversations, allowing
the proof can work no injury to the defendant. He is advised
by the declaration what words the plaintiff intends to give in
evidence; and whether all the different occasions of speaking
them are proved or not, the judgment wiU be a bar to another
action." ' An action for libel was held barred by a judgment
in an action for malicious prosecution, where the arrest was
made under papers containing the libelous matter.*

Eepetitions of the same slander or libel are so far distinct
wrongs that if repeated after suit brought a new action may
be brought as for a fresh injury ; and such repetitions are not
admissible for any purpose in the first action.' Ifor are other
slanders or libels than those alleged in the declaration provable

1 Leonard v. Pope, 27 Mich. 148,
149.

2 6 HiU, 518.

aCampbeU v. Butts, 3 N. Y. 174;
Howard v. Sexton, 4 id. 157; Wallis
V. Mease, 3 Bin. (Pa.) 546; Kean v.
MoLaughUn, 3 S. & R. 469; Hans-
brough V. Stinnett, 25 Gratt. 495.

* Rockwell V. Brown, 36 N. Y. 307.
In Leonard v. Pope, supra, Camp-
bell, J., said: "This principle afi-
pears just and sensible, and avoids
the difficulty of drawing intangible
distinctions which no jury can ap-
preciate, between allowing testi-
mony of repetition of wrongs to
bear upon an important element in
a case, and yet not allowing dam-
ages except for the original wrong-
ful act independent of the wrong
Jione by the repetition. Such nice-

ties are not to be favored, and
should not be introduced where they
can be avoided.

" It was only the accident of call-
ing one witness before another that
would have prevented any one of
the slanders proven to have stood
as the one to which the defendant
claims the recovery should be con-
fined. Any one of them would have
made out a cause of action under
the declaration. A justification of
one would have answered them all.
A future action for any of them is
therefore barred."

sFrazier v. McCIoskey, 60 N. Y.
337; Daly v. Byrne, 77 N. Y. 183
Woods V. Pangburn, 75 N. Y. 495
Keenhalts v. Beckei, 3 Denio, 346
Howell V. Cheatham, Cooke, 247,

650

SLAHDEB AND I.TB-!L.

for the purpose of showing maUoe, even with a caution not to
allow additional damages for them, for they would impercept-
ibly influence the judgment of the jury as to the damages, and
thus the defendant might be twice subjected to damages for
the same wrong.^ But it has been held that the fact that the
defendant, after he had once been sued for a slander and had
admitted its falsity, and his consequent liability for it, by settling
the suit, deliberately uttered it again, is strong evidence to war-
rant giving punitive damages, if the jury think proper to award
them.^

Damages will be increased by every circumstance which
aggravates the wrong and adds to the injury. Eepetition of a
slander does this in two ways : by giving greater publicity to
the defamation, and by evincing greater maUce.

There is a conclusive presumption of malice from falsely
speaking words actionable in themselves, unless a legal justifi-
cation or excuse is shown. The malicious intent of a slander
or libel is not a question of fact ; it is a conclusion of law ;

iRootv. Loundes, 6 HiU, 530, 631;
Thomas v. Croswell, 7 John. 264;
Finnerty v. Tipper, 3 Camp. 73. In
Howard v. Sexton, 4 N. Y. 161,
Gardiner, J., said: "It has some-
times been argued that proof of
this character shows general malice
upon the part of the defendant,
which may properly enhance the
damages against him. So would
evidence that he had set fire to the
house of the plaintiff, or committed
battery upon his person, furnish
stronger proof of general malice
than mere words, however oppro-
brious. The principle does not stop
with proof of different words, but
extends to the whole conduct of the
defendant. Some of the adjudged
cases certainly seem to go this
length. Finnerty v. Tipper, 3 Camp.
72; 3 Stark. Ev. 635, note A. And if
the proposition we are considering
is sound, they were rightly decided.
But the modem, and I think the
better doctrine, is, that the action

for slander was not designed to
punish the defendant for general ill-
will to his neighbor, but to afford the
plaintiff redress for a specific injury.
To constitute that injury, mahce
must be proved, not mere general
ill-wiU, but malice in the special
case set forth in the pleadings,
to be inferred from it and the at-
tending circumstances. The plaint-
iff may show a repetition of the
charge for which the action is
brought, but not a different slander
for any purpose; and if such evi-
dence is received without objection,
with a view to establish malice,
the plaintiff may, notwithstanding,
bring a subsequent action for the
same words, and recover. Root v.
Loundes, 6 HiU, 519; Campbell v.
Butts, 8 Comst. 174." Medaugh v.
Wright, 27 Ind. 137; Fry v. Bennett,
3H N. y. 328; Barr v. Hack, 46 Iowa,
308.
2 Glanders v. Graff, 25 Hun, 553.

631

being so, the plaintiff is not required to prove it, except by
showing the publication of the defamatory matter ; nor can the
defendant deny or disprove it as a separate element of the
wrong.i This is malice in law, but it is nevertheless a bad
intent assumed to exist in fact. As the injury will be aggra-
vated by showing more malice than the law implies from mere
proof of the defamation alleged, the plaintiff may prove any
circumstances which tend to magnify the malice; they will
tend not only to confirm as true in fact what the law so pre-
sumes, but they may also show that the wrong and injury did
not result from mere heedless and aimless gossip, but a malev-
olent eagerness to inflict pain and destroy reputation by origi-
nating or giving currency to a conscious fabrication.^

The true rule seems to be, that when the words are actionable,
in themselves and are not uttered upon a lawful occasion, and
with justifiable motives, the law will infer malice, so as to
enable the plaintiff to recover damages, although none be
proved. But of this technical or legal malice, as it may be
termed, there may be various degrees, as indicated by the man-
ner in which and the circumstances under which the slanderous
charges were made. And other circumstances may exist, which
show not merely technical malice, but actual hatred and re-
vengeful feelings, the malignant design of the slanderer to do the
utmost possible injury. For acts done or words uttered under
such different circumstances, and with such different motives
and purposes on the part of the slanderer, the same measure of
damages cannot be properly awarded.'

Actions for such wrongs are designed not only to furnish
seme indemnity, so far as money can do it, for the injury in-

iFry V. Bennett, 1 Code R. N. S. L. N. 8. 453; Gilmer v. Eubank, 13

243; 5 Sandf. 54; Littlejohn v. Gree- 111. 271.

ley, 13 Abb. 55; Weaver v. Hen- 2 Welch v. Ware, 32 Mich. 84; De-

driok, 30 Mo. 502; Sanderson v. troit Daily Post v. M' Arthur, 16

CaldweU, 45 N. Y. 308; Dexter v. Mich. 447; Fry v. Bennett, 38 N. Y.

Spear, 4 Mason, 115; Mason v. Mason, 324; McDonald v. WoodruflE, 3 DUI.

4 N. H. 110; Wilson v. Noonan, 85 344; Sawyer v. Hopkins, 22 Me. 368;

Wis. 321; Bodwell v. Osgood, 3 Shilling v. Carson, 27 Md. 175;

Pick. 379; Harwood v. Keeoh, 4 Townshend on Sland. & L. § 392.

Hun, 389; Daly v. Byrne, 1 Abb. N. ' Symonds v. Carter, 32 N. H.

0. 150; Fox V. Broderich, 14 Irish 467.

652 SLANDER AND LIBEL.

flicted, but to vindicate the character of the person unjustly
assailed, and to protect against a repetition of the outrage.
It is right that juries should make a discrimination in the dam-
ages they award, according to the circumstances, position, con-
duct, motives and purposes of the slanderer, disclosed in the
proofs ; and they may rightfully award more severe damages
for the wilful, designed, malicious and mischievous repetition-
of a story known to be false, and repeated with a design to
injure, than for the idle and garrulous repetition of a tale sup-
posed, or even believed without examination, to be true. If
the defendant has indicated his intention to injure, by his direct
declarations, by repetitions of the slander, or his other acts,
having a tendency to show malice in its common acceptation of
personal ill-wiU, that may be shown in evidence.'
' Evidence that the defendant knew the charge to be false
when he uttered it may be shown to aggravate damages, for the
necessary inference from such proof must be hatred and malig-
nity.* To show that the defendant knew of the falsity of a
charge of theft from the person, published by him, it was al-
lowed to be proved by the plaintiff that, after the stated time
of the theft, the defendant continued upon friendly terms with
him.' So where the defendant made the defamatory charge,
professedly on information stated by him to be derived from
certain named persons who were witnesses of the crime charged,
evidence by such persons that they had given no such informa-
tion was received to show actual malice.* Preferring a bill of
indictment against the plaintiff, which is ignored by the grand
jury, may be shown to prove malice.'

The refusal of an editor of a newspaper to publish a retrac-
tion of a libel published in such paper does not tend to prove
the animus of the proprietor to have been malicious, but such
refusal is admissible for the purpose of enhancing damages.^
In an action for slander in charging an infant with larceny, evi-

1 Symonds v. Carter, 33 N. H. 467. 3 Q. B. 5. But see Hartranf t v.

2 Stow V. Converse, 8 Conn. 335; Hesser, 84 Pa. St. 117.

Harwood v. Keech, 4 Hun, 389; Bui- 3 Burton v. March, 6 Jones L. 409.

lock V. Cloyes, 4 Vt. 304; Sexton v. < Harwood v. Keech, 4 Hun, 389.

Brock, 15 Ark. 345; Farley v. Banck, SToUeson v. Posey, 33 Ga. 373.

3 W. & S. 554; Fountain v. Boodle, « Edsall v. Brooks, 3 Robt. 414.

plalntiff's case. 653

dence of a previous quarrel between the defendant and the
plaintiff's father and next friend is inadmissible to prove malice
in the defendant towards the plaintiff.^ The plaintiff may give
in evidence any expressions of the defendant, whether they are
oral or written, which indicate spite or ill-wiU, for the purpose
of showing the temper and disposition with which he made the
publication complained of.^ The style and character of the
language are also circumstances which may be left, with others,
to the consideration of the jury, on the question whether the
words were spoken maliciously, and especially when the ques-
tion is if they were maliciously uttered under color of privilege.'
The manner in which the publication is made may offer in itself
strong evidence of malice. The transmission unnecessarily of
libelous matter by telegraph or by post-card, when it might be
sent by letter, is evidence of malice.* Where the defamatory
matter is published upon a lawful occasion, that is, upon an
occasion which furnishes prima facie a legal excuse for it, as
where it is done in the discharge of some public or private
duty, whether legal or moral, or in the conduct of the defend-
ant's own affairs, in matters where his interest is concerned,' it
is said to be conditionally a privileged communication or publi-
cation. The legal excuse for the publication rebuts the pre-
sumption of malice from the falsity of the communication ; and
where such matter is the subject of Enaction the plaintiff must
show malice to maintain the action.^

The plaintiff may prove, in aggravation of damages, his rank
and condition in society ; ' and, though there is much conflict of
authority on the point, it is believed that the better opinion is,

1 York V. Pease, 2 Gray, 283. P. 543; Servatius v. Pickel, 34 Wis.

2 Folkard's Stark, on Slan. & L. 292; Townshend on S. & L. pp. 248,
452; Wright v. Woodgate, 2 C. M. 349. See Howard v. Keech, 4 Hun,
& R. 573. 389.

SToogood T. Spyring, 1 C. M. & R. 'Klumph v. Dunii, 66 Pa. St. 141;

181; Fryer v. Kennersley, 15 C. B. Smith v. Lovelace, 1 Duv. 315; Bod-

N. S. 422; Cooke v. Wildes, 5 E. & weU v. Swan, 3 Pick, 376; Howe v.

B. 338. Perry, 15 id. 506; Justice v. Klrlin,

4 WiUiamson v. Freen, L. R. 9 0. 17 Ind. 588; Hosley v. Brooks, 20 III.

P. 393. 115; Peltier v. Mict, 50 lU. 511;

SToogood V. Spyring, 1 Cr. M. & TiUotson v. Cheetham, 3 John. 56.

E, 181. Larned v. BuflSnton, 3 Mass. 546.

6 Cockayne v. Hodgkissou, 5 C. &

654 SLANDER AND LIBEL.

the rank, condition and wealth of the defendant may be shown
for the same purpose, that is, to affect as well compensatory as
punitive damages.^ The injury will be proportioned to the
rank and influence of the defendant in the community where
he pubhshes the defamatory matter. A knowledge of his
standing in the community is important to enable the jury to
appreciate the injury resulting from his slanderous declara-
tions ; to enable the jury to determine what the injured party
ought to receive for compensation, and, in their discretion,
what the defendant, for example and punishment, "should pay.^
The right of the plaintiff to prove his rank and condition in
society includes that of showing his good character at and
before the time of the publication of the defamatory matter.
But it is held in some jurisdictions that the law presumes good
character; that the general issue admits the falsity of the
imputation, and that until the defendant has attacked it the
plaintiff is not entitled to introduce any evidence on that sub-
ject. Thus, in a Pennsylvania case. Strong, J., said: "Evi-
dence of his reputation is important only as affecting the
measure of the compensation to which he is entitled. The
injurjr is less when his character is bad. In a certain sense,
therefore, the character (reputation) of the plaintiff in every
such action may be said to be put in issue. The plaintiff
offers it to the attack of the defendant. The law presumes
that it is good, but the defendant may traverse this presump-
tion. Such a traverse is presented when the defendant offers
evidence to show that it is bad. But until then a plaintiff is
not at liberty to adduce evidence that his character is good; for,
until it is attacked, the law presumes, and the defendant

iVol. I, pp. 744, 745; Johnson "v. Hyde, 6 Conn. 24; Case v. Marks,

V. Smith, 64 Me. 553; Humph- 20 Conn. 248; McAlmont v. McClel-

reis V. Parker, 52 id. 507, 508; land, 14 S. & R. 359; Adcock v.

Stanwood v. Whitmore, 63 Me. 209; Marsh, 8 Ired. 360; Wilms v. White,

Barber v. Barber, 33 Conn. 335; 26 Md. 380; Kunkel v. Markell, id.

Brown v. Barnes, 39 Mich. 211; 390; 2 Greenlf. Ev. 299. But see

Bucldey v. Knapp, 48 Mo. 152; Bod- Myers v. Malcolm, 6 Hill, 292;

well V. Osgood, 3 Pick. 379; Karney Palmer v. Haskins, 28 Barb. 90;

Y. Paisley, 13 Iowa, 89; Lewis v. Morris v. Barker, 4 Harr. 520; Ware

Chapman, 19 Barb. 252; Kniffen v. v. Cartledge, 24 Ala. 622.

McConnell, 80 N. Y. 289; Bennett 2 Id.

655

admits, such to be the fact. Until then the defendant has
refused to accept the issue tendered. This is an almost uni-
versal rule, not only in this state, but in England, and in our
sister states. IsTor does the proof which, under the general
issue, may be given of circumstances that may have awakened
in the mind of the defendant a suspicion of the plaintiff's guilt,
open the door for testimony in support of his character. Evi-
dence of such circumstances is received in mitigation of dam-
ages, not because it shows that injury inflicted upon the
^plaintiff's reputation is any the less, but because it tends to
disprove the existence of malice in the defendant. It is, of
course, no answer to this to prove that the plaintiff was of
good repute. His reputation may have been untarnished, and
the circumstances under which the actionable words were
spoken may have been such as to indicate that there was very
little malice in the defendant. It is, therefore, only where evi-
dence has been given directly attacking the character of the
plaintiff that he is at liberty to introduce proof of his good
reputation." ^

The pl^a of not guilty puts in issue the general reputation of
the plaintiff. The amount of his recovery will be affected by
any evidence which supports or disparages that reputation. It
is presumptively good when the trial begins, and until the pre-
sumption is overturned by proof. It is trite to say that what
the law presumes, and so long as the presumption continues,
need not be proved ; but where proof may add to what the law
presumes, or make specific what the law presumes only in a
general way, and such addition or particularity may legit-
imately increase damages, it is admissible in the first instance ;
as is the case on the element of malice. As the reputation of
the plaintiff is in issue by.the very nature of the proceeding, if
the jury can estimate the damages with a more intelligent
appreciation of the injury after they have heard affirmative
evidence of the plaintiff's reputation than if the case is sub-
mitted to them on the mere supposition which the law raises
that it is good, it is reasonable and proper such evidence be
received. In Burton v. March ^ it was held not error to re-

1 Chubb V. GteeUj 34 Pa. St. 115. ^ 6 Jones L. 409.

656 SLAUDEE AND LIBEL.

ceive it. Other cases recognize the propriety of the plaintiff
showing affirmatively, as part of his case, his good reputa-
tion.'

In cases of defamation character is the object of attack, and
in actions for that wrong the injury to character is the gra/oa-
men complained of, and its vindication the object of the action.^
It is said in another case in Connecticut,' that the plaintiff's
character is not made the subject of inquiry, at the defendant's
option, and shut out of view, or the subject of investigation,
as shall best subserve the defendant's pleasure and interest. To
a rule so inequitable, for the want of mutuality, the courts of
that state have never acceded ; but they have recognized and
acted on the principle, that the final object of the plaintiff's
suit is the vindication of his character ; and that his reputation,
of consequence, is put in issue by the nature of the proceeding
itself; he may introduce evidence of his reputation, not only
to sustain it from attack, but to prove its excellence. In a late
case in Wisconsin,^ the court say : " In actions of slander, it is
well settled that the plaintiff's general character is involved in
the issue ; and evidence showing what it is, and consequently
its true value, may be offered on either side to affect the amount
of damages.' The rule thus stated has frequently received the
sanction of this court." ' But all cases recognize the right of
the plaintiff to answer the defendant's evidence against his
general reputation by proof to support it.'

The evidence in regard to the plaintiff's reputation must be
directed to his general reputation, or his general reputation

1 Bennett v. Hyde, 6 Conn. 24. court add: " Whether plaintiflE in

2 Bennett v. Hyde, supra. the first instance, and before his

3 Stow V. Converse, 4 Conn. 43. character had been assailed, can
* Campbell v. Campbell, 54 Wis. 97. give evidence of his own good char-
5 Citing 2 Greenlf. Ev. §275; Earl aoter, it is not necessary here to

of Leicester v. Walter, 3 Camp. 251; decide."

Lamed v. BufBnton, 3 Mass. 546; "' Harding v. Brooks, 5 Pick. 244;

Stone V. Varuey, 7 Met. 86; Burnett Byi-ket v. Monohon, 7 Blackf. 83;

v. Simpkins, 24 111. 264. Smith v. Lovelace, 1 Duv. 215;

« Maxwell v. Kennedy, 50 Wis. Waters v. Jones, 3 Port. 442; Sey-

645; Wilson v. Noonan, 27 id. 590; mour v. Men-ills, 1 Root, 459; Shea-

B V. I , 22 id. 872; Has- han v. CoUins, 20 lU. 325; Meyer v.

kins V. Lumsden, 10 id. 869. The Moyer, 49 Pa. St. 310.

PLAINTIFF 3 CASE.

65Y

in regard to the trait involved in the imputation.^ Particular
acts to affect reputation cannot be proved.*

Where the reputation of the plaintiff is consequentially at-
tacked by proving the truth of the imputation, it is held that
he is not entitled to answer it by proving his good reputation ;
in other words, he is not entitled to prove his good reputation
to countervail the evidence of the specific act or acts shown to
establish the plea of justification. In criminal cases respond-
ents are permitted to give evidence of general character, in
order to repel the charge, upon the ground that a presumption
of innocence arises from former conduct in society, as evidenced
by general character, since it is not probable that a person of
known probity or humanity would commit a dishonest or out-
rageous act* in the particular instance.' But this species of
evidence is not available in civil actions for torts, generally, nor
to rebut the evidence that alleged slanderous words were true.*

Language may be actionable jper se though it do not impute
any crime. It is so if by it one is charged with having either
of certain diseases.' So if one is disparaged in his office, profes-
sion, trade or business in such manner as that by natural and
proximate consequence he wiU be prevented from deriving there*,
from that pecuniary reward which probably he might otherwise?
have obtained.* The special character in respect of which sijwsh

1 Lambert v. Pharis, 3 Head, 623; 285; Lamos v. Snell, supra; Burke
Maynard v. Beardsley, 7 Wend. 560; v. Miller, 6 Blackf. 155; Paxkhurst

B V. I , 32 Wis. 372; v. Ketchum, 6 Allen, 406.

Birchfield v. Eussell, 3 Cold. 238; 3 2 Stark. Ev. 365.
McAlexanderv. Harris, 6 Munf. 465; < Matthews Y.Huntley, 9 N. H.
Steinman v. Mc Williams, 6 Pa. St. 146; Severance v. Hilton,. 24 N. H.
170; Brunson v. Lynde, 1 Root, 354; 147; Shipman t. Burrows, 1 Hall,
Sheahan v. Collins, 20 111. 335; Bur- 399; Wright v. Schroeder; 2 Curt,
ton V. March, 6 Jones L. 409; Meyer 548; Stow v. Converse, 3' Conn. 325;
V. Moyer, 49 Pa. St. 310; Powers v. Bamfield v. Massey, 1 Camp. 460;
Presgroves, 38 Miss. 327; Bennett v. Haun v. Wilson, 28 Ind'. 396; Miles
Matthews, 64 Barb. 410; Leonard v. v. Van Horn, 17 id. 345; Rhodes v.
Allen, 11 Cush. 241; Shilling v. Car- Ijames, 7 Ala. 574; HoUey v. Bur-
son, 27 Md. 175; Wright v. Schroeder, gess, 9 id. 728.

3 Curtis, 548; Fountain v. West, 33 STownshend on S'. & L. § 175.
Iowa, 9; Lamos v. Snell, 6 N. H. 6 Poulger v. Newcomb, L. E. 2 Ex.

413. 337; Babonnea^ v.. Farrell, 15 C. B^

2 Andrews v. Vanduser, 11 John. 360.
38; Swift V. Deokerman, 31 Conn.

Vol. Ill— 43

658 SLANDER AND LIBEL.

imputations will be actionable may be any lawful employment
in which a livelihood may be gained or from which emoluments
are derived. The language must be such as, if true, would dis-
qualify him or render him less fit to fulfil the duties of the
special character he has assumed.' To charge a partnership with
insolvency : ^ a chief engineer of a city fire department with
being drunk at a fire ; * saying a school mistress is a dirty slut ; *
insane ; * or wanting in chastity ; " that a blacksmith keeps false
books ; ' that a shop-keeper had nothing but rotten goods in his
shop,^ is to utter actionable words.

It is not enough that the language tends to injure the person
in his ofiice, profession or trade ; it mpst be published of him in
his ofiicial or business character." Where, however, one is in
business, words spoken of him in his private chara'cter may be
actionable on account of their necessary effect to injure him
in that business; as any words affecting the credit of a man who
is a merchant, or pursues any business in which pecuniary credit
is important." "When the words spoken have such a relation
to the profession or occupation of the plaintiff that they directly
itend to injure him in respect to it, or to impair confidence in his
.character or ability; when, from the nature of the business,
great confidence must necessarily be reposed, they are action-
able, though not applied by the speaker to the profession or
occupation of the plaintiff ; but when they convey an imputa-
tion upon his character equally injurious to every one of whom
they might be spoken, they are not actionable, unless such ap-
plication be made." In an action for libel, the fact that the
words used had reference to the profession or business of the

1 Tewnshend on S. & L. § 190. ' Van Tassel v. Capron, 1 Denio,

2 Titus V. Follett, 3 Hill, 318. 250; Worten v. Searing, 1 Vic. liaw

3 Gottbehuet .y. Hubachek, 36 Wis. Rep. 123rRedway v. Gray, 31 Vt.
515. 293; Buck v. Hersey, 31 Me. 558;

4 Wilson V. Runyon, Wright, 651. Doyley v. Roberts, 3 Bing. N. C. 835.

5 Morgan v. liingen, 8 L. T. R. N. w Jones v. Littler, 7 M. & W. 433:
S. 800. Fowler v. Bowen, 30 N. Y. 33; Lewis

6 Bod well V, 'Osgood, 3 Pick. 379. v. Hawley, 3 Day, 495; 2 Am. Dec.
'Burtoh V. Niokerson, 17 John. 131; Starr v. Gardner, 6 U. C. Q. B.

217. O. S. 513; Hogg v. Dorrah, 3 Port.

s Burnett v. Wells, 13 Mod. 430. * 33; Davis v. Ruff, 1 Cheves, 17.
For other illustrations see Towns- n Sanderson v. Caldwell, 45 N, Y.
hend on S. & L. ch. VIII. 405.

plaintiS'f'S case. 659

plaintiff is not the substantive ground of the action. The action-
able quality of the words used does not in any case depend upon
that consideration. And the plaintiff, in such a case, is entitled
to recover for damages to him in his profession by reason of the
libel, without specific proof in regard to them.^ In this respect,
as has been before remarked, there is a distinction between libel
and verbal slander. A charge of drunkenness against one who
is a minister; ^ or a master mariner in command of a vessel; ' or
a female,^ is actionable.

For such actionable words spoken or libelous matter pub-
lished, the damages are left to the discretion of the jury upon
the particular facts of each case. Compensatory damages may
properly include recompense for the loss of patronage ; ^ and
where the imputation is actionable because of its necessary op-
eration to cause such injury, and is of a want of personal fitness,
a want of any necessary moral trait, or is an imputation of gross
dereliction in professional practice, injury to the feelings, men-
tal anxiety and suffering may be taken into consideration. In
a Connecticut case,^ the defamatory words spoken of a prac-
ticing physician were such as to imply that he was so ignorant
and unskilful that most of his patients lost their lives by follow-
ing his prescriptions ; and upon this point Sanford, J., said : " It
is true that the words spoken relate only to the plaintiff's pro-
fessional character and are aimed especially at his pecuniary
interests dependent upon his professional calhng and employ-
ment. But the natural, if not the necessary, effect of professional
degradation and disgrace is personal anxiety and suffering on
account of it. And that anxiety and suffering were proper
subjects for compensation to the plaintiff, and ought to be
atoned for by the defendant.

" There is, and there ought to be, no other rule upon the sub-
ject, than that a tortfeasor shall be held responsible in damages
for the full amount of all the immediate injury caused by his
wrongful acts. This rule was adopted by the superior court, and

1 Sanderson v. Caldwell, 45 N. T. 3 Irwin v. Brandwood, 2 H. & C.

405. 960.

2McMaien v. Birch, 1 Binn. 178; * Brown v. Nickerson, 5 Gray, 1.

2 Am. Dec. 426; Chaddock v. Briggs, ^ Weiss v. Whittemore, 28 Mich.

ISMass. 348. But see Tighev. Wicks, 353.

33 U. C. Q. B. 479. ^ Swift v. Dickerman, 31 Conn. 3^94.

660 SLAITDEB AUD LIBEL.

sanctioned by this court in the recent case of Lawrence v. Hou-
satonic E. E. Co.,* in that of Seger t. Barkhamsted,^ and in
many other cases.

" It is difficult to conceive how a member of either of the
learned professions can be injured in his professional character
without being at the same time subjected to anxiety and mental
suffering, — suffering on account of professional dishonor, to
be followed as it naturally and almost necessarily is, and al/ways
ought to he, by social degradation and disgrace, and the ultimate
loss of professional employment with its honors and emoluments.
Bodily pain comprises but a very small part of the suffering
endured by rational beings, and the injuries which the calum-
niator inflicts act, often entirely and always immediately, upon
the mental sensibilities of his victim. Mental suffering, .then,
constitutes an important element in the calculation of compen-
sation to be made for such an injury."

Special damages. — If the defamed party suffers a particular
injury, which the jury would not be entitled to consider as the
necessary result of the actionable publication, but which is a
natural and proximate consequence of it, it may be made a sub-
ject of additional compensation. Consequential damages, as
distinguished from direct and necessary damages, are generally
special.' What are special damages distinctively is very clearly
stated in a Maryland case,* in which the court held that whether
the words in themselves are actionable, or only become so
because of some special damage, no evidence of any partic-
ular loss or injury, caused by the words spoken, is admissible,
unless such loss or injury is particularly alleged in the declara-
tion. In certain actions special damages for defamation are
essential to be shown in order to their maintenance. This is
the case in all actions for language not actionable j^er se. And
the special damages which must be shown in such cases may
be alleged and proved, besides the necessary or general damages,
in the class of cases which have been considered, and they can-
not otherwise be recovered.^ If alleged and not proved, the

129 Conn. 390. ^Dicken v. Shepherd, 33 Md. 399.

233 Conn. 390. sDicken v. Shepherd, 33 Md. 399;

^Vol. I, pp. 763-766. 'Shipman v. Burrows, 1 Hall, 899;

plaintiff's case,

661

action may still be maintained and substantial damages re-
covered.^

EXEMPLAET DAMAGES MAT BE EECOVEEED. WhereVSr SUCh

damages are recoverable at all for malicious wrongs they are
recoverable for libel and slander. But to justify the finding of
any sum beyond fair compensation for the injury, in order to
punish the defendant, the nature of the defamation and cir-
cumstances of the case should be such as to satisfy the jury
that there was actual malice, or a recklessness equivalent to
malice.^ The amount of damages in these cases, both compen-
satory and exemplary, are in the discretion of the jury ; and
being so, the verdict must be palpably and grossly excessive to
induce the court to set it aside.'

Harcourt v. Harrison, id. 474; Serva-
tius V. Piokel, 34 Wis. 294; Rummell
Y. Otis, 60 Mo. 365; Pi-ice v. Whitely,
50 Mo. 439.

1 "Weiss V. Whittemore, 38 Mich.
353; Wier v. Allen, 51 N. H. 181;
Smith V. Thomas, 3 Bing. N. C. 380.

2Tillotson V. Cheetham, 3 John.
56; Taylor v. Church, 8 N. Y. 453;
Symonds v. Carter, 83 N. H. 458;
Cramer v. Noonan, 4 Wis. 331;
Klinck V. Colby, 46 N. Y. 437; Ken-
dall V. Stone, 3 Sandf . 269; Gilreath
V. Allen, 10 Ired. 67; Bonnin v. El-
Uott, 19 La. Ann. 332; Kinney v.
Hosea, 3 Harr. 397.

3 Douglass Y. Tousy, 3 Wend. 353;
King V. Root, 4 id. 113; Sanders v.
Johnson, 6 Blackf. 50; Bell v. How-
ard, 4 Litt. 117; Riley v. Nugent, 1
A. K. Marsh. 431; Ross v. Ross, 5 B.
Hon. 20. The result of adjudica-
tions in Michigan are thus stated in
Scripps V. Reilly, 38 Mich. 33: " 1. In
any injury entitling the party to
redress, damages to the person, prop-
erty and reputation, together with
such special damage as may be
shown, are recoverable. 3. Where
the act done is one which from its
very natui'e must be expected to re-

sult in mischief, or where there is
malice, or wilful or wanton miscon-
duct, carelessness or negligence so
great as to indicate a reckless dis-
regard of the rights or safety of
others, a new element of damages
is allowed, viz.: for injury to the
feelings of the plaintiff. 8. Damages
for injuries to feelings are only al-
lowed for those torts which consist
of some voluntary act or very gross
neglect, and depend in amount very
much upon the degree of fault
evinced by all the circumstances.
4. Where the tort consists of some
voluntary act, but no element of
malice is shown to have existed, but
the wrong was done in spite of
proper precaution, the damages to
be awarded on account of injured
feelings will be reduced to such
sum as must inevitably have resulted
from the wrong itself. 5. Where,
however, the elements exist in a
case, entitling a party to recover
damages for injured feelings, the
amount to be allowed for shame,
mental anxiety, insulted honor, and
suffering and indignation conse-
quent on the wrong, may be in-
creased or aggravated by the vin-

662

SLANDEE AND LIBEL.

Special damages feom publication op defamatoet woeds
NOT actionable IN THEMSELVES. — Language from the false
speaking or publication of which the law does not infer dam-
age, if defamatory,! and the cause of actual injury, may be the
basis of an action to recover the resulting damage. The injury
must be of a pecuniary nature, or cause detriment to important
temporal interests; and must appear to be the natural and
proximate consequence of the defamatory publication. This
kind of slander is only actionable in respect of some special

dictive feelings, or the degree of
malice, recklessness, gross careless-
ness or negligence of the defendant, •
as the injury is much more serious
where these elements, or either of
them, are shown to have existed.
6. This increase of damages depend-
ent upon the conduct of the defend-
ant must be considered in this state
as actual damages, although usually
spoken of as exemplary, vindictive
or punitory, and the amount thereof
to be recovered, where recoverable at
all, as they are incapable of ascer-
tainment by any other known rule,
must rest in the fair and deliberate
judgment and discretion of the jury
acting upon their own sense of jus-
tice in view of all the circumstances,
both mitigating and aggravating,
appearing in the case, and which
can fairly be said to give color to or
characterize the act, aided, however,
by such instructions from the court
as will tend to prevent the allow^-
ance of damages merely fanciful, or
so remote as not fairly resulting
from the injury. 7. So far as these
damages are concerned, the fact that
an indictment may or may not be
pending or threatened for the same
wrong is whrtly immaterial, as they
are allowed by way of remuneration
for the injury sustained. If this al-
lowance also operates- by way of
punishment, this is an indirect re-
sult equally applicable to damages

allowed for injuries to person or
property. 8. In cases of Ubel the
publication is always considered a
voluntary act, and is presumed to
have proceeded from malicious mo-
tives. The actual motive may, how-
ever, be shown either in aggravation
or reduction of damages to the feel-
ings of the person injured. In other
words, the spirit and intention of
the defendant in publishing the libel
may be considered by the jury in
estimating the injuries done to the
plaintiffs feelings. 9. Want of
proper precaution in the employ-
ment of agents or assistants, or of
proper care in the conduct of the
paper, or the retention of im^proper
employees after ascertaining their
incompetency, carelessness or negli-
gence, may be shown to increase the
damages to wounded feelings; but
express mahce in the employees
would not be admissible for such
purpose, where the act was done
without the knowledge or consent
of the defendant, when proper care
had been exercised in their employ-
ment and retention. Detroit Daily
Post Co. V. McArthur, 16 Mich. 447;
Welch V. Ware, 33 Mich. 77, and
authorities cited on p. 86; Elliott v.
Van Buren, 33 Mich. 56; Livingston
V. BuiTOUghs, 33 Mich. 511; Friend
v. Dunks, 87 Mich. 35."

iTerwUliger v. Wands, 17 N. Y.
54.

plaintiff's case. 663

damage proceeding from it; such damage is the gist of the
action, and must be specially alleged and proved or the action
will fail.i There is some contrariety of decision as to what will
constitute special damage sufficient to support the action.
There is no question or conflict where the direct or necessary
consequence is confessedly a pecuniary loss. Strong, J., in
Terwilliger v. Wands,^ said : " The action for slander is given
by law as a remedy for injuries affecting a man's reputation or
good name by malicious, scandalous words, tending to his dam-
age and derogation.' It is injuries affecting the reputation
only which are the subject of the action. In the case of
slanderous words actionable per se, the law, from their natural
and immediate tendancy to produce injury, adjudges them to
be injurious, though no special loss or damage can be proved.
But with regard to words that do not apparently, and upon the
face of them, import such defamation as will of course be inju-
rious, it is necessary that the plaintiff should aver some particu-
lar damage to have happened.^ As to what constitutes special
damage, Starkie mentions the loss of a marriage, loss of hos-
pitable gratuitous entertainment, preventing a servant or bailiff
from getting a place, the loss of customers by a tradesman ; *

iKeenholts v. Becker, 3 Denio, sgupra.
346; Terwilliger v. "Wands, 17 N. Y. 33 Black. Com. 138; Stark, on
61; Beach v. Eanney, 3 Hill, 809; Sland. Prelim. Obs. 33-39; id. 17, 18.
Hallock V. Miller, 2 Barb. 630; Her- 4 3 Black. Com. 134.
rick V. Lapham, 10 John. 281; Hersh STownshend on S. & L. § 198.
V. Ringwalt, 3 Yeates, 508. In Cook Special damage consists in, among
V. Cook, 100 Mass. 194, the court say: other things, the loss of marriage,
"To sustain the action on this loss of consortium of husband and
ground, it is necessary that the dec- wife (Lynch v. Knight, 5 L. T. R.
laration should set forth precisely in N. S. 391; 9 House L. 577; Parkins
what way such special damages re- v. Scott, 6 L. T. R. N. S. 394; 1 Hurl,
suited from the words relied on. It & C. 158; Roberts v. Roberts, 33 L.
is not sufficient to allege generally J. Q. B, 349; 5 B. & S. 884; and see
that the plaintiff has suffered special Passimau v. Fletcher, Clayton, 73);
damages, or that he has been put to loss of emoluments, profits, custom-
great costs and expenses thereby, ers, employment, gratuitous hospi-
. . . It must be made to appear, tality (Moore v. Meagher, 1 Taunt,
by proper averments, how these 89; WUliams v. Hill, 19 Wend. 305);
special damages were occasioned by or by being subjected to any other
the words alleged to have been ut- inconvenience or annoyance ocoa-
tered falsely or maliciously." sioning or involving an actual or

664 SLANDEE AMD LIBEL.

and says that, in general, whenever a person is prevented by
the slander from receiving that which would otherwise be con-
ferred upon him, though gratuitously, it is sufficient.! In
Olmsted v. Miller,^ it was held that the refusal of civil enter-
tainment at a public house was sufficient special damage. So
in Wilhams v. Hill,* was the fact that the plaintiff was turned
away from the house of her uncle and charged not to return
until she had cleared up her character. So in Beach v. Eanney,*
the circumstance that persons, who had been in the habit of
doing so, refused longer to supply fuel, clothing, etc.^ . . .
" It would be highly impolitic to hold all language, wounding
the feelings, and affecting unfavorably the health and ability
to labor, of another, a ground of action; for that would be to
make the right of action depend often upon whether the sensi-
bilities of a person spoken of are easily excited or otherwise ;
his strength of mind to disregard abusive, insulting remarks
concerning him ; and his physical strength and ability to bear
them. "Words which would make hardly an impression on most
persons, and would be thought by them, and should be by aU,
undeserving of notice, might be exceedingly painful to some,
occasioning sickness and an interruption of ability to attend to
their ordinary avocations. There must be some limit to hability
for words not actionable j?isr se, both as to the words and the
kind of damages ; and a clear and wise one has been fixed by
the law. The words must be defamatory in their nature ; and
must in fact disparage the character ; and this disparagement
must be evidenced by some positive loss arising therefrom
directly and legitimately as a fair and natural result." It is
therefore generally held that mere injury to the feelings,
though resulting in sickness and inability to labor, is not such
special damage as will support the action for defamatory words

constructive pecuniary loss. Wood- ■uzcinoram is not sufficient. Roberts

bury V. Thompson, 3 N. H. 194; v. Roberts, 33 L. J. Q. B. 250; Beach

KeUy V. Partington, 8 Nev. & M. v. Ranney, 2 Hill, 309.

116; Keenholts v. Becker, 3 Denio, i Citing Stark, on Sland. 195, 302;

846; Foulger v. Newcomb, L. R. 3 Cook's Law of Def. 33-34.

Ex. 330; Hartley v. Herring, 8 T. R. 2 1 Wend. 506.

130. The special damage must be ' 19 Wend. 305.

the loss of some material temporal * 3 Hill, 309.

advantage. Loss of consortium 5 3 Stark, on Sland. 873, 873.

PLAINTIFF 8 CASE.

665

not actionable in themselves.' ISTor will the allegation that the
plaintiff has fallen into disgrace, contempt and infamy, and
has lost his or her credit, reputation and peace of mind.^

1 Wilson V. Goit, 17 N. Y. 442;
Bedell v. Powell, 13 Barb. 183; Sam-
uels V. Evening Mail ^sso. 6 Hun, 5;
Allsop V. AUsop, 5 H. &N. 534. But
see Olmsted v. Brown, 13 Barb. -657;
Bradt v. Towsley, 13 Wend. 353;
Fuller V. Fenner, 16 Barb. 333; TJn-
derhiU v. Welton, 33 Vt. 40; Mo-
Queen Y. Fulghan, 37 Tex. 463.

21 Sauud. 343, note 5; Beach v.
Eanney, 3 Hill, 309; Bassett v. El-
more, 48 N. Y. 561; Woodbury v.
Thompson, 3 N. H. 194. In Roberts
V. Roberts, 5 B. & S. 384, the decla-
ration was by husband and wife,
alleging that ghe was a member of a
sect of Protestant Dissenters, and
also a member of one of the private
societies of that sect, and that the
sect and its societies are subject to
rules and regulations, and the mem-
bers of the sect and its societies
are subject to rules and regulations,
and under the control and authority
of the societies and their leaders
with respect to the moral and relig-
ious conduct of the members, and
their being allowed to be and con-
tinue members; and by the rules
and regulations a member of one
society in the sect cannot become a
member of another society in the
sect unless the leaders or elders of
the first certify that the member is
morally and otherwise fit to be a
member; and that by reason of
words spoken of the wife, imputing
a want of chastity to her, she was
not allowed to continue a member
of the society, 'and the leaders or
elders refused to certify that she was
morally or otherwise, fit to be a
member of the sect, etc., and she
was not allowed to become a mem-
ber of the society in L, and was

prevented from attending religious
worship, and she became injured in
her good name and reputation, and
sick and greatly distressed in body
and mind. On demurrer it was
held that the special damage was
not sufiScient to make the words
actionable. Lord Campbell said:
" It is admitted that the loss of con^
sortiwm vioinorum is not sufficient;
and I am of opinion that the loss by
the female plaintifiE of membership
of this society and congregation,
which appears to have been consti-
tuted for religious or spiritual pur-
poses, amounts at most to no more
than the loss of the merely nominal
distinction of being able to call her-
self a member of it. It does not
appear that any real or substantial
advantages attach to membership;
such as a loss of a seat in the chapel,
or of the opportunity of attending
divine worship there. If by reason
of the words spoken the female
plaintiff had been excluded from
meetings for religious worship, or
from anything substantial by which
right attached to membership of the
society, I should be disposed to hold
that it was sufficient special damage.
I think that to prevent a woman
whose character for chastity is as-
sailed from bringing an action for
the purpose of vindicating it, is
cruel; but, as the law at present
stands, such an action is not main-
tainable unless it be shown that the
loss of some substantial or material
advantage has resulted from the
speaking of the words. That is not
shown in this declaration, and,
therefore, I reluctantly hold that
the demurrer is good." Crompton,
J., said: "Here is no loss of atem-

8LANDEE AND LIBEL.

Being shunned by her neighbors, and turned out of the moral
reform society, does not constitute special damage.^

The loss of a marriage to a party of either sex is sufficient
special damage. If the words spoken were defamatory, as that
a female plaintiff has had an illegitimate child, or is wanting in
chastity;^ or, if spoken of a man, that he is a whoremaster, or
the like;' or of one who was a widower, that he had kept
his wife basely, and starved or denied her necessaries ; ^ or to
say of one he is a bastard,' and it is shown to be followed
with the loss of marriage as a consequence, the action will lie.
But a loss of suitors is not special damage to a female."

The judges in England were not agreed in Lynch v. Knight,^
that a wife may maintain an action against a slanderer for
words not actionable in themselves, based on the loss of her
husband's society, as special damage, he having deserted her
in consequence of the words spoken ; but she was held entitled
to recover in respect of her loss of maintenance by the husband
for such cause.

Loss of employment, of customers, or of any position from
which the defamed party derived support or any substantial
or pecuniary advantage, is so manifestly special damage that
it is unnecessary to state the cases in detail.' In such actions.

poral nature; or, if there be any, it Taylor v. Tillly, Palmer, 3855 South-
is merely nominal. Though I wish old v. Daunston, Cro. Car. 269.
the law were different in the case of * Wicks v. Shepherd, Cro. Car.
words affecting the chastity of a 155.

woman, yet the line must be drawn ^ Nelson v. Staff, Cro. Jac. 433.
somewhere between words which "Barnes v. Prudlin, 1 Sid. 396.
are and words which are not action- ^ 9 H. L. Cas. 577.
able; and, if we hold that the 8 Campbell v. White, 5 Ir. C. L.
action of slander could be supported N. S. 313; Corcoran v. Corcoran,
by the allegation that the plaintiff 3 Ir. C. L. N. S. 272; Moore v.
had suffered some nominal special Meagher, 1 Taunt. 39; Hartley v.
damage, we must thereby encourage Herring, 8 T. E. 130; Peaks v. Old-
actions which ought not to be ham, 1 Cowp. 277; Bignell v.
brought." Buzzard, 3 H. & N. 217; Starry v.

1 Id. Foreman, 3 C. & P. 592; Evan v.

2 Restor v. Pomfreich, Cro. Eliz. Harries, 1 H. & N. 25; Knight v.
639; Shepard v. Wakeman, 1 Sid. 79; Gibbs, 3 Nev. & M. 467; 1 A. &
Davis V. Gardiner, 4 Coke, 16; E. 43; Shipman v. Burrows, 1 Hall, .
Matthews v. Cross, Cro. Jac. 333. 399; Williams v. HiU, 19 Wend.

8 Matthews v. Cross, Cro. Jac. 823; 305.

PLAINTIFF S CASE.

687

where loss of trade or customers is relied upon as special damage,
if the plaintifif intends to show particular instances, he must
allege them ; ^ in other words, where the plaintiff alleges,
by way of special damages, the loss of customers in the way
of his trade, the loss of marriage, or of service, the names of
such customers, the name of the person with whom marriage •
would have been contracted, or service performed, should be
stated.^ But the rule is relaxed when the individuals may be
supposed to be unknown to the plaintiff, or where it is impos-
sible to specify them, or where they are so numerous as to
excuse a specific description on the score of inconvenience.'

iRose V. Groves, 5 M. & G. 618;
Trenton Mut. L. & F. Ins. Co. v.
Perrine, 23 N. J. L. 403; Moore v.
Meagher, 1 Taunt. 39; Shipman
V. Burrows, 1 Hall, 399; Tobias v.
Harland, 4 Wend. 537; Hallock v.
Miller, 2 Barb. 630; Townshend on
S. & L. § 845; 1 Stark, on Sland. 203.

2 Id.

3 Trenton Mut. L. & F. Ins. Co. v.
Perrine, supra; Hartley v. Henning,
8 T. R. 130; Hargrave v. Le Breton,
4 Burr. 2423; Westwood v. Cowne, 1
Stark. 173; 3 Saund. 411; Biding v.
Smith, L. R. 1 Ex. Div. 91. See
Hewit V. Mason, 34 How. Pr. 366.
In Weiss v. Whittemore, 38 Mich.
373, the publication was actionable
per se, and had reference to the
plaintiff in his business as a dealer
in Steinway pianos. The declara-
tion alleged that prior to the time of
the publication he had been and was
carrying on the business of the
agency, " and had in the way of his
aforesaid trade and business, as agent
for the sale of the Steinway pianos,
acquired great gains and profits, and
was up to that time daily and hon-
estly acquiring great gains and
profits to himself, as such agent in
the sale thereof." It was further
alleged that by means of the publi-
cation the plaintifE had been and is

greatly injured in his said trade and
business, and has lost and been de-
prived of divers great gains and
profits in his said business, which
would but for such publication have
arisen and accrued to him. It was
objected that these allegations were
too general; that the plaintiff should
have shown how he had suffered
the damage, the particular amount,
and the particular sales the publica-
tion had prevented him from mak-
ing. But the court, by Christiancy,
J., said: "The case is not like that
of Shipman v. Burrows, upon which
the defendants rely, where the
plaintiff, a shipmaster, alleged gen-
erally that in consequence of the
publication, etc., certain insurance
companies refused to insure any ves-
sel commanded by him, or any
goods onboard, etc., without setting
forth any particular application to,
or refusal by, any such company. In
that case, whether correctly de-
cided or not, the plaintiff must have
known, and could therefore easUy
have set forth, the particular of re-
fusal. But how could the plaintiff
thus know and specify the particu-
lar instances here where parties sim-
ply omitted to call for the purchase
of these pianos? Had he been in
the habit of carrying them around

668

SLAHDEE AND LIBEL.

There ought to be no difference, and in principle there is none,
between words actionable in themselves, and other defamatory
words followed by actual injury, beyond the change in the
burden of proof. In the former case the injury is presumed ; in
the latter it must be alleged and proved. The intrinsic nature
of the wrong and injury is the same in both cases. What the
jury may take into consideration, in the one case, without
proof, in the assessment of damages, ought, when proved in the
other, to sustain the action, and be considered in the award of
damages. Where the words relate to persons, and not exclu-
sively to things, and the words impute a crime involving moral
turpitude or infamous punishment, they are in themselves ac-
tionable. The law conclusively presumes damage, if they are
false, and the publication was not privileged. This damage is
assessable by a jury, and no legal standard for measuring the
amount exists. This, however, does not imply, nor is it true,
that the law does not define the nature of the injury and decide
what elements may enter into compensation for it. The injury
is a malicious one to reputation,^ and pecuniary loss, in theory
at least, the gist of the action for its redress.^ This loss is pre-
sumed ; and also injury to the feelings, because the dissemina-
tion of the scandal has a tendency, more or less strong
according to the nature of the imputation and the standing
and influence. of the traducer, to exclude the person to whom
it refers, from society and from the confidence and respect of

to supply customers, perhaps the libel, it seems to be settled upon
case might have been analogous to authority, and we think upon sound
that of the shipmaster; but this does principle,, that the names of the cus-
not appear. Nor is this like the loss tomers driven away or lost need not
of trade from such a cause in many be mentioned; but the general loss
other cases, where the same custom- of trade is suflficient, and the decla-
ers are in the habit of resorting to ration maybe supported by evidence
the same shop for dry goods or gro- of such general loss. See Evans v.
ceries frequently needed; pianos are Harries, 38 Eng. L. and Eq. 347;
not bought at frequent, but at very Hartley v. Herring, "T. R. 130; Ash-
distant intervals, by the same per- ley v. Harrison, 1 Esp. 48; Trenton,
son. Almost every customer must, etc. Ins. Co. v. Perrine, 3 Zab. 402."
in the nature of things, be a new ' Terwilliger v. Wands, 17 N. Y.
one. And yet when the injury com- 54.

plained of is a loss of trade, in ^Townshend on S. & L. §57.
ordinaxy cases, from slander or a

PLAINTIFF S CASE.

the community; there is in fact, and by implication of law,
mental suffering at once upon knowledge of the defamatory
publication. The law authorizes the jury to consider upon
their knowledge of the general experience, that the false and
malicious imputation, however limited the publication, causes
injury of which mental suffering is an ingredient; that
suffering ensues from the shock of the disparagement to
the mental sensibilities of one who has a consciousness
of innocence, and from the natural apprehension that his
reputation will suffer by a popular belief or suspicion that
the imputation is true. This injury to the feelings is not
the principal ingredient for which the law affords redress ; it is
incidental to and dependent on other phases of the wrong; it
is generally rather an aggravation than a substantive and inde-
pendent ground of recovery. If the law would sustain an
action and allow the recovery of damages for every word or
act which in fact causes injury to feelings, it would thereby, in
the language of Crompton, J.,^ " encourage actions which ought
not to be brought." Therefore, in actions for words not action-
able in themselves, special damage of a nature corresponding
to those which are presumed to result principally from language
SictionaMe per se mxxst he alleged and proved; and it is only
when, in addition to such loss, the words are of such a nature
as to injure reputation, that injury to the feelings or mental
suffering may be incidentally considered.^ A mere apprehen-
sion of loss or of ill consequences will not constitute special
damages to support an action for slanderous words not action-
able. It is insufficient to allege that in consequence of the words
discord happened between husband and wife, and the plaintiff-
was in danger of a divorce ; or that the words exposed the

1 Roberts V. Eoberts, 5 B. & S. 384. any proceeding civil or criminal;

2 Falsely and maliciously to im- whereas an action may be main-
pute in the coarsest terms, and on tained for saying that a cobbler is
the most public occasion, want of unskilful in mending shoes, or that
chastity to a woman of high station one has held up his hand in a threat-
and unspotted character, or want of ening posture to another. Report
veracity or courage to a gentleman of Committee of House of Lords on
of undoubted honesty and honor. Defamation and Libel, July, 1843;
cannot be made the foundation of Townshend on S. & L. § 57.

670 SLAXDEE AND LIBEL.

plaintiff to the displeasure of her parents, and she was in
danger of being put out of her house.*

The special damage must be the natural as well as the proxi-
mate consequence of the defamatory publication. As was well
said by MuUett, J. : ^ " It is a rule equally consistent with good
sense, good logic and good law, that a person who would re-
cover damages for an injury occasioned by the conduct of an-
other, must show, as an essential part of his case, the relation
of cause and effect between the conduct complained of and the
injury sustained." This subject has been treated at large in
another place.' The injury must be such as, according to the
usual course of things, or the general experience of mankind,
was likely to ensue from the publication complained of. It is
not deemed natural for a parent to withhold favors in the wa}'^
of instruction and dress to his minor child in consequence of a
charge of self-pollution which he disbelieves.* Grover, J.,
said, in that case: " I do not think special damage can be pred-
icated upon the act of any one who wholly disbelieves the
truth of the story. It is inducing acts injurious to the plaintiff,
caused by a belief of the truth of the charge made by the de-
fendant, that constitutes the damage which the law redresses."
"When, however, the charge made, independent of belief of its
truth, has caused the person to whom it was published or ad-
dressed to act upon it, and to turn out of employment a servant
to whom the charge 'referred, the disbelief, or testimony of it,

'Folkai'd's Stark. §385; Barnes v. the slander the husband had com-

Strudd, 1 Lev. 261; Townshend on pelled her to leave his house and re-

S. & L. §300. . turn to her father, whereby she lost

2 Olmsted v. Brown, 13 Barb. 653. the consortium of her husband; it

3 Vol. I, p. 48. was held that the cause of complaint
< Anonymous, 60 N. Y. 263. In thus set forth would not sustain the

Lynch v. Knight, 9 H. L. Oas. 577, action, inasmuch as the special dam-
the wife brought the action, joining age relied upon did not arise from
the husband for conformity, against the natural and probable effect of
A for slander uttered by him to her the words spoken by the defendant,
husband, imputing to her that she but from the precipitation or idio-
had been " all but seduced by B be- syncrasy of the husband in dismiss-
fore her marriage, and that her hus- ing his wife from his house when
band ought not to suffer B to visit he was only cautioned not to let her
his house,'' and the special damage mix in society. Folkard's Stark,
alleged was that in consequence of § 383,

plaintiff's case. 671

has been held immaterial.* " It may often happen," say the
court, " that a person may not believe what is told, and yet not
have courage to keep the individual who labors under the im-
putation." Park, J., said : " It is said that the witness would
have turned the plaintiff away on the defendant's wish to that
effect being intimated, although no slanderous words had been
used. But it is clear that if the words in question had not been
used, the plaintiff would not have been dismissed; and it is
sufficient for this action, to show, that she was turned out in
consequence of such words of the defendant. The effect of the
evidence may be that the witness would have turned the
plaintiff away if different words had been used ; but different
words were not used, and she was sent away in consequence of
these."

In many cases the special injury results from the action of
one to whom the slanderous charge has been repeated by the
person to whom the defendant published it. And it has been
held that the defendant is not liable for the damage resulting
from such repetition, unless he authorized it, or it was a privi-
leged communication. Thus it is said by Strong, J., in Ter-
williger v. "Wands,^ that " where words are spoken to one person,
and he repeats them to another, in consequence of which the
party of whom they are spoken suffers damage, the repetition is,
as a general rule, a wrongful act, rendering the person repeating
them liable in like manner as if he alone had uttered them. The
special damages, in such a case, are not a natural, legal conse-
quence of the first speaking of the words, but of the wrongful
act of repeating them, and would not have occurred but for the
repetition, and the party who repeats them is alone liable for
the damages." '

1 Knight V. Gibbs, 1 A. & E. 43. consequences of his own acts. And

2 17 N. Y. 57. such consequences may be included

3 Citing Ward v. Weeks, 7 Bing. in the chain of causes which con-

211; Hastings V. Palmer, 20 Wend, nect the original act with the final

325; Keenholts v. Becker, 3 Denio, effect. But he cannot be made ac-

346; Stevens v. Hartwell, 11 Met. countable for the unauthorized aie-

543. In Olmsted v. Brown, 13 gal acts of other persons, although

Barb. 663, Mullett, J. , said : " A man his own conduct may have indirectly

may be justly held responsible for induced or incited the commission

the necessary or ordinary legitimate of the acts." Vicars v. Wilcocks, 8

672 SLANDEE AND LIBEL.

It appears to the writer that this doctrine, though advanced
by very able jurists and sanctioned by courts of distinguished
learning and influence, is unsound. .If the liability of the party
first uttering the defamatory words for the damages resulting
from a culpable repetition of them were denied on the ground
that such repetition was not a natural or probable consequence
of the first publication, the conclusion would harmonize with
the principle which fixes the limit of responsibility generally
for the consequences of torts. An error in holding that the
repetition of a scandal is not so likely to occur, as that the
utterer should be held to contemplate it, is of minor conse-
quence ; if that holding were true, the exemption from liability
could be rested safely on that ground. The damages would
then be rejected as too remote. But it is not true, probably,
that when one utters a scandal he expects it to have no further
circulation ; that a subsequent repetition by his hearer is a con-
sequence so contrary to the general experience, that he cannot
be reasonably held responsible for it. The relation of cause
and effect is a matter which cannot always be actually ascer-
tained; but if in the ordinary course of events a certain result
usually follows from a given cause, the immediate relation of

East, 1; Moody t. Baker, 5 Cow. able and illegal interference of an-

357; Beach v. Eanney, 3 Hill, 314; other.

McPherson v. Daniels, 10 B. & C. "This rule presupposes what the

263; Dole v. Lyon, 10 John. 447. law plainly declares, that there may

He adds: " These decisions, and the be intentions and occasions which

reasons upon which they are will justify the repetition of slan-

founded, most clearly and fully es- derous words. And those who duly

tablish the doctrine that the repeti- appreciate the rights of the social,

tion of slander is unlawful, unless domestic, religious and mere busi-

made with justifiable intentions and ness relations of civilized life, will

upon a justifiable ocoaeion. And find no difiiculty in judging when

the conclusion is inevitable, that, these occasions occur. Where they

when so unlawful, it is not an ordi- do occur, the repetition of slander-

nary or necesary legitimate conse- ous words, with the proper inten-

quence of the defendant's original tions, may be considered the ordi-

unlawf ul act, and cannot be used to nary or necessary and legitimate

make out the relation of cause and consequences of the uttering by the

effect between the defendant's orig- first slanderei-, and render him ac-

inal slanders and the injury attrib- countable for all the injuries occa-

uted to it, and which might not sioned by such legitimate repeti-

have happened but for the unjustifi- tion,"

plaintiff's case. 673

one to the other may be considered to be established.' The
cases, from the doctrine of which we dissent, do not hold that
the damages sufifered from such repetition are remote within
this rule, though in many cases particular losses may be so ;
they hold that such damages do not naturally and legitimately
proceed from the first speaking; and they hold that if the repe-
tition occurs under such circumstances that the person who re-
peats the scandal incurs no liability, the damages resulting
therefrom may be charged to the first speaker, and are not
remote. It is possible to suppose that the first utterer of the
imputation might reasonably be held to anticipate an injurious
privileged repetition, though not a wrongful one ; but to hold
him liable for the former on that ground, and not for the latter,
would be to make his liabihty depend on a subtile and shadowy
distinction. Whether a repetition was likely to ensue under the
particular circumstances of a given case is often, and perhaps
—generally, a proper question for the jury, as whether alleged
consequences were antecedently probable in other cases of tort.
Whether a particular special injury sought to be made an ele-
ment of damage is a natural and proximate consequence of
a repetition of the slanderous charge, is a question of law. But
the doctrine that where the repetition is unlawful, and the per-
son repeating the defamatory words is liable therefor, no re-
course can be had to an earlier publisher of the scandal, and
that redress must be sought exclusively against the person who
is the more immediate cause of the injury, is unsound. Each
is liable for the natural and proximate consequences of his acts ;
neither is relieved from this responsibility because the other is
the more immediate agent to produce those consequences, and
acted tortiously and illegally in doing so. Many illustrations
of such double liabihty might be mentioned.^ "Where a mar-
riage promise is broken in consequence of one of the parties
being traduced, there is a right of action for such breach of the
promise; but this has never been supposed to preclude an ac-
tion against the slanderer who induced that breach. The loss
of the marriage is a recognized element of damages in the

ilonides v. Universal Ins. Co. 14 2See Vol. I,- pp.. 49, .64, 68.
C. B. N. S. 259.

Vol, III— 43

674

BLA:frDEE AOT) LIBEL.

latter action, though it is the very loss to be compensated in
the other.'

Slandee of tttle. — Defamatory language maliciously ST)oken
of things is actionable, and only actionable, when it .^.arally
and proximately causes damage to the owner.^ The language
must'be false, spoken without legal excuse, and occasion pecun-
iary damage.'

Misrepresentations by which a business is intentionally in-
jured is a tort for which the law affords redress. Such torts
are akin to slander and libel ; but they are remediable within
the broad principles which govern the action on the case. It
lies for all wrongful acts unaccompanied by force from which
injury ensues.^ Slander of title falls within these principles.
The publication must be malicious ; the language must be false,
and must occasion, as a natural and proximate consequence, a
pecuniary loss^ — a special damage.' The allegation of damages
must be special.''

1 Folkard's Stark. § 386, and note
(a); Townshend on S. & L. § 201
Lumley v. Gye, 3 E. & B. 316
Green v. Button, 3 0. M. & R. 707
Toms V. Corporation of Whitby, 35
U. C. Q. B. 195; Meller v. Butler, 6
Gush. 71; Chapman v. Thornburgh,
17 Cal. 87.

^Swan V. Tappan, 5 Gush. 104;
Malaohy v. Soper, 3 Bing. N. C. 371;
Ingram v. Lawson, 6 id. 313; Evans
V. Harlow, 5 Q. B. 634.

3 Id.

4 Snow V. Judson, 38 Barb. 313;
"Wren v. Wield, L. R. 4 Q. B. 313;
White V. Merritt, 7 N. Y. 353; Gal-
lager V. Brunei, 6 Cow. 346; Wier
V. Allen, 51 N. H. 177; Pitt v. Dono-
van, 1 M. & S. 639; Cousins v. Mer-

riU, 16 U. C. C. P. 114; West Coun-
ties Manure Co. v. Lower Chemical
Manure Co. L. R. 9 Ex. 318.

5 Townshend on S. & L. §§ 306-
206o; Kendall v. Stone, 5 N. Y. 14;
Like V. McKinstiy, 41 Barb. 186; 4
Keyes, 397; Smith v.^pooner, 3
Taunt. 346; Hill v. Ward, 13 Ala.
310; BaUey v. Dean, 5 Barb. 297;
Linden v. Graham, 1 Duer, 670;
Paull V. Halferty, 63 Pa. St. 46; Re
Madison Ave. Bap. Church, 26 How.
Pr. 72.

6 Ashford v. Choate, 20 U. C. C.
P. 471; Malachy v. Soper, 3 Bing.
N. C. 371; Delegall v. Highley, 8 C.
& P. 444; Kendall v. Stone, 5 N. Y.
14; Like v. McBanstry, 41 Barb.
186.

THE DEFENSa 675

Section. 2.

THE DEFENSE.

Effect of pleading and not establishing justification — Evidence in mitiga-
tion; bad character of the plaintiff — Same; admissibility of rumors
and common reports that the plaintiff was guilty of the imputed
charge — Proof tending to show that the words were true not admissi-
ble in mitigation — Evidence in mitigation generally.

Effect of pleading and not establishing justification. —
A plea of justification puts upon record a repetition of the de-
famatory charge, and includes a deliberate averment of its
truth. "Where such a plea is made, with no intention to sup-
port it by proof, or without some reasonable ground for believ-
ing that the charge is true, and can be proved, it is generally
regarded as evidence of malice in the original speaking. It is
treated as an aggravation of the wrong complained of, which
may be considered by the jury for the enhancement of dam-
ages.^ In Fero v. Koscoe," Bronson, C. J., said : " When one
who is sued for defamation deliberately reaffirms the slander,
and puts it on the record of the court by way of justification,
if he fails to establish the truth of his plea, he has done the
plaintiff a new injury, which may properly be regarded as an
aggravation of the original wrong. It is said that the attempt
to justify,,jaay be made in good faith, or in the honest belief
that the plaintiff is guilty of the matter laid to his charge.
That may be so ; but the injury to the plaintiff is not dimin-
ished by the mistaken belief of the defendant. And when a
man is called into court for charging another with a crime, he
ouD-ht to pause and examine before he repeats the charge and
places it on record ; and if he makes a mistake in such a mat-
ter, it should be at his peril, and not at the peril of the injured

1 Jackson v. Stetson, 15 Mass. 48; Beasley v. Meigs, 16 111. 139; Spen-

Alderman v. French, 1 Pick. 1; Lea cer v. McMasters, id. 405; Doss v.

V. Eobertson, 1 Stew. 138; Upde- Jones, 5 How. (Miss.) 158; Wilson v.

grove V. Zimmerman, 13 Pa. St. 619; Nations, 5 Yerg. 311; Faucitt v.

Gorman v. Sutton, 32 id. 347; Gil- Booth, 31 U. C. Q. B. 363; Wilson v.

man v. Lowell, 8 Wend. 573; Shar- Robinson, 14 L. J. Q. B. 196. See

tie V. Hutchinson, 3 Oregon, 337; Caulfield v. Whitworth, 18 L. T. N.

Robinson v. Drummond, 34 Ala. S. 537.

174; Pool V. Devers, 30 Ala. 673; UN. Y. 165.

676

SLANDEE AMD LIBEL.

party." In New York and some other states, pleading and fail-
ing to establish a justification has been held conclusive evidence
of malice, and to preclude any mitigating effect from the evi-
dence given in support of the plea, as well as to deprive the
defendant of other mitigations.'

1 Id. ; Van Benschoten v. Yaple, 13
How. Pr. 97; Shelton v. Simmons,
13 Ala. 466. In Lamed v. Buffin-
ton, 3 Mass. 546, Chief Justice Par-
sons said: " We are satisfied that
evidence of certain facts and cir-
cumstances may be received under
the general issue, which ought to be
rejected under this justification. In
the former case the defendant may
prove that the words were spoken
through heat of passion, and not
f from malice; or that they were
spoken with an honest intention,
through mistake, and not with a de-
sign to injure the plaintiff. But if
the defendant, when called upon to
answer in a court of law, will delib-
erately declare in his plea that the
words are ti-ue, he precludes himself
from any attempt to mitigate the
damages by any of these facts or
circumstances, because his plea of
justification is inconsistent with
them. But we are not prepared to
declare that there are no facts or
circumstances from which the jury
may mitigate the damages under a
special justification of the truth of
the words, in which he shall fail.
When through the fault of the
plaintiff the defendant, as well at the
time of the speaking the words as
when he pleaded his justification,
had good cause to believe they were
trae, it appears reasonable that the
jury should take into consideration
this misconduct of the plaintiff to
mitigate the damages."

In Root V. King, 7 Cow. 613, it
was held that public report of a fact
stated in a libel cannot be given in

evidence, in mitigation of damages,
when the libel expressly disavows
all reliance on reports, and professes
to go on the ocular observation of
the author. Nor is such report ad-
missible to mitigate damages in an
action for slander, after the defend-
ant has made an unsuccessful at-
tempt to justify by giving the truth
in evidence, on a plea of notice, ac-
companied with the general issue.
Nor is it admissible where such a
plea or notice has been interposed,
though there be no attempt to sup-
port it by proof. Such plea or no-
tice was held to preclude all such
other evidence merely in mitigation
as goes to repel the inference of
malice: for example, such as relate
to the manner and occasion; as that
the words were spoken in a passion,
not maliciously, or through mistake,
etc. But where the general issue is
pleaded, and there is no plea of
the truth in justification, these mat-
ters, which would be precluded by
such plea or notice, may be given in
evidence, either in mitigation or
total excuse, according to their nat-
ure and effect. Savage, C. J., said:
" When a defendant undertakes to
justify because the publication is
true, the plea, or, which is the same
thing, a notice of justification is a
republication of the libel. It is an
admission of the malicious intent
with which the publication was first
made. Hence it is the uniform
practice of this court not to allow
such a plea to be withdrawn, with-
out an afiSdavit of its falsity to be
put upon the record. And upon the

THE DEFENSE.

677

In other states suoh a plea is not necessarily evidence of ex-
press malice. If the defendant, having reasonable cause and
good grounds to believe the plaintiff guilty on evidence creating
a strong presumption of guilt, pleads a justification for the pur-
pose of getting these circumstances in evidence, and not for the
purpose of repeating the slander, such plea is not evidence of
express malice.* If the defendant fails to make good such a
plea, it is in itself a circumstance which the jury may consider
in fixing the damages as an aggravation of the tort ; ^ but the
jury is not bound in all cases so to consider it. On the con-
trary, if the defendant shows strong grounds in support of the
charge he has made, though he does not fully support his plea,
the jury may, if they see fit, consider these grounds as mitigat-
ing circumstances, and reduce the damages accordingly.^ So it

trial the jury are instructed that if
the plea is false it is an aggravation
of the offense, and calls for en-
hanced damages. Such a state of
the case and such an instruction to
the jury is totally inconsistent with
the plea of justification resting upon
the absence of malice. That is a
confessioii upon the record."

In Bisbey v. Shaw, 12 N. Y. 73,
Euggles, J., speaking of a case in
which, before the adoption of the
code, a justification was pleaded,
said: "In such a case, the justifi-
cation on the record was held to be
a deliberate reiteration by the de-
fendant of the slanderous words,
after having had the opportunity of
inquiring whether they were true or
false. It was adjudged to be con-
clusive evidence of malice. Proof
tending to establish the truth of the
words was admitted under such a
plea; but if the proof fell short of
establishing that the slanderous al-
legation was true, the jury was
directed ... to disregard it as
evidence in mitigation of damages,
although it clearly established that
the words complained of were
spoken in a mistaken belief that

they were true, without actual mal-
ice, and with honest and even laud-
able motives. The result was that
until the adoption of the code a de-
fendant could, under no state of
pleading on the record, introduce
evidence in mitigation of damages,
whenever, as generally happened,
the evidence tended to prove, or
formed a link in the chain of proof,
to show the truth of the words com-
plained of as slanderous." Mapes
v. Weeks, 4 Wend. 659.

1 Parke v. Blackiston, 3 Harr. 373;
Thomas v. Fischer, 71 HL 576; Ran-
sone V. Christian, 49 Ga. 491; Sloan
V. Petrie, 15 HL 435; Thomas v. Dun-
away, 30 id. 373; Pallet v. Sargent,
36 N. H. 496; Rayner v. Kinney, 14
Ohio St. 383; Husonv. Dale, 19 Mich.
17.

2 Robinson v. Drummond, 34 Ala.
174; Dewit v. Greenfield, 5 Ohio, 335;
Cavanaugh v. Austin, 43 Vt. 576;
Wilson V. Nations, 5 Yerg. 311.

'Ransone v. Christian, supra;
Byrket v. Monohan, 7 Blackf. 83;
Landis v. Shanklin, 1 Ind. 93; Shank
V. Case, id. 170; West v. Walker, 8
Swan, 33; Kennedy v. Holburn, 16
Wis. 457.

678 SLANDIOS AUD LIBEL.

has been held that where the plea of justification was so defect-
ively drawn that judgment could not be rendered upon it,^ or was
withdrawn before trial,^ it is not to be considered in aggravation
of damages. In Illinois it has been held that the withdrawal
of the plea, on the trial, may be considered by the jury on the
question of damages.' It has been ruled otherwise in Michigan.^
Now in New York and in some other states, by statute, the
plea of justification, put in in good faith, though unsustained by
proof, is no longer evidence of malice to be considered by the
jury for the enhancement of damages.^ In Distin v. Kose,'
Church, 0. J., said: " The code has made this change in the law
as it previously stood, that although the justification is not sus-
tained, yet the facts adduced for that purpose may be used in
mitigation of damages, if they tend to show good faith, or a
belief in the truth of the words uttered. But when there is a
total failure of proof tending in this direction, and the circum-
stances evince malice in reiterating the slander in the pleadings,
it is allowable for the jury to take that circumstance into con-
sideration.' I see no difference in principle whether the action
be for breach of promise or slander. If a defendant in the
former case takes advantage of his position as a party to mali-
ciously invent a slander and spread it upon the record, or in the
latter to repeat one alreadj"^ invented, it makes no difference.
The law vrill not justify either. This rule should be applied
with care aiid moderation, and I think should be confined to
cases of bad faith in incorporating the justification in the plead-
ing, and this can scarcely be said to be true, under the code,
when the facts proved ought legitimately to go in mitigation of
damages, because it seems incongruous to say that a failure to
establish a justification may enhance the damages, and yet the
facts proved under it may mitigate them." In Massachusetts,
it is provided by statute that if the defendant fail to establish
a plea of justification, it shall not of itself be proof of malice ;

1 Braden v. Walker, 8 Humph. 34. son, 13 Q. B. 513; 18 L. J. Q. B. 73;

2Gilmore v. Borders, 3 How. Warwick v. Faulkes, 13 M. & W.

(Miss.) 834. 507; Shirley v. Keathy, 4 Cold. 39.

SBeasley v. Meigs, 16 111. 139; sKlinck v. Colby, 46 N. Y. 427;

Spencer v. McMasters, id. 405. Vol. I, pp. 335, 386.

i Evening News Asso. v. Tryon, 43 « 69 N. Y. 133.
Mich. 549. See Simpson v. Robin- ■" Thorn v. Biiapp, 43 N. Y. 474

THE DEFENSE. 679

but the jury shall decide the whole case, whether such plea was
or was not made with malicious intent.^

Evidence in mitigation ; bad chaeaotee of the plaintiff. —
The defendant is entitled to offer, under the general issue,
evidence of the plaintiff's general bad character at the~time
when the libel or slander was published, although the defend-
ant has also filed a plea of justification.^ The plaintiff's
character is in issue in such actions. It is presumed by law to
be good, though it is generally so averred in the complaint or
declaration.' Such an averment is unnecessary, and requires no
denial in an answer under the code to let in disparaging proof ;
nor was it traversable at common law.* If denied, the denial
will not have the effect of an unsupported plea of justification,
if no attempt is made to support the denial by proof, so as to
aggravate the 'injury and authorize the jury to add to the
amount of damages.*

Evidence of the plaintiff's bad character is admitted for the
reason that a person of disparaged fame or bad character does
not suffer the same injury, and is not entitled to the same
measure of reparation, as one whose character is unblemished.^
The inquiry for this purpose must be confined to general char-
acter or reputation.'^ Particular acts or instances of miscon-

1 St. 1836, ch. 107, § 3. Sayre v. Sayre, supra; Ayres v.

2 Stone V. Varney, 7 Met. 86; Coville, 18 Barb. 360; Root v. King,
Henry v. Norwood, 4 Watts, 347; 7 Cow. 634; Hamer v. MoFarlin,
Powers V. Presgroves, 38 Miss. 237; 4 Denio, 509; Campbell v. Campbell,
Root V. King, 7 Cow. 613; Pope v. 54 Wis. 97; Stone v. Varney, 7 Met.
Welsh, 18 Ala. 631; Anonymous, 86; Case v. Marks, 30 Conn. 351.

8 How. Pr. 434; Young v. Bennett, 'Vick v. Whitfield, Mart. &

5 m. 43; Barton v. March, 6 Jones Hayw. 396; Powers v. Presgroves,

L. 409; Meyer v. Moyer, 49 Pa. St. 38 Miss. 337; BeU v. Famsworth,

310. But see Myers v. Curry, 32 U. 11 Humph. 608; Pease v. Shippen,

C. Q. B. 470; Smith v. Shumway, 80 Pa. St. 513; Dewit v. Greenfield,

2 Tyler, 74; Jones v. Stevens, 11 5 Ohio, 325; Fisher v. Patterson,

Price, 385. 14 Ohio, 418; Parkhurst v. Ketchum,

sghiUing v. Carson, 27 Md. 175. 6 Allen, 406; McLaughlin v. Cowley,

*Ayres v. Covill, 18 Barb. 260; 131 Mass. 70; Shilling v. Carson,

Bennett v. Matthews, 64 Barb. 410; 37 Md. 175; Fuller v. Dean, 31 Ala.

Pink V. Catanioh, 51 Cal. 430; Sayre 654; Sayre v. Sayre, 25 N. J. L. 235;

V. Sayre, 25 N. J. L. 235; Parkhurst Clark v. Brown, 116 Mass. 504;

V. Ketchum, 6 Allen, 406. Lamos v. Snell, 6 N. H. 413; Leon-

5 Pink V. Catauich, supra. ard v. AUen, 11 Cush. 341; Buckley

6 Watson V. Christie, 3 B. & P. 324; v. Knapp, 48 Mo. 153.

680

SLANDER AND LIBEL.

duct cannot be proved ; ^ nor rumors and reports, unless they
are so general and prevalent that they have affected the gen-
eral character.^ The admissibility of this evidence is not, as
has just been stated, affected by the fact that there is a plea of
justification. It should, however, not be allowed to have any
effect upon the issue formed upon that plea, but be confined to
the question of damages.'

In some states the inquiry may be as to the plaintiff's gen-
eral character in respect to the trait involved in the imputa-
tion.* In others it is as to general reputation without such
restriction.'

It is not to be denied that there are some cases which favor
the admission of evidence, to affect the plaintiff's character, of
common rumor and suspicions that he has been guilty of the
acts imputed to him in the alleged slanderous words.*

^ Buckley v. Knapp, 48 Mo. 152.

2Bowen v. HaU, 20 Vt. 233; In-
man v. Foster, 8 Wend. 602.

3 Bowen v. Hall, supra.

< Bo wen v. Hall, supra; Treat v.
Browning 4 Conn. 408; Bell v.
Farnswortli, 11 Humph. 608; Dewit
V. Greenfield, 5 Ohio, 225; Wright v.
Schroeder, 2 Curtis, 548; Bridgman
V. Hopkins, 34 Vt. 533; Couroe v.
Comoe, 47 Pa. St. 198; MoNutt v.
Young, 8 Leigh, 542; Shilling v.
Carson, 27 Md. 175; Lambert v.
Pharis, 8 Head, 633; Drown v. Allen,
91 Pa. St. 398. In Clark v. Brown,
116 Mass. 504, it was held that the
defendant might introduce evidence
in mitigation that the plaintiff's
general reputation was bad, or show
that his general reputation is bad in
respect to the charge made by the
alleged slanderous words.

5 Goodbread v. Ledbetter, 1 Dev. &
Bat. L. 12; Paddock v. Salisbury,
3 Cow. 811; Andrews v. Vanduren,

11 John. 38; v. MoOr, 1 M. &

S. 284; Leicester v. Walter, 3 Camp.
251; Rodriquez v. Tadmire, 2 Esp.
720; Sheahan v. Collins, 30 lU. 325;
Bailey v. Hyde, 3 Conn. 463; Van
Benschoten v. Yaple, 13 How. Pr.

97; Stiles v. Comstock, 9 id. 48; Rich-
ardson V. Northrup, 56 Barb. 105;
29 Am. Dec. 366; Sayre v. Sayre,
35 N. J. L. 339. In Jones v. Stevens,
11 Price, 23S, the court of ex-
chequer held that, in actions for
libel, general evidence of the plaint-
iff's bad character was irrelevant
and inadmissible, either to contra-
dict the averments of good charac-
ter contained in the declaration, or
in mitigation of damages. Graham,
B., said: "On the present occasion,
there is a f uU concurrence of opinion
amongst the whole court, that such
genei'al evidence of bad character,
whether offered on the general Issue,
or in proof of matter pleaded by way
of justification, is not admissible, and
principally on the ground that a
party cannot be expected to be pre-
pared to rebut it; and that if it were
received, any man might fall a vic-
tim to a combination made to ruin
his reputation and good name, even
by means of the very action which
he should bring to free himself from
the effects of malicious slander.'"

6 Case V. Marks, 30 Conn. 348;
Leicester v. Walter, 3 Camp. 351;
V. Moor, 1 M, & S. 384.

THE DEFENSE. 681

Same ; admissibilitt of evxdence of eumoes and common ee-

poet that plaintiff was guilty of the imputed chaege. if

only not guilty is pleaded, the defendant has been allowed in
some jurisdictions to show, solely in mitigation of damages, by
rebutting in some degree the presumption of malice, that before
the alleged speaking of the words, it was a common rumor in
the neighborhood that the plaintiff had been guilty of the spe-
cific offense charged.^ In Shilling v. Carson,^ the court said
that whether the defendant will be permitted under the general
issue to give Such evidence is not universally agreed. But
where the evidence goes to prove that the defendant did not
act wantonly, and under the influence of actual malice, or it is
offered solely to show the real character and degree of maHce
which the law implied from the falsity of the charge, all inten-
tion of proving the truth being disclaimed, it may be admitted
and considered by the jury.' The admission of such evidence
is thus maintained by Pennington, J. : * " The defendant . .
offered to prove by a witness that it was so said and reported by
other persons before the words were spoken by him ; and that
witnesses had been examined before the presbytery who had
sworn to the facts ; and that the plaintiff himself had acknowl-
edged there was a report in circulation, and that it originated in
his own family. So far at least as the testimony went to show
there was such a report in circulation, and that it originated in
the family of the plaintiff, I think the court erred in not receiv-
ing the testimony. The guo cmimo with which the words were
spoken was the point in issue, as malice constitutes the gist of
the action. It appears to me that the testimony was proper to
show with what temper of mind the defendant spoke the

1 Edgar v. Newall, 24 U. C. Q. B. 1 Blackf. 369; Morris v. Barker, 4

215; Skinner v. Powers, 1 "Wend. Harr. 520; Fletcher v. Burrows, 10

451; Wetherbee v. Marsh, 20 N. H. Iowa, 557; Foot v. Ti-acy, 1 John.

561; Cook v. Barkley, 1 Penn. (N. 45; Nelson v. Evans, 1 Dev. 9;

J.) 169; Fuller v. Dean, 31 Ala. 654; Hinkle v. Davenport, 38 Iowa, 855.

CaUoway v. Middleton, 2 A. K. 2 27 Md. 175.

Marsh. 372; VanDerveerv. Sulphin, 'See Lambert v. Pharis, 3 Head,

5 Ohio St. 293; Galloway v. Courts 622.

ney, 10 Rich. 414; Brigman v. Hop- ^Cook v. Barkley, 1 Penn. (N. J.)

kins, 34 Vt. 532; Kennedy v. Greg- 169.
ory, 1 Binn. 85; Henson v. Veatch,

682 sla:sdee akd libel.

words ; whether from a malicious design to injure the plaintiff,
or from a laudable motive to preserve the purity of character
so essentially requisite in a person exercising the functions of
the plaintiff [who was a clergyman, and the defendant one of
his congregation] ; or from mere inadvertency ; or even if it
should appear to the jury that the defendant had pursued the
inquiry with so much zeal as to indicate an evil intent ; yet if
it should appear that he did not give rise to the slander, but
only repeated what he had heard from others, giving credit to
it as coming from the plaintiff's own family, and the more es-
pecially if it should be found that this was done in the course
of prosecuting the plaintiff before the sessions or presbytery, it
certainly might and ought to go in mitigation of damages.
. . . Supposing one of my neighbors, for instance, the par-
son of the parish, shall call at my house, and very gravely in-
form me that one of our neighbors had been found out and
fully detected in the commission of some scandalous offense,
and detail the circumstances, both of the commission of the of-
fense, and of the detection ; that other persons of good credit
were to drop in and relate the same story, so that I should fully
believe that the facts were not only true, but that they were
public; and that in conversation afterwards with some other
person, I was to mention that there was such a report in circu-
lation, without thinting it necessary to name the persons from
whom I had it, and it should turn out afterwards to be a mis-
take, that it was another person resembling the one spoken of
in name, or in other circumstances, which had led to the error ;
if the party should think proper to bring an action against
me, I could not plead that I had it from other persons, and
that it was a general report in the neighborhood, but I must
plead the general issue, that I was not guilty of a malicious
slander; reason and justice, however, would say that I might
give in evidence the whole transaction, the manner and occasion
of speaking the words ; that, if it would not wholly excuse me,
it might at least go in extenuation of the injury. . . . All
the circumstances connected with the words should go fuUy
and fairly to the jury, who must judge from them of the guilt
or innocence of the defendant ; and in case they find him blam-
able, to assess such damages as the more or less aggravated cir-

THE DEFENSE. 683

cumstauces of the case will justify. Justice and reason call for
this rule ; and the law, I apprehend, does not deny it ; nor can I
perceive what inconvenience can result from it. An intelligent
court will always instruct the jury in what light to apply the
testimony ; distinguishing between that which goes to the point
in issue, and that which goes in mitigation or aggravation. Is
it not as reasonable to mitigate as to aggravate ? Our law does
not delight in exposing the dark side of the human character ;
it seeks truth ; it is not vindictive ; it is merely just. It is too
dignified and enlightened to put on the same footing, the vile
inventor, fabricator and publisher of a malignant slander, and
him who inadvertently repeats what is already in circulation."
The weight of authority it is believed is opposed to the admis-
sion of such evidence either on a plea of justification or in
mitigation.'

In Wilson v. Eitch,^ Crockett, J., said : " It has often been
decided that it is not admissible to prove in mitigation that
prior and up to the time of the publication the plaintiff had
been generally reported and suspected to have been guilty of
the acts imputed to him in the libel. Some of the earlier cases
hold such proof to be admissible. But the current of modern
authorities is to the contrary. These decisions proceed on the
theory that public policy, the good order and repose of society,
and a due regard for the protection of private character,
demand that no one should be permitted to excuse or palliate
the offense of defaming the reputation of another on so slight
a ground as public rumor or general suspicions, which are often
unfounded, and the result of malice or misapprehension. If

1 Peterson v. Morgan, .116 Mass. 497; Dame v. Kenney, 35 N. H. 833;
350; Clark v. MunseU, 6 Met. 373; Moberly v. Preston, 8 Mo. 466; Scott
Alderman V. French, 1 Pick. 1; Wal- v. McKinnish, 15 Ala. 664; Pallet v.
cott V. Hall, 6 Mass. 514; Inman v. Sargent, 36 iST. H. 496; Bowen v.
Foster, 8 Wend. 603; Wilson v. Hall, 30 Vt. 333; Sheahan v. Collins,
Fitch, 41 Cal. 363; Chamberlin v. 30 lU. 335; Saunders y. Mills, 6 Bing.
Vance, 51 id. 75; Beardsley v. Bridg- 315; Mills v. Spencer, 1 Holt, 535;
man, 17 Iowa, 390; Fisher v. Patter- 3 E. C. L. 177; Collins v. Stephen-
son,, 14 Ohio, 418; Kenney v. Mc- son, 8 Gray, 438; Mapesv. Weeks, 4
Laughlin, 5 Gray, 3; Bod well v. Wend. 659; Matson v. Buck, 5 Cow.
Swan, 3 Pick. 376; Watson v. 499.
Moore, 3 Cush. 133, 141; Anthony v. 2 Supra
Stephens, 1 Mo. 354; 13 Am. Dec.

684 SLAinDEK AND LIBEL.

the defendant had offered to prove in mitigation that the
plaintiff was commonly reported and generally believed to have
been guilty of the acts imputed to him in the alleged libel, I
think the proof would not have been admissible in mitigation
of damages, under the rule established by the almost unbroken
current of modern decisions." ^ Savage, 0. J., in Gilman v.
Lowell,^ thus forcibly states the objections to such evidence :
" That reports of a similar character were prevalent in the
neighborhood, might show a less degree of malice in the de-
fendant ; but they have a tendency to prove the truth, and are,
therefore, inadmissible; not that reports are testimony to con-
vict of a crime, but they destroy reputation, and have, in fact,
the same effect as proof. It often happens Jthat reports preju-
dicial to the plaintiff have prevailed extensively before he
commences a suit, and the fact that his character is suffering,
from these reports, unmerited opprobrium, drives him to a pros-
ecution. If, then, he is to be met by these reports, and only
allowed a nominal verdict, which is about equal to a verdict
against him, ' he had better,' in the language of Chief Justice
Parsons,' which I have before quoted in Matson v. Buck,^ ' sink
privately under the weight of unmerited calumny, lest by
attempting his vindication he give notoriety to slanders which
before had been circulated only in whispers.' "

In an action for words imputing unchastity to a woman, it
was held no defense to show that the defendant spoke the

1 In 13 Am. Dec. 500, the annota- famatory report concerning another,

tor says: " The correct doctrine, to take upon himself the risk of its

it is conceived, is that laid down in being false, unless he repeats the

Bowen v. HaU, 30 Vt. 232, that re- report not merely from an honest

ports or suspicions of the plaintifi's belief in its truth, but also for justi-

guilt are inadmissible unless they fiable ends. The mere tattler and

have become so general as to aflEect scandal-monger should be held to a

the reputation or character. Of strict accountability, whether he is

course the defendant ought not to the originator of the slander, or only

be held responsible for damage done aids in its circulation. Every indi-

to the plaintiff's character by <the vidua! who wantonly or negligently

slander before he (the defendant) contributes to the perpelra!:ion of

took any part in circulating it. But, the injury should be responsible for

on the other hand, it is certainly its consequences."

the sounder, as weU as the safer 23 Wend. 579.

rule, to require every person who ' 6 Mass. 518.

assists in giving currency to a de- * 5 Cow. 500.

THE DEFEKSE. 685

words to her, and was led to do so by her general conduct, and
especially by her deportment with a particular man, believing
the imputation to be true. Evidence of particular instances
was held not admissible.' Kumors and reports short of gen^
eral reputation are inadmissible because they are generally held
not to afford any extenuation of the wrong of aiding to con-
tinue the scandal,'* and facts which might lead to a suspicion
and reasonable belief of the truth of the imputation are ex-
cluded under the rule that requires a plea of justification to let
in proof tending to show the truth of the words.' But under
the statutes now general in this country, allowing facts and
circumstances alleged either in justification or in mitigation
to be considered in mitigation, where the justification, pleaded
in good faith, is not established, facts and circumstances known
to the defendant at the time of speaking the words, and calcu-
lated to induce a belief in the truth of the words, may be
proved and considered.*

Peoof tending to show that the woeds wees tetje, not
ADMISSIBLE IN MITIGATION. — To prcvcnt Surprise on the trial to
the plaintiff, it has been universally held since Underwood v.
Parks,' that the defendant shall not introduce evidence of the
truth of the imputation, unless he has specially pleaded that
the words were true, by way of justification.* In the absence
of such a plea, evidence tending to establish the truth of the
charge is generally held inadmissible for the purpose of mitiga-
tion.' But the defendant may prove under the general issue
the circumstances which induced him erroneously to make the

iParkhurst v. Ketchum, 6 Allen, *Bush v. Prosser, supra; Hatfield

406; McLaughlin v. Cowley, 131 v. Lasher, 81 N. T. 346; Distin v.

Mass. 70; Fitzgerald v. Stewart, 53 Rose, 69 id. 137.

Pa. St. 843; Dewit v. Greenfield, 5 6 3Str. 1200.

Ohio, 235; Vick v. Whitfield, 3 " Vol. I, p. 233; Townshend on 8. &

Hayw. 233; E v. M , 31 Wis. L. 683; Bodwell v. Swan, 8 Pick.

50; Watson v. Moore, 3 Cush. 133. 376; Watson v. Moore, 3 Gush. 133;

See Lawler v. Earle, 5 Allen, 23; Root v. King, 7 Cow. 613; Pallet v.

Shoulty V. Miller, 1 Ind. 544. Sargent, 36 N. H. 496; Young v.

2See ante, pp. 683, 684; Proctor v. Bennett, 5 HI. 43; Beardsley v.

Houghtaling, 37 Mich. 41; Bush v. Bridgman, 17 Iowa, 290; Ridley

Prosser, 11 N. Y. 347; WUIover v. v. Perry, 16 Me. 21; Minesinger v.

HiU, 72 N. Y. 36. Kerr, 9 Pa. St. 812; Porter v. Botkins,

SBrickett v. Davis, 31 Pick. 407, 59 Pa. St. 484; 11 Am. Dec. 130, note.

408. 'Id,

686 SLANDEE AND LIBEL.

charge.' Particular facts which might form links in the chain
of circumstantial evidence against the plaintiff cannot be
proved. Accordingly it was held that proof that the plaintiff
was in possession of the property alleged to have been stolen,
and returned it to the owner about the time of the prosecution
of another person for the stealing of other property alleged to
have been taken at the same time, was held inadmissible on
that ground.^ The defendant may prove any facts in the con-
duct of the plaintiff in relation to the transaction which was
the occasion of the slanderous language complained of, tending
to excuse the uttering of the words, provided the facts do not
tend to prove the truth of the charge, but in fact relieve the
plaintiff from the imputation.' Thus, when a party charged
another, against whom a justice's judgment had been obtained,
with false swearing in making oath that he was a freeholder,
he was allowed to show that on search for the deed in the
proper office where by law it was required to be recorded, it
was not found, owing to a mistake of the recording officer in
indexinof his records.*
In estimating the damages the degree of the defendant's

1 Id. ; Treat t. Browning, 4 Conn. * Oilman v. Lowell, 8 Wend. 573;
408; Eagan v. Gault, 1 McMull. 468; Chestwood v. Mayo, 5 Munf. 16. In
Dewit V. Greenfield, 5 Ohio, 225; Hutchinson v. "Wheeler, supra,
Bailey' V. Hyde, 3 Conn. 463; Fero v. under the general issue, it was held
Rusooe, 4 N. Y. 162; Warmouth v. competent for the defendant to
Cramer, 3 Wend. 395; Van Antin show in mitigation, as tending to
V. Westfall, 14 John. 232; Shepard evince his belief in the words
V. Merrill, 13 id. 475; Matson y. charged, — which were that the
Buck, 5 Cow. 499; Laine v. Wells, 7 plaintiff had poisoned his cow, —
Wend. 175; Samuel v. Bond, Litt. thathis cow had been poisoned; that
Sel. Cas. 158; Shirley v. Keothy, 4 for some time previous to the loss.
Cold. 29; McCampbell v. Thorn- there had been a bitter, hostile feel-
burgh, 3 Head, 109; Bomiand v. ing on the part of the plaintiff
Eidson, 8 Gratt. 27; Thompson v. towards the defendant; that the de-
Bowen, 1 Doug. 331, overruled in fendant having poisoned the plaint-
Farr v. Rasco, 9 Mich. 353; Parke iff's dog, the plaintiff had several
V. Blackiston, 3 Harr. 373; Bisbey v. times threatened to pay the def end-
Shaw, 13 N. Y. 67; Hutchinson v. ant in his own coin; that the de-
Wheeler, 35 Vt. 330; Haywood v. fendant had attempted to instigate
Foster, 16 Ohio, 88; Wilson v. Apple, a prosecution against the plaintiff,
3 id. 270. and that shortly before the defend-
- Warmouth v. Cramer, supra. ant's cow was poisoned a new quar-
3 Bourland v. Eidson, supra; Pur- rel had broken out between the
pie V. Horton, 13 Wend. 9. parties.

TUB DEFENSE. 687

malice is always to be considered ; therefore any circumstances,
consistent with an admission of the falsity of the words spoken,
tending to show that the defendant uttered them under a mis-
taken belief that they were true, may be proved under the gen-
eral issue in mitigation.' In the nature of things, the scope of
this evidence is very limited, and the manifest hardship of
compelling a defendant to plead justification, with the hazard
of aggravating the damages if it be not established, or of de-
priving him of the privilege of proving a state of facts which,
though tending to prove the words true, and therefore of an
extenuating nature, were insufficient for that purpose, have led
to some diversities of decision. Some courts have applied the
rule with more liberality than others. In Bush v. Prosser,*
Selden, J., said: " The courts in England, under a sense of the
admitted right [of the defendant to mitigate damages by show-
ing the absence of malice], have in a number of cases decided
that facts and circumstances falling short of proving, although
tending to prove, the truth of the charge, might be received in
mitigation.' But the courts in this state and in Massachusetts,
with less justice but better logic, have uniformly held that a
rule which excluded proof of the truth of the charge must
necessarily exclude evidence tending to prove it. But it is a
Mttle surprising to observe how often judges have asserted, in
the same paragraph, both the right to mitigate by disproving
malice, and the rule which effectually precluded the exercise of
the right, without any apparent consciousness of the conflict
between the two. 1 will refer to a few only out of the many
instances. In the case of King v. Eoot,* Judge Savage says that
the defendant ' may show in evidence under the general issue,
by way of excuse, anj'-thing short of a justification which does
not necessarily imply the truth of the charge or tend to prove
it true, but which repels the presumption of malice arising from
the fact of publication.' The same judge, in Purple v. Horton,'
says : ' Facts and circumstances may be shown in mitigation,
when they disprove malice, and do not tend to prove the charge,

1 Wilson V. Apple, 3 Ohio, 270. 6 C. & P. 475; Leicester v. Walter,

2 11 N. Y. 347. 3 Camp. 351.
SKnobell v. Fuller, Norris' Peake, <7 Cow. 618.
Append. 130; Chalmers v. Shackell, '13 Wend. 9.

688 SLAliTDEK AND LIBEL.

or form a link in the chain of evidence to prove a justification.'
Again, Judge Bronson in Cooper v. Barber i says : ' Facts and
circumstances which tend to disprove malice by showing that
the defendant, though mistaken, believed the charge true when
it was made, may be given in evidence in mitigation of dam-
ages.' It does not appear to have occurred to either of these
eminent judges that there was any incongruity between the
two branches of the proposition thus asserted by them. But
it is certainly diflELcult to comprehend how a defendant is to dis-
prove malice, by showing 'that he believed the charge true
when it was made,' without giving evidence tending to establish
its truth; since a belief based on information derived from
others cannot be shown." In Michigan, the doctrine of this
narrow privilege of mitigation has been rejected ; there, facts
tending to establish the truth of the words may be shown ; the
plea of the general issue, without notice of justification, is
treated as a conclusive admission of the falsity of the words,
and that such facts merely disprove malice, by showing that
the defendant, at the time he uttered the words, mistakenly
believed them to be true.^ A rule nearly as liberal is recognized
in Ohio.'

It is very generally provided by statute, and especially in
those states which have adopted the code, that the defendant
niay in his plea or answer allege both the truth of the matter
charged as defamatory, and any mitigating circumstances to
reduce the amount of damages, and whether he prove the jus-
tification or not, he may give in evidence the mitigating cir-
cumstances.

Under this statute matters in mitigation may and probably
should be specially stated in the answer. This is implied by the
permissive language of the statute.* For this purpose facts and
circumstances may be set up which tend to prove the truth of
the charge to show an absence of malice, by proper averments

124 Wend. 105. •! McKyrinff v. Bull, 16 N. Y. 297;

'i Huson V. Dale, 19 Mich. 17. Vol. I, pp. 257, 389; Willover v. HiU,

3 Haywood v. Foster, 16 Ohio, 88; 72 N. Y. 36, 38; Spoonei- v. Keeler, 51

Dewit V. Greenfield, 5 Ohio, 225; N. Y. 527; Bower v. Derideker, 87

Wilson V. Apple, 3 id. 270; Reynolds Iowa, 418. It is optional in Indiana.

V. Tucker, 6 Ohio St. 516. O'Connor v. O'Connor, 27 Ind. 69.

THE DEFEiTBE. 689

that the defendant was, by such facts, induced to believe the
defamatory matter to be true at the time of the publication.'
The defendant may in his answer allege the truth of the mat-
ters charged and mitigating circumstances, or either. It is not
necessary to plead the former in order to aver and have the
benefit of the latter. All matters receivable in evidence in mit-
igation may be pleaded for that purpose either with or without
justification.^ Although the evidence fails to prove the justifi-
cation when the truth of the words is pleaded both for justifica-
tion and in mitigation, he is still entitled to have such evidence
as has been adduced tending to establish the truth, considered
by the jury for the purpose of mitigation.'

Evidence in mitigation generally. — The defendant is alwavs
entitled to show, under proper pleading, the particular circum-
stances under which the alleged defamatory matter was pub-
lished, for the purpose of showing the nature and character of
the publication,* as well as the occasion and motive of it.' Evi-
dence for this purpose to disprove malice, by showing facts and
circumstances which induced the defendant to believe the charge
true when he made it, must be such as would reasonably induce
in the mind of a person of ordinary inteUigence a belief in the
truth of the charge, and it must also appear that the defendant
was thereby induced to believe in its truth.* Therefore^ it
should appear that at the time the defendant made the charge
he knew of the facts upon which he relies for mitigation, and
he should aver that such facts induced a belief in the truth of the

1 Bennett v. Matthews, 64 Barb. ^ Bisbey v. Shaw, eupra; Spooner
410; Bush v. Prosser, 11 N. Y. 347; v. Keeler, 51 N. Y. 539; Kinyon v.
McKyringv.Ball, 16 id. 397; Stiles V. Palmer, 18 Iowa, 377; Kennedy v.
Comstock, 9 How. Pr. 48; Heaton Holborn, 16 ■Wis.457; Distinv. Eose,
V. Wright, 10 id. 79; Bisbey v. Shaw, 69 N. Y. 137.

13 N. Y. 67; Dolevin v. Wilder, 7 « Jeffras v. McKiDop, 3 Hun, 351.

Eobt. 819; Van Bensohoten v. Yaple, 5 Larned v. Buffinton, 3 Mass. 546;

13 How. Pr. 97; Wachter v. Quen- Abrams v. Smith, 8 Blaokf. 95; Eoot

zer, 39 N. Y. 547; Willover v. Hill, v. King, 7 Cow. 613; Lewis v. Wal-

supra. ter, 4 B. & Aid. 605; Haynes v. Le-

2 Id. ; Graham v. Stone, 6 How. Pr. land, 29 Me. 283; Haines v. Welling,
15; Brown t. Orvis, id. 376; Follett 7 Ohio, 253.

V. Jewett, 1 Am. L. Eeg. 600; 11 N. « Dolevin v. Wilder, 7 Eobt. 319;
Y. Leg. Obs. 193. 34 How. Pr. 438.

Vol. 111—44

690 8LANDEK AND LIBEL.

charge at the time he made it ; or they should be of such a char-
acter as to raise a reasonable presumption of such belief.'
Merely believing the charge to be true, however sincere the
belief may be, will not excuse either slander or libel ; ^ but a
belief reasonably induced by facts which the law permits to be
proved as likely to produce it will mitigate the damages. There
is considerable contrariety of decision as to the facts which maj'
be shown in mitigation for having a tendency to create an hon-
est belief of the truth of the imputatio'n. The matter relied
upon for mitigation must be such as by the well established
principles of law may be proved for that purpose.' The defend-
ant may show that he was drunk when he uttered the words, as
such proof may tend to rebut malice.* But where it appeared
that he repeated the charge both when drunk and when sober,
on public and private occasions, his being drunk at the particu-
lar time alleged is no reason for abating the damages.' He may
show he was insane.^ He may also prove that the publication
was confidential.' Evidence that the defendant was in the
habit of talking much about persons and things, and that what
he said was not regarded by the communitj'^ as worthy of notice,
and seldom occasioned remark, is not admissible in mitigation.^
Where bj'' statute the imputation of a want of chastity against
a female is made actionable per se, the repetition of it is not
wholly excused by a protest at the time of disbelief, or by show-
ing that those who heard the slander did not believe it to be
true. Such conduct is actionable, and the question of the extent
of responsibility is one for the jury, and not to be solved by any
presumption of harmlessness.' An imputation of perjury in a
certain biU in chancery cannot be extenuated by proof that at
the time of the publication the defendant supposed and believed
that the plaintiff had sworn to it, when in fact it had been

1 Id.; Hatfield v. Lasher, 81 N. Y. * Howell v. HoweU, 10 Ired. 84.
246; Reynolds v. Tucker, 6 Ohio St. » Id.

516; Whitney v. Janesville Gazette, « Yeates v. Reed, 4 Blackf. 463.

5 Biss. 330; Swift v. Diokerman, 31 Ueffras v. McKillop, 2 Hun, 351.

Conn. 285; Bush v. Prosser, 11 N. Y. show v. PeiTy, 15 Pick. 506.

347; Willover V. Hill, 72 id. 36. 9 Burt v. McBain, 29 Mich. 260;

2 Sans V. Joerris, 14 Wis. 668. Markham v. Russell, 12 Allen, 573.
' Graham v. Stone, 0 How. Pr. 15.

THE DEFENSE. 691

sworn to by another person.' A retraction of the slander made
so promptly as to become a part of the res gestm, and freed from
all suspicion that it was made by the defendant more for his
own protection than for reparation to the victim of his calumny,
is admissible in mitigation.^ A subsequent retraction may be
proved in mitigation ; but for this purpose it should contain a
full and unqualified withdrawafof the charge, unaccompanied
with other offensive or libelous matter, and thus evince the
intention of making some atonement for the injury done. Al-
lowing such evidence properly gives the defendant a locus pen-
itentim, and he should have the benefit of it when he evinces an
honest endeavor to make atonement to as great an extent as is
within his power. But hesitation, lurking insinuation, an at-
tempted perversion of the plain import of the language used in
the libelous article, or the substitution of one calumny for an-
other, only aggravate the original offense, and show a conscious-
ness of the wrong done without the manliness or magnanimity
to repair it.' A retraction of a libelous article published after
a suit has been brought for the libel, it is held in Michigan,
cannot be considered in mitigation.*

A defendant may show, for the purpose of rebutting malice
and reduction of damages, that the words were spoken in anger,
if the anger was induced by plaintiff immediately before the
publication.' Evidence of a previous publication by the plaint-
iff will not be received in mitigation on the ground of provo-
cation, unless not only the connection between the publications
be manifest, but also that the provocation is so recent as to in-
duce a fair presumption that the injury complained of was
inflicted during the continuance of the feelings and passion
excited hy the provocation.^ A distinct and independent libel

1 Owen V. McKeaii, 14 111. 459. Goodbread v. Ledbetter, 1 Dev. &

2 Id. Bat. L. 12; Child v. Homer, 13 Pick.

3 Hotchkiss V. Oliphant, 3 Hill, 503. There can be no set-off of one
510. libel against another; but in esti-

4Evenmg News Asso. v. Tryon, 43- mating the damages, the jury may

Mich. 549. See Shirley v. Keathy, 4 fairly consider the conduct of the

Cold. 29. plaintiff, and the degree of respect

5 Janch V. Janch, 50 Ind. 135. which he himself has shown for the

^Maynard v. Beardsley, 7 Wend, feelings of others. Folkard's Star-

560; May v. Brown, 3 B. & C. 113; kie, § 732; per Blackburn, J., in

692

SLAITOEB AlTD LIBEL.

published by the defendant is no mitigation. But, as just
stated, if the publication by the plaintiff was so recent as to
afford a reasonable presumption that the libel by the defendant
was published under the influencfe of the passions excited by
it, or where it is explanatory of the meaning of or the occasion
of writing of the libel complained of, it may be given in evi-
dence for that purpose. To render such evidence admissible,
however, it is necessary that the article complained of should
on its face refer, and profess to be a reply, to the libel published
by the plaintiff ; that such appear to be its nature and purpose
on a comparison of the publications.'

The libels themselves ought to be strictly proved and identi-
fied as the cause,^ and that the plaintiff's publication came to
the defendant's knowledge before he published the libel com-
plained of.' The jury is to determine whether the language
used by the defendant was used because of the plaintiff's abuse.

KeUy V. Sherlock, L. R. 1 Q. B. 698;
Seely v. Cole, Wright (Ohio), 681.
There can be no counterclaim in an
action for defamation. Fellerman
V. Dolan, 7 Abb. Pr. 395, note; Rich-
ardson V. Northrup, 56 Barb. 105.
See MacDougall v. Maguire, 35 Cal.
374.

1 Child V. Homer, 13 Pick. 503;
Gould V. Weed, 13 Wend. 13; May
V. Brown, 3 B. & C. 113. See Un-
derhiU v. Taylor, 3 Barb. 348;
Hotchkiss V. Lathrop, 1 John. 386;
Bourland t. Eidson, 8 Gratt. 37. In
Richardson v. Northrup, 56 Barb.
105, it was held that the defendant
should be allowed to prove any cir-
cumstances which, at the time the
words charged were spoken, were
calculated to irritate and excite the
defendant, and provoke him to the
utterance of the words complained
of; but that it was no answer to the
plaintiff's claim of damages for
slander that he has said or done any-
thing, whether actionable or not,
for the purpose of reducing the
damages, unless such act or declara-

tion actually excited the defendant
to use the words charged. The de-
fendant, it was also held, might
prove a series of provocations on the
part of the plaintiff, commencing
long anterior to the speaking of the
words charged, provided they were
continued from time to time down
to and at the time the actionable
words were spoken. In such a case
each successive repetition of the
provocation must necessarily be-
come more annoying and exciting;
and though there be no motive or
spirit of revenge on the part of the
defendant, the excitement of such
repetition of the provocation be-
comes more intense and unbearable,
and presents a much stronger case
of mitigation than when the action-
able words are spoken upon the first
provocation. Sheffill v. Van Deu-
sen, 15 Gray, 485; Porter v. Hender-
son, 11 Mich. 30; Lister v. Wright,
3 HiU, 330.

2Tarpley v. Blabey, 3 Bing. N. C.
437.

3 Watts V. Frafier, 7 A. & E. 333.

THE DEFENSE. 693

and they may consider for this purpose the declarations of the
defendant.' Where the defamatory publication is shown to
have resulted immediately from a provocation given by the
plaintiff in a defamatory charge against the defendant, only
nominal damages in general should be given.^ If the words
complained of were spoken in the presence of the plaintiff, his
reply may be proved by the defendant.' But a subsequent
publication cannot be given in evidence to determine whether
a publication is libelous or not.* If the evidence show that the
defamatory words were spoken immediately after the trial of a
law suit between the parties, and that they were occasioned by
it, it will be competent for the defendant to show the facts and
circumstances occurring on, and the conduct of the parties
during, the trial. And if the words were spoken in the heat
of passion thus excited, that will go in mitigation.^

The defendant may mitigate damages by showing the plaint^
iff to be a common libeler ; but it must be shown in the same
way as general reputation is proved ; publications of the plaint-
iff cannot be resorted to for that purpose.*

It is competent for the defendant, under the general issue, to
show that the charge was occasioned by the misconduct of the
plaintiff, either in attempting to commit the crime, or in lead-
ing the defendant to believe him guilty.' But acts and decla-
i-ations of third persons are inadmissible to show provocation.*
Facts in the conduct of the plaintiff, calculated to create a
belief that the charge is true, are doubtless provable in mitiga-
tion, where under the pleadings the defendant is allowed to
give evidence tending to show, for this purpose, that the charge
is true.' 'Evidence of the moral or intellectual character of a
person in whose hearing, or to whose understanding the slan-

I Botelar v. Bell, 1 Mo. 173. " Maynard v. Beardsley, 7 Wend.

2Pugh V. McCarty, 40 Ga. 444; 560.

Davis V. Griffith, 4 Gill & J. 342. ^ West v. Walker, 2 Swan, 33. See

See Hackett v. Brown, 2 Heisk. 364; Edgar v. Newell, 34 U. C. Q. B. 315;

Eansone v. Christian, 56 Ga. 351. McCampbell v. Thornburg, 3 Head,

3 Bradley v. Gardner, 10 Cal. 109.

371. 8 Underbill v. Taylor, 3 Barb. 848.

4 Usher v. Severance, 30 Me. 9. ' Reynolds v. Tucker, 6 Ohio St.

5 Powers V. Presgroves, 38 Miss. 516; Hatfield v. Lasher, 81 N. Y.
227. 346.

694 SLAHDEE AND LIBEJL.

derous words were spoken, is immaterial on the question of
damages.^

In an action against husband and wife for words spoken by
the wife, proof is not admissible, in mitigation, that the hus-
band endeavored to prevent the circulation of the slander.^ It
has been held that the wrong of a publication of rumors in a
newspaper may be mitigated by proof that such rumors ex-
isted.' So, that a defendant may show that he copied the
statement complained of as libelous from another newspaper.''
But in another case it was held that the defendant should
not be permitted to show that the charge was copied from
another newspaper from the proprietor of which damages had
been recovered ; though the defendant might prove that he had
stricken out many parts of the article which reflected on the
plaintiff.^
^ In actions for libel the defendant is entitled to read the en-
tire article in which is contained the alleged libel.* But dis-
tinct or separate libels not declared on cannot be introduced
in evidence and relied on either by the plaintifif or defendant
to show malice and aggravate damages, or to mitigate damages.''

"Where exemplary damages are sought for libel, the defend-
ant may prove in Michigan any circumstances tending to show
that he acted in good faith and with all proper precautions, and
had good cause to believe that the statement complained of
was true.' Where it appears that the libel was published with
no intent to injure the person libeled, and that aU proper pre-
cautions were observed in publishing it, the recovery of damages
will be Umited to the actual injury.' If the alleged libelous

iSheffiU V. VanDeusen, 15 Gray, v. MeArthur, 16 Mich. 451, Camp-

485. bell, J., said: " It is not easy to lay

2 Yeates v. Reed, 4 Blackf . 463. down very definite rules for dis-

3 Skinner v. Powers, 1 Wend. 451. criminating damages in those cases
< Saunders v. MiUs, 6 Bing. 313. where they depend upon the sound
' Creevy v. Carr, 7 C. & P. 64. discretion of a jury. And yet it is
6 Graves v. Waller, 19 Conn. 90, 94. necessary to prevent the jury, as
Tisher V. Patterson, 14 Ohio, 418. far as may be, from acting upon

8 Soripps V. Foster, 41 Mich. 743. improper theories of what should

9 Evening News Asso. v. Tryon, be regarded in estimating the ele-
43 Mich. 549; Scripps v. Eeilly, 38 ments which go to make up the in-
id. 33. In Detroit Daily Post Co. jury to be redressed. When their

THE DEFENSE.

695

article is one of a series relating to a matter of public concern,
the defendant may introduce them all to show good faith on

attention has been carefully directed,
their conclusions must be accepted,
unless so perverse or mistaken as
to be entirely inconsistent with
justice.

"The law favors the freedom of
the press, so long as it does not in-
terfere with private reputation, or
other rights entitled to protection.
And, inasmuch as the newspaper
press is one of the necessities of
civilization, the conditions under
which it is required to be conducted
should not be tmreasonable or vex-
atious. But the reading public are
not entitled to discussions in print
upon the character or doings of
private persons, except as developed
in legal tribunals or voluntarily
subjected to public scrutiny. And,
since an injurious statement in-
serted in a popular journal does
more harm to the pei'son slandered
than can possibly be wrought by
any other species of publicity, the
care required of such journals must
be such as to reduce the risk of
having such libels creep into their
columns, to the lowest degree which
reasonable foresight can assure.

" The danger and the precautions
necessary to prevent it are directly
connected with the business itself;
and all who voluntarily assume the
responsibility must exercise it under
similar conditions. It is the right
of the citizen to be secure against all
unlawful assaults; and no distinc-
tion can be reasonable which allows
the care required in the conduct of
any avocation, attended by risks to
third persons, to be varied by the
private or corporate character of its
conductors. Any injury which is
avoidable by the perpetrator, or in
other words, any injury which is

not in some degree accidental, enti-
tles the injured party to redress.
And any damage to person or repu-
tation is recoverable, to such extent
as in the opinion of the jury, not
led away by passion or prejudice,
the nature of the injury wUI war-
rant.

"But in all^ases where an act is
done which, from its very nature,
must be expected to result in mis-
chief, or where there is negligence
so great as to indicate a reckless dis-
regard of the rights or safety of
others, a new element of damages
is allowed to be considered. A seri-
ous vsTong which is the natural and
direct result of voluntary action,
necessarily indicates a voluntary
wrongdoer, for the law rigidly holds
all persons to the presumption that
they intend such results as are to be
expected from their conduct when-
ever those results arrive. Where
the viTong done consists in a libel —
which can never be accidental —
the publishing is always imputed to
a wrong motive, and that motive is
called malicious. And in the ab-
sence of any testimony showing the
origin and circumstances of the
publication, it stands before the jury
as a voluntary wrong, until palliated
or excused, while the actual motive
may be shown to qualify it. . . .

"In all libel cases . . injury
to the feelings is a proper element to
be considered, in addition to the
damage to reputation and other at-
tendant grievances. And on the
same principle, anything having a
tendency to reduce the extent of the
voluntary wrong, is to be considered
in mitigation by the jury. The in-
jury to the feelings is only allowed
to be considered in those torts which

696

SLAUDEE AUTD LIBEL.

his part.' All papers referred to in a libel may be admitted for
the purpose of explanation and interpretation.^ A defendant
in an action for libel or slander cannot mitigate damages by
proving his own bad character,' or poverty.* ISTor is it any
mitigation that he spoke the words in apparent good humor.'

In some early cases of slander, both in England and in this
country, it has been held that giving the name of the author at
the time of speaking the defamatory words was a fuH excuse,
or at least a mitigation of the wrong.* Later authorities quali-

consist of some voluntary act, or
very gross neglect, and practically
depends very closely on the degree
of fault evinced by all the circum-
stances. . . .

" There is no doubt of the duty
of every publisher to see at all haz-
ards that no libel appears in his
paper. Every publisher is, there-
fore, liable, not only for the esti-
mated damage to credit and reputa-
tion, and such special damages as
may. appear, but also for such dam-
ages on account of injured feeling
as raust unavoidably be inferred
from such a Ubel, published in a
paper of such a position and circu-
lation. But no further damages
than these should be given, if he
has taken Buch precautions as he
reasonably could to prevent such an
abuse of his columns. When it ap-
pears that the mischief has been
done in spite of precautions, he
ought to have all allowance in his
favor which such carefulness would
justify, in mitigation of that por-
tion of the damages which is
awarded on account of injured
feelings.

"The employment of competent
editors, the supervision by proper
persons of all that is to be inserted,
and the establishment and habitual
enforcement of such rules as would
probably exclude improper items,
would reduce the blameworthiness

of a publisher to a minimum, for
any libel inserted without his privity
or approval, and should confine his
liability to such damages as include
no redress for wounded feeling, be-
yond -what is inevitable from the
nature of the libel. And no amount
of express malice in his employe
should aggravate damages against
him, when he has thus pui-ged him-
self from active blame."

1 Scripps V. Foster, supra. In
Bailey v. Kalamazoo Pub. Co. 40
Mich. 257, Campbell, C. J., said:
" The public are interested in know-
ing the character of candidates for
congress; and whUe no one can law-
fully destroy the reputation of a
candidate by falsehood, yet if an
honest mistake is made (as in mis-
naming an offense of which the
plaintiff has been guilty) in an
honest attempt to enlighten the pub-
lic, it must reduce the damages to a
minimum, if the fault is not serious,
and there should be no unreasonable
i-esponsibility where there is no act-
ual malice." See Smith v. Scott, 2
C. & K. 580.

2 Nash V. Benedict, 35 Wend. 645;
Gould V. Weed, 12 id. 12.

3 Hastings v. Stetson, 130 Mass. 76.
* Meyers v. Malcolm, 6 Hill, 292;

Palmer v. Haskin, 28 Barb. 90.

6 Weaver v. Hendrick, 80 Mo. 503.

liEai-l of Northampton's Case, 12
Coke, 132; Davis v. Lewis, 7 T. R.

THE DEFENSE.

697

fied the doctrine,' requiring either that there be a just reason
for the repetition, or tliat the defendant repeat the charge as he
heard it, and refer to the person from whom he heard it as
the author, and that the repetition be without any intention to
injure or defame the person to whom the charge refers.^ A
man who wantonly or inconsiderately repeats a defamatory tale
fabricated by another, is certainly liable to answer in damages
for assisting in the propagation of the slander; but he is not
answerable in the same degree as the author of the slander,
unless it should appear he was actuated by malice, and an in-
tention to defame.' In some cases it was required that the per-
son named as author be responsible and within the state, so
that he could be sued for the slander.^ The later cases in Eng-
land and in several of the states hold that proof that when the
words were spoken the author was named, is of Itself no de-
fense.' In Sans v. Joerris," Dixon, C. J., said : " The doctrine
extrajudicially announced in the fourth resolution of the Earl
of ISTorthampton's Case,' that the repetition of slander, if the
name of the inventor be given at the time, is not actionable,
has never been extended to libel ; and even in regard to oral

17; Hawkes v. Carter, 1 Law Re-
porter (London), 192; Bennett v.
Bennett, 6 C. & P. 588; Binns v.
McCorkle, 2 P. A. Brown (Pa.), 79;
Hersh v. Ringwalt, 3 Yeates, 508;
Kennedy v. Gregory, 1 Binn. 85;
Monis V. Duane, id. 90; Cook v.
Barkley, 1 Penn. (N. J.) 169; Smith
V. Stewart, 5 Pa. St. 372; KeUey v.
Dillon, 5 Ind. 428; Trabue v. Mays,
3 Dana, 138; Robinson v. Harvey, 5
T. B. Mon. 519; Parker v. McQueen,
8 B. Mon. 16; Miller v. Kerr, 3 Mc-
Cord, 285; Church v. Bridgman, 6
Mo. 190. See Folkard's Starkie on
8. & L. § 317.

iMcPherson v. Daniels, 10 B. &
C. 263; Lewis v. Walter, 4 B. &
Aid. 605.

2 Cumrnerford v. MoAvoy, 15 111.
811; Church v. Bridgman, supra
Haynes v. Leland, 39 Me. 333
Abrams v. Smith, 8 Blackf. 95

Jones V. Chapman, 5 id. 88; Johnston
V. Lance, 7 Ired. 448; Skinner v.
Grant, 13 Vt. 456; Inman v. Foster,
8 Wend. 602.

'Easterwood v. Quin, 3 Brev. 64;
3 Am. Dec. 700.

4 Scott V. Peebles, 10 Miss. 546;
Trabue v. Mays, 3 Dana, 138; John-
ston V. Lance, supra; Larkins v.
Tartar, 3 Sneed, 681.

5 McGregor v. Thwaites, 3 B. & C.
24; Bennett v. Bennett, 6 C. & P.
588; Tidman v. Ainshe, 10 Exch. 63;
Chevalier v. Brush, Anthon's Law
Stud. 186; Mapesv. Weeks, 4 Wend.
659; Inman v. Foster, 8 id. 602
Hotchkiss V. Oliphant, 2 Hill, 510
Austin V. Hanchet, 2 Root, 148
Treat v. Browning, 4 Conn. 408
Sans V. Joerris, 14 Wis. 663; Haines
V. Welling, 7 Ohio, 353.

6 14 Wis. 667.
T 13 Coke, 134

698 SLAITOEE AND LIBEL.

slander has met with disapprobation, and may be considered as
virtually overruled.^ "Whether this doctrine is placed on the
ground that the person who needlessly publishes or repeats a
previously invented slander, gives it the credit which is due to
himself, or, as was said by Chief Justice Best in De Crespigny
V. Wellesley,^ that it is every man's moral duty, if he hear any-
thing injurious to the character of his neighbor, which he does
not know to be true, and which does not concern the public or
the administration of justice, to lock it up forever in, his own
breast ; or, on the general rule in this world, said to be appli-
cable to nations as well as individuals, that every person should
attend to his own affairs, it is, in my judgment, equally sound
law, which the security of reputation, the happiness of fami-
lies, and the peace and good order of society demand shall be
rigidly enforced in all cases." '

1 Citing Bennett v. Bennett, 6 O. 10 B. & C. 263. See also Hotohkiss
& P. 588; Lewis v. Walter, 4 B. & v. Oliphant, 2 Hill, 510.
Aid. 605; Crane v. Douglass, 3 2 5 Bing. 393.
Blackf. 195; McPherson v. Daniels, ^xidman v. Ainslie, 10 Esoh. 63,

note.

MALICIOUS PEOSEorrriow. 699

CHAPTER XXV.

MALICIOUS PROSECUTION.
The nature of the wrong — Elements of damage — Evidenee in mitigation.

The ifATiiEB OB- THE wEONG. — The wrong denoted by this
title is of the same nature as libel and slander. It involves
among other elements of injury the defamation of 'the accused.
This is so when a criminal charge is maliciously preferred with-
out reasonable or probable cause; and the right of action
accrues when the prosecution has terminated in the acquittal or
discharge of the accused.' Where the charge is acted upon,
the arrest of the accused, holding him to bail or imprisoning
him, and the incidental loss of time, and the expense of a de-
fense, are among the natural and proximate consequences.^

In many cases the injury to reputation is the most serious
consequence of the wrong. An accusation made under the
forms of law, on the pretense of bringing a guilty man to
justice, is made in the most imposing and impressive manner,
and may inflict a deeper injury upon the reputation of the
party accused than the same words would uttered under any
other circumstances.' This wrong, however, does not consist
entirely in the malicious prosecution of groundless criminal
proceedings ; though the element of defamation is mostly con-
fined to them. The malicious prosecution, without probable
cause, of civil proceedings, involving arrest, attachment, se-
questration, or other interference with person or property, or
which is the cause of any special grievance or injury, will,
according to the general current of authority, give a right of
action.^ The same has been held of proceedings to have a

iCooley on Torts, 180-190. Pr. N. S. 393; Herman v. Brooker-

^Saville v. Roberts, 1 Lord Raym. hoff, 8 Watts, 240; Tanored v. Ley-

374; Sonneborn v. Stewart, 3 Woods, land, 16 Q. B. 669; Donnell v. Jones,

599; Lavender v. Hudgens, 33 Ark. 13 Ala. 490; 17 id. 689; McKellar v.

763; Garvey v. Wayson, 43 Md. 178. Couch, 34 id. 336; Stewart v. Cole,

3 Rockwell V. Brown, 36 N. Y. 209. 46 id. 646; Collins v. Hayte, 50 lU.

* Wengert v. Beashore, 3 N. J. L. 353; Lawrence v. Hagerman, 56 id.

233; Henderson v. Jackson, 9 Abb. 68; Watkins v. Baird, 6 Mass. 506;

700,

MALICIOUS PEOSECUnOK.

person declared insane or bankrupt, without probable cause ; *
and in cases of malicious abuse of legal process.'' Whether an
action may be maintained for maliciously, and without reason-
able or probable cause, prosecuting a civil action, not involving
any arrest of the person or seizure of property, is not settled.^
On principle it is difiBcult to deny the right of action where the
taxable costs are not a full compensation for the trouble and
expense of defending the groundless action. In the words of
Lord Campbell,* " To put into force the process of the law, ma-
liciously and without any reasonable or probable cause, is

Hayden v. Shed, 11 id. 500; Lindsay
V. Larned, 17 id. 190; "Weaver v.
Page, 6 Cal. 681; Pierce v. Thomp-
son, 6 Pick. 193; Barhans v. Sanford,
19 Wend. 417; Besson v. Southard,
10 N. Y. 236; ChurohiU v. Siggers,
3 El. & Bl. 937; Austin v. Debnam,
3 B. & C. 139; Sinclair v. Eldred, 4
Taunt. 7; Farley v. Danks, 4 El. &
Bl. 493; Spaids v. Barrett, 57 lU. 389
Nelson v. Danielson, 82 id. 54.5;
Tomlinson v. Warner, 9 Ohio, 103
Fortman v. Rottier, 8 Ohio St. 548
Burkhart v. Jennings, 3 W. Va. 243
Savage v. Brewer, 16 Pick. 453; De
Medina v. Grove, 10 Q. B. 168; Pres-
ton V. Cooper, 1 DiU. 589; Robinson
V. Kellum, 6 Cal. 399; Cox v. Taylor,
10 B. Mon. 17; Walser v. Thies, 56
Mo. 89; HoUiday v. Sterling, 63 id.
321; Williams v. Hunter, 3 Hawks,
545; McCullough v. Grishobber, 4
W. & S. 301; Spengler v. Davy, 15
Gratt. 381; Wood v. Weir, 5 B. Mon.
544; FuUen wider v. Mc Williams, 7
Bush, 389; Clossou v. Staples, 43 Vt.
209; Hoyt v. Macon, 2 Colo. 113;
Williams v. Hunter, 14 Ana. Deo.
599, note.

1 Sonneborn v. Stewart, 3 Woods,
599; 98 U. S. 187; Brown v. Chap-
man, 1 W. Bl. 437; Chapman v.
Pickersgill, 3 Wils. 145; Lockenour
V. Sides, 57 Md. 360.

s Churchill v. Siggers, 3 EI. & B.

939; Savage v. Brewer, 16 Pick. 453;
Barnett v. Reed, 51 Pa. St. 190; Jen-
nings V. Florence, 2 C. B. N. S. 467;
Austin V. Debnam, 3 B. & C. 139;
Krug V. Ward, 77 lU. 603; Grainger
V. HiU, 4 Bing. N. C. 212; Elsee v.
Smith, 1 D. & R. 97. Actions for
such malicious wrongs have been
held not properly for malicious
prosecutions, but actions on the case,
in which both a scienter and a per
quod must be laid and proved.
Frierson v. Hewitt, 3 HiU (S. C),
499.

* Compare Mayer v. Walter, 64 Pa.
St. 383; McNamee v. Minke, 49 Md.
132; Byne v. Moore, 5 Taunt. 187;
Gregory v. Derby, 8 C. & P. 749;
Clarke v. Postan, 6 id. 43S; Closson
V. Staples, 43 Vt. 244; Woods v.
Finnell, 13 Bush, 628; Whipple v.
Fuller, 11 Conn. 581; Lawyer v.
Loomis, 3 Thomp. & C. 393; New-
field V. Copperman, 15 Abb. N. S.
360; BeiTy v. Adamson, 6 B. & C.
538; Wanzer v. Wyckoff, 9 Hun,
178; Cardival v. Smith, 109 Mass.
158; AUgor v. StUlwell, 6 N. J.
L. 166; Woodmansee v. Logan, 2
id. 93; 1 Am. Lead. Cas. 300-334;
Cooley on Torts, 188, 189; Hoyt v.
Macon, 3 Colo. 113; Lockenour v.
Sides, 57 Ind. 360.

■1 ChurchiU v. Siggers, 8 El. & Bl.
929.

MALICIOUS PEOSEOUTION.

701

wrongful ; and if thereby another is prejudiced in property or
person, there is that conjunction of injury and loss which is
the foundation of an action on the case." The expenses and
trouble of defending such an action are proper elements of
damage, and why should they alone not be considered sufficient
to maintain the action? Where the claim which is the subject
of the action is not only false, but the action is prompted alone
by malice and without any probable cause, the defendant's right
of recovery for the expenses incurred and damages sustained
should be as fully recognized as if his property had been
attached, or his body taken charge of by the plaintiff.^

1 Woods V. FinneU, 13 Bush, 628.
In Closson v. Staples, 42 Vt. 209,
Wilson, J., said: "In England be-
fore the statute of Marlbridge, no
costs were recoverable in civil ac-
tions. It seeras that before the
statutes, entitling the defendant in
civil actions to costs, 'if the suit ter-
minated in his favor, he might sup-
port an action at common law
against the plaintiff, if the proceed-
ing was malicious or without proba-
ble cause. Co. Litt. 161; 3 Lev. 210;
Hob. 266; 3 Chitty Black. 125.

" But in England since the statutes
which give costs to the defendant
in all actions in case of a nonsuit or
verdict against the plaintiff, and in
other stages of the cause, it seems
that no action can be maintained in
respect of a civU suit maliciously
instituted, except in some cases
under legislative provisions, and
perhaps excepting cases where the
defendant failed to obtain the ordi-
nary costs owing to the insolvency
of a third party in whose name the
suit was prosecuted. It is said that
these statutes give costs to success-
ful defendants by way of damages
against the plaintiff pro falso
clamore. It is said by Judge Swift
in his digest, vol. I, p. 492: 'It is
well settled that at common law no

action will lie against one for bring-
ing a civil suit, however malicious
ajid unfounded, unless the body of
the party is arrested and imprisoned
or holden to bail; in all other cases
the costs the party recovers are sup-
posed to be an adequate compensa-
tion for th(B damages he sustains.'
There does not appear to be any
conflict in the authorities that
where there is anything done mali-
ciously, besides commencing and
prosecuting a malicious or vexatious
action, a suit for the damages sus-
tained by such act may be main-
tained. It is upon this ground that
an action is sustainable for a mali-
cious arrest, or holding to bail for
too large a sum, and for maliciously
suing out and levying a writ of fieri
facias. 1 Lev. 275; 3 Wils. 305.
Upon the same principle it has been
held that an action may be main-
tained where the iDroperty of a
party has been attached upon mesne
process. Hob. 205, 366; Gifford v.
Woodgate, 11 East, 396; WiUs v.
Noyes, 12 Pick. 324. It is said in
some of the cases that where the
process in the malicious and un-
founded suit is by attachment, an
action wiU lie for the damage the
party sustains, because in such case
no cost is allowed which can be

702

MA1ICI0TJ8 PEOSECUnOK.

compensation for the personal in-
juiy. But we think phe fundar
mental principle and analogies of
the common law, as laid down by
tha text-writers and early decisions
of the English courts, do not make
the manner in which service of the
process was made essential to main-
tain the action. The common law
declares that for every injury there
is a remedy. . . . Waterer v.
Freeman, Hob. 205; 3 Selw. N. P.
1054; Elsee v. Smitti, 2 Chitty Eng.
Eccl. 304; Cotterell v. Jones, 7 Eng.
L. & Eq. 475; Whipple v. Fuller, 11
Conn. 581.

" In general it is of no special im-
portance to the defendant whether
the process is by attachment or sum-
mons; but the undue vexation,
costs and expenses, in defending a
malicious and unfounded suit, ac-
crue after the process is served and
entered in court. The damages
sustained by the defendant in de-
fending such suit can be no less
where the process is by summons
than where it is by arrest of the
body, or attachment of property.
They are, for the most part, for
counsel and witness fees, for time
and expenses in preparing the suit
and attending coui-t, and such other
damages as are the direct conse-
quence to the defendant by reason
of having been compelled to defend
a suit maliciously prosecuted by the
plaintiff, without probable cause.
Service of the process by arresting
the body or attaching property might
be made under circumstances by
which the damages occasioned by
the suit would be enhanced, but
such mode of service is not essential
to maintain an action for damage
where damage is sustained in the
suit complained of after it is en-
tered in court. . . . The princi-
ple of the common law, recognized

by the English courts before the
statutes allowing costs to defend-
ants, and which gave a remedy for
injuries sustained by reason of suits
which were malicious and without
probable cause, is, and ought to be,
operative still, and we think it
affords a remedy in all cases where
the taxation of costs is not an ade-
quate compensation for the damage
sustained. Our statute provides that
no writ of summons or attachment,
requiring any person to appear and
answer before any court in this
state, shall be issued unless there be
sufficient security given to the de-
fendant that the plaintiff shall pros-
ecute his writ to effect, 'and sliaU
answer all damages if judgment be
rendered against him.' The above
quoted words, ' and shall answer all
damages if judgment be rendered
against him,' have reference solely
to the taxable costs established by
law, and without any regard to the
manner in which the suit is com-
menced, whether by attachment or
summons. And the power of the
court, at any time during the pend-
ency of the action, to order addi-
tional or better bail to be entered to
the defendant for costs, and to com-
pel the plaintiff to become nonsuit
for neglect to comply with such
order, has reference to, and is lim-
ited by, the taxable costs which the
defendant is entitled to recover if
judgment be recovered in his favor.
Our statute, by which the prevailing
party recovers certain costs incurred
in the prosecution or defense of a
civil action, stands upon the ground
that certain claims and rights in
respect to matters in issue are as-
serted, that in the adjudication of
which, a civil action, when brought
and prosecuted in good faith, is a
claim of right, and in order to place
the administration of the law upon

MATJOIOUS PEOSECUTION.

703

Elements of damage. — These are thus classified by Holt,
Ch. J., in Saville v. Eoberts : ' 1. Damages to a man's fame,

reasonable grounds in respect to the
rights asserted and recoverable costs,
the expenses of litigating the claims
of the parties, over and above cer-
tain items of costs which the statute
allows the prevailing party to re-
cover, should be borne by the re-
spective parties by whom such
expenses are incurred, without re-
gard to the result of the suit. But
the system of taxing costs under
our statute, except in a very few
cases, was enacted with reference to
suits brought and prosecuted in
good faith. In suits so brought and
prosecuted, the defendant may be
subjected, or he may subject him-
self, to expenses not recover'able,
even if the suit terminates in his
favor; but of this he has no ground
to complain, when the suit is brought
and prosecuted in good faith, be-
cause it is the ordinary and natural
consequence of a uniform and well
regulated system, to which all parties
in civil actions are required to con-
form. But where the action is
brought and prosecuted maliciously
and without reasonable or probable
cause, the plaintiff asserts no claim
in respect to which he had any right
to invoke the aid of the law. In
such case, the plaintiff, by an abuse
of legal process, unjustly subjects
the defendant to damages which are
not fully compensated by the costs
he recovers. The plaintiff in such
a case has no legal or equitable right
to claim that the mle of law, which
allows a suit to be brought and
prosecuted in good faith, without
liability of the plaintiff to pay the
defendant damages, except by way
and to the extent of taxable costs
only, if judgment be rendered in
his favor, should extend to a case
where the suit was maliciously pros-

ecuted without probable cause. But
when the damages, sustained by the
defendant in defending a suit mar
liciously prosecuted without reason-
able or probable cause, exceed the
costs obtained by him, he has, and
of right should have, a remedy by
action on the case.

" It is apparent from our statute
regulating the taxation of costs,
that the costs allowed the successful
defendant, where the suit is brought
and prosecuted in good faith, were
not intended or supposed to be an
adequate compensation for all dam-
ages he might sustain and should
recover by reason of defending a
suit which wa^ brought and prose-
cuted malicious' y and without prob-
able cause. It w juld be inconsistent
with our system of jurisprudence in
the legitimate uso of legal process,
to allow in aU cases such costs as
would cover all damages the defend-
ant might sustain by defending a
suit, without regard to the motive
which influenced the plaintiff in
commencing and prosecuting it.
And it is quite obvious, I think, that
a provision by law, by which the
court would have discretionary
power to tax and and allow the de-
fendant to recover, in a malicious
and unfounded suit, such costs by
way of damages sustained in the
defense of the suit as in their judg-
ment he was entitled to, could not
be made without infringing the
rights of the plaintiff in such action,
because he would have the right
of trial by jury of the question
whether, in the prosecution of the
suit in which such costs were to be
taxed, malice and want of probable
cause concurred, and this question
cannot be tried in that original suit."

1 1 Ld. Eaym. 374.

704 MALICIOUS PEOSEOHnON.

as if tlie matter whereof he is accused be scandalous. 2. "Where
a man is put in danger to lose his life or limb or liberty.

3. Damage to a man's property, as where he is forced to spend
money in necessary charges to acquit himself of the crime.

4. Any special damage. The injury to reputation must be
estimated, and reparation made for it, on the same considera-
tions which govern in actions for slander or libel.' Bodily and
mental suffering may be taken into account, and the latter
where there is no physical injury or pain.^ So the jury may
take into consideration the indignity.' If a man be falsely and
maliciously indicted of a crime which is a scandal to him and
hurts his fame, an action lies, although the indictment be in-
sufficient, or an ignoramus be found ; * for though no expense
may be incurred, the mischief of the slander has been effected.*

The damages for malicious prosecution may consist in the
personal labor and trouble imposed on the plaintiff in procuring
his acquittal or his discharge, and the pain and anxiety of mind
naturally occasioned by the pendency of a criminal charge.
The plaintiff may prove in aggravation of damages the length
of imprisonment, his expenses, situation and circumstances.*
Where a female was falsely and maUciously prosecuted for per-
jury, and suffered in her health in consequence, and was ren-
dered insane, an increased recovery on that account was
sustained.' The plaintiff may recover not only for an unlaw-
ful arrest and imprisonment and the expenses of his defense,
but also for the injury to his fame and reputation, occasioned
by the false accusation.* And a recovery in the action for
malicious prosecution by the plaintiff is a bar to a subsequent
action of slander for the accusation, uttered for the purpose of
having the arrest made, and on the occasion when it was made."
The jury are to determine the amount of damages when the
essential facts for the maintenance of the action have been
estabhshed, and they may take into consideration the expense

1 Sheldon v. Carpenter, 4 N. Y. » Id.

578. 6 Folkard's Starkie, § 651.

aParkhurst v. MasteUar, 57 Iowa, 'Plath v. Braunsdorff, 40 Wis. 107.

474; Rowlands v. Samuel, 11 Q. B. s Sheldon v. Carpenter, 4 N. Y.

39. 579; Faynan v. Knox, 40 N. Y.

3 McWilllams v. Hoban, 43 Md. 56. Super. Ct. 41.

1 Saville v. Roberts, supra. 9 Sheldon v. Carpenter, supra.

MA.LICIOC8 PEOSBCtmON. 705

to which the plaintiff has been subjected, his trouble and
anxiety, and the ignominy of being arraigned at the bar of
justice as an offender against the la\vs;i they are to take into
consideration the circumstances of the case, and to a-ward such
damages as will not only compensate the plaintiff for the wrong
and indignity he has suffered in consequence of the defendant's
wrongful act, but they may also award exemplary or punitive
damages as a punishment to the defendant for such act.^

The plaintiff, Avhen he has been prosecuted maliciously and
without probable cause for a crime,^may recover for the ex-
penses he has been put to, as well as for the annoyance he had
undergone, and for the injury to his feelings.' The plaintiff is
entitled to recover not only the costs and expenses attending
the defense of the groundless suit, without reference to taxable
costs, including counsel fees,* but also consequential damages
which naturally and proximately result therefrom. In an early
California case, a suit was brought on a paid bill of exchange,
and property attached and held for four months, when it was
released by the giving of a bond. The jury gave a verdict, in
an action for a malicious prosecution of that suit and suing out
that attachment, for $15,000, which was sustained. The court
say : " In cases of this nature, there is no settled rule as to
the amount to be recovered. The jury are not confined to the
actual pecuniary loss sustained by the plaintiff, but may take
into consideration the character and position of the parties, and
all the circumstances attending the transaction. In such caseSj
we cannot disturb a verdict, unless it clearly appears that Iut
justice has been done." ' In an English case,' a judgment cred-
itor who had recovered judgment for £115, £100 of which were-
afterwards paid, caused the debtor to be taken on execution for
the fuU amount, and this being found to have been done mali-
ciously and without probable cause, and special damages being
alleged in the plaintiff being prevented from attending to his-

iTompson v. Massey, 3 Greenlf. ^Closson v. Staples, 43 Yt. 209;

305; Faynan v. Knox, 40 N. Y. Woods v. Finnell, 13 Bush, 638;

Super. Ct. 41. Smith v. Smith, 20 Hun, 559, note^

^McWilliams v. Hoban, 43 Md. 56; » Weaver v. Page, 6 Cal. 681j
Weaver v. Page, 6 Cal. 681. « OhurchiU v. Siggers, 3 .El. &: BJ.

3 Rowlands v. Samuel, II Q. B, 39. 939.
Vol. in — 45

706

MALICIOUS PEOSEOTTTION.

business, injured in his credit and character, and incurring ex-
pense in procuring his liberation by a judge's order, he was
held, on demurrer, entitled to judgment.'

In an Iowa case, a party holding a lease of a mine for a
specified time was ejected therefrom by a judgment, afterwards
reversed, in an action of forcible entry and detainer, mali-
ciously instituted. In an action for this malicious proceeding,
it was held that the measure of damages was the reasonable"
value of the use of the premises for the time the plaintiff had
been kept out of possession, and for any permanent injury to
his leasehold interest sustained by reason of the mine caving
or otherwise getting out of repair through the failure of the
defendant to use ordinary care during the time he held posses-
sion.2 In an action for maliciously, and without probable
cause, procuring a party, who was a merchant, to be adjudged
a bankrupt, under which adjudication, before the proceeding
was dismissed, he was deprived of his entire stock of goods,
and his store shut up for about thirteen months, the jury were
instructed that the plaintiff was entitled to recover the actual
damage to his goods, for the breaking up of his business, and
the destruction of his credit. " The ¥alue of his own time,"
say the court, " is also a fair charge, as he has been obliged to
give his attention to the proceedings instituted against him,
and has not been able to pursue any business." It was also
held that his expenses for lawyers' fees in following up and
setting aside the proceedings in bankruptcy are also a fair item
of charge to be allowed.' In Krug v. Ward* it was held that
evidence of the payment of an attorney's fee, and expenses of
defending the groundless suit, was admissible, though the
former was paid by another for the plaintiff. But in assessing
the damages the expenses of prosecuting the action for mali-
cious prosecution are not deemed the natural and proximate
consequence of the wrong complained of, and cannot be taken
into consideration.'

1 Lawi-ence v. Hagerman, 56 111. 68. 98 U. S. 187; FuUenwider v. McWUI-

2 MofEatt V. Fisher, 47 Iowa, 473. iams, 7 Bush, 389.
sSonneborn v. Stewart, 3 Woods, *77 HI. 603.

599, reversed as to allowance of at- * Stewart v. Sonnebom, 98 U. S.
torney's fees and on other points, 197; Good v. Mylin, 8 Pa. St. 51;

MALICIOUS PEOSECUTION. 707

For this wrong the injured party is entitled to adequate
compensation covering all the elements of the particular
injury. Therefore the jury, in determining the amount, will
consider the nature of the prosecution, and its natural effect on
reputation, credit and private feelings; the incidental conse-
quences of arrest, holding to bail, or of interference with prop-
erty; the consequential loss of time, and ahj other loss, as
the expense of defending. Malice is of the gist of the action,
and the damages for other than pecuniary items may be
greatly increased or diminished by the evidence on that sub-
ject. Where there is actual and express malice, exemplary
damages may be recovered.'

Evidence in mitigation. — The plaintiff is required to show
that the defendant was actuated by malice, and that the prose-
cution was without probable cause.^ The absence of probable
cause does not raise a legal presumption of malice, but the
jury may infer malice as matter of fact from the want of
probable cause.' The want of probable cause, Browever, cannot
be inferred from malice.'' The important inquiry, therefore, in
such cases is whether there was probable cause ; which is such
a state of facts in the mind of the prosecutor as would lead at
man of ordinary caution and prudence to believe, or to enter-
tain an honest and strong suspicion, that the facts essential to
the prosecution exist.' Probable cause does not depend on the

Alexander v. Herr, 11 id. 537; Stopp Wheeler v. Nesbitt, 34 How. U. S.

V. Smith, 71 id. 385; Hicks v. Foster, 544; Humphries v. Parker, 53 Me.

13 Barb. 663. 505; Sutton v. Johnson, 1 T. R. 493;

1 McWUUams V. Hoban, 43 Md. 56; PuUen v. Glidden, 68 Me. 563; Harp-
Sonneborn v. Stewart, 3 Woods, ham v. Whitney, 77 111. 33.

b99; Wanzer v. Bright, 53 HL 35; 4 id.; Brown v. Smith, 83 111. 391.

Parkhurst v. Mastellar, 57 Iowa, 5 Bacon v. Towne, 4 Cush. 338;

474. Carl v. Ayers, 53 N. Y. 17; Foshay v.

2 Townshend on S. & L. § 431. Ferguson, 3 Denio, 617; Harpham v.

3 Levy V. Brannan, 39 Cal. 485
Harkruder v. Moore, 44 id. 144:
Mowry v. Whipple, 8 R. I. 360

Whitney, 77 111. 43; Soanlan v. Cow-
ley, 3 Hilt. 489; Heyne v. Blair,
63 N. Y. 33; Lacey v. Mitchell, '

Straus V. Young, 36 Md. 346; Law- 33 Ind. 67; Rice v. Ponder, 7 Ired.

yer v. Loomis,. 3 Thomp. & C. 393
Carson v. Edgworth, 43 Mich. 341
Heath v. Heape, 1 H. & N, 478
Wanzer v. Wyckoff, 9 Hun, 178

390; Fitzgibbon v. Brown, 48 Me. '
169; Ash v. Marlow, 80 Ohio, 119;
Barron v. Mason, 31 Vt. 197.

70S MALICIOUS PKOSEOIJTION.

actual state of the case, ia point of fact, but upon the honest
a^nd reasonable belief of the party commencing the pros-
ecution.'

If it appear that there was probable cause, that is a complete
defense. But if the evidence tending to show it fail in that
object, to the extent that it affords ground for belief that the
party prosecuted was guilty, it tends to rebut malice, and may
mitigate exemplary damages, or those which might otherwise
be awarded based solely on malice.^ Facts within his own
knowledge, and facts communicated to him by others, and even
rumors or reports in the neighborhood, have been allowed to be
proved.' While proof that the defendant acted upon the advice
of counselj learned in the law, given after a full and fair state-
ment of all the known facts, will be a full defense, because when
so advised that the cause is sufficient for his exoneration, it will
be deemed probable cause,* yet advice from any other person
will not have the same effect ; ' but the fact that advice is given
by a magistrate or b}^ police officers, may be admitted to show
the circumstances under which the prosecution was instituted
and to mitigate damages.*

According to the better authorities, ISie defendant may prove
the general bad reputation of the plaintiff, both to rebut the
proof of want of probable cause and in mitigation of damages.
The same facts which would raise a strong suspicion in the
mind of a cautious and reasonable man against a person of
notoriously bad character for honesty and integrity, would
make a slighter impression if they tended to throw a charge of

1 James v. Phelps, 11 A. & E. 483; Foshay v. Ferguson, 3 Denio, 617;
Heslop V. Chapman, 23 L. J. Q. B. Gallaway v. Burr, 33 Mich. 382;
N. S. 49; HaU v. Suydam, 6 Barb. 83. Wyatt v. White, 5 H. & N. 371.

2 Bacon v. Towne, supra; BeU v. ^Ravenga v. Mackintosh, 3 B. &
Pearcy, 5 Ired. 83. C. 693; Stanton v. Hart, 37 Mich.

sPullen V. Glidden, 68 Me. 563; 539; "Wicker v. Hotchkiss, 63 111. 107;

Carl V. Ayers, 53 N. Y. 14; Bacon v. Laird v. Taylor, 66 Barb. 143; PuUen

Towne, supra; Carpenter v.^Sheldon, v. Glidden, 68 Me. 566.

5 Sandf . 77; Hitchcock v. North, 5 5 Stanton v. Hart, 27 Mich. 539;

Rob. (La.) 328; Lamb v. GuUand, 44 Bui-gett v. Burgett, 43 Ind. 78; Mur-

Cal. 609; Thomas v. Russell, 9 Exoh, phy v. Larson, 77 111. 173; Beal v.

764; Lister v. Ferryman, L. R. 5 Robeson, 8 Ired. 376.

Exch. 365; Heyne v. Blair, 63 N. Y. « Hirsch v. Feeney, 83 HI. 550;

19; Miller v. Milligan, 48 Barb. 30; White v. Tucker, 16 Ohio St. 468.

MAMCIOtrS PEOSECUTION.

Too

guilt upon a man of good reputation.' The fact that the
plaintiff might, in the criminal proceeding against him, have
shortened his imprisonment by availing himself of his prelimi-
nary examination, need not be considered as a ground for re-

1 Bacon v. Towne, 4 Cush. 217, 240;
Kodriguez v. Tadmire, 3 Bsp. 731;
Fitzgibbon v. Brown, 43 Me. 169;
Israel v. Brooks, 33 111. 575. See
Blizzard v. Hays, 46 Ind. 166; Oli-
ver V. Pate, 43 id. 132; Scott v.
Fletcher, 1 Overt. 488; Bostick v.
Rutherford, 4 Hawks, 83. In PuUen
V. Glidden, 68 Me. 563, Barrows, J.,
said: "The discrepancy in the de-
cisions has.arisen from a neglect to
make the proper discrimination be-
tween the issue presented by the
plea of not guilty in an action for
malicious prosecution and that
which arises on the same plea in
actions of libel and slander. The
similarity in the injuries complained
of in these classes of suits has led to
a confusion in the decisions touch-
ing the pleadings and the evidence
applicable to them. With some-
thing of a general likeness there are
important diflEerences in the conten-
tions liable to arise upon a plea of
the general issue in suits for mali-
cious prosecution and those for slan-
der, verbal or written, and sufficient
care has not been taken in reporting
the cases to designate the purpose
for which the evidence was oflE ered
and the state of the pleadings. For
instance, in slander, the speaking of
actionable words raises .the implicar
tion of malice in law, which is all
that is necessary for the mainte-
nance of the suit, though malice in
fact may be proved to enhance the
damage. True v. Plumley, 36 Me.
466; Jellison v. Goodwin, 43 Me.
387. Hence common reputation
and other evidence not amounting
to a justification, though tending to

negative malice in fact, was not ad-
mitted for that purpose in Taylor v.
Robinson, 29 Me. 333, though why it
should not be competent upon the
question of damages is perhaps not
altogether clear. See East v. Chap-
man, 3 Car. & P. 570.

" But as we have already seen, iu
actions for malicious prosecution
where the question for the jury is
whether the defendant, upon all the
information he had, whether it was
true or false, acted as a cautious,
reasonable man not influenced by
malice would act, the general repu-
tation of the plaintiff is a proper
subject of inquiry upon the question
of probable cause. And since mal-
ice in fact may be inferred from the
want of probable cause, it follows
that it is pertinent also upon the
question of malice.

" Here, however, the precise ques-
tion is whether evidence of common
repute in the neighborhood that the
plaintiff was guilty of the particu-
lar offense for which h^ was prose-
cuted was rightly received. Judge
Redfleld, in Baron v. Mason, 31 Vt.
201, says, emphatically, that such
evidence ought to be regarded as one
proof, though no sufficient one in it-
self, of probable cause. We think
he was right. Not only the facts
which the defendant knew, but the
information he had received, iu fine,
the circumstances under which he
acted, even his own consultations
with counsel learned in the law, if
he took advice of such, are compe-
tent evidence upon these questions
of probable cause and malice in
fact. A man who claims an investi-

no

MAlICIOtJS PEOSBOUnOir.

ducing damages, unless there is affirmative proof that his motive
in waiving examination and exposing himself to continued
imprisonment was to enhance damages.'

gation, according to law, of the
charge he makes against another
stands upon a different footing
from him^ who indulges his tongue
in slanderoup babble which can re-
sult in nothing but mischief. This
last must make his charges good hy
establishing their truth. But the
first, whose doings may, in some
contingencies, be serviceable to the
community, is not responsible for
his mistakes, if he acts with reason-
able caution and an honest purpose.
WhUe the prevalence of reports
that a man had committed an offense
would be no sufficient cause in itself

for proceeding against him, it can-
not be said that their existence
would not lend a force even in the
mind of a cautious and candid per-
son to any criminatory facts or
information which they would
not have as against one against
whom the neighboring public did
not believe to be guilty. It is one of
the great possible variety of facts
and circumstances that may have a
bearing upon the question whether
the defendant was acting 'pru-
dently, wisely and in good faith.' "
iKing V. Colvin, 11 E. I. 582.

PEKSOIIAL INJUET. Til

CHAPTER XXYI.

PERSONAL INJURY.*

Vhysical and mental pain — Loss of time, injury to business, diminished
working capacity — Eoepenses for surgical and medical aid and nurs-
ing— The entire damages to be recovered in one action, — prospective
damages — A husband's and a parent's action — Exemplary dam-
ages— Evidence in mitigation — Frounce of the jury, and instructions
to them — False imprisonment.

The law aims to afford full redress for personal injuries as
well as for all others. The sufferer is entitled to compensation
from the person by whose fault the injury occurred for the pain
resultmg from the corporal hurt so long as it produces pain ;
for mental suffering, naturally resulting from the injury or
wrong, whether such suffering be apprehension and anxiety
from its depressing effect, or induced by its alarming character ;
for wounded sensibility or affection, and for sense of wrong and
insult by reason of the malice of the wrongdoer and the inci-
dents of the iniliction ; for impaired health and working capac-
ity, mutilation or disfigurement; for the expenses of nursing
and care, and for all other detrimental effects which naturally
and proximately ensue.

Physical and mental pain. — An injury to the person neces-
sarily causes pain ; it is a direct effect ; and whether the pain
is only momentary or continues for a long period, it is a direct
consequence of the injury. In the absence of any supervening
fault of the injured party having the effect to retard or prevent
a cure, he is entitled to compensation from the person who
wrongfully inflicted the injury, for all the pain suffered from
the moment of the injury to complete cure. Money is an in-
adequate recompense for pain ; but as the law can afford no
other redress, it aids the sufferer to obtain this in such measure
as a jury, dispassionately considering all the circumstances, will

* This subject received some attention under the head of Carriers of Passengers, ante,
pp. 258-881. See also Vol. I, pp. 827-230.

712

PEESONAL mJUET.

allow.' Whether the injury is the result of negligence or direct
personal violence, the resulting pain is an element of damage to
be compensated. In other words, it is an element of compen-
satory damages.^

The jury is allowed to consider the case with all its facts,
and to take into account for the purpose of compensation, not
only the physical pain, but also such mental suffering as the jury
are satisfied must have been experienced as the natural result
of the wrong done or injury inflicted.' When bodily pain is
caused, mental follows as * necessary consequence, especially
when the former is so severe as to create apprehension and
anxiet3\* The manner of committing the injury, or its very
nature, may be such that compensation should be given largely.

iVerrill v.' Minot, 31 Me. 299;
Penn. R. R. Co. v. Allen, 53 Pa. St.
276; Slater v. Sherman, 5 Bush, 206;
EUiott V. Van Buren, 88 Mich. 49;
Ransom v. New York, etc. R. R. Co.
15 N. Y. 415; Cm'tiss v. Rochester,
etc. R. R. Co. 20 Barb. 282; Chicago
V. Langlass, 66 111. 361; Scott t.
Hamilton, 71 id. 85; McLaughlin v.
Corry, 77 Pa. St. 109; Lucas v.
Flinu, 35 Iowa, 9; Oliver v. North
Pacific Trans. Co. 3 Oreg. 84; Tefft
V. Wilcox, 6 Kans. 46; Welch v.
Ware, 32 Mich. 77; Beardsley v.
Swann, 4 McLean, 333; Pierce v.
Millay, 44 111. 189; Swarthout v. New
Jersey S. B. Co. 46 Barb. 222; John-
son V. Wells, 6 Nev. 225.

2 Id.

3 Seger v. Burkhamsted, 22 Conn.
390; Masters v. Warren, 27 id. 298;
Lawrence v. Housatonic R. R. Co.
39 id. 390; Fenelon v. Butts, 53 Wis.
344; Craker v. Chicago, etc. R. R.
Co. 36 id. 657; Mason v. Inhabitants
of Ellsworth, 33 Me. 371; Prentiss
V. Shaw, 56 id. 427; Wadsworth v.
Treat, 43 id. 163; Goddard v. Grand
T. R'y Co. 57 id. 203; Wymau v.
Leavitt, 71 id. 239; Giblin v. Mc-
Intyre, 2 Utah, 884 (aflBrmed by su-
preme court of XJ. S.); Hanson v.

Fowle, 1 Sawyer, 539, 546; Pair-
child V. California Stage Co. 13 Cal.
599; Smith v. Holcomb, 99 Mass.
553; Canning v. WiUianostown, 1
Cush. 451; Wright v. Compton, 58
Ind. 337; West v. Forrest, 23 Mo.
344; Ferguson v. Davis Co. 57 Iowa,
601; Mouldovsraey v. Illinois, etc. E.
R. Co. 36 Iowa, 463; McKinley v.
Chicago, etc. R. R. Co. 44 id. 314;
Blake v. Midland R'y Co. 18 Q. B.
110; South & North A. R. R. Co. v.
McLendon, 63 Ala. 266; Taber v.
Hutson, 5 Ind. 332; Nossaman v.
Riokert, 18 id. 850; Ford v. Jones,
63 Barb. 484; Smith v. Pittsbui-gh,
etc. R. R. Co. 23 Ohio St. 10; Indian-
apolis, etc. R. R. Co. V. Stables, 63
111. 313; McMahon v. Northern C.
R. R. Co. 39 Md. 438; Elkhart v.
Ritter, 66 Ind. 136; Indianapolis v.
Gaston, 58 id. 224; Porter v. Hanni-
bal, etc. R. R. Co. 71 Mo. 66; 36 Am.
R. 454; McMillan v. Union P. B. W.
6 Mo. App. 434; Morris v. Chicago,
etc. R. R. Co. 45 Iowa, 39; Quigley
V. Central P. R. R. Co. 11 Nev. 350;
Hamilton v. Third Avenue R. R.
Co. 53 N. Y. 28. See Joch v. Dank-
wards, 85 111. 381; Johnson v. Wells,
6 Nev. 335.
<Wyman v. Leavitt, supra.

PEESONAL INJUET. 713

and perhaps principally, for injury to the feelings. This is the
case where the personal wrong is a shock to the moral sensi-
bilities, or tends to vex, disgrace or humiliate the injured party.*
The injury may be greatly enhanced by the motive of the
wrongdoer ; and the sense of justice of jurors will always in-
cline them to fix a higher rate of compensation whenever the
injury was wantonly or maliciously committed. Damages for
pain not being measurable by a money standard are in some
degree retributive ; every circumstance which increases the tur-
pitude of the wrongdoer's conduct adds to the injury, and cor-
respondingly to the injured party's right to compensation.^
Personal injury may cause disfigurement, mutilation, or perma-
nently impaired health. When it does there is an element of
mental pain for which there is no cure. When a healthy per-
son is thus made permanently an invalid ; deprived largely of
his capacity to enjoy life ; suddenly transformed from a mental
state of cheerfulness and hope, to another of melancholy by
day, and unrest and bad dreams by night, is he not entitled to
some compensation for this physical and psychical alteration in

1 Craker v. Chicago, etc. R'y Co. be left to the oonject;ure and caprice

36 Wis. 657; Fay v. Swan, 44 Mich, of a jury. If, like Rachel, she wept

544; Ford v. Jones, 62 Barb. 484; for her children and would not be

Smith V. Holcomb, 99 Mass. 552; comforted, a question of continuing

Wadsworth v. Treat, 43 Me. 163; damage is presented too delicate to

Welch V. Ware, 32 Mich. 84; Elliott be weighed by any scales which the

V. Van Buren, 33 id. 49; Kepler v. law has yet invented." Is this

Hyer, 48 Ind. 499. In. Bovee v. sense of loss more delicate than

Danville, 53 Vt. 190, the question that of injury by disfigurement or

was whether among other damages maiming ? In Smith v. Overby, 30

for a personal injury resulting from G-a. 341, action was brought against

a defect in a highway, the plaintiff, a physician for want of skill and

a mother, was entitled to recover care in a parturition case by which

for injury to her feelings occasioned injury was inflicted on the mother

by the loss of a child by miscarriage, and the life of the child unneces-

Eoss, J., said: "Any injured feel- sarily destroyed. A new trial was

ings following the miscarriage, not granted because the jury were

part of the pain naturally attending deemed to have been misled by the

it, are too remote to be considered charge so as to overlook this latter

an element of damage. If the element of the injury.

plaintiff lamented the loss of her 2 Id. ; Sampson v. Henry, 11 Pick,
offspring, such grief involves too 379; Ransom v. N. Y. etc. R. E. Co.
much an element of sentiment to 15 N. Y. 415.

1U

PEE80NAL INJTJEY.

himself?* But in sucli cases, the loss or decrease of capacity
to pursue one's calling and earn money is universally accepted
as a proper subject of compensation. This feature of the in-
jury will be presently considered.

In an action for personal violence it is no defense that the
blows of the defendant aggravated a disease known to the
plaintiff to which he was subject, and that he gave the defend-
ant no caution in relation to it.^ The general rule in tort is that
the party who commits a trespass or other wrongful act is lia-
ble for all the direct injury resulting from such act, although
such resulting injury could not have been contemplated as the
probable result of the act "done.' The plaintiff may show spe-

1 Walker v. Erie Railway Co. 63
Barb. 260; The Oriflamme, 3 Saw-
yer, 397, 404; Stewart v. Eipon, 38
Wis. 584.

2 Coleman v. New York, etc. E. E.
Co. 106 Mass. 160.

3 Per Taylor, J., in Brown v. CM-
cago, etc. E. E. Co. 54 Wis. 354, cit-
ing 1 Sedgw. Meas. Dam. 130, note;
Eden v. Luyster, 60 N. T. 352; Hill
V. Winsor, 118 Mass. 351; Lane v.
Atlantic Works, 111 id. 136; Keenan
V. Cavanaugh, 44 Vt. 268; Little v.
Boston, etc. E. E. Co. 66 Me. 339;
Collard v. South Eastern E'y Co. 7
H. & N. 79; Hart v. Western E. E.
Co. 13 Met. 99, 104; WeUington v.
Downer Kerosene Oil Co. 104 Mass.
64; Metallic Compression C. Co. v.
Fitchburg R. E. Co. 109 id. 377; Sal-
isbury V. Herchenroder, 106 id. 458;
Perley v. Eastern E. E. Co. 98 id.
414; Kellogg v. Chicago, etc. E'y Co.
26 Wis. 333; Patten v. Chicago, etc.
E'y Co. 32 id. 534; S. C. 36 id. 413;
WUliams V. Vanderbilt, 38 N. Y. 217;
Ward V. Vanderbilt, 34 How. Pr.
144; Bowas v. Pioneer Tow Line,
3 Sawyer, 21. See also Vol. I,
p. 19; Sharp v. PoweU, L. E. 7 C. P.
258; Putnam v. Broadway, etc. E. E.
Co. 55 N. Y. 108; McGrew v. Stone,

53 Pa. St. 436; Servatius v. Pichel, 34
Wis. 299; Hughes v. McDonough, 43
N. J. L. 461. In Stewart v. Eipon,
38 Wis. 591, Lyon, J., said: "The
public streets and sidewalks in a
city are not constructed and main-
tained for the sole use of healthy
and robust people, but for the use of
the infirm, the sick and the de-
crepit, as well. They may lawfully
be traveled by every citizen without
regard to age, sex or physical con-
dition. If the city negligently per-
mits such streets or sidewalks to
remain out of repair, and any per-
son (who is himself free from negli-
gence) is injured thereby, the city is
liable for the injury. It is charge-
able with knowledge that people of
different bodily conditions travel its
streets, and that among these are
the weak, the decrepit, and those
with organic predisposition to dis-
ease. It is reasonable to expect that
in certain cases, if an injury hap-
pen to one of the latter class, his f uU
recovery therefrom may be retarded
or prevented by such predisposition
or tendency to disease. In the pres-
ent case the defendant is charge-
able with knowledge that persons
with a constitutional tendency to

PBESONAL mjUET. 715

cific direct effects of the injury witliout specially alleging them ;
as that he was thereby made subject to fits.' If they were a
part of the result of the injury, the plaintiff may recover for
such damage, without specially alleging it, as well as the pain
and disabiUty which followed." The obviously probable effects
of the injury may be given in e%'idence, though not laid in the
declaration.'

Mental suffering alone, unconnected with any other injury to
the person, wiU not support an action ; it is only when some act
is done which will constitute a cause of action that injury to
feelings can be considered.* This is not^a cause of action but
an aggravation of damages when -it naturally ensues from the
act complained of. In Massachusetts a town is liable in dam-
ages for an injury to person resulting from a defect in a high-
way; but an action cannot be maintained on account of a risk
or peril merely which has caused fright and mental suffering.'*
The court say in such a case, " though the bodily injury may
have been very small, yet if it was a ground of action, within
the statute, and caused mental suffering, that suffering was a
part of the injury for which he was entitled to damages." * It
was also held in an action on the case for simple negligence in

scrofula (a very large class in any only for such additional pain as re-
community) constantly travel its suits from his want of skill or negli-
streets and sidewalks, and that such gence. Wagner v. Colder,
tendency to that disease might A surgeon assumes to exercise the
greatly aggravate a bodily injury, ordinary care and skill of his prof es-
Hence it had reasonable grounds to sion, and he is liable for injuries re-
expect that if one of that class were suiting from his failure to do so; yet
injured by reason of the admitted if the patient neglects to obey his
defect in the sidewalk, the disease reasonable instructions and thereby
might develop, and greatly retard contributed to the injury complained
and perhaps ■ prevent a cure, as in of, such patient cannot recover for
this case. If these views are correct, such injury. Geiselman v. Scott, 85
it necessarily follows that the negli- Ohio St. 86.

gence of the defendant was the prox- i Tyson v. Booth, 100 Mass. 358.

imate cause of the whole injury for 2 id,

which the plaintiff recovered dam- ^ Avery v. Ray, 1 Mass. 13.

ages." See OUver v. La Valle, 36 * Indianapolis, etc. E. R. Co. v.

Wis. 593. Stables, 63 111. 313.

A patient is not entitled to recover 5 Canning v, Wjlliamstown, 1

against a physician or surgeon for Cush. 451.

pain caused by the sickness or in- ^ Id.
jury the latter is called to treat; but

716 PERSONAL INJUET.

blasting out a ledge within the located limits of a railroad,
whereby rocks were thrown upon the plaintifP's land and build-
ings, the plaintiff's mental anxiety in relation to his own per-
sonal safety or that of his child is not, in the absence of
personal injury, an element of damage.' " If the law were
otherwise," said Virgin, J., " it would seem that not only every
passenger on a train that was personally injured, but every one
that was frightened by a collision, or by trains leaving the
track, could maintain an action against the company." *

Loss OF TIME, ESTJUET TO BTTBINESS, DIMINISHED WOEKING OAPAO-

iTT. — These heads of injury are similar, and represent recover-
able elements of damage where the facts of the case show that
they exist. They represent in part, and often chiefly, the pecun-
iary loss from personal injury. To the extent that it disables
the injured party to pursue his accustomed employment or busi-
ness, it deprives him of pecuniary benefits which he would
otherwise have realized. If he was under employment at fixed
wages or salary, the amount of loss during a reasonable term of
engagement, or the temporary duration of such disability, may
be readily determined.' "Where the injured party was not so
employed, but was conducting a business, the extent and nature
of it may be shown, and in many cases, as when professional
men and other laborers have an established patronage, the an-
tecedent pecuniary results of their labors. These facts are not
shown as affording a measure of damages, but to aid the jury
in estimating a fair and just compensation for being prevented
by the injury from engaging in or prosecuting such business or
work.^

iWyman v. Leavitt, 71 Me. 237; ever, does not aflEord an instance in

36 Am. R. 303. which it was the ground of action.

2 Id. In the note to this case in In all of the cases stated there was

36 Am. E. 306, the learned reporter a legal cause of action independent

says, "there can be no doubt that of injury to feelings,

mental suflEering forms a proper ele- ' Mclntyre v. N. Y. C. R. R. Co.

ment of damage in actions for in- 37 N. Y. 287; Grant v. Brooklyn, 41

tentional and wUful wrong, and in Barb. 381. See Masterton v. Mt.

actions of negligence resulting in Vernon, 58 N. Y. 395.

bodily injury; but whether it forms * Nebraska City v. Campbell, 2

an independent ground of action. Black, 590; Atchison v. King, 9

disconnected from these facts, is Kans. 550; Nones v. Northouse, 46

more doubtful." His note, how- Vt. 587; CaldweU v. Murphy, 1

PERSONAL INJUET. 717

Under the rule that all damages which are not the necessary
and proximate result of the act complained of are special and
must be specially alleged, it is probably necessary to state any
particular facts in the condition of the plaintiff which would
afford a more precise measure or evidence of his loss, than his
general ability to earn money.^ In a Connecticut case,^ under
the general allegation that in consequence of the injury the
plaintiff was " prevented from attending to his ordinary busi-
ness," it was held that evidence that he was at the time of the
injury earning $100 a month in carting and sawing timber was
inadmissible. In another case,' it was held that under a like
averment the plaintiff could not show any special employment
requiring some special skill and training.'' This case and Bald-
win V. Western K. E. Co. would seem to be in conflict with the
numerous cases- which hold that the injured party may show
the nature and extent of the business he had been accustomed
to do." In Luck v. Kipon ' objection was made to proof of
damage for injury to a woman in consequence of which she was
unable to pursue her business of midwife, on two grounds : first,
that the complaint failed to set out what the particular business
of the plaintiff was ; and second, she was not quahfied to prac-
tice " physic and surgery " so as to recover compensation for

Duer, 233; Ballou v. Famum, 11 Barb. 438; affirmed, 53 N. Y. 635;

Allen, 73; WUson v. Young, 31 Wis. Wade v. Leroy, 20 How. U. S. 34;

574; Howes v. Ashfield, 99 Mass. Potter v. Metropolitan R'y Co. 38 L.

540; Tefft v. Wilcox, 6 Kap, 46; T. N. 8. 735; Ingram v. Lawson, 6

Lincoln v. Saratoga, etc. E.K Co. Bing. N. C. 312; Eipon v. Bittel, 80

33 Wend. 435; Eansom v. "New Wis. 614, 617; Goodno v. Oshkosh,

York, etc. E. E. Co. 15 N. Y. 415; 38 id. 300.

Hill V. Winsor, 118 Mass. 351; Morse i Fuller v. Bowker, 11 Mich. 304.

V. Auburn, etc. E. E. Co. 10 Barb. 2 Tomlinson v. Derby, 43 Conn.

631; Indianapolis v. Gaston, 58 Ind. 563.

324; Morris v. Chicago, etc. E. E. » Taylor v. Monroe, id. 36.

Co. 45 Iowa, 29; Clifford V. Dam, 44 ^citmg 3 Greenlf. Ev. §354; 1

N. Y. Super. Ct. 391; New Jersey Chitty's PI. (4th ed.) 338, 346; Bris-

Express Co. v. Nichols, 33 N. J. L. tol Manuf s Co. v. Gridley, 38 Conn.

434; Tomlinson v. Derby, 43 Conn. 301; §ijuier v. Gould, 14 Wend. 159;

563; Baldwin v. Western E. E. Co. Baldwin v. Western E. E. Co. 4

4 Gray, 333; Jacques v. Bridgeport Gray, 333.

Horse E. E. Co. 41 Conn. 61; Walker 5 See ante, p. 316, note 4.

V. Erie R. E. Co. 63 Barb. 260; Eock- « 52 Wis, 196.

well V. Third Avenue R. R. Co. 64

718 PERSONAL mjITET.

her services, as such, under a statute of "Wisconsin. Taylor, J.,
speaking for the whole court, said of the first objection:
"When the complaiut states facts showing that the injury has
been, such as to render it impossible for the injured party to
pursue his ordinary business, and damages are claimed for loss
of time in such business, the plaintiff should be permitted to
show upon the trial what his business is, and what damages he
has suffered by reason of inability to pursue the same. Ordi-
narily the business of the plaintiff will be known to the de-
fendant, and he will not be surprised at the introduction of
evidence upon that subject. If, however, the defendant has no
knowledge of such business, and desires to be informed thereof
in order to be prepared for trial, he must move to make the
complaint more definite and certain in that particular. He
will not be justified in lying by until the trial,'and then claim-
ing that he is unable to meet that issue for want of notice."
Of the second objection he said : " Without discussing the ques-
tion whether a female who practices the business of a midwife
is practicing "physic or surgery" within the meaning of said
section, it is suflBcient answer to the objection, . . . first,
that in this action the plaintiff is not seeking to recover any
compensation for her services as a midwife; and second, that
the statute does not make it unlawful to practice either physic
or surgery without having a diploma. In pursuing her busi-
ness as a midwife, the plaintiff was violating no law of this
state, but was pursuing a lawful and jaudable business. If she
earned and received money for her sPvices, she had a perfect
right to such money. If her injuries deprived her of the in-
come she derived from such lawful employment, there does not
seem to be any more reason for saying she has not been dam-
aged by her injury to the extent she has been deprived of such
income, than there would be for saying that she had not been
damaged if she had been deprived of . an income as a teacher,
artist, seamstress, or in any other lawful employment. The
income of most men and women, whether professional or other-
wise, does not depend in any great measure on the fact that
they can enforce payment for services rendered by an action at
law, but rather upon that sense of justice, which, in most men,
is more potent than the constraints of the law, that the laborer

PEESONAL mJtTET.

719

is worthy of his hire. It does not follow by any means that a
man will not have any income in the pursuit of a lawful em-
ployment because he cannot enforce his claim to compensation
for services by an action at law."

In such actions where there is claimed to be a permanent
disability or decrease of mental or physical capacity for work,
evidence should be given which will enable the jury to deter-
mine whether the injury is permanent, the health and condition
of the plaintiff before the injury, as compared with his health
consequent upon the injury; or how far and for what time it
is calculated to have a disabling effect.'

iMoMahon v. Northern C. E. E.
Co. 39 Md. 438; BaUou v. Farnum,
11 Allen, 73; Lincoln v. Saratoga,
etc. E. E. Co. 28 Wend. 435; Tefft v.
Wilcox, 6 Kans. 46; Kansas P. E. E.
Co. V. Painter, 9 Kans. 620; New
Jersey Exp. Co. v. Nichols, 33 N. J.
L. 484; Tomlinson v. Derby, 43 Conn.
562; Luck v. Eipon, 53 Wis. 196;
Jacques v. Bridgeport Horse E. E.
Co. 41 Conn. 61; Cleveland, etc. E.
E. Co. V. Sutherland, 19 Ohio St.
151; George v. Haverhill, 110 Mass.
506. In Jacques v. Bridgeport Horse
E. E. Co. supra, the suit was brought
to recover damages for an injury re-
ceived in consequence of the defend-
ants' railroad track being out of re-
pair. The plaintiff was a practicing
physician, and was permitted to
show the value of his practice, and
its loss by the disability caused by
the injury. Oh the trial these ques-
tions were asked on the cross exam-
ination of the plaintiff, and held
erroneously excluded: " When you
were absent in 1864 and 1865, was it
not claimed that you were guilty of
malpractice in your profession?"
And " was your practice in 1864 and
1865 substantially the same as at the
time of your injury ? " The defend-
ant also introduced a witness who
was asked " wliat was the reputation
of Dr. Jacques, as a physician, in

1871 [the year in which his injury
occurred], and thereafter up to the
time when he stopped business, as to
the lawfulness or unlawfulness of his
practice?" This question was also
excluded by the trial court. On a
motion for a new trial, on exception
to these rulings, the supreme court
held this language : "As the plaint-
iff sought to recover damages on
account of being disabled from prac-
ticing his profession, his reputation,
as to the lawfulness or unlawfulness
of his practice, became a proper
subject of inquiry. The value of
that practice must have depended
largely upon that reputation. If
his practice was unlawful, no mat-
ter how lucrative it might have
been, the loss of it would lay no
foundation for the recovery of dam-
ages. The questions put to the
plaintiff, and also the other witness,
may not have been the best mode
which could have been adopted for
reaching the truth; still we think
the questions should not have been
excluded. The plaintiff's claim in
effect put his professional reputation
in issue and made these questions
proper. The answers to them would
tend to throw light upon the subject
which the defendants had a right,
under the circumstances, to investi-
This ruling is open to objec-

720

PERSONAL DTJUET.

The recovery for loss of time or decreased capacity for work
will depend on the nature of the business or calling of the
injured party, or the pecuniary value of the loss of his time, or
of the loss of his capacity.' A minor son owing service to his
i father cannot recover for loss of time or inability to labor or
earn money during the period of his minority.^ So a married
woman cannot recover for a similar loss, because her husband
is entitled to her services.' "What amount shall be allowed is
left to the sound discretion of the jury ; but it should be suf-
ficient to compensate for the injury.^ If the plaintiff was
engaged at wages at the time of the injury, and his employer
continued to pay them during the period of disability, there
can be no recovery for loss of wages.'

Expenses fob stjegioal and medical aid and nursing. —
Such expenses, when necessary and reasonably incurred, are
part of the injury, and may be recovered under proper plead-
Such damages are generally treated as special, because

tion. The injured party would not
lose his right to compensation for
being prevented by his injury from
pursuing his jiractioe, merely be-
cause it was " claimed" or reported
that his practice was unlawful.
Reputation is not proof that in fact
one's practice is unlawful, nor was
it legitimate pi-oof to controvert the
plaintiff's evidence of the amount
that practice had yielded.

In Baldwin v. Western R. R. Co. 4
Gray, 335, it was held that testimony
that the person who was driving the
carriage in which the plaintiff rode at
the time of the accident, by common
reputation, was a careless driver,
was rightly rejected. It might have
been competent for the defendant to
show that he was in fact unskUful
and careless in the management of
a horse. But evidence on this point
must come from those who can tes-
tify to the fact from their owp
knowledge. It cannot be proved by
reputation.

1 Chicago V. Elzeman, 71 111. 131;
McLaughlin v. Corry, 77 Pa. St. 109;
Hammond v. Mukwa, 40 Wis. 36;
Hall V. Fond du Lao, 42 id. 374;
Indianapolis v. Gaston, 58 Ind. 234;
Penn. R. R. Co. v. Dale, 76 Pa. St.
47; Morris v. Chicago, etc. R. R. Co.
45 Iowa, 29; Chicago v. Jones, 66 111.
349; Chicago v. Langlass, id. 361;
Nichols vi Brunswick, 3 Cliff. 81;
Lombard v. Chicago, 4 Biss. 460;
Gale V. N. Y. etc. R. R. Co. 13
Hun, 1; Howes v. Ashfleld, 99 Mass.
540.

2 Stewart v. Ripon, 38 Wis. 584;
Jordan v. Bowen, 46 N. Y. Super.
Ct. 355.

3 Filer v. N. Y. C. R. R. Co. 49 N.
Y. 47; Minick v. Ti-oy, 19 Hun, 358.
See Brooks v. Schwerin, 54 N. Y.
343.

4 Id.

5 Drinkwater v. Dinsmore, 80 N.
Y. 890.

" Gale V. New York, etc. R. R. Co.
18 Hun, 1; Sheehan v, Edgar, 68 N.

PEESONAL mjUET.

721

they do not necessarily result from all personal injuries; but
in case of severe bodily injury the assistance of physicians is so
obviously necessary as to be provable under a general allega-
tion of damages.^ Where such expenses have been incurred by
the injured party, so that he is liable therefor, he is entitled to
recover for them, though they have not been paid,^ or though
they have been voluntarily paid by another.' And it has
been held in Indiana, that wherever it is proper in such a case
to prove the services of a physician or surgeon, the fair value
of such services is the rule, even though they may have been
rendered gratuitously.* This ruling has been questioned,*
and is questioned for carrying the allowance for compensation
beyond the actual injury.* A married woman cannot recover,

Y. 631; Beardsley v. Swann, 4 Mc-
Lean, 333; Missouri, etc. E. R. Co.
V. Weaver, 16 Kans. 456; Forbes v.
Loftin, 50 Ala. 396; Klein v. Thomp-
son, 19 Ohio St. 569; Morse v. Au-
burn, etc. E. E. Co. 10 Barb. 631;
Chicago V. Jones, 66 111. 349; Chi-
cago V. Langlass, id. 361; Chicago
V. O'Brennan, 65 id. 160; Peoria
Bridge Asso. v. Loomis, 30 id. 335;
The Canadian, 1 Brown, Adm. 11;
Indianapolis, etc. B. E. Co. v. Bir-
ney, 71 111. 391.

1 Folsom V. Underbill, 86 Vt. 581.

2Gries v. Zeck, 34 Ohio St. 839.

3 Klein v. Thompson, 19 Ohio St.
569.

* Indianapolis v. Gaston, 58 Ind.
327.

5 2 Thompson on Neg. 1258.

6 In Drinkwateir v. Dinsmore, 80
N. Y. 890, Earl, J., delivering the
ppipion lof the court, on the point
thajt the injured party was entitled
to nothing for loss of wages where
they were paid to him during his
disability, referred to the exclusion
of evidence offered for the pur-
pose of mitigation, where money
had been received on an accident
insurance by reason of the injury in
question, and of the ijeceipt of

Vol. Ill — 46

money on other insurance in cases
of suit for wrongful destruction or
conversion of property. He said:
"In such cases proof of the insur-
ance actually paid would not tend
to show that the damage claimed
was not actually occasioned by the
wrongdoer; but it would simply
show that compensation had been
received by the injured party, in
whole or in part, from some other
party, — not that the wi-ongdoer had
made satisfaction, which alone
could give him a defense.

" Here the proof was offered, not
in mitigation or satisfaction of any
damage actually done the plaintiff,
but to show that he did not suffer
the damage claimed, to wit, the
loss of wages. Before the plaintiff
could recover for the loss of wages,
he was bound to show that he lost
the wages in consequence of the
injuries, and how much they were.
The defendant had the right to
show that he lost no wages, or that
they were not as much as he
claimed. He had the right to show,
if he could, that for some particular
reason the plaintiff would not have
earned any wages if he had not
been injured, or that he was under

722

PEHSONAl mJUBT.

in an action for personal injury, the physician's and nurse's
bills as items of damage, because she is not liable for them.'
In an action by a minor who has no father or guardian, for a
personal injury, he may recover, as part of his damages, bills
for medical attendance during any illness resulting from such
injury.2

The entire damages to be eecoteebd in one action, — <
PEosPECTivE DAMAGES. — A personal injury from a single wrong-
ful act or negligence is an entirety, and affords ground for only
one action. In that action recovery may be had for all dam-
ages suffered up to the time of the trial, and for all which are
shown to be reasonably certain or probable to be suffered in the
future. Such prospective damages may include compensation
for pain, disability and expenses.' For this reason it is impor-
tant in cases of serious injury to determine the permanence of
any disability or reduction of working capacity, or impairing
effect upon health resulting therefrom. Besides giving com-
pensation for future pain and the anticipated expense of treat-
ment and nursing, it appearing that they are reasonably certain

such a contract with his employer In such case the doctor's bill could

that his wages went on without not be an element of his damage."
service, or that his employer paid i Moody v. Osgood, 50 Barb. 628.
his wages from mere benevolence. 2 Forbes v. Loftin, 50 Alan, 396.
In either case, upon such showing, 3 Elkhart v. Ritter, 66 Ind. 136;

the plaintiff could not claim that Indianapolis v. Gaston, 58 id. 234;

the defendant's wrong caused him Drinkwater v. Dinsmore, 10 Hun,

to lose his wages, and the loss of 250; TefEt v. Wilcox, 6 Kans. 46;

wages could form no part of his Howell v. Goodrich, 69 111. 556;

damage. So the expense of nursing Matteson v. N. Y. C. R. R. Co. 62

may be recovered as an item of Barb. 864; Beckwith v. N. Y. C. R.

damage, if properly incurred. But R. Co. 64 id. 299; Stewart v. Ripon,

the defendant may show that no 38 "Wis. 584; McLaughlin v. Corry,

such expense was incurred, as that 77 Pa. St. 109; Barbour County v.

the plaintiff was nursed by a sister Horn, 48 Ala. 566; Goodno v. Osh-

of charity. So the doctor's bill may kosh, 28 Wis. 300; Murray v. Hud-

m such a case be recovered. But son River R. R. Co. 47 Barb. 196;

plaintiff must show whSt he paid Walker v. Erie R'y Co. 68 Barb. 260;

the doctor, or was bound to pay, Curtis v. Rochester, etc. R. R. Co.

The defendant may show that the 18 N. Y. 542; Ransom v. N. Y. etc.

plaintifE was doctored at a charity R. R. Co. 15 id. 415; Wiesenberg v.

hospital, or at the expense of the Appleton, 26 Wis. 56; Vol. I,

town or county, or gratuitously, pp. 198-197.

PBEgONAL INJUET. 723

to occur, the pecuniary loss in respect of the diminution of abil-
ity to earn money is to be considered by the jury; The mate-
rial inquiries on this subject will be, what is a pecuniary
equivalent for this loss per year, and how long will it continue?
The answer to them must be chiefly found in the nature of the
injury, the age and general health of the injured party, and his
antecedent earning capacity as indicated by his qualification
and the character of his business or calling. In respect to years
to come the recovery will be like payment in advance, and the
amount should be reduced to its present worth.^ In a Texas
case the trial court instructed the jury on the estimate of dam-
ages for the difference between the ability of the party injured
before the injury, and his ability afterwards to earn wages, to
find no greater sum than, put at interest, would produce annu-
ally a sum equal to the difference between what the plaintiff
could earn before and what he can now earn in consequence of
the injury. On appeal this instruction was deemed objection-
able. Bonner, J., said : " If compensation for lessened ability
to labor be a;ssumed as the true measure of damages, then it
would seem that it should not be such sum as would bring an
annual interest corresponding with the annual value of this
lessened ability, leaving the principal sum stiU belonging to the
estate of plaintiff after his death, although he had then become
wholly incapacitated for labor ; but would be an amount which
would purchase an annuity equal to this interest, during the
probable life of the plaintiff, calculated upon a reliable basis of
the average duration of human life." ^

A. husband's oe a paeent's action. — The action in such
cases is mostly for the pecuniary loss. A husband is entitled
to the services and society of his wife, and he is bound to take
care of and provide for her, in sickness as well as in health.'
Therefore any wrongful injury to her, by which he is de-
prived of her services or society, is a legal injury to him;
and this injury is enhanced if he has been obliged to incur

J Fulsome v. Concord, 46 Vt. 135. McDonald v. Chicago, etc. E. R, Co.
2 Houston, etc. E. R. Co. v. Willie, 36 Iowa, 134
53 Tex. 318; 8. C. 37 Am. Eep. 756; » Grant v. Green, 41 Iowa, 88.

72i

PEESONAL DTJUET.

expenses for her cure.' In one case he was held entitled to
recover the sum paid by him for necessary labor and services
substituted for the ordinary service of the wife, and for his
own services in attending upon her.^ So far as the husband
suffers loss in being deprived of his wife's services, and in being
put to expense by her illness, the loss- is pecuniary; but he is
also entitled to her society. The wrong may entitle the hus-
band to substantial compensation, though the parties are in such
circumstances that the wife is not accustomed or desired to do
physical labor.' He is not entitled to recover for the pain and
suffering of his injured wife ; she must sue with her husband
for such elements of the injury.'' Nor can he recover for his

1 Fuller V. Naugatuck R. R. Co.
21 Conn. 557; Barnes v. Martin,
15 Wis. 240; Kavauaugh V. Janes-
ville, 24 Wis. 618; Filer v. N. Y.
C. R. R. Co. 49 N. Y. 47; Baxnes
V. Hurd, 11 Mass. 59; MoKin-
ney v. Western Stage Co. 4 Iowa,
430: Rogers v. Smith, 17 Ind. 333;
Mowry v. Cheney, 43 Iowa, 609;
Mewhii-ter v. Hatten, 43 Iowa, 288;
Tuttle V. C. R. I. & P. R. R. Co. id.
518; Smith v. St. Joseph, 55 Mo. 456;
Berger v. Jacobs, 31 Mich. 215; Mat-
teson V. New York C. R. R. Co.
35 N. Y. 487; Eden v. Lexington,
etc. R. R. Co. 14 B. Monroe, 304;
PhiUppi V. Wolff, 14 Abb. N. S.
196.

2Lindsey v. DanvUle, 46 Vt. 144.

'Cooley on Torts, 226.

* Hyatt V. Adams, 16 Mich. 180;
Michigan Cent. R. R. Co. v. Colenian,
28 id. 440; Brooks Vi Schwerin, 54
N. Y. 343; Filer v. N. Y. Cent. R. R.
Co. 49 N. Y. 47; Hunter v. Ogden, 31
TJ. C. Q. B. 133; Ruder v. Purdy, 41
m. 379. In Minick v. Troy, 19 Hun,
353, it was held that in an action by
a married woman, she might re-
cover for such loss of service as she
sustained herself, and towards her-
self. On this point, Boches, J., said:

"Here, in effect, the jury were in-
structed that they should not allow
such consequential damages as
might result to the plaintiff's hus-
band from her inability to labor.
In this case, unlike Brooks v. Schwe-
rin, 54 N. Y. 343, the plaintiff was
engaged in no separate business or
employment; still there remained
to her many duties, privileges and
services, personal to herself, which
were proper subjects for the consid-
eration of the jury,- in connection
with the suffering findured, in deter-
mining the damages to be awarded
to her."

By the effect of certain stat-
utes, married women have in
some states the right to sue alone
for the damages for personal in-
jury, so far as they are themselves
affected. Chicago, etc. R. R. Co. v.
Dunn, 53 111. 2.60; Hayner v. Smith,
63 id. 430; Hennies v. Vogel, 86 HI.
401; Pancoast v. BumeU, 83 Iowa,
894; Musselman v. Gallagher, id.
888. See Gibson v. Gibson, 43 Wis.
23, 29.

Ihe damages recoverable for her
injuries, in a joint action, belong to
the husband when recovered, and he
may release them. Southworth v.

PEESONAL mjUET. 725

own mental distress on account of his wife's suffering.' His
action will not abate by his death.^ The parent's action for
injury to his child is for loss of services, and expenses of the
illness and cure.'

In England the weight of authority is to the effect that in an
action by a parent for injuries to his minor child under his care,
the gravamen of the action is the loss of service ; as incidental
to which he may recover the expense of nursing and healing
the child. But if the child be of such tender years as to be in-
capable of rendering any service whatever, there can be no
recovery even for the expenses.* But in this country a more
liberal rule has been adopted ; and the best considered cases
hold that inasmuch as it is a duty enjoined by the law of the
land as well as, by the laws of nature, upon the parent, to care
for and heal his injured minor child, he who wilfully or negli-
gently occasioned the injury should be held responsible for the
expenses incurred, without reference to the capacity of the
child to render service to the parent.^ "Wounded feelings of
the parent cannot be taken into consideration,^ nor can exem-

Paokard, 7 Mass. 95; Ballard v. Rus- wife, and the reasonable expenses

sell, 33 Me. 196; Shaddock v. Clifton, incurred to obtain a cure.

22 Wis. 114. 1 Hyatt v. Adams, 16 Mich. 180;

Under statutes providing in effect FiUebrown v. Hoar, 134 Mass. 580.

that any person receiving any bod- ^ Hyatt v. Adams, supra; Eden v.

ily injury, through any defect in or Lexington, etc. E. R. Co. 14 B. Men.

want of repair of a highway, may 304; Green v. Hudson E. E. Co. 38

have a right of action against the Barb. 9. See Long v. Morrison, 14

town, a husband has not been per- Ind. 598.

mitted to maintain a separate action 3 Dennis v. Clark, 3 Cush. 347;

for any consequences of an injury Durden v. Barnett, 7 Ala. 169; Car-

to his wife. The action is given tanos v. Eitter, 3 Duer, 370; Whit-

ouly to the party injured, and bus- ney v. Hitchcock, 4 Denio, 461; Hall

band and wife must join to recover v. Hollander, 7 Dowl. & Ey. 133;

for injuries to her. Harwood v. Magee v. Holland, 37 N. J. L. 86;

Lowell, 4 Cush. 310; Starbrid v. Karr v. Parks, 44 Cal. 46.

Frankfort, 35 Me. 89. In Sanford v. < Add. on Torts, 903.

Augusta, 33 Me. 536, it was held 5Sykes v. Lawler, 49 Cal. 337, 238.

that in order to give the statute the 6 Cowden v. "Wright, 34 Wend,

beneficial effect for which it was 439; Penn. E. Co. v. Kelly, 81 Pa.

designed, the jury might allow in St. 373. But see Trimble v. Spiller,

such joint action, compensation for 7 T. B. Mon. 394, and Magee v. Hol-

loss of time from the injury to the land, supra.

723

PEESONAL INJUET.

plary damfiges be recovered.^ The parent's action is thus re-
stricted on the ground that the child fias a right of action, and
may recover fall damages, except such as are thus allowed to
be recovered by the parent.^

For abduction of a minor child the parent may recover for
reasonable expenses incurred in pursuit of the abducted child,
though no evidence be given that the abduction was malicious.'

Exemplaey damages.— Where the action is brought by one
who suffered the injury in his own person, exemplary damages
may be allowed, where the doctrine of such damages prevails,
if the wrong was done wantonly or with malice. There is
much conflict of decision as to the allowance of such damages,

1 In "Whitney v. Hitchcock, supra,
it was held in trespass for assault
and battery upon the chUd or serv-
ant of the plaintiff, that the damage
was the actual loss which the plaint-
iff had sustained; that exemplary
damages could not be given, though
the assault be of an indecent char-
acter and under circumstances of
great aggravation.

2 Id. The case of Karr v. Parks,
44 Cal. 46, is thus stated in the opin-
ion of the court: "It appears from
the evidence, that the daughter of
plaintiff, between ten and eleven
years of age, was attacked and gored
by the defendant's cow. A wound
was inflicted upon her face, which
desti-oyed the sight of the right eye
and lachrymal duct, and tore the
lower lid f x-om its attachment at the
inner corner of the eye. She was
immediately placed in the care of a
surgeon, under whose treatment the
wound healed; but there remained
an eversion of the lower eyelid,
which was an unseemly disfigure-
ment of the face. The larger por-
tion of the expense for which the
plaintiff sought to recover was in-
curred in the endeavor to remove

this disfigurement. For this pur-
pose the child was taken to San
Francisco and two surgical opera-
tions were performed — the first be-
ing an entire failure, and the other
partially successful. The amount
of the verdict found by the jury
renders it certain that the expenses
-attending these operations entered
largely into their estimate of dam-
ages. . . . There was evidence
tending to show that the restoration
of the eyelid to its normal condi-
tion would add to the child's com-
fort by affording protection to the
eye. But the discomfort was the
unavoidable result of the injury re-
ceived, for which the child could
recover compensation in her own
suit, as she could for the immediate
pain and suffei'ing caused by the
wound, There would be practically
no limit to the liability of the de-
fondant, if the father could pursue
at pleasui'e a series of expensive
surgical operations, for the purpose
of removing every ti-ace of the in-
jury and charge the defendant with
the entire cost."
3 Rice v. Nickerson, 9 AUen, 478.

PEESONAL INJUBT. 727

and the reader is referred to tlie chapter on that subject.' In
actions for assault and battery, where a battery is proved and
tliere is no justification or palliation, the plaintiff has a right
to a fair compensation for the injury actually sustained, and this
compensation, as we have seen, should include a remuneration
for pain, bodily and mental, loss of time from any disability
and the expenses of cure. The ment3.1 pain which will be con-
sidered for compensation is not only that which results from the
corporal hurt, but also the insulting or humiliating incidents of
the wrong as perpetrated.^ The jury wiU be instructed to con-
sider the entire transaction. The circumstances which. would
induce the allowance of punitory damages in one jurisdiction
will elsewhere be generally considered as aggravations to en-
hance damages for compensation. Where there are such aggra-
vations it is generally held admissible to show the wealth and
social position of the parties to affect damages therefor.' Any
facts may be shown to enhance damages which tend to show
actual malice. The plaintiff may show previous threats, and
for this purpose it is immaterial whether the plaintiff knew of
them before the assault or not.''

Evidence est mitigation. — The poverty of either party or the
number and ages of his children can have no relevancy to or
effect upon his right to receive or his duty to make compensation.'

In actions for assault and battery, matters of provocation
cannot be admitted in mitigation unless they happen at the
time of the assault, or immediately preceding it, so as to form
part of the transaction.^ The provocation, to entitle it to be

iVol. I, ch. IX. good, 50 Barb. 628; S. C. 60 id. 644;

2 Sampson v. Henry, 11 Pick. 379. Shea v. Potrere, etc. E. R. Co. 44

3 Id. 743, 744; Dailey v. Houston, Cal. 415; Kansas, etc. E. E. Co. v.
58 Mo. 361; Eowe v. Moses, 9 Eich. Painter, 9 Kans. 621; McKenzie v.
423. See McKenzie v. Allen, 3 Allen, 3 Strobh. 546. See Gaither v.
Strobh. 546; Euder v. Purdy, 41 lU. Blowers, 11 Md. 536; Winters v.
279. Hannibal, etc. E. E. Co. 39 Mo. 468.

iBartram v. Stone, 31 Conn. 169; eWiUis v. Forest, 2 Duer, 310;

Treat v. Barber, 7 Conn. 279. Stetlar v. Nellis, 42 How. Pr. 163; 60

5 Pennsylvania Co. v. Eoy, 102 U. Barb. 534; Corning v. Coming, 6 N.

S. 451; La Salle v. Thorndike, 7 111. Y. 97; Chambers v. Porter, 5 Cold.

App. 282; Pittsburg, etc. E. E. Co. 273; Avery v. Eay, 1 Mass. 13.
V. Powers, 74 HI. 341; Moody v. Os-

728

PBESONAL INJUET.

given in evidence in mitigation, must be so recent and immedi-
ate as to induce a presumption that the violence done was com-
mitted under the immediate influence of the feelings and
passions excited by it.' The defendant may show that the
plaintiff immediately before charged him with a crime.' And
no inquiry can be permitted into the truth or falsity of the
charge.'

The bad charaQter of the plaintiff cannot be proved in miti-
gation unless it in some way contributed to a provocation,* or is
in issue upon the question of damages.' Where a female
plaintiff, in an action for assault and battery, makes proof in
aggravation of damages that the defendant took indecent liber-
ties with her person and attempted to have sexual intercourse
with her, it was held that her character for chastity was in issue
on the question of damages, and that it was competent to dis-
parage it by proving specific acts of lewdness and immorality.^

1 Lee V. Woolsey, 19 John. 319.

2 Bartram v. Stone, 31 Conn. 159.
' Id. See Bull v. Gould, 34 Ind.

652; Marker v. Miller, 9 Md. 338.
4McKenzie v. Allen, 3 Strobh. 546.

5 Ford V. Jones, 62 Barb. 484;
Verry v. Watkins, 7 C. & P. 308.

6 Ford V. Jones, supra. In this
case Potter, J., said: "The rulings
of the court upon the evidence

raises directly the much
vexed question whether, when a per-
son's character for chastity is in
issue, it is competent to disparage it
by proving specific facts of immoral-
ity. Tlie question is raised here, be-
cause the plaintiff's character for
chastity is directly in issue upon the
question of damages. It is directly
a question of chastity and not of
reputation. The material question
in such a case is on the willingness
or reluctance of tlie plaintiff to the
act complained of. And the court
has ruled that her character for
chastity could be attacked only by
proof of general reputation. I am
satisfied that is wrong.

" In the first place, there is the a
priori argument, that it is the fact of
chastity, and not the reputation at
that fact, upon which the violence
of the shock to the injured party's
feeUngs depends; that the reputation
does not accord with the fact, and,
as a means of proof, is therefore in-
ferior to that by specific acts. This
argument has never been answered,
except by a reason of inconven-
ience, merely; that the plaintiff can-
not be expected to come prepared to
disprove specific acts; a reason which
is summarily disposed of by Justice
Cowen in the case of The People v.
Abbott, 19 Wend. 193, 197, by the
statement that ' such reason would
go to show that every circumstance
in a chain must be shown by repu-
tation instead of ocular proof.'

" In the next place, I am entirely
satisfied that the weight of author-
ity is the same way. In this state
there is the opinion of Justice
Cowen in The People v. Abbot,
supra, obiter dictum upon tliis point,
it is true; but as an opinion, most

PEESONAL INJUET.

729

The injured party cannot recover damages whioli result from
his own acts or want of care. He is required to observe proper,
precautions against increasing the injury, and to reasonably

able and exhaustive; besides, the
cases of Bracy v. Kibbe, 31 Barb.
376, and Hogan v. Cregan, 6 Eobt.
150, support the same view, whUe to
the contrary there is only the case of
The People v. Jackson, 3 Park. Cr.
Eep. 391, which must be deemed to
be overruled by the two cases above
cited. And proof of specific acts
lias always been, admitted under the
seduction and abduction statutes, to
show that the prosecutrix was not
of ' previously chaste character.' See
Carpenter v. The People, 8 Barb.
103; Crozier v. The People, 1 Park.
Cr. R. 453; Safford v. The Pe,ople,
id. 474; People v. Kenyon, 5 id. 286;
36 N. Y. 303; People v. McArdle, 5
Park. Cr. E. 180. As the fact of a
chaste character is as much at issue
in this case as in those, they niust be
considered authorities. The shock
to the plaintiffs feelings, it is nat-
ural to suppose, is proportioned to
the sacred regard she entertained for
her personal virtue; and the dam-
ages she would be entitled to recover
ought to be regulated by the nature
and extent of the injury received.
Unless a distinction is permitted by
the admission of evidence to this
point, the lascivious wanton is put
upon an equality with her of per-
sonal chastity and virtue, in Jier ac-
tion for damages. Assaul^nd bat-
tery is an action in which ^dictive
damages are allowed, depending
upon the aggi-avation. How is this
aggravation to be measured but by
the degree of suffering? And how
is the suffering to the feelings to be
measured but by the moral sensi-
bilities ? Does the chaste and pure
suffer no more, in this respect, than

the prostitute? The rule would
otherwise be unjust.

" In other states, the oases upon
this point of the admission of evi-
dence are conflicting. Iowa and
California holding the evidence of
specific acts to be admissible; and
those of New Hampshire, North
Carolina and Arkansas the reverse.
See Reed v. WiUiams, 5 Sneed, 580.
A dictum to the same effect has also
been uttered' by the supreme court
of Ohio, and a semble by that of
Georgia. See 5 Sneed, 580; Smith v.
Melburn, 17 Iowa, 30; People v.
Benson, 6 Cal. 331; State v. Knapp,
45 N. H. 148; State v. Jefferson, 6
Ired. 305; McCombs v. State, 8 Ohio
St. 645; Camp v. State, 3 Ga. 417;
Pleasants v. State, 15 Ark. 634.

"The authority of the English
courts must also be held to be in
favor of admitting the evidence of
specific acts. The earlier cases of
Rex V. Hodgson, Russ. & Ry. C. C.
311, and Rex v. Clarke, 3 Stark. 341,
which presented much difBculty to
Justice Cowen in his opinion in The
People V. Abbot, have been doubted,
and pi'acticaUy overruled by the later
cases of Rex v. Barker, 3 Car. & P.
589; Verry v. Watkins, 7 id. 308;
Reg. V. Robins, 2 M. & Rob. 513;
Reg. V. Martin, 6 C. & P. 563; Reg.
V. Tissington, 1 Cox C. C. 48; and
Reg. V. Mercer; 6 Jur. 343. And in
Carpenter v. Wall, 11 A. & E. 803,
the reasoning of the court is to the
same effect.

" Besides, in analogous cases, spe-
cific acts may be shown; as in pass-
ing counterfeit money, on the ques-
tion of scienter (1 Phil. Ev. 179, 7th
ed.); and in an action for breach

730

PBEBONAl mjUEt.

exert himself to obtain a cure. Such part of the damages he sus-
tains as the defendant can show has resulted from the plaintiff's
fault will be deducted from his recovery.'

Eeovinoe of the juet, and instructions to them.' — There
being no legal measure of damages for pain and suffering, the
amount which a jury may award in an action for personal in-
jury is peculiarly within their discretion. They should exercise
a calm and dispassionate judgment in view of all the facts
established by the evidence, under the instructions of the court.
The parties are entitled to the judgment of the jury, and it is
not within the province of the court to decide on the amount
of damages.* Courts will not set aside verdicts either on the
ground that the damages are excessive or inadequate, unless it
is apparent that the jury acted under some bias, prejudice or
improper influence, or have made some mistake of fact or law.'

of promise of marriage, acts point-
ing to lightness of character may be
shown. Willard v. Stone, 7 Cowen,
23; Johnson v. Caulkins, 1 John.
Cas. 116.

" I take it that where character is
directly in issue, specific acts may
be proved; but where the issue is
collateral, as upon the credibility of
a witness, the proof must be con-
fined to general reputation.

" In the absence of authority, I
think, upon principle, the evidence
ought not to have been excluded.
Facts and circumstances ought to be
permitted, in evidence, which go to
regulate the amount of the verdict,
60 as to arrive at a just result. It
is, in my opinion, m.anifestly unjust
that facts should be withholden
from a jury which would and ought
to lessen the damages. While it
may be proper for a jury to take
into consideration, and give damages
for, suffering in mind, and which
they may justly estimate by neces-
sary inference from facts calculated
to produce such suffering, I think
the evidence of such suffering,

which is of the party's own making,
should either be excluded, or, if ad-
mitted, the party responsible should
be permitted to show, by speciiic
facts, those matters which would
rebut such pretended suffering. The
probabilities of assent or of non-
resistance are a legitimate inference
from the fact of former promiscu-
ous intercourse, or former particu-
lar acts of lewdness." See ante,
p. 679.

iVol. I, pp. 337, 238; Geiselman
V. Sc9tt, 35 Ohio St. 86; NashviUe,
etc. E. R. Co. V. Smith, 6 Heisk. 174;
Gould V. McKenna, 86 Pa. St. 297.

2 KimbaU v. Bath, 38 Me. 219; Mc-
Kinley v. Chicago, etc. R. R. Co. 44
Iowa, 823; Butler v. Bangor, 67 Me.
385; J^bs v. Bangor, 16 id. 187;
Shartlev. Minneapolis, 17 Minn. 308;
Wightman v. Providence, 1 Cliff.
530; Chicago v. Smith, 48 111. 107;
Gale V. New York, etc.' R. R; Co. 13
Hun, 1; Weisenberg V. Appleton, 26
Wis. 56; Vol. I, p. 810.

3 Id.; Coleman v. Southwick, 9
John. 45.

PEE80NAL INJURY. 731

It is the duty of the court to determine whether the jury
may consider the question of allowing exemplary damages, and
\then it is submitted the jury may allow such damages or not
according to their judgment of the case.* It will be error if
the court withhold that question from the jury in a case proper
for such damages,^ and a verdict which includes them in a case
where only compensation should! be given wiU be set aside.'
It is matter of Jaw to determine the elements of damage. On
the trial the evidence should not be permitted to embrace any
elements not proper to be considered; but incidentally on the
trial of proper questions, irrelevant matters sometimes creep in.
By instructions the court should, as far as practicable, eliminate
them, and direct the jury to those elements on which their esti-
mate should be made. It is error to submit such cases with the
general instruction that the jury may find such damages as in
their judgment, from the evidence in the cause, the plaintiff
ought to recover; thus giving the jury free scope to give such
damages as, according to their individual notions of right and
wrong, they might think the plaintiff ought to have, unguided
by any legal rule as to the elements.* In a late Connecticut
case,' Loomis, J., said : " The parties made no requests in rela-
tion to the damages. And it may not be perfectly clear that
we ought to grant a new trial on account of the charge as given
on this subject. It was, however, somewhat objectionable as not
giving the jury any rule at all on the subject, except ' their
own sense of right and justice,' and that, too, in a case where
sympathy for the plaintiff would naturally produce a powerful
effect. There was danger that the jury might take the charge
as meaning that their power over the damages was practically
unlimited by any other rule."

False imprisonment.— The injury of being illegally restrained
of one's liberty is akin to that suffered from assault and bat-

1 Myers v. San Francisco, 42 Cal. linger v. Egan, 65 id. 235; Chicago,

315; Owenv. Brocksohmidt, 54 Mo. etc. R. R. Co. v. McKittrick, 78 id.

ogg. 619; NashvUle, etc. R. R. Co. v.

^ Bass V. Chicago, etc. R. R. Co. Smith, 6 Heisk. 174; Goodno v. Osh-

03 Wis. 636. kosh, 28 Wis. 304.

3 Chicago V. Langlass, 52 III. 256; « Keightlinger v. Egan, supra.
Chicago V. Kelley, 69 id. 475; Deca- 5 Wilson v. Granby, 47 Conn. 47.
tur V. Fisher, 53 id. 407; Keight-

732

PEKSONAL INJUET.

tery .' The injured party, in such cases, even though the act com-
plained of be done without malice, is entitled to recover the
expenses reasonably incurred to procure discharge from the re-
straint, for loss of time, interruption of his business, and the
suffering, bodily and mental, which the wrong may have occa-
sioned.^ The filthy condition of the jail in which the plaintiff
was confined, or any other discomfort or deprivation, may be
shown to enhance compensatory damages for mental anguish
and discomfort.' The plaintiff may recover for loss of work
not only up to the time of the suit, but also for the time lost
after the suit, if by the arrest he failed to get the work he
otherwise would have obtained.* "Where a master of a vessel
unjustifiably imprisoned a seaman until his effects on board
were lost or sold, it was held that the damages should not be
vindictive unless the motives of the master were bad ; but com-
pensation should usually be made for the time of the imprison-
ment, the value of the articles lost or sold, and interest on the
amount, and passage home.'

The arrest being unlawful, it is not necessary to prove malice ; *
and probable cause is only material in mitigation of damages.'
A declaration which alleges that the imprisonment was by
means of threats and violence and without any reasonable
cause, and unlawful, states the ingredients of malice, and is
broad enough to support a charge on that basis.* And in such
cases, when there is no possible way of measuring damages
with any certainty, the sound discretion of the jury under aU
the circumstances is the only measure practicable.'

If the defendant was actuated in causing the arrest by actual

1 Cooley on Torts, 169; Comer v. * Thompson v. Ellsworth, 39 Mich.
Knowles, 19 Kans. 440, 441. 719.

2 Parsons v. Harper, 16 Gratt. 64; 6 jay v. Almy, 1 Woodb. & M.
Fenelon v. Butts, 53 Wis. 344; Stew- 262.

art V. Maddox, 63 Ind. 51; Jay v. o Chismon v. Carney, 33 Ark. 316;

Almy, 1 Woodb. & M. 262; Bone- Painter v. Ives, 4 Neb. 133.

steel V. Bonesteel, 30 Wis. 511; ' Norman v. Manciette, 1 Sawyer,

Blythe v. Tompkins, 3 Abb. Pr^ 468; 484; Sleight v. Ogle, 4 E. D. Smith,

Abrahams v. Cooper, 81 Pa. St. 445; Brown v. Chadsey, 39 Barb. 253.

233. SBrushaber v. Stegemann, 33

" Fenelon v. Butts, supra; Kindred Mich. 366, 370.

■,•. Stitt, 51 111. 401; Abrahams v. 9 Id. See Josselyn v. McAllister,

Cooper, 81 Pa. St. 233. 23 Mich. 300.

PERSONAL mJUET.

733

malice, damages will be aggravated on account of the malice.^
But the absence of malice, and proof of good faith, will be no
justification of an unlawful imprisonment, nor exempt the
wrongdoer from the payment of actual damages.^ Exemplary
damages should not be allowed against an officer who makes
or causes an illegal arrest, unless he acts in bad faith, or is
guilty of some oppression or misconduct.' But where an offi-
cer is guilty of bad faith, or one not an officer sets the law in
motion and causes an arrest on process, in bad faith, the jury
will be warranted in allowing liberal damages.* So far as dam-
ages depend on malice and would be enhanced by it, they will
be reduced by proof which negatives malice. Evidence of
good faith is therefore generallj'- admissible in mitigation ; but
this mitigation will be limited to the damages it tends to con-
trovert.*

1 Parsons v. Harper, 16 Grratt. 64;
Parsons v. Lloyd, 3 Wils. 341; S. 0.
3 W. Bl. 845; Turner v. Telgate, 1
Lev. 95; Barker v. Braham, 3 Wils.
368; Codrington v. Lloyd, 8 A. & El.
449; Curry v. Pringle, 11 Johq, 444;
Gold V. Bissell, 1 Wend. 310; Fel-
lows V. Goodman, 49 Mo. 63; War-
wick V. Foulkes, 13 M. & W. 507;
Josselyn v. McAllister, 33 Mich.
300.

2 Painter v. Ives, 4 Neb. 133;
Comer v. Knowles, 17 Kans. 440,
441; Newton v. Locklin, 77 IlL 108;
Carey v. Sheets, 60 Ind. 17; Van
Deusen v. Newcomer, 40 Mich. 90;
McCaU V. IfcDoweU, Deady, 333.
A person was convicted before a jus-
tice of two distinct offenses, and com-
mitted to the house of correctioa
under two warrants, one legal and
the other illegal, and held under
both warrants during the whole
period of his imprisonment; held,
his imprisonment was lawful, and
that if the justice was liable at all
for isstling the illegaJ warrant, he
was liable only for nominal dam-
ages. Doherty v. Munson, 127
Mass. 495,

3 Hamlin v. Spaulding, 27 Wis.
360; La Eoe v. Eoeser, 8 Mich. 537;
McCall V. McDowell, Deady, 333;
Dinsman v. Wilke, 13 How. 405.

* Marsh v. Smith, 49 111. 399; Fel-
lows V. Goodman, 49 Mo. 62.

6 Brown v. Chadsey, 39 Barb. 262;
Fenelon v. Butts, 53 Wis. 344. In
Brown v. Chadsey, supra, Emott,^
J., said: " In an action for false im-
prisonment, the gist of the action is
an unlawful detention. Malice in
the defendant will be inferred, so far
at least as to sustain the action; and
the only bearing of evidence to show
or disprove malice is upon the ques-
tion of damages. So, also, probable
cause, or reasonable grounds of sus-
picion, against the party arrested,
afford no justification of an arrest or
imprisonment which is without au-
thority of law."

In Comer v. Knowles, 17 Kans.
441, Valentine, J., said: " MalicS
and wilfulness are not essential ele-
ments of false imprisonment; and
in this the action of false imprison-
ment differs from that of libel, slan-
der, maUcious prosecution, and
perhaps some others. It is true,

734

PERSONAL INJtreT.

however, that malice and wilfulness
may belong to any particular case of
false imprisonment; but when they
do so belong to such particular case,
they belong to it as a portion of the
special facts of that case, for which
special or exemplary damages may
be awarded, and do not belong to
the case as a portion of the general
and essential facts of the case for
which general damages may be
awarded. In the present case I
should thinithat the plaintiff below
did not claimi that the defendant be-
low acted wilfully or maliciously,
and did not claim that he, the plaint-
iff, had any right to recover en-
hanced damages on account of any
wilfulness or malice. If I am cor-
rect in this, the court below did not
err in excluding the defendant's evi-

dence. For all that such evidence
tended to prove was, that the de-
fendant acted honestly and in good
faith in temporarily depriving the
plaintiff of his liberty. Such evi-
dence did not tend to prove that
the defendant acted legally; and it
could not be introduced for the pur-
pose of diminishing the general and
actual damages which the plaintifif
sustained. Now, if the plaintiff had
claimed enhanced damages, or, in
other words, exemplary damages, on
account of any wilfulness or malice
on the part of the defendant, then
said evidence would have been ad-
missible in mitigation of such dam-
ages, and the court below in that
case could not rightfully have ex-
cluded the evidence."

BEDuonoH; 733

CHAPTEE XXVII.

SEDUCTION.

The technical not the real gist of the action — Who may maintain it — Evi-
dence for plaintiff , and damages recoverable — Evidence for defendant,
and what may be considered in mitigation — Criminal conversation.

The technical not the keal gist of the action. — At com-
mon law this action rests on the relation of master and servant,
and proceeds in form for loss of service. Trespass vi et a/rmis
is deemed the proper action where the servant resides with the
master or parent ; case may also be brought where the injury
is not committed with force, or where the servant is only
constructively in the master's service.^ Slight evidence will
establish sufficiently the relation, and the extent of the loss of
service is not the measure of damages. The allegations and
proof on these points are almost an unmeaning formula — an
obeisance to a shadow of the past — to reach the actual griev-
ance. The action in reality is to afford redress for the injury
done to the parent or other near relative or person standing in
loco ^parentis, for the dishonor and degradation suffered by the
family in consequence of the seduction.^ And large damages,
which the court will seldom relieve against,* are recoverable,
both for recompense to the plaintiff and punishment to the de-
fendant. Oaton, J., said : " Technically, the ground of recov-
ery is the loss of the services of the daughter, and the rule of
the books seems to be that the father must prove some service,
in order to entitle him to maintain the action. This is nomi-,
nally the ground on which the plaintiff's right of action rests,
while, practically, the right to recover rests on far higher

iBriggs V. Evans, 5 Ired. L. 16; v. Gfowen, 4 Greenlf. 33; Clough v.

Parker v. Meek, 3 Sneed, 29; Mercer Tenney, 5 id. 448.

V. Walmsley, 5 Har. & J. 37; Mag- 2 Coon v. Moffitt, 3 N. J. L. (*583),

ninay v. Saudek, 5 Sneed, 146; Sut- 169; Badgley v. Decker, 44 Barb,

ton V. Huffman, 32 N. J. L. 58; 577; HoUiday v. Parker, 23 Hun, 73,

Greenwood v. Greenwood, 28 Md. 73.

369; Bartley v. Richtmyer, 4 N. Y. s Bennett v. Beam, 43 Mich. 346;

38; Cooley on Torts, 2K, 233; Emery Sargent v. , 5 Cow. 108.

736 SEDUCTION.

grounds, that is, the relation of parent and child, or guardian
and ward, or husband and wife, as weU as that of master and
servant ; and it seems almost beneath the dignity of the law
to resort to a sort of subterfuge to give the father a right of
action which is widely different from that for which he is
really allowed to recover damages. But the law may still re-
quire proof of service, or at least the right to service when the
child is a minor ; but this, as well as any other fact, may be
proved by circumstances sufficient in themselves to satisfy the
jury that the party seduced did actually render service to the
plaintiff, and the most trivial service has always been held suf-
ficient." ^ Even in England, where stricter proof of service is
required, Blackburn, J., said: "In effect, the damages are
given to the plaintiff as standing in the relation of parent ; and
the action has at present no reference to the relation of master
and servant, beyond the mere technical point on which the
action is founded." ^ This is according to the general current of
authority.' While the courts adhere so far to the original dis-
tinctive character of the action as to require proof that the
seduced female was in the service of the plaintiff at the time of
the seduction, they do not require very strict proof ; very slight
evidence of loss of service suflSces in favor of one standing in
loco parentis, and affected by the graver consequences of the
seduction.* The actual loss sustained by the plaintiff, through
the diminished ability of his daughter, relative or ward, to
yield him personal service, as well as the servile position of the
supposed servant herself in the family of her protector, is ordi-
narily little more than a mere fiction. It is one of those cases
in which an action devised for one purpose has been found
to serve a different one, by the aid of the discretion which

1 Doyle V. Jessup, 29 111. 462; 829; Patterson v. Thompson, 24

Badgley v. Decker, 44 Barb. 586; Ark. 55; KeUer y. Donnelly, 5 Md.

Hartinv. Payne, 9 John. 387; Hewit 81J; Paterson v. Wilcox, 20 U. C.

V. Prime, 21 Wend. 79; White v. C. P. 385; PhUlips v. Hoyle, 4 Gray,

Nfellis, 81 Barb. 279; Kennedy v. 5!58; White v. Martland, 71 Ili 250.

Sh«a, 110 Mass. 147; Herring v. Jes- * Davidson v. Goodall, 18 N. H.

ter, 2 Houst. 66. 427; Hewit v. Prime, 21 Wend. 79;

2Terry v. Hutchinson, L. R. S Q. Maunder v. Venn, 1 Wood. &]SI. 323;

B. 602. jv Clark v. Fitch, 2 Wend. 459; Gray

3 Ellington v. Saiingtor^47 Miss, t, Durland, Sjl N. Y. 424.

SEDUOTIOIT. T37

courts have assumed in instructing the jury, and the readiness
of the jury to render substantial justice by their verdict,
■where the forms of law imposed by the instructions of the
court admit of their doing so.'

Who MATMAiNTAm THE ACTioiT. — Thepcrson seduced, whether
a minor or of full age, cannot maintain an action for her own
seduction ; she, being a partaker in the offense, cannot, it is said,
come into court to obtain satisfaction for a supposed injury to
which she consented.^ The only mode in which the action has
ever been maintained, except in pursuance of some statute,' has
been by bringing it in the name of some person having a right
to the services of the person seduced ; and in that action, dam-
ages are recoverable, not only for actual loss of service, but for
a sum sufficient to punish the seducer.*

The father has a right to the services of his minor daughter ;
and he may maintain the action without proof of actual service,
and though the daughter were at service away from home,, if
he had not divested himself of the right to recall her to his ,
service.' He will not be deprived of his remedy though death .
result from the pregnancy following the seduction.*

A mother, in case of the father's death, has the same right
to the services of her child as the father would have if living ; '

1 Davidson v. Goodall, supra. Dain v. Wycoff, 7 id. 191; Kennedy

2 Paul V, Frazier, 3 Mass. 71; v. Shea, 110 Masa. 147; Hewit v.
Woodward Y. Anderson, 9 Bush, 624; Prime, 31 Wend. 79; Greenwood v.
Hamilton y. Lomax, 26 Barb. 615; Greenwood, 28 Md. 869; Boyd v..
Smith v., Richards, 29 Conn. 233, Byrd, 8 Blackf. 118; Keller v. Don-
240. SeeFidlerv. MoKinley, Sim. nelly, 5 Md. 211; Kendrick v.
808. McCrary, 11 Ga. 603; Vassel v. Cole,

3 Provision has been made by stat- 10 Mo. 684; White v. Martland, 71
utes in Michigan, Indiana, Calif or- 111. 250; Mohry v. Hoffman, 86 Pa.
nia, Alabama, Iowa, and perhaps St. 88.

other states, for actions by the « Ingerson v. MUler, 47 Barb. 47.

female seduced, in which she is ' Gray v. Durland, 50 Barb. 100;

permitted to recover such damages S. C. 50 N. Y. 424; Furman v. Van

as juries will allow her. See 4 Am. Sise, 56 id. 435; Dedham v.'Natick,

IJep. 406. 16 Mass. 135; Blanchard v. Ilsley,

4 Hamilton v. Lomax, supra. 120 id. 487; Matthewson v. Perry, 87

5 Martin v. Payne, 9 John. 887; Conn. 435; Damon v. Moore, 5 Lans.
Nickleson v. Stryker, 10 id. tl5; 454; Keller v. Donnelly, 5 Md. 211;
Bartley v. Eichtmyer, 4 N. Y. 38; ViUJpique v. Shuler, 3 Strobh. 462.
Mulvehall v. MiUward, 11 id. 843;

Vol. Ill --47

738

SEDUOTTOM".

and may sue for her seduction. There are^ however, some
adverse decisions.'

A father loses the right to his daughter's service when she
arrives of age; but if afterwards she still continues to reside
with him, and is to some extent in his service, he may sue for
her seduction, happening during the time of such service.^ The
mere relation of parent and child will not give a right of action
for the seduction of an unmarried female, but the relation of
master and servant, either actual or constructive, must exist.
She must be under his actual or constructive control and
dominion. If such a relation exists, it matters not to the
cause of action whether the plaintiff be the parent, or merely
stands in the relation of parent. An uncle, an aunt, a step-
father, a brother, or one having no relationship or affinity to
the injured female, can sustain the action.^ It is not necessary

1 South V. Denneston, 3 Watts,
474; Hartley v. Eichtmyer, 4 N. Y.
38. In Badgley v. Decker, 44 Barb.
577, it was held that at corriBion. law
the mother could not mahitain an
action for the seduction of the
daughter while the father was liv-
ing. But since the recent statutes
of that state respecting married
women, where a husband has aban-
doned his wife and family, and re-
sides in another state, the wife, own-
ing a house and being engaged in
the business of keeping boarders,
on her sole and separate account,
may sue alone for the seduction of
her daughter, over twenty-one years
of age, who resides with and per-
forms service for her about the
house.

In George v. Van Horn, 9 Barb.
533, it was held that an action can-
not be maintained by a mother,
after the death, of her husband, for
seduction of their daughter in his
life-time, when the daughter at the
time of the seduction was over
twenty-one years of age, and was
residing with her brother at his
residence, and taking charge of his

family. The court also held that
the executors and administrators of
a deceased father or mother cannot
maintain this action for the seduc-
tion of his daughter in his life-time.
As well might the action lie, say the
court, for criminal conversation
with his wife. They cannot repre-
sent his aggravated feelings, and the
pei'sonal disgrace heaped upon him
by such events. These causes of
action are purely personal, and like
assaults, libel and slander, die with
the person. Logan v. Murray, 6
S. & E. 175. See HoUiday v. Parker,
23 Hun, 71; Noice v. Brown, 39 N. T,
L. 569; Coon v. Moffitt, 3 N. J. L. 436.
2Nickleson v. Stiyker, 10 John
115; Briggs v. Evans, 5 Ired. 21
Millar v. Thompson, 1 Wend. 447;
Lee v. Hodges, 13 Gratt. 726; Sutton
V. Huffman, 32 N. J. L. 58; WUhoit
V. Hancock, 5 Bush, 567; Hartley v.
Eichtmyer, 2 Barb. 183; Dain v.
Wycofe, 7 N. Y. 191; Patterson v.
Thompson, 24 Ark. 55; G«orge v.
Van Horn, 9 Barb. 523.
•SFurman v. Van Sise, 56 N. Y.
441; Clark v. Fitch, 2 Wend. 459;
Martin v. Payne, 9 John. 387; Millar

SEDuonoifr. 739

that the arrangement by which the relation of master and serv-
ant is established should have any permanent binding forqe
between the parties to it. If it exist in fact, and the immedi-
ate parties are acting under it at the time of the seduction,
however imperfect its obligation may be, the defendant, who
by his wrongful act has interrupted it, cannot set up that it
was liable to be revoked at any time without the assent of the
master.*

Evidence fok plaintiff, and damages eecoveeable. — The
rule as to damages is the same whether the daughter be a minor
or of full age; the plaintiff is not limited in his recovery to
mere compensatory damages. He may recover exemplary
damages when he is so connected with her as to be capable of
receiving injury through her dishonor.* In estimating the in-
Jury, the jury may take into consideration, besides the loss of
services, and the disbursements for medical treatment, and other
necessary expenses, the wounded feelings and affections of the
parent, the wrong done to him in his domestic and social rela-
tions, the stain and dishonor brought upon his family, and the
grief and affliction suffered in consequence of it, and give dam-
ages accordingly.' If the action is brought by any other per- \
son than a parent, standing in the relation of parent, it will be
governed by the same principles and rules of evidence; and

V. Thompson, 1 Wend. 447; David- SLipe v. Eisenlerd, 33 N. Y. 339;

Bon V. Groodall, 18 N. H. 4S3: Ball v. Damon v. Moore, 5 Lans. 454; Badg-

Bruce, 21 111. 161; EobertsV. Con- ley v. Decker, 44 Barb. 577; Wilson

nelly, 14 Ala. 235; Bartley v. Rioht- y.. Sproul, 3 Penn. & W. 49; Horn-

myer, 4 N. Y. 38; Mulvehall v. Mill- keth v. Barr, 8 S. & E. 36; Knight

ward, 11 id. 843; Dain v. Wycofi, -v. Wilcox, 18 Barb. 213.

18 id. 45; Femsler v. Moyer, 8 W. 'Herring v. Jester, 3 Houst. 66;

& S. 416; Coon v. Moffitt, 3N. J. L. Taylor v. Shelkett, 66 Ind. 297; Fox

436; Manvell v. Thomson, 2 C. cfc v. Stevens, 13 Minn. 272; Paterson

P. 308; Edmungon v. Machell, 2 T. v. Wilcox, 20 U. C. C. P. .385; Wil-

R. 4; Irwin v. Dearman, 11 East, 33; son v. Sproul, 3 Penn. 49; Hornketh

Ingersoll v. Jones, 5 Barb. 661; v. Barr, 8 S. & R. 36; Coon v. Mof-

Bracey v. Kibbe, 81 Barb. 373; fitt, 8 N. J. L. 436; Pruitt v. Cox, 31

Knight v. Wilcox, 15 Barb. 279; Ind. 15; Phillips v. Hoyle, 4 Gray,

Paterson v. WUcox, 20 U. C. C. P. 568; Hatch v. Fuller, 181 Mass. 574

385; Magninay v. Saudek, 5 Sneed, Felkner v. Scarlet, 29 Ind. 154

146. White v. Martland, 71 HI. 350

iLipe V. Eisenlerd, 33 N. Y. 229, Eendriok v. McCrary,, 11 Ga. 603

234; Gray v. Durland, 51 id. 434. Blagge v. Ilsley, 127 Mass. 198.

740

SEDUCTION.

the court and jury at the trial will make the proper discrim-
ination as respects the quantum of damages.'

As the action is not maintainable on the mere relation of
parent and child, there must be some proof of loss of service,
or other loss, resulting from the seduction. Proof of sexual
intercourse, or even of seduction, wUl not sustain the action.^
The plaintiff must show that there resulted therefrom some
direct injury to his rights as master.' It will be assumed that
there is a loss of service if pregnancy follows, or sickness, or
the communication of any disease.* So if the sense of shame
and wrongdoing diminish her ability to render service.'

Pregnancy and the birth of a child are not essential. It is
sufficient if there be illness of the daughter, resulting from the
seduction, and a consequent inability, or reduced ability, to
labor; or if there be expenses necessitated by the same cause.®

iMagninay v. Saudek, 5 Sneed,
146.

2Delvee v. Boardman, 20 Iowa,
446; HiU v. Wilson, 8 Blackf. 123.

s White V. Nellis, 31 N. Y. 405.

4 Anderson v. Eyan, 8 HI. 583;
Leuoker v. Steileu, 89 id. 545; Hewit
V. Prime, 31 Wend. 79; Hogan v.
Cregan, 6 Robt. 138.

5 In Blagge t. Ilsley, 137 Mass. 191,
Colt, J., said: " There was evidence
from several witnesses, including
the plaintiff and the daughter,
that the latter appeared strong and
well before the alleged seduction,
and that afterwards she became
nervous and excitable, and did not
appear to be herself. Upon this
part of the case the jury were
told that the plaintiff might recover,
if they were satisfied that, as the
immediate result of the criminal
act, the health of the daughter failed,
and there was a consequent loss of
ability to render service; and it
must have been found by the jury
that the proximate effect of the
seduction was an incapacity to
WDrk.

" In the opinion of a majority of
the court, it cannot be declared, as
matter of law, that this instruction
was erroneous, or that the evidence
did not justify the finding. The
decline in the daughter's health and
spirits directly followed the wrong
charged. The daughter was herself
a witness, and there was oppor-
tunity for the jury to judge of her
physical strength and temperament,
her natural delicacy and sensibility
to the injury alleged. It cannot be
laid down as a matter of law, that
loss of health would not ' be the
natural, probable and direct conse-'
quence of the defendant's act, al-
though that act was followed by
no sexual disease and no pregnancy.
Shame, humiliation and mental
distress, affecting the sensibilities
of the victim and her capacity for
faithful service, may well be a
probable and natural consequence
of the wrong, wholly without re-
gard to the fear of abandonment or
exposure."

6 Night V. Wilcox, 18 Barb. 813;
White V. Nellis, 31 id. 279; Abraham

SEDUCTION. 7il

It is not important to the right of action that the loss should
result from the seduction in any particular way. It will be
enough if a loss has been occasioned which is a legal, natural
and direct consequence of the wrong.' Where the illness of
the daughter, following seduction, was not the consequence of
the seduction, but of the publication of her shame, it will not
be deemed a proximate result of the wrong.^

It is competent to show the circumstances under which the
female was seduced, and the means used for corrupting her
mind, — the promises, flattery or deception employed.' An
exception has been made of promises of marriage, by some
courts, because the damages for the breach of it belongs to the
daughter seduced.* "When such evidence is admitted, the jury
should be cautioned to give no damages for breach of the
marriage promise.' It may be proved in what manner and on
what terms the defendant visited her, the family and her
relations.* Evidence, in a father's action, of a promise of mar-
riage is not admissible as a ground of damage.' JSTor pan he
recover compensation for the support and maintenance of the
illegitimate child.' But where the seduced may sue in her own
name, she may allege and prove both the promise of marriage
and seduction, with a view to damages for the double wrong.'
The plaintiff may show his relationship to the seduced, and

V. Kidney, 104 Mass. 332; Stiles v. ' Phelin v. Kenderdine, 20 Pa. St.

TUford, 10 Wend. 339; Blagge v. 354.

Ilsley, supra. 6 Herring v. Jester, 2 Houst. 66;

1 Night V. Wilcox, 15 Barb. 379. Parker v. Monteith, supra; Davidson

2 Night V. Wilcox, 14 N. Y. v. Goodall, 18 N. H. 433; Brownell
413. V. McEwan, 5 Denio, 837.

SBracey v. Kibbe, 31 Barb. 373; 7 Robinson v. Burton, 5 Han-. 335;

Phelin v. Kenderdine, 20 Pa. St. GUlett v. Mead, 7 Wend. 193; Whit-

354; White v. Campbell, 13 Gratt. ney v. Elmer, 60 Barb. 250; Odell

578; Fox v. Stevens, 13 Minn. 373; v. Stephens, 13 Ind. 384; Herring v.

Eahn v. Freytag, 3 Robt. 678; Jester, 3 Houst. 66; Kip v. Berdan,

Parker v. Monteith, 7 Or. 377. 20 N. J. L. 239; Hines v. Sinclair,

4 Foster v. Scofleld, 1 John. 297; 23 Vt. 108.

Clark v. Fitch, 2 Wend. 459; Gillett sffitchman v. Whitney, ^ Harr.

V. Mead, 7 id. 193; Whitney v. 513; Sargent v. , 5 Cow. 106.

Elmer, 60 Barb. 350; Brownell v. 9 Ante, p. 316; Lee v. Hefley,

McEwen, 5 Denio, 867; Kip v. Ber- 21 Ind. 98.
dan, 20 N. J. L. 339.

743

SEDUCTION.

the situation of the family.' He ma;^ show also that the de-
fendant aggravated his wrongdoing by producing an abortion.^
There is some conflict of decision on the question of proving
the character and social standing of the plaintiff; but it is
believed that where he sustains such relation to the seduced
as to suffer injury to his feelings through her dishonor, it is,
according to the weight of authority, competent for him to
show, to affect damages, the character and social standing of
his own family, and the defendant's pecuniary circumstances.'

Evidence foe defendant, and what may be consideeed in
MITIGATION. — The bad moral character of the plaintiff, and his
character for chastity, it is held in New York, cannot be proved
in reduction of damages. Comstock, J., speaking for the court,
said : " It is true that, in actions of this kind, compensation is
given for injured sensibilities of the parent, and that a pecun-
iary value is placed upon the society and attentions of a virtu-
ous daughter. But to justify evidence of bad reputation in
general, or in a particular respect, it must first be shown that
the sensibilities of such a parent are less acute, and that the
society and affections of a virtuous daughter are to him less
valuable than to other men. This cannot be aflirmed, in fact,
and there is no such presumption in law." * The defendant will
not be permitted to show that the plaintiff is devoid of natural
sensibilities.' In Delaware it has been held that the defendant
may show the plaintiff's dissolute habits, though not his gen-
eral reputation in respect to virtue ; ' and in Tennessee, that it
may be shown by general reputation that the plaintiff is a per-
son of profligate principles and dissolute habits, but evidence
of particular acts should not be received.' It is no defense

1 Wilson V. Sproul, 3 Penn. & 793; Parker t. Monteith, 7 Oreg.
W. 49. 277. See Haynes v. Sinclair, 23 Vt.

2 White V. Martland, 71 111. 250; 108.

Klopfer V. Bromme, 26 Wis. 373. ■'Dain v. WyokofF, 18 N. Y. 47.

s McAuley v. Birkhead, 13 Ired. SGrider v. Dent, 23 Mo. 490.

38; Grable v. Margrave, 4 111. 373; 6 Robinson v. Burton, 5 Harr. 335.

Herring v. Jester, 2 Houst. 66; 'Reed v. Williams, 5 Sneed, 580;

White V. Martland, 71 111. 350; Clem Thompson v. Clendening, 1 Head,

V. Holmes, 33 Gratt. 723; 36 Am. R. 287.

sEDTJonoN. 743

to the parent's action that the daughter consented willingly
to the seduction; for her consent wUl not deprive such plaintiff
of his action.'

It is presumed, in the absence of evidence to the contrary,
that she was a virtuous girl at the time of the seduction, and was
a comfort and help to her parents, if living at home.^ But the
general character of the female seduced is in issue on the ques-
tion of damages. It may be impeached by general evidence.'
And specific acts of lewdness and immorality may, in some of
the states, be shown.* But in others, the evidence to impeach
her character for chastity must be confined to general reputa-
tion.' Previous chastity is not essential to the cause of action,
but antecedent misconduct' may have much influence on the
question of damages."

The consent or connivance of the parent, or one suing in the
character of master, to the seduction, will be a bar to the ac-
tion. And conduct, not amounting to consent or connivance,
but only to negligence, or want of ordinary prudence, may be
shown as tending to mitigate damages.' In such action, it has
been ruled that a marriage between the seducer and the seduced,
and his acquittal on an indictment for the seduction, may be
proved for the same purpose.* In Illinois and elsewhere it has

1 McAuley v. Birkhead, 13 Ired. '^ Smith v. Milburn, supra. See Lea
28. ■ V. Henderson, 1 Cold. 146, where it

2 People V. Brewer, 37 Mich. 137. was held that the fact that another

3 Reed v. "Williams, 5 Sneed, 580; person had had intercourse with the
Robinson v. Burton, 5 Harr. 335; person seduced before her alleged
Smith V. MUburn, 17 Iowa, 30; Lea seduction by the defendant, this be-
V. Henderson, 1 Cold. 146; Barn- ing unknown to the defendant or to
field V. Massey, 1 Camp. 461; Dodd the public, at the time of the seduc-
V. Norris, 3 id. 519. See 'Wallace v. tion, is not to be considered by the
aark, 3 Overt. 93. jury in mitigation.

4 White V. Martland, 71 111. 350; 7 Travis v. Barger, 24 Barb. 614;
Love v. Masoner, 6 Baxter, 34; Ver- Richards v. Fouts, 11 Ired. 466;
ry V. Watkins, 7 0. & P. 308; Hogan Graham v. Smith, 1 Edm. Sel. Cas.
V. Cregan, 6 Robt. 138; Kahn v. (N. Y.) 367; Sherwood v. Tetman,
Freytag, 3 id. 678. See Ford v. 55 Pa. St. 77; Parker v. Elliott, 6
Jones, 63 Barb. 484. Munf. 587; Smith v. Hasten, 15

sShattuck v. Myers, 13 Ind. 46; Wend. 370.

Hoffman v. Kermerer, 44 Pa. St. SEichar v, Kistler, 14 Pa. St.

453; Smith v. Yaryan, 69 Ind. 445; 388.
Doyle T. Jessup, 39 lU. 460.

744 SEDTTOTION.

been held that an offer of marriage made by the defendant
after the seduction cannot be considered in mitigation.^

Ceiminal conveesation. — The husband's injury by this wrong
consists in his mental suffering from the dishonor of the mar-
riage bed, and the loss of the affections of his wife and the
comfort of her society, as well as the pecuniary injury from
loss of her services. The ex.tent of the actual injury wiU of
course depend on their prior relations, and the practical conse-
quences between them of her defection.

In this class of cases an actual marriage must be proved,^ and
the gravamen of the action is that the defendant has committed
adultery with the wife.' The right of action is not affected if
the wrong was committed by force.*

The amount of damages is left to the discretion of the jury,
and the same considerations prevail in their assessment as when
they are awarded in favor of a plaintiff who can feel the dis-
honor of other seductions. And courts will seldom set aside
the verdict for excess.' And there are other and peculiar con-
siderations which will enter into the account.*

1 White V. Martland, 71 111. 250; iff; the condition of the defendant,
Ingersoll v. Jones, 5 Barb. 661. his being a friend, relative, or de-

2 Hutohins v. Kimmell, 31 Mich, pendent of the plaintiff; or being a
126. man of substance; proof of the

3 "Wood V. Mathews, 47 Iowa, 409. plaintiff and his wife having lived
^Egbert v. Green wait, 44 Mich, comfortably together before her ac-

345. quaintance with the defendant, and
5 Torre v. Summers, 3 Nott & McC. her having always borne a good
367; Johnston v. Disbrow, 47 Mich, character tiU then; and proof of a
59; Waford v. Berkeley, 1 Burr. 609; settlement or provision for the chil-
Duberley v. Gunning, 4 T. R. 657. dren of the marriage, are all proper
« The action lies in this case for the circumstances of aggravation. Bul-
injury done to the husband in alien- ler's N. P. 37; Mayne on Dam.
ating his wife's affections, destroy- (Wood's ed.) 664.
ing the comfort had from her com- The extent of the injury in any
pany, and raising children for him case must depend in a great measure
to support and provide for; and as upon the previous relations of the
the injury is great, so the damages parties. If these were cordial and
given are commonly very consider- affectionate, and such as are ex-
able. But they are properly in- pected to exist when a suitable mar-
creased or diminished by the partic- riage has been formed, under a
ular circumstances of each case, proper sense of the obligations and
The rank and quality of the plaint- responsibilities that belong to it, the

SEDUcrriON.

745

Evidence in mitigation will be received whicli tends to show-
that the plaintifif has in fact suffered less injury than would
otherwise be a probable inference from the act proved. It is
proper to show unhappy relations between him and his wife,
or that he was wanting in affection for her,' or that there was
but slight intercourse between them ; ^ that he was unkind in
his treatment of her, or guilty of infidelities,' or negligently
suffered her to encounter temptation/ The loss to the plaintiff
may be greatly mitigated by showing that the wife was a
woman of bad character at the time of the alleged wrong. It
may be shown that there had been improper familiarities be-
tween her and other men ; ^ that she was wanting in chastity
before her marriage,* or had committed adultery afterwards ; '
and the fact that the defendant was solicited by her will also
go in mitigation.*

wrong of the seducer who succeeds
in withdrawing the wife's affections
from her husband, and induces her
to live with him a life of shame, it is
impossible adequately to measure.
If, on the other hand, the husband
was a 'Ubertine, and has brought
shame upon his family by his own
notorious misconduct, and if the
wife, after the destruction of her
affection by his own abuse and mis-
conduct, has finally surrendered her
own honor, it is difficult to under-
stand what claim he can have to
legal consideration. And between
these extreme cases there may be
numerous others differing so widely
in their facts, that, while it may be
wise to give a right of action in all,
yet the measure of redress must be

left largely to the discretion of the
proper legal tribunal, which shall be
at liberty to award much or little
according as they find that much or
little has been lost by the complain-
ing party. Cooley on Torts, 324.

1 Bromley v. Wallace, 4 Esp. 337.

2Calcraft v. Harborough, 4 C. &
P. 499.

3 Norton v. Warner, 9 Conn. 173;
Bromley v. Wallace, supra.

<Calcraft v. Harborough, supra;
Duberley v. Gunning, 4 T. E. 657;
Van Vacter v. McKillip, 7 Blackf .
598; Bunnell v. Greathead, 49 Barb.
106; Pierce v. Pierce, 3 Pick. 299.

5 Norton v. Warner, supra.

6 Conway v. Nicol, 84 Iowa, 533.

7 Winter v. Henn, 4 C. & P. 494.

8 Elsam V. Faucett, 3 Esp. 563.

GENERAL INDEX.

ABATEMENT— Pages.

on determination of issue on plea in, judgment peremptory, and
same jury should assess damages; if omitted another jury may,

VoL I, 780
duty of party liable to abate nuisance, - VoL m, 396, 399, 400, 403
judicial abatement generally provided for, ... 396

ABDUCTION —

of child, damages for, -..---. 726
A.CCEPTOE —

primarily liable to the holder of a bill, - - - VoL EC, 103

and his contract governed by the law of the place of payment,

VoL I, 633
what liability arises from acceptance, ... VoL n, 103

his agreement by acceptance, ... 103, 104, 169

damages recoverable on agreements to accept, ... 104
how amoim^t of principal sum ascertained in action against, - 104

he stands in a peculiar relation to the drawer, ... 104
fraud on him not available as a defense where transaction not

repudiated, 139

he may show in action against the drawer acceptance for his ac-
commodation, . . 147
his action against the drawer is for money paid; not on the biU, 148
he is liable on his acceptance though he has given his note for

thebiU, 169

he is not liable for re-exchange, .... 159

but this has been questioned on principle, ... 169-171
he is liable to reimburse the drawer who has been compelled to
pay re-exchange, ...... 169

by what law his undertaking is governed, .... 175

ACCIDENT—

town held liable for, when injury results from defect in high-
way, VoL I, 36

ACCOMMODATION PAPEE —

it cannot be collected by the accommodated party, - VoL II, 113

paf ol evidence admissible to show a note or bill to be such, - 134

or on what consideration it is made, ... 136

liability of accommodation party, ... 136

how and to whom accommodation drawer liable, ... 147
measure of recovery on, when purchased for less than its face, 150

14:8

GENEKAL INDEX.

ACCORD AND SATISFACTION — Pages.

deflnition, - - .... Vol. 1, 425

payment of part of a debt will not support agreement to dis-
charge the whole, - - ... 435
any other act or promise which is a new consideration will suflce, 428
payment at a different place, or before maturity, - . 428
giving note or security, - - . . 428
' satisfaction from stranger, ..... 438

there must be something received which the creditor was not

before entitled to, ...... 439

1 composition with creditors, ..... 430

compromise, .-.-.... 430

agreement must be executed, ..... 432

rescission or exoneration before breach, .... 432

ACCOUNT —

when entire, so aa to constitute but one cause of action, - - 184

what a running account imports, - - - 185
when creditor has several branches of his business conducted by

separate agencies, - ..... 185

opinion of Cowen, J., in Bendernagle v. Cocks, - - 179
debits and credits reciprocal payments when brought into an

account, . . . _ 347
parties having dealings proper for account may put items into

account to show net balance and extinguish the lesser claim, 348

when interest allowed on accounts by custom or tacit agreement, 582

by default of payment, ... . 515
loss of, as a consequence of destroying account books must be

specially alleged, -..-... 704
agent's duty to render, .... Vol. Ill, 1, 39, 40

ACTION —

costs and expenses of, recoverable as damages when natural and

proximate result of tort or breach of contract, - Vol. I, 31, 106

not when only remote consequence, - - 98

nor when they are denied in the suit in which they accrued, 7

a cause of action has value and is of the nature of property, - 7

how discharged, - - - - - 7

cannot be affected by subsequent legislation, - . . 7

wrongs and breaches of contracts concerning, actionable, - 7

when it survives, - - - - 7

what must concur to give a cause of action, ... 3

ACT OF GOD —

no damages for breach of condition or agreement caused by,

Vol. U,8, 379, 507
ACTUAL LOSS —

necessary to give a right of action for more than nominal dam-
ages, Vol. I, 9

GENERAL INDEX. 1i9

ACTUAL LOSS— continued. Pages.

it is the measure of damages for compensation, Vol. 1, 17; Vol. II, 3,

69, 365, 373, 294, 336, 337, 433^36, 474
there are some exceptions, - . . . Vol. I, 18

AD DAMNUM —

if left blank, judgment may be sustained, ... - 759

may be amended, - ..... 761, 763

it limits the plaintiflE's recovery, ..... 761

necessary to a default judgment under the code, - - 760

ADMINISTRATOR —

charged with the payment of his debt, .... 377

may retain his debt out of assets, .... 357, 358

not hable beyond assets, ... . . . Vol. II, 39

his duty is to apply them to debts, ... 39

when liable, and to what extent, to beneficiaries of his trust, 39, 40

ADVICE OF COUNSEL —

may avail to mitigate exemplary damages, . Vol. I, 337, 747

in mitigation of damages for false imprisonment, Vol. Ill, 337

AGENCY —

^ on what it is founded, ..... 1

there are reciprocal obligations between principal and agent, for

which there is redress in damages, .... 1

it involves a trust, ....... 2

AGENT —

wUl forfeit his right to compensation by misconduct, . Vol. II, 451
damages for falsely assuming to be, - - . Vol. I, 31, 140

liability to principal, .--.... 131

for failing to disburse money to pay incumbrance, - - 139, 130

how the amount of indemnity against his principal ascertained, 137
may receive payment, - - ... 337

may make tender, ....... 448

tender may be made to, when, .... - 449

must be shown that he had authority, .... 451

bank is agent for holder of paper deposited for payment, . 450

when interest allowed against, - - - - 633

master liable for exemplary damages for malicious tort of serv-
ant or agent, .....-- 749

he assumes to do the business of his principal and to render an
account of it, - - - - - - Vol. Ill, 1

having no interest, he is bound to obey his principal's instructions,

and is bound to diligence and fidelity, - . - 1, 8, 16

he must exercise a reasonable degree of skill and good judgment, 15

infractions of his contract are also instances of faUure in duty,

> for -which the principal may sue on his contract or for the tort, 1

measure of damages the same, ..... 3

an agent ia an employe, and entitled to compensation and in-
demnity, - - - - - - - -2, 46

750 GENERAL IKDEX.

AGENT — continued. Pages.

his functions being fiduciary he is liable like a trustee, - Vol. Ill, 3
he can accept no inconsistent employment nor make a profit at

the expense of his principal, ... 2

his gains, whether by performance or violation of duty, belong

to his principal, - - - - 3

an illustration in the instance of an agent renewing an insurance

on tlie life of his principal, ... 2

so long as principal's property in his hands can be traced it may

be followed, - - - - 3

in respect to third persons she is identified with his principal, and

by dealing in the latter's name incurs no liability, - - 3

how ho may make himself personally liable, ... 3

he cannot dispute title of principal fi-om whom he derives pos-
session, - - - 8
instance of agent of board of supervisors acting without author-
ity to borrow money, .... 3
he must account to his principal until another appears who

establishes a better title, - - ... 4

an auctioneer intrusted with goods to sell cannot set up title in

himself, ... -4

when he may show the principal obtained the goods by fraud, 4

his duty to give the principal timely information, - - 4

is liable for loss resulting from omission to do so, - - 7, 8, 39

must keep and render proper accounts, - - 4, 40

such reports may be acted on by principal as correct, 4

instance of a false report of effecting insurance for principal, 4

an agent liable for a loss has burden of proof to show its extent, 5
rule of compensation against, .... g

principal entitled to full indemnity, - - 5

to be put in as good condition by damages as though agent had

done his duty, - ... g

the damages must.be proximate consequence of agent's act or

omission, - - - 6

illustrations of proximate consequences, - - 6-11

the case of carrier by sea unnecessarily deviating from usual

course, ...... -6

liability for loss of money negligently suffered to remain in the

hands of sub-agent, - - - - - 7

is chargeable with interest on money received, of the receipt of

which he unreasonably delays notice to his principal, - 8, 39, 41, 43
he is liable for loss of security by negligent omission to record a

mortgage, - - - - 8

his liability for neglect to effect insurance, - - 8-10

his liability for disregarding orders for purchase and shipment of

goods, - - - - 11, 13

damages measured by loss of profits proved with certainty, - 11

in what this certainty may consist, - - - - 11, 13

GENEEAL INDEX 751

AGENT — continued . Pages.

he may show that same loss would have occurred if he had obeyed

his principal's order, - - Vol. Ill, 6, 12

various illustrations of agent's liability on breaches of contract

and duty, - .... 13-16

for disposing of principal's property contrary to his instructions, 13, 43
he is liable for conversion in such cases, - - 13, 14, 43

he should not mix his principal's funds with his own, - - 14

what risks and losses he will incur if he does, - 14

he must exercise a reasonable judgment and act in good faith in

matters left to his discretion, - - - 15

he must conform to usage, ..... ig

his duty in receipt of money for principal, ... 15, 16

he must conform to his principal's instructions, - - 16

his liability in respect to commercial paper, money securities,

and collections, - - ... 16-80

the same principles apply to factors, ... 30

their duties and liabilities, and how measured, - - 30-43

liability for selling below limit fixed by instructions; his duty

when directed to sell, - - 31, 33-38

his rights relative to sale when he has made advances, - 33-37

liability of factor under guaranty commission, - - 38, 39

responsibility for money remitted to principal, '„ - - 42

duties and liabilities of brokers, ..... 43-45
of stock brokers, ..... 43-45

damages for acting as agent without authority, - ■ 45

entitles to have his advances repaid, - - 48

and to be indemnified in respect to liabilities, - - 46, 51

not entitled to indemnity against consequences of trespass, - 51
measure of damages for indemnity, .... 51

when his bills drawn, by authority, on his principal for reim-
bursement are dishonored, - - - - - 47
the right of a factor to sell goods to reimburse himself, - 47
his right of action for advances before sale of goods, - 47, 48
the implication of credit for advances on a consignment for sale, 49
when he may charge for exchange, - - - 49
how his right to reimbursement affected by his mode of doing

business, -- .....49

when principal liable for interest, - - - - - 49

liability of agent to third persons, .... 53

measure of damages when he acts without or beyond his au-
thority, - - - - 53, 53
when money may be recovered back from, by third persons, 58, 59
he is liable for his torts, ... - 60
not to third persons for negligence in his duties as agent, 60

AGGRAVATION —

not necessary to allege matters of, - - - - Vol. I, 766

matter of, alleged, not traversable, - • - - 769

762 GEfTEEAL DTDEX.

AGGRAVATION— continued. Pages.

proof of, to enhance damages, - Vol. I, 739, 731, 735, 736, 745

social standing of parties and defendant's wealth, 744, 745

what is done after illegal entry on land is but aggravation of

damages, - .... Vol. UI, 364

facts in, may be shown to enhance damages in trespass, - 383, 471
in trespass quare clausum, taking and carrying away personal

property matter of, ..... ggg

may be alleged as substantive cause of action, ... 388
difference in pleading merely as aggravation, ... 388

in the claim for damages, - - - . . 388, 389

facts connected with an entry and taking for public use consid-
ered only with a view to compensation, ... 442
AGREEMENT—

implied, follows consideration, .... Vol, I, 205

alternative agreements, ..... 479

tacit agi-eement to pay interest, ..... 583

ALTERNATIVE AGREEMENTS, 479

AMENDMENT —

of ad damnum, ---...- 761, 763
of verdict, ...... 805

must be in matter of form, ..... 809

court may not amend ia matter of substance, - - 806, 809

and only according to the intention of the jury, - - 809

ANIMALS —

separate owners of animals not jointly liable for their joint acts, 315
otherwise, where the owners keep them as one herd, - 215

owner liable for acts of his animals done according to their nat-
ural inclinations, - - - - - 53

not liable for acts of his animal in consequence of its vicious

habit, of which he had no knowledge, - - - 5t

liable for suffering diseased sheep to trespass and communi-
cate disease, - - - - 24

damages for breach of warranty of soundness, in being diseased

and communicating disease to other animals, ' - Vol. II, 435

damages for breach of warranty resulting in personal injury

from, 433

ANNOYANCE —

as an element of damage, ----- Vol. I, 78, 158
ANNUITY —

stipulated damages for non-payment of, - - - - 499

damages for negligently destroying security for, - - 188

interest on, ........ e08

APPEAL —

not waived by acceptance of payment, - - - - 465

interest pending, -.....- 711, 715

GENEEAL INDEX. 753

APPEAL AND SUPERSEDEAS BONDS — Pages.

their usual conditions, .... Vol. II, 79

the conditions of supersedeas bonds given for review in the su-
preme court of the United States, - - - 79, 81
liability on, when the judgment or decree below is only in part
for money, or is in rem, - - - - 81-91

bonds with more specific conditions, .... 90

bonds which bind the sureties for result of a partictdar appeal, - 91
sureties in such a bond not liable for the results of a second

appeal, --... --91

two sets of sureties in different appeals not co-sureties, - - 91

security on appeal under the code, .... 93

constructions of such undertakings, .... 92-98

interest and damages awarded on appeal, - - - 98

APPLICATION OF PAYMENTS —

the debtor has absolute right to apply his payments, Vol. I, 398, 399
must exercise the right when he pays, - - . . 399

his direction may be inferred from circumstances, - - - 899

may be inferred from the nature of the transaction, - - 399

his right of application confined to voluntary payments, - - 400

trustee paying may hot direct application of his payment, - 401

surety cannot interfere with debtor's application, - - - 400

no presumption of debtor's intention to apply for exoneration of
surety, ... . 401

nor can subsequent incumbrancer interfere with debtor's applica-
tion, - - - - - 401

an agreement between debtor and creditor for a particular appli-
cation, good, ....... 403

money from collaterals, an instance, . - - - . 402

acquiescence in a different application made by the creditor will

amount to consent, ... 403

creditor cannot disregard debtor's direction, ... 403

debt extinguished to extent of payment, ... 4O8

debtor cannot change his application, .... 403

he will be bound by it though he apply it to a claim not bearing
interest, ...----. 403

so if he apply it to a debt within the statute of frauds, - - 403

or an illegal claim, - ... 403

if applied to pay usury it is deemed extortion, ... 403

not so universally, - .... 403

by mutual consent, debtor's application of payment may be

changed, 404

evidence may be given that payments applied on extra interest, - 404
evidence of debtors application of payments, - 404^5

creditor may apply payments where the debtor has made no ap-
plication, ... ... 405

not required to make immediate application, ... 405

he may apply a payment to either of several debts, - - 406

Vol. m-48

754 GENBEAL INDEX.

APPLICATION OF PAYMENTS — continued. Pages.

may apply a part to each, .... Vol. I, 407

but not to a disputed, contingent or unliquidated demand

when he has others, ... . . 400

nor to one not due in lieu of one due, ... 4og

where all the debts are barred by statute of limitations, - - 407
creditor may apply the payment on a demand within the statute

of frauds, .----.. 407

on a bill void for want of a stamp, .... 407

on a demand barred by the statute of limitations, - 407
general statement of creditor's right to make application of pay-
ments, - - ... 407
he should not make application that the debtor could reasonably
object to, • - - .... 407

he may exercise election though demands are not all of same

grade, - . - - ... 408

as between legal and equitable, he must apply on the former, . 408

he may apply to a demand not secured, - - 408
circumstances may give the creditor a right to apply as would

not otherwise be admissible,^ - - 408

as to debts owed by several or to several, - . 408
creditor cannot apply to a debt contracted after the payment, in

preference to an existing one, .... 411

application not complete until debtor notified, - - 411
right of appropriation confined to the parties, ... 411
a grantee of a mortgagor cannot insist on its application to mort-
gage, - .... - 413

agreement binding as to a mode of payment made at the incep-
tion of a contract of suretyship, ..... 412

appropriation by the court, .... 413

the court will make it according to the justice and equity of the

case, ..... 413

when payments to be applied pro rata, .... 415

general paymeirt apphed to oldest debt, .... 418

to a debt bearing interest, and first to interest, - - 431

to the debt last secured, - - - - - 431

APPOETIONABLE CONTEACTS —

for services, - - ... Vol. II, 468-471

whether a contract is guch, depends on the intention of the par-
ties, ... ... 468-171

oontracts for service are, when wages are intended to be paid as

the work progresses, - - 468, 469
contrariety of decision on contracts for particular works as to
their being severatde, -..-.. 504to07
APPORTIONMENT —

none of rent for part lOf rent period, - - - Vol. HI, 120

none for use of pajt of demised premises where there has been

partial eviction by landlord, - - - - - 116

GBNEEAL HTDEX. 755

APPORTIONMENT — continued. Pages.

otherwise when partial eviction by stranger, - Vol. Ill, 116

after partition between tenants, if lessor release one tenant such

release will sever rent, - - - - 125

ratio of values governs in apportionment between several tenants, _ 136
of damages between landlord and tenant on a part of the de-
mised premises being taken for public use, - - 138, 139
of compensation for work done under special contract deviated
from, or not fully performed, - - Vol. II, 507, 508, 534

APPRENTICE —

damages for enticing away, .... Vol. I, 196

APPROPRIATION OF PAYMENTS,' - - - - 898-435

See Application of Payments.

ARBITRATION —

damages for wrongful revocation of submission, - - - 95

ARREST —

mitigation for wrongful arrest, ----- 237, 336
See False Imprisonment.

ASSAULT AND BATTERY —

what may be proved in mitigation, ... - 237, 239

what items of damage may be taken into consideration for, 158, 739
what consequential damages remote, - - 49

excess of, if wanton, a ground of exemplary damages, though

begun in self-defense, - .... 734

defendant, in defense, may show res gestse, ... 244

damages against passenger carriers for, - - Vol. Ill, 260

See Passenger Carhiees; Personal Injury.

ASSIGNEE —

of lessee liable by privity of estate, .... 122

his liability determined by a new assignment, ... 123
his liability does not depend on possession, ... 123

if he continue in possession his liability will continue though he
has assigned, - - - - - - 125

of lease bound by covenant to repair, ... 140

presumption as to the time when dilapidations took place, - 140

ASSIGNOR —

liability of, for breach of implied warranty on sales of notes and
choses in action, ...... Vol. II, '^Z

AttachmbStt bonds —

usually contain condition, if the attachment is not sustained, to

pay such damages as result from the attachment, - - 58

what is a breach of it, - - - - - - 58

the damages recoverable, ...... 58-60

what may be shown in defense, . - - - . 60

what damages remote in action on, - - - - Vol. I, 98

756 GENBEAL INDEX.

ATTORNEY — Pages.

value of his services, how proved, ... Vol. I, 799

tender may be made to, ...... 449

attorney's Uen, ....... 316

^dvice of, may be shown in mitigation of exemplary damages, - 747
effect of stipuiations for fees of, in notes, - - Vol. II, 185

such stipulations do not affect indorsers, - - 186

when fees of, an item of damages, on breach of covenants for

title, - - - - -391-294, 303-309

not allowed in Massachusetts, - - 291, 307

allowance for fees of, in case of breach of warranty of title to

personal property, - ^ - 419, 420

after covenantor has, on notice, assumed the defense, the covC'

nantee cannot also employ counsel at the covenantor's expense, 306
when fees of, an item of damages, Vol. I, 98, 106, 136, 147

in actions on bonds and undertakings given in judicial pro-
ceedings, - - , - 141
in other cases as part of indemnity for torts or breaches of
contract, ..-..-- 143

AUCTIONEER —

intrusted with goods to sell, cannot set up title in himself. Vol. Ill, 4

BAGGAGE —

UabiUty of carriers for loss of, - - • - - 291-294

what is baggage, ...... 292, 293

measure of damages — money value and interest, ... 393
BAILEE —

value of property lost by negligence or converted, and interest,
the measure of damages against, ... Vol. I, 173, 174

BANKER —

liability of, for refusal to pay check, - . ■ - . 129

agent of holder of paper deposited for collection, - 450

IJabUity of, as collecting agent, - - - Vol. HI, 17-30

BARGAIN —

loss of, when not an item of damage for breach of contract for

sale of land, - - Vol. II, 207-331

loss of, is an item of damage in some states, without regard to
the cause of the vendor's breach, .... 315

BONA FIDE HOLDER —

who is such, of commercial paper, and his rights, 106-111, 147, 150

BONDS AND PENAL OBLIGATIONS, .... 1

definition of a bond, - ... - j

what is a single bond, - .'-...j

the nature and effect of a condition, .... j

at law, the penalty became an actual debt on failure to perform
the condition, .......3

GENERAL INDEX. 767

BONDS AND 'PENAL OBLIGATIONS — continued. Pages.

but relief granted in equity; that court would not allow the

obligee to take more than, in conscience he ought, - Vol. II, 3

penalties in affirmative agreements, ----- 3

statute of 8 and 9 Wm. Ill, and its effect, - - - «, 3

statute of 3 and 4 Anne, and its effect, - - - - 3, 4

American statutes and practice, .... 4

by these statutes, courts of law give the obligee what is due by

the Condition, and save resort to equity, ... 5

in practice, judgment is given for the penalty, but the breach of

the condition is treated as the gist of the action, - - 6

if such judgment be sued, the damages assessed for breaches of

the condition under it are the measure of the new recovery, - 6
if the condition be to do an illegal act, the bond is void, - 7

and void pro tanto when illegal as to a severable part, - - 7

statutory bonds, — their requisites, . . - . 7

if the condition be impossible, the bond cannot be enforced, - 8
though in equity a compensation allowed, ... g

the penalty is the limit of recovery, - . - - . 9-15

and it is a maximum Umit of the obligor's liability on private

bonds, - . -. . . - 9, 10

bonds of official depositaries of money, - - - .19

their liability absolute for the money received, - - 19

the difference between the operation of such bonds under differ-
ent laws, - - - - - 19

by some, the offlcers merely bailees; others strictly debtors;

though both classes under the same absolute responsibiUty, 19-31
adjustment between different sets of sureties for same principal
holding for successive terms, - - - - - 23

when the liabiUty of sureties for such officer begins and ends, 24, 35
the sureties in last bond, when prima facie liable for defalcation, 25, 36
how they may relieve themselves, - - ... 36

when the officer owns the funds officially received and is charged
as debtor for them, his sureties at the time of the receipt are
■ bound until the debt is paid, - - - 26

the difference in the manner in which such officers hold the
funds illustrated by the decisions relative to the application of
payments made by the officer, - - - - 26, 37

effect of omission of supervising officers to make periodical ex-
aminations or settlements, ------ 28

such regulations not intended for the benefit of sureties, but are
a further protection to the public, - - - - 28

the neglect of one public servant cannot be set up to relieve an-
other from responsibiUty, ------ 38

effect on the liability of a surety for a tax collector of adding,

after the bond, to the tax-district, - - - 643

recoveries upon, given in legal proceedings, - - Vol. 1, 141

alternative conditions in bonds, .... 477

768 GENERAL INDEX.

BREACH OF MARRIAGE PROMISE— ' Pages.

suits for, involve other than pecuniary elements, - • Vol. I, 156

matters of mitigation, ...... 344^ 354

what not a mitigation, ..... jgg^ 344

' opposition of family may be proved in mitigation, - . 244

that defendant affected with incurable disease, - - 344

declarations of plaintiff that she consented to marry defend-
ant only for his money, - -• - - ,- 354
that plaintiff is unchaste, - - 354; Vol. Ill, 336-338
nature of action for,. ...... 316

seduction an aggravation, ..... 310

elements of damage, - - - - - . 316-326

injury to feelings, ....... 319

effect of defendant's conduct calculated to injure plaintiff's repu-
tation, - - - . 319-333
loss of marriage, - - 333-325
pecuniary and social standing of defendant may be considered, 323
exemplary damages recoverable, ... 321
what will excuse a breach of, - - - - - 335, 336

BHOKERS —

entitled to commission on performance of service pursuant to

employment, - - Vol. II, 449

and whether they prove beneficial or not, if faithfully per-
formed, - ... 450
they are entitled to customary brokerage in the absence of special

agreement, - - ... 451

custom may require the business to be completed as a condition, 450
they must perform then- duties with skiU and fldehty, - - 451

they wUl forfeit their right to compensation by misconduct, 451

their liabilities to their principals, ' - - - Vol. Ill, 43-45

BUILDINGS —

expense of removing from condemned land, ... 445

BURDEN OP PROOF —

importance of, in introduction of proof, - '- Vol. I, 753

BURNING FLUID —

damage for selling explosive, without giving information, - 28

BUSINESS —

injury to, from torts, recoverable, - 96, 131, 133; Vol. Ill, 153-166

damage to, in case of personal injury, ... 261, 363

evidence in such case, ..... 262-368

injury to, by trespass to real property, .... 337

injury to, from nuisance, ...... 418, 419

duty of plaintiff to exert himself tq prevent injury to, - 165, 166
when damages for injury to credit and business refused. Vol. I, 98
damages for diverting, - . . 93
may be stipulated in agreement not to engage in particular busi-
ness, 507

GENEEAL INDEX. '759

BUSINESS — continued. Pages.

damages for injury to, by attachment of property, recoverable
on attachment bond, - - - - Vol. II, 59

notes given for, subject to reduction or recoupment for vendor's
resumption of it, - - - - . - 134

when injury to, an item of damage, , - Vol. Ill, 153-156

duty of plaintiff to make reasonable exertion to prevent dam-
ages, 165, 166

CABLE— ■

damages for breach of warranty of fitness, - - Vol. II, 430

CANAL —

consequential damages for non-repair, - - - Vol. I, 50

CAPACITY TO EARN MONEY —

loss of, a ground of damage, .... Vol. Ill, 359

CARRIER-

liability of, for loss during delay of transportation, - Vol. I, 59, 60
for personal injury to passenger jumping from stage in view of
apparent danger, - - .... 63

injury to, from dangerous article, not disclosed, - - 38, 29

damages for failure of, to carry passenger to destination, 100-105

for inconvenience to passenger, - 157

damages against, may be aggravated in action on contract, - 158

may be liable for substituted conveyance, ... 155-157

recoupment in action for freight, - - . . . 381

liquidation of damages for default in transportation, - - 589

damages for his failure to deliver or delay in delivering ascer-
tained by same rule as against a vendor, - Vol. II, 406
liability for loss when he unnecessarily deviates from usual
course, - ... . Vol. Ill, 6

for delivering goods consigned C. O. D. without collecting, - 13

may recover damages for breach of contract to furnish goods for
shipment, - .... 173

for breach of general contract to furnish goods for transporta-
tion, the profits the measure of damages, ... 178
contracts to furnish cargo for particular vessel like a contract of
service, - - ...... 17,3

measure of damages on charter-parties, - - - . 179-188

damages on a passenger-carrying contract under particular cir-
cumstances, - - - - 178-181

earnings of chartered vessel to be deducted from stipulated

freight, and for what time, ... 18I

description in charter of tonnage of vessel not a warranty, 181

shipper must load according to the vessel's capacity, - 181, 183

controlling principle is to compensate actual loss from total or

partial breach, - .... 182

adaptation of the principle to such cases, ... 183-184

760 GENERAL INDBX.

CARRIER — continued. Pages.

duty of carrier to exert himself to prevent damages by obtain-
ing other freight, - - - - VoL III, 184

carrier not bound to anticipate shipper's default, - - 185
after shipper's breach, carrier's duty to accept other or the same

goods even at re4uced freight, . . . - . 185
judicial exposition of two English charters, ... 185-188
adjustment of damages for breach of agreement to load with

enumerated articles, ------- 188

same, of freight under such charter, . . - . 300
action for freight and other charges, . . - . 189
service may be performed without agreement, carrier then en-
titled to reasonable freight, ... - - 189
promise to pay freight implied, .... - 336

discriminations unlawful when conditions the same, - - 190

carrier bound to serve for the equal benefit of all, - - 190
what special agreements violate this principle, and are void as

against public policy, - ... 190, 191

carrier may make contracts for less than usual rate, - 191
in absence of regulations requiring it, shipper not bound to state

quality or value of goods accepted for transportation, - - 191

it is the duty of the carrier to inquire, if he wishes to know, 191

on inquiry being made, shipper must answer truly, at his peril, - 191

carrier liable for the value, whatever it may be, - - 191

he cannot afterwards exact larger sum on discovery of value, - 191

when freight is due and earned, . - • - - 192

if shipper retake his goods, . - - - . 193

may require prepayment of freight, .... 193

if he does not, he can maintain no action until delivery at

the destination, ... . . 193

if delivery becomes impossible without fault of shipper or carrier,

no freight can be demanded, ... . 193

may recover freight for the part of perishable goods delivered, - 193
no freight recoverable for the part not carried, - - 193, 193

for articles that waste in bulk or animals that die, - - 193

if voyage be broken up by interdiction of commerce, - 193

lump freight, ... ... 193

definition of freight, ..... 193

increase of bulk, as by birth of infants or swelling of grain, - 193

freight is earned if property delivered in specie, though damaged, 193

in this country recoupment of damage, .... 193

no freight payable if no substantial part of cargo delivered, 193

what wiE be a total loss, ..... 193

if shipper prevents dehvery at destination after transportation

commences, ... . 194

when the right to full freight attaches, - - - 194
temporary interruption of the voyage does not affect the carrier's

right, 194

GENEEAL INDEX. 761

CARRIER— continued. Pages.

he loses the right to freight if he does not take the necessary-
measures to resume the voyage, . - . Vol. Ill, 194
what delay admissible on inland waters, - - - 195
what ciroumstancea will entitle shipper to delivery at intermedi-
ate port without paying freight, - - 196
•when pro rata freight may be demanded, - - - 197
there must be voluntary acceptance at an intermediate place in

such way as dispenses with further carriage of the goods, - 197

the basis of right to pro rata freight, - - 197, 198

a mere agreement to accept the goods at an intermediate port

not equal to acceptance to create a right to pro rata freight, 198

duty of master when the vessel under charter is lost after com-
mencement of the voyage, - 198, 199
carrier cannot recover freight on lost goods merely because the

owner had insured them and collected the insux-anoe, - 199
otherwise where the carrier's labor in saving the goods inter-
rupted by shipper's settlement as for total loss with in-
surer, 199,200

may land and warehouse goods if merchant not ready to receive
them at port of destination, ..... 200

disposition of goods if they cannot be landed, - - 20O

master to exercise a prudent judgment for convenience of the

owner, - - ... _ . goo

expenses chargeable to him, ..... goO

if under such circumstances he carries the freight back to place

of shipment, he is entitled to freight both ways and expenses, - 300
no demurrage for ineffectual attempt to land at neighboring

ports, .-..--..200

demurrage, ........ 304

damage in the nature of demurrage, .... 204

detention beyond demurrage days provided for in charter, - 205

deduction for ship's expenses, - - - 205

obligation of carriers to receive goods for transportation, 206, 215, 236
damages for refusal, -. - 206,208,209,213,213

when measured by increase of freight, or cost to transport by

other means, - - - 208

when substituted conveyance can be resorted to and the measure

of damages in lieu of, ... 207, 308

damages for breach of contract to carry at specified rates, - 308

for fall in market and loss of profits, - 209, 213

for deviating from the route required, thereby subjecting the

goods to increased freight, - ... - 213

liability of, for other loss while deviating from usual

route, ... - - Vol. 1, 69

damages against, for negligent delay of transportation. Vol. Ill, 213-235

Dound to carry within a reasonable time, - - 313-215

contracts changing Uability of, - - - 214

762 GENERAL INDEX.

CAERIEE — continued. Pages.

he cannot be relieved by contract from consequences of his

negligence or misconduct, - - - . Vol. Ill, 214

doctrine in New Yorli, West Virginia and Illinois, - 314, 215

special damages in case of negligent delay, ... 315^ 316
liable for fall in the market, or decrease of quantity or quality of

the goods, 216-226

the ground of such liability, - - - 318; Vol. I, 59, 60

where the transportation is by a long sea voyage, - Vol, III, 333

liable for increased expenses of obtaining delivery by reason of

negligent delay, ...... 336

expense of searching for, ---..- 327
not liable for exposure of goods to seizure for being intended for
illegal traffic, .... - . 338

liable for duties to which goods made liable by the delay, 338

not relieved from this damage though price increased by impo-
sition of duties, - - 238
when expense of further transportation for sale an item of
damage, ...... 228

liable for damages with reference to known special use, 338-335; Vol. I,

85, 86
liability for injury to or loss of goods, - - Vol. Ill, ■335-239

the common law liability of, - - - - 336

interest on damages against, generally allowed, ... 338
shipper or consignee entitled to compensation for his proper acts
to prevent damages, .... . 340

circumstances which wiU modify their liability to pay value at

the place of destination, - - 341-343

have the right to call for information as to the nature and value

of the property offered for transportation, ... 343

qualification of their responsibihty by notice, - - 343, 244

when loss occurs by their negligence or misconduct such regula-
tions have no effect, ...... 344

liable for goods lost by wrong delivery, . - - 344, 245

or when carried by different conveyance or route from that speci-
fied in shipper's instructions, ..... 244

what is the destination for purpose of damages, ... 34(3
proof of value, - . . > - . - . 347-349

liability of, as to passengers, ----- 249-391

See Passenger Cabeiers.

CART—

leaving cart with horse in a place dangerous to children, Vol. I, 36

CAVEAT EMPTOR —

admonition to purchaser, ... Vol. II, 117, 407, 408

has full application to sales by executors and other trustees, 411, 413
in other cases applies where there is no fraud nor warranty, - 487

GENEEAL HIDES. 763

CERTAINTY— Pages.

' damages to be recoverable must be certain in their nature and as

to cause from which they proceed, ... Vol. I, 94

the requii-ement that the damage be not remote, a part of the

rule requiring certainty, .... - 94

uncertainty when the injury easily provable, - - 94

uncertainty where the cause easily provable, ... 94

all uncertain elements of damage excluded, - - 95-97

Uability for the principal loss includes its details and incidents, 96

prospective profits of insurance agent, - - - - 110

of damage for laying one railroad across another, - • - 110

conjectural profits of a whaling voyage, ... HO, 111
of loss on warranty of garden seeds, .... Ill

of damages depending on prospective growth of peach orchard, 113
for preventing competition for a prize, ... 133

uncertain mitigation for breach of marriage promise, - 136

of damages for failure to provide a sinking fund, - - 136

why less certainty required in cases of tort, ... 161

CERTIFICATE OF ARCHITECT, ENGINEER, Etc.—

necessity of, when provided for by contract, - - Vol. II, 519

effect of, - - - - - - - 530

what necessary to render it conclusive, . - - - 580

where he acts contrary to contract, ... - - 530

may be impeached for fraud or mistake, ... 530

necessity of notice to parties of measurements, - - . 531

CHARACTER OF PLAINTIFF —

when bad character of plainti£E may be proved in mitigation. Vol. I, 353

CHARTER-PARTY —

measure of damages against charterer, - - Vol. Ill, 179, 180

on charter to load with enumerated articles, - - . 138

measure of damages on, against carrier, ... sii, 313

CHILD OR SERVANT —

parent or master's action for injuries to, - - - - 380

no allowance for wounded feelings, ... 281, 734, 735

injury to, from negligently leaving dangerous property in public

places where children resort, ... Vol. I, 36, 37

putting loaded gun in hands of, - - - - 36

mitigation in father's action for seduction of daughter, - - 353

See Seduction.

CHOSES IN ACTION —

trover will lie for, .------ 7

warranty implied on sale of, - - - - - Vol. II, 149

implied warranty on assignment of a judgment, and damages
for breach, ....... 413

764 GENEEAL INDEX.

CIRCUITY OF ACTION — ■ Pages.

defense in avoidance of, - - - - - Vol. 1, 220

what essential to such defense, ..... 221, 222

recoupment allowed to prevent, .... 264, 265

CLBRK—

when tender may be made to, . . - - - 450

CLOTHING —

as part of baggage — how value of estimated against carrier,

Vol. m, 294
COAL DUST.—

damages for breach of warranty of, - - - - Vol. II, 430

COLLATERALS —

money realized from, payment, .... Vol. I, 379

money so received appropriated by mutual agreement, 379

not merely setoff, - - ... - 379

if the debtor pays his debt he is entitled to return of collaterals, 379
implied obligation of creditor receiving, ... 380

consequence of refusal to account for goods so received, - 880

when placed in the hands of third person, ... 380

taking collaterals does not suspend the right to sue, - - 380

negotiable paper received as means of payment, prima facie
payment, ...... - 380

change of f orln of collateral does not destroy its character as

such, 380

creditor is only obliged to apply net proceeds, ... 381
assignor may release excess, ..... 381

maker's right of defense to, - - . - - - 381

must be collected, not sold, ..... 382

creditor may relinquish, without consent of other creditors, 383

such relinquishment would discharge surety for same debt to
equal amount, ...... 333

when creditor has debtor's indorsement of negotiable paper and

fails to protest, - - - . 883

when creditor takes possession of usable property as collateral, 383
released by tender, ...-. -471

how losses on policies of insurance so held adjusted. Vol. Ill, 92, 101

COLLECTING AGENT —

liabilities of, - ....... ig_30

on contract to take proper means to collect, ... 27

COLLISION —

damages at common law for, - . - - . Vol. I, 24

COMMENCEMENT OF SUIT —

tbe date of, a period in the estimate of damages, 187, 193, 198, 202, 203

COMMERCIAL PAPER —

liability of collecting agents relative to, - - Vol. Ill, 16-30

when principal liable to agent for damages and costs on bills, - 47

GENERAL tCfDEX. 765

COMMERCIAL VBNTUEES— Pages.

damages for profits, when recoverable, ... "Vol. I, 118

COMMISSIONS —

the right of brokers to them, .... Vol. 11, 449^51

COMPENSATION —

a party whose rights invaded always entitled to, - Vol. I, 1

the cardinal principle of, - - 17; Vol. II, 32, 479

by this principle aU rules of damage tested and corrected, Vol. I, 18
some exceptions based on policy, - - 18

limited to natural and proximate consequences, - - 18

this is a logical and legal boundary in respect to details, - - 137

extends to all direct injurious consequences, - 19

includes also consequential damages within the limits, - - 20

distinction between consequential damages in cases of contract
and tort, - - - - 20, 78

. damages for, correlative to right violated, - - - . 137

wrongdoer liable for probable consequences, - - - 30, 73

for depriving owner of property, its value and interest, 173, 174

for necessary expenses to recover property, - 106

for physical pain and mental suffering from personal injury, 106, 734,
735; Vol. Ill, 259, 360, 319, 645, 659, 664, 668, 669
not necessaj-y to show bad motive to obtain compensation. Vol. I, 159
for wilful vsTongs, given with liberal hand, - - 71, 161

costs and expenses of suits resulting from wrongs, - - 106

elements of damage for personal torts, - - 158; Vol. Ill, 711-723

• for injury to feelings from insult .... Vol. I, 766

for injury to riparian rights, - - . - .96, 766

from removing barrier to flood, . - - - - 27

from mislabeling a poisonous drug sent into market, - - 73

consequential damages from slander, - - - 66

from taking or enticing away slaves or servants, - 34, 49, 54, 68

for breach of contract, damages contemplated by parties, - 77-93
direct damages, ------.. 74^77

recovery on contract mostly confined to direct damages, - 79

notice of special circumstances enlarges the premises, and recov-
erable damages result therefrom, ----- 79-83

on contracts for sale for special purpose, ... 79-93

on other contracts with special circumstances, ... 84-93
for losses sustained and gains prevented, - - 93, 138, 131-148

for profits on resale, ----..- 81-84

for increased expenses to substituted carrier, - - - 156

the elements of, - - - - - - - 137

interest for detention of a debt, - - - - - 128

more than interest may be recovered for refusal to pay money, 128, 139
on other contracts the rule of, the gains prevented and the losses
sustained, ------- 130-148

for breach of marriage promise, - - 156; Vol. Ill, 816-335

766 GENEEAL INDEX.

COMPENSATION — continued. Pages.

for inconvenience, . - - . . Vol. I, 157, 158

how, affected by motive, - - - - - . 156, 748

distinctions made for bad motive, .... 159

stipulated damages sliould be confined to, - - - 4S0

wlien defendant's wealtli may be proved to enhance damages for, 745
the measure of, for mesne profits, ... Vol. Ill, 240

must be paid for pi-operty taken for public use, - - 430, 431

what it m.ust be, ----- - 430, 431

scope of, where property taken or injured, ... 431, 433
measure of, and facts which may be taken into consideration

when property taken for public use, t - - - 433

whole value to be given when owner's entire land taken, - 433

if part only taken, the difference in value of the whole before

the taking, and its value affected by it, - - - 433, 43 1

when property of which a part taken for a raih-oad is perma-
nently diminished in value, - - - . 434
if such diminution has occurred from such cause, the particular *
exposures and injuries which operated to produce it immaterial, 434,

435
whex-e the depreciation must be considered in advance, what
facts may be considered, ..... 435

COMPEOMISE —

a good consideration, ..... Vol. I, 430

a surety is only entitled to the amount he pays on the compro-
mise of a liability for which he is bound, - - Vol. II, 580

CONCERT SINGER —

refusal of, to sing, as consequential damage, - -' Vol. I, 49

damages for procuring, to break engagement, ... 49

or disabling by battery, ...... 49

CONFUSION OF GOODS —

loss from, how determined, . , - - . 163

CONSENT OF PLAINTIFF —

when matter of mitigation, - - - ' - - - 252

CONSEQUENTIAL DAMAGE —

definition of, - - -. - - - 20

wrongdoer liable for probable consequences, ... 21-73

scope of recbvery for, illustrated by cases — of wrongfully caus-
ing horses to run away, - - - - - 21, 22, 65
invading plantation, carrying off slaves, leaving crops unpro-
tected, - - . . ^ 24:
leaving bars of J, isture down near a railroad, - , 25,
injuring boats ot wagons by coBision, - - - 24
loss of or injury to animals by non-repair of fences, - 25
communication of disease by trespassing animals, - - 24
laying down defective gas pipe, - . . 35

GENEEAL INDEX. 767

CONSEQUENTIAL DAM AGE — contmued. Pages.

undermining a supporting building, - . - Vol. I, 35

negligently setting fires, -'-..- 35

leaving horses unattended in public street, - - - 36
leaving other dangerous property iu street or navigable

stream, 36,27

obstructing access of boats to locks, - - - - 27
removing barrier to flood, - . . . . 27
removing harbor light, - - - - - 28
mislabeUng a poisonous drug sent into market, - - 28
selling explosive burning fluid without disclosing its danger-
ous quality, ... 28
delivering to carrier dangerous articles without explanation

of contents, . _ - - - 28, 29

keeping powder in an insecure place, - - - - 29

public misrepresentations in matters of business, - 30

severing hose in use to extinguish a fire, - - - 30
f aUure of ship-owner to comply with statute requiring vessel

to be supplied with medicines, .... 30

fraud in the sale of real estate, - - - - - 30

falsely sissuming to he an agent, .... 31
non-repair of highways, - - - - 31, 36-46

excluding vessel from the shelter of sea-wall, 48
injury from trespassing animal following hie natural disposi-
tion, - ... . - - 53, 54
not necessary that the particular injury be foreseen or be certain

to happen, - • - 47
instances in which damages not natural and proximate conse-
quence, ..... 48-59
non-repair of bridge followed by loss of wood awaiting con-
veyance to market, - - - , - - 48
assault and battery followed by loss of an olHoe, - - 49
or causing inat)ility to perform in theati-e, - - 49
a concert singer refusing to sing because libeled, - - 49
omission to give notice to repair canal lock, - - 50
concealment of debtor's property to prevent seizure by his

creditors, - ..... 51
fraudulent representation of condition of debtor to prevent

attachment, - - - - 52
causing it to be believed that plaintiff was iUicit distiller, f ol-

loM5ed,by his conviction, . - . . - 52

kicking of a child by a trespassing herse, ... 55,
enticement away of servants as c^use of loss in dealings with

others afterwards employed, • - - - - 54

loss from officer failing to perform public duty, - - 58

from wrongful act of third person, - - 55, 56
no liability where act becomes injurious solely by extraordinary

circumstances, ...... 55

768 GENERAL INDEX.

CONSEQUENTIAL DAMAGE — continued. Pages.

as from wetting of wool, followed by loss of return duties
because package opened, - - - VoL I, 57

none for frustrating plan for special use of team, etc., by wrong-
ful seizure, ..... 53

for loss of board of passenger excluded from ship and volun-
tarily delaying his journey to sue, - - - 58
for injury to goods during negligent delay of transportation, 59
contrary doctrine in New York, - - - - 59, &0

loss by trustee's deposit in a bank which broke, - - 61

the rule, in. jure, causa proxima, non remota spectatur, - - 33-46

applied in insurance cases, . . . - . 33

in Massachusetts to statutory liability for non-repair of high-
ways, -- .....33

in suits at common law, causa proxima extends to natural and

probable consequences, . . - . . 33

one cause may be the responsible one, though it operate through
intervening agencies, ...... 63

it must be the efficient cause, ..... 40-46

when such, it is immaterial what other causes concur or co-
operate without the plaintiff's fault, ... 61-73
the act of the injured party may be the immediate cause, - 63
as where, in view of danger, he jumps from a carriage, - 63
the innocent or cvdpable act of a third person may be the imme-
diate cause, ...... 64

as in the noted Squib case, - - - - - 64, 65

where by-standers increased the fright of runaway horses, 65

the case of an altered assessment, - - - - 66

acts induced by slander, - . . . . 66

loss caused by a yielding of third person to malicious solici-
tation, - - - - - -49, 68

turning water into a canal into which a careless driver had
precipitated a passenger, - - - - 69

otherwise where the wrongful act of third person was only re-
motely induced by the wrongful act, - - - - 67

or only furnished opportunity, - - . . 70

responsibility for property lost by torts of third persons, - - 70

for breach of contract, such damages recoverable as were within

the contemplation of the parties when contracting, - 77-93

effect of notice of special circumstances, - - 80-84, 93

rules laid down in Hadley V. Baxendale, ... 84

adopted in this country, - - - j- - - 90, 91

recovery may be had for successive consequences, - - 104

carrier's liabUity for, - - 85, 86; Vol. Ill, 335-339

distinction relative to, between actions upon contract or in tort.

Vol. I, SO, 78
what may be recovered as such for breach of a contract for the
sale and delivery of chattels, .... Vol. II, 397

GENEEAL INDEX. ' 769

CONSEQUENTIAL DAMAGE — continued. Pages.

the purchaser is entitled to recover such damages as were in the

contemplation of the parties, - Vol. II, 397

where the goods were bargained for for a special use or purpose, 398-401
what recoverable on breach of contract for particular works, 483-485
against carrier of passengers, ... Vol. Ill, 353, 254

telegraph companies, - - - 300-307

for withholding real property, ..... 347

for injury to unfinished house delaying completion, -' 368

to sluiceway to mill causing mill to stop, . - 368

removing fence enclosing dairy ranch, .... 333

trespassing sheep communicating disease, - - 383

injury to business, ....... 337

CONSlbEEATION —

compromise .is a good, ...... Vol, I, 430

implied assumpsit follows, .... 205

partial want or failure of, may be shown in mitigation, 245

inadequacy of, no defense, - - 426, 430, 431, 537

received by the principal, supports the undertaking of the

surety, . - .... Vol. II, 537

presumed in action upon commercial paper, 110

want or failure of, a defense to notes and bills between immedi-

ate parties, - - 110

fraud in relation to, as a defense to such paper. 111, 113

as to whom accommodation paper is without consideration, - 112
a note made for a gift is without consideration, - 113;

other instances, ----..- 113'

efiEect of partial want of, - - . - - - 114*

may be shown, though unliquidated, - - - - 114

when a partial failure of consideration a defense, - - 115-119 '

generally some remedy for, - ... 133

instances of partial failure, - ... 134^139'

where part of consideration is fraudulent, . - - - 139 >

where part of the consideration is illegal, ... I39, 130

parol evidence admissible to show want or failure of, - 134^146

admissible to affect the holder with a trust, - . - 135, 140 '

that it is contingent, conditional or defeasible, - - 136, 137

where consideration executory, it may be shown to have failed,! ,

138-141, 146
consideration and interest the measure of damages on breach of

covenant for title, ..... 357

acutal consideration of deed may be proved, - - 260-?63.

CONSIGNEE —

makes himself party to carrier's contract by accepting goods and
thereby incurs liability for freight and demurrage, . Vol. Ill, 304
Vol. m— 49

770 GENERAL INDEX.

CONTINUING OBLIGATIONS AND "WRONGS, - Vol. I, 186

contracts of indemnity, . - . . 190

what may be included in recovery, - - . . 190, 191

the law will not presume the continuance of a wrong, - 199

necessity of a succession of actions, - - 302

wliere there is a continuous duty, - - 187, 190, 303

contracts for maintenance, .... 203

nuisance is a continuing wrong, - Vol. Ill, 398, 398

when it is not, .... 403-414

what recoverable in first and subsequent actions, - 398, 399
maintenance of a dam flooding another's land is such, 393

not uniformly so held, - 407

what distinguishes, . . - 403

the election of injured party to consider nuisance continuous or
permanent, ... .... 413

CONTRACT —

each party has a legal right to violate, on the terms of paying

damages, - - Vol. II, 193

with carriers cannot exempt them from liability for negligence

or misconduct, - - . Vol. Ill, 214, 349

CONTRACTS TO PAY MONEY —

interest and other damages on, - - Vol. I, 128-130, 531

when banker refuses to pay check, . . - - 139

for failure to pay drafts under special arrangements, - 139

for failure of agent furnished with money to pay incumbrance, 139
contracts stipulating damages on, 493, 503

agreements to pay more than interest, - 496

to pay attorney's fees and costs in case of default, - - 494

in case of public undertaking, - ... 495

CONTRACTS FOR PARTICULAR WORK —

nature of such contracts, - - Vol. II, 479

compensation for the actual loss the measure of damages, - 479

on contractor's breach of contract, the other party entitled to
damages equal to the benefit he would have derived from per-
formance, - - ... 4S1
measure of damages against defaulting contractor, - 479, 481-483
consequential damages recoverable, - 483-485
contractor not excused by accidental destruction of the work, - 485
w^hen he is excused and entitled to compensation for part per-
formance, notwithstanding destruction, - - 485, 486
contractor not answerable for failure of plans furnished him, - 488
what will be a waiver of objections to the contx-actor's perform-
ance, so as to entitle him to recover on quantum meruit, - 511
when recovei-y may be had for part performance, - - 518-519

GENERAL INDEX. 7Y1

CONTRACTS FOR PARTICULAR WORK — continued. Pages.

contractor's right of recovery when employer violates the con-
tract by stopping the work, Vol. 11, 531-524; Vol. I, 113-118
damages for failure to complete, or delay in completing, - 109, 110
may recover for part performance, - - - - 132

for preparation to perform, ------ 131

duty of employer to remedy slight defects to lessen damages, 150
recoupment between contractor and employer, - - 383

CONTRACTS OF SALE. See Purchaser; Vendor.

recovery may be had* of the price or value on executed sales,

Vol. 11, 347
where price not fixed there is an implied promise to pay the real

value, - - - - 848, 849

an agreement as to pi-ice is not essential to a bargain and sale of

goods, - - . - 348

when a higher credit price may be recovered, - - 349

the parties may agree that the price be fixed by a third person,

and they will be bound by the price he fixes, - 849-351

if property delivered and consumed by purchaser before the

price is so fixed, its value recoverable, - . . 350

such third person the agent of both parties, - - - 350

one of several sellers may be agreed on to decide a fact essential

to fix the price, - - 350, 851

when the decision of a third person may be avoided or is not

binding, - 853, 353

to entitle seller to recover the full price or value the sale must be

so far executed as to pass the title, - - 353

sale of specific property complete without delivery, - 853

otherwise of a contract to sell and deliver, before appropriation

of the particular property, - 354

whether a tender of goods will complete a contract, - 355

as to goods made to order, - - - 355, 356

where goods are sold to be paid for by bill or note on time, and it

is not given, - - - 856

where only part of the stipulated quantity delivered, - 856-359

foundation of the rule of damages against vendee for not accept-
ing goods contracted for, - - - 363
how objection of a want of punctuality may be waived by vendee, 863
the case of goods sold by sample, - - - 303
right of return when they differ, - - - - 363
effect of failure to return or to give notice of rejection, 364
in case of rejection of goods sent on order for particular kind,

freights on to be refunded, - 364

amount recoverable where property appropriated by vendee be-
fore it is completed, - 364
measure of damages for non-delivery of contracted goods, 365-375
consequential damages which a purchaser ma.y recover against a

vendor for breach of the contract to deliver, - - 397

772 GENEEAL INDEX.

CONTRACTS OF SALE — continued. Pages.

the purchaser is entitled to recover such damages as were in the

contemplation of the parties, - - - Vol. 11, 397

where goods bargained for for a special use or purpose, - - 398

where such special purpose was to fulfil a contract for resale of

such goods, the profits on that sale recoverable, - - 398

damages for failure to deliver specific engiae sold for a particu-
lar use to drive machinery, - - - - 401

classification of warranties in the English decisions, 408

recovery where goods contracted of particular kind and difEerent
goods delivered and received, .... - 408

caveat emptor as to goods delivered on contract, - - 407

imphed warranty of goods purchased for food, . - - 410

on sales by sample there is a warranty that the bulk is equal to it, 410
damages on, ----- - Vol. I, 75, 80-93

vendor against vendee, - ... - 80-93, 107

purchaser may recoup for vendor's fraud, - - 277, 378

for breach of warranty, .... 278, 383

stipulation of damages, ... - 506, 507, 518, 520

interest on purchase money, .... 592, 613-614

(DONTRACTS OF AFFREIGHTMENT —

sometimes general without reference to route or mode of convey-
ance, - - - Vol. Ill, 178
how such contracts differ from others more specific, - - 178

CONTRACTOR —

entitled to contract price, or reasonable value of his work. Vol. II, 449,

523
demands for extra work, - - ... 499

consideration on which its allowance depends, - - 499-503

effect of provision that deviations and extra work be ordered in

writing, - - 503

rate of compensation for extra work, ... 503

recovery may be had for part performance of a severable contract, 503,

504
contrariety of construction as to severable quality of contracts, 504^-507
not answerable for defects in plans furnished to him, 488

when entitled to payment, though work destroyed vnthout his

fault before completion, .... 435, 4§6

may recover contract price by action on the contract when it has

been substantially performed, .... 503

what is a substantial performance, .... 508, 509

what a waiver of objection to work so as to entitle him to recover

on quantum meruit, - - - - 511

what proof no answer to employer's evidence showing extent of

his loss from contractor's non-performance, 512

his right to recover for work done in part performance of con-
tract, where he has in good faith endeavored to fulfil, and
employer is benefited, .--... 515, 510

GENEEAL INDEX. 773

CONTRACTOR — continued. Pages.

his right to recovery when employer stops the work, - Vol. II, 531
in action against, it is a mitigation that he has not been paid. Vol. I, 353

CONTRIBUTION —

between co-sureties, ... - - Vol. II, 591-r603

foundation of liability to contribute, ... - 593

no contribution is allowed between wrongdoers, - - 595, 609, 610

this only applies against a wrongdoer who knew he was doing

wrong, ... . . 595

what necessary to give sureties reciprocal right of contribution, 595
where several principals become bound for the same debt they

are co-sureties, - - ... 596

co-sureties are supposed to assume the same risk and to stand in

the same relation to the prinoiioal, - - 395

effect of one secretly sharing in the benefits of the undertaking

as a principal, - - . ... 593

a surety's right to, and the amount he is entitled to, based on the

equitable maxim that equality is equity, ... 597

when all the sureties are solvent each is liable for his aliquot

proportion of the amount paid, 597

there is a like right of contribution for costs which a surety has

been compelled to pay, - - 597

where one paying a debt obtained part security he has been air

lowed a commission, ...... 593

an insolvent surety ignored in determining the amount of contri-
bution, - - .... 598

all sureties entitled to share in* the benefits of an}' security either

obtains, - ... 593, 599

no contribution recoverable until a surety has paid more than his

share, 599, 600

contribution can be had only in respect to the amount actually

paid, ... . . 600
nor is a surety liable for, after he has been released by the cred-
itor, - 600, 601

nor is a surety entitled to contribution who has paid a void note, 601
so if one pays a note which is barred as to the other at the time

of payment, .... goi

otherwise, if suit brought against one before the debt is barred as

to either, though judgment is obtained after it is barred as to

the one not sued, - - - 601

an estate is liable for contribution though the debt was paid by

another surety, after the debt against the estate was barred for ^

failure to present for allowance, - - 601

the right to contribution accrues at the time of the payment by

the surety, - - - 601

contribution allowed on equitable grounds and may be defeated

on such grounds, ------- 601

774 ©ENEEAIi INDEX.

CONTRIBUTION— continued. Pages.

joint judgment against sureties by creditors conclusive between

them, Vol. 11, 601

but one surety not bound by a judgment against another in a suit

of which he has no notice, 601, 603

it is, however, evidence that the surety paying was compelled to

pay, 603

CONTRIBUTORY NEGLIGENCE —

does not go to the cause of action upon contract, - Vol. Ill, 169
damages may be reduced for, - ... 169

CONVERSION —

value and interest the measure of damages for, - Vol. I, 173, 174

a special owner may recover according to his interest, 210;

Vol. Ill, 524^536
mitigation by return of property. Vol. I, 238-240; Vol. Ill, 528-537
damages in trover assessed on equitable principles. Vol. I, 240

interest recoverable, - - - - ,174, 639; Vol. Ill, 493

the action of trover, ... . . 437

measure of damages, ...... 488-490

proof of value, ..... 490-493

when the value for damages should be taken, - - 489

when special value, or value to the owner, recoverable, 491, 492, 494

what may be recovered as the value of fixtures, - - 492

in action under code, - - - - 492

when the converted property had to be sold, ... 493

where the property has no market value, .... 494

or is of fluctuating value, ..... 496-509

discussion of highest value before trial, - - 496-509

damages recovertible where the wrongdoer has improved the

property, - - - 509

for conversion of money securities, stocks, deeds, etc., 520

how damages affected by nature of plaintiffs interest, 534^526

mitigation of damages in trover, - - 527-537

circumstances admissible which show that actual loss is less than

the value, - - - 527, r)38

return and acceptance of property will be considered in mitiga-
tion, ... 52R
dispositions of the property amounting to return of it, 538-537
conflict of decision on that subject, - - - 533-533
when defendant entitled to return the property and thereupon to

stay of proceedings in trover, ... 530, r,;!l

expense of procuring return or decrease in the value of the

property returned, reduced amount allowable for mitigation, 530, 537

where several liable, part satisfaction by one, - 537

measure of damages where property returned, - 539

when agent guilty of, and liable accordingly, - . 13, 14, 43

COPYRIGHT, see Infringement op Copyeight, - - 033

GENEEAL INDEX. 775

CORPORATION — Pages.

liable like natural persons for tortious and malicious acts of
agents, - - . . Vol. I, 750, 758; VoL lU, 370-279

COSTS AND EXPENSES —

of extinguishing adverse claims as items of dainage for breach

of covenant of virarranty, - - Vol. II, 391, 308

whether attorneys' fees may be included, - 291, 294

of suit in defense of. or to establish the granted title, as an ele-
ment of damages for breach of the covenant of warranty and
of quiet enjoyment, - - •- 303-309

they must be incurred reasonably and in good faith, 302-305, 306

not allowed in successful defense against an invalid adverse

claim, - 308

separate suits may be brought a,t same time against the several

parties to notes, and costs of all recovered, 187

an indorser who has been compelled to pay costs cannot recover

them back in action against prior parties to a note or bill, 187

recovery for, on replevin bonds, - - - 43

on attachment bonds, - - - - - - 61, 63

on injunction bonds, ... 64-69

when incurred by purchaser of note or chose in action to en-
force the subject of purchase, may be recovered on breach of
implied warranty, - 413

so when incurred in defending title to property bought with

warranty, - - 414

expense of raising crop from seeds warranted, - - - 433

surety's right of recovery for, against his principal, - 588-590

what costs a surety may recover, - - - 590

what recoverable on contract of indemnity, - - 604-609

of former actions, when recoverable, - - - Vol. I, 98

recoverable when suit proximate result of defendant's tort or

breach of contract, - 106, 143

when recoverable against indemnitor or warrantor, - 135-147

when paid or incurred by surety, - - 134

under what circumstances a party indemnified may incur costs, 135

recovery of costs on bonds and undertakings given in judicial

proceedings, - - 141

on contracts made by one falsely claiming to be agent, 140

necessary to pay, in paying demand after suit brought, 260

when an item of damages for fraud, - Vol. Ill, 593, 593

COUNTS —

effect of general verdict for plaintiff when one of several counts
bad, Vol. I, 819

COUNTERCLAIM, 26i

COURT —

has power over verdict, .-.-.- 3

may set aside excessive or insufficient verdicts, - - 810

may amend informal verdicts, - . - . . . 809

776 GENEBAL INDES.

COVENANTS —

not to sublet or assign, .... Vol. Ill, 143

to insure, ..... 144

f
COVENANT TO REPAIR OR REBUILD —

damages for breach of, ... 131-143, 166-171

diminution of rental value recoverable, . 167
lessee of hotel may recover for loss of certain rooms for failure

of lessor to repair, ... 167

contemplated use will fix standard of repairs, - - - 167
want of due care to prevent premises getting out of repair no

defense for breach of covenant, - - - 169.

COVENANT OF SEIZIN AND GOOD RIGHT TO CONVEY —

purport of these covenants, and when broken, - Vol. II, 353

acceptance of deed merges contract, ... 258

how these covenants differ, .... 253

they are similar in purpose and effect, ... 253
they are generally regarded as covenants of title, and not merely

for possession, - - 253
uniform in effect when formal and show intention to assure

highest title, - - 253

diversity in the forms of this covenant in the United States, - 354
construction of the covenant in Massachusetts, Maine and

Nebraska, - .... 254

they are covenants in presenti, .... 255

if broken, they are broken when made, - - 255
in England, and in some of the states, they are, however, held to

be real, and run with the land, .... 355

doctrine in Ohio, - - 256
the general doctrine is that they are personal covenants and do

not run with the land, - - - 256
that being broken at the date of the deed, they are turned into

mere choses in action, and incapable of assignment, or of

being available to any but the covenantee, ... 256

measure of recovery on, ..... 257

effect of recovery on a total breach, .... 264, 265

it is a bar to any further recovery, - . - - - 265
where title fails to part, and reconveyance is tendered, 270-373

want of reconveyance no bar, - 373

it will not affect the right to f uU damages when no title passed, 373

nor will a resale, . - - 273

COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT—

scope of these covenants, ... 379

the same facts constitute a breach of both, ... 379

both run with the land, ... 279

and the rule of damages on a breach is the same, - - 379

what is a breach, ....... 397

GENEEAL INDEX. 777

COVENANTS OF WARRANTY, Etc.— continued. Pages.

there must be an eviction under a paramount title existing when

the covenant was made, ... Vol. II, 279, 380

rule of damages for breach of them, - 280, 281, 284

measure of damages in England and Canada, - - - 285

same in some of the older states, - . . , 286

rule in case of partial breach, - - 288, 289

where the adverse claim and eviction are under a paramount in-
cumbrance, - - 289
rule where adverse title extinguished by the covenantee, - 291-294
where the defect is an outstanding right of dower, - 294
or a term of years, - - 294, 295
by and against whom recovery may be had, - - 295
not necessary a conveyance by covenantee be made with cove-
nants to pass these covenants to grantee, 295
they are divisible, and benefit of them will go to recipient of any

part of the land, - - 395

remote grantee evicted may bring suit against the first or inter-
mediate covenantor, ... 395, 399
he may bring suit against all at one time or successively, - 295, 298
entitled to only one satisfaction and costs, - - 396
when intermediate grantee may maintain the action on the evic-
tion of his grantee, - - 298, 299
he must satisfy his covenant to his grantee, 289
the grantee has a right to defend unless aware that no defense

can succeed, - - 203, 205

and expense and costs so incurred may be recovered as part of

the damages for breach of these covenants, - 303-309

damages recoverable by tenant or lessee on covenant for quiet
enjoyment, - - - Vol. Ill, 146, 168

COVENANT AGAINST INCUMBRANCES —

damages cease when incumbrance removed, and if i-emoved by
covenantee wrongfully, he cannot claim on the covenant in-
demnity for the damages recovered against him. Vol. II, 308
generally held to be a covenant in presenti, - - - 311
rule of damages for breach of, ... 311-315
in England and Canada, - - - - - - 815

in some states it runs with the land, - - 317-334

.then it will pass to subsequent grantees by deed without covenants, 336
where connected with covenant for quiet enjoyment, - 339

rule of damages when the incumbrance cannot be removed, 326-339

COVENANT TO PAY OFF INCUMBRANCES, - 329, 330

when an instrument will be construed to be such a covenant, 330

CREDIT —

injury to, from failure to pay check, - - Vol. I, 139

injury to, remote in action on attachment bond, - - 98

778 GEKEBAL INDEX

CREDIT — continued. Pages.

injury to, by attachment, generally held too remote and specula-
tive, - - - - Vol. II, 59, 60

but where malice may be charged and proved, such an element
of damages has been considered, .... 60

CREDITOR —

may extinguish debt by gift, ..... Vol. I, 355

liability of, in respect to collaterals, .... 379, 383

application of payments by, - - - - 405

when made debtor's executor may retain his debt, - - 397

tender to, - - .... 443

when a devise to, a payment, .... 354

composition with, ...... 430

value of debtor's custody to, - - - - - 251

how secured by, and his remedies on, probate bonds. Vol. II, 35-41

out of insolvent estate, entitled to receive an average with others, 39

when he may sue administrator's bond, - - . - 39, 40

what is no answer to his suit, .... 40

CRIMINAL CONVERSATION —

mitigation in action for, ..... Vol. I, 254

slight intercourse between husband and wife, - - 254

what must be proved in action for, - - - Vol. Ill, 744

damages recoverable for, ...... 745

evidence in mitigation, ...... 745

CRIMINAL PROSECUTION —

note given in part on agreement to discontinue, illegal and void.

Vol. II, 131
CROSS ACTION —

necessity of, much diminished by practice and legislation in-
creasing scope of defenses, - - - 117-129
formerly necessary, even to show insufficiency of work for

which quantum meruit brought, - 117

and particularly when action brought for sum certain, 117, 118

still necessary in England where action brought on biU or note, 118

CROPS —

damages for preventing the raising of, by removal of slaves,

Vol. I, 24, 99

for failure to fulfil contract to harvest, ... 75

to deliver threshing machine, - - - - - 99

proof of the value of, - - - - - 194

opinions of qualified witnesses as to the growth of, - 793

duty of plaintiff to prevent damages by closing fence, - 150

CURRENCY —

its relation to money, - - - - 321, 333, 325

contracts presumed to be made with reference to the currency of
the place of contract, - - ... 335

GENERAL INDEX. Tl^

CUSTODY- Pages.

value of, to judgment creditor, .... Vol. I, 351

DAM —

indirect benefits from mill as mitigation of damages from, - 243

DAMAGES —

nature and purpose of ,--..- . 1-8

certain damages governed by legal measure, ... 3

other damages left to the discretion of the jury for compensation

or punishment, - - . 3, 4

the law infers some damage for every infraction of a right, - 2, 9

damages so inferred generally indeterminate as to amount, - 2

then only ground for nominal damages, - - 2, 9-16

nominal damages, .... g-ig

the right to absolute, when a right has been violated, - 2, 10

the court may add them by amendment to verdict for plaintiff, 827

what must concur to give a right to damages, ... 3

damnum absque injuria, - ... 3, 4, 5

injuria sine damno, - - - 3

the law gives a private remedy in damages only for private

wrongs, - - 6

unless there is a special injury, .... 6

legal quality of a right to damages, ..... 7
of the nature of property, .... ^

protected by law, ..... 7

except for personal torts, it survives, ... 7

wheu the right to damages attaches, - .... 7

compensation, the cardinal principle of, - - - 17

the right to compensation embraces direct damages, - - 19

and consequential damages which are natural and proximate, 18-73
they include the probable consequences of tort, - 21

illustrations, - ... 21-73

for wilful wrongs damages given with a liberal hand, - 71, 161

increased for compensation by bad motive and aggravations, 161, 726-738
damages in such cases not confined to compensation, 2, 3, 716

exemplary damages, 716

for breach of con tracts damages recoverable which were contem-
plated by the parties, - - 74^93
required certainty of, - - - - - 94^126
elements of, - - .... 137
interest for detention of debt, .... 128, 537
full compensation for failure to pay money under special circum-
stances, - 128
for breach of other contracts, gains prevented and losses sus-
tained, - - - - 10
value of bargain for total breach, - - - - 130
in proportion for partial breach, .... 130
exceptions, on contr.^ots relating to real estate, - - 130

T80 GENERAL INDEX. '

DAMAGES— continued- Pages.

profits, when recoverable, - - - Vol. I, 113-120, 130, 133

for preparation to perforin and part performance, - - 181

reooveiy for losses, - - ... 131-148

for wrongs depriving a party of property, its value and interest,

173, 174
necessary expense to recover it, - - - - 106

necessary expenses of suits resulting from wrongs, - 106

for pain, physical and mental, from personal injury and insult, 158, 766;
Vol. Ill, 259, 260, 819, 645, 659, 664, 668, 669
for breach of marriage promise. Vol. I, 7, 156; Vol. Ill, 316-331

for injury to business, Vol. I, 96, 98, 106, 126; Vol. II, 59; Vol. Ill, 153-

166, 361, 263, 387, 418, 419
interest on pecuniary items of damages, - - Vol. I, 630

duty of plaintiff to lessen and prevent, . - - - 148

entirety of damages, - - - - - - - 175

prospective, when recoverable, - - - 187-198

necessity to include all in one action, - - 175

continuing obligation and liabilities, - - 186-198

as to necessity of successive actions for, 202; Vol. Ill, 396, 398, 403
as to parties, .... Vol. I, 203

legal liquidations, ..... 330

in avoidance of circuity of action, ... 220

by mutual credit in connected accounts, ... 224

mitigation of damages, - - - - 326

recoupment and counterclaim, ..... 261

marshaling and distribution, .... 303

set-off of judgments, - - - - - -311

conventional liquidations, ... . . 345

payment, - - - - - - 345

accord and satisfaction, ..... 425

release, ....... 433

stipulated damages, -...-- 475

exemplary damages, ....... 716

statutory, ...... 770

pleading — general and special damages, ... 759-770

ad damnum, ...... 759-761

assessment of, - - - - - - - 771

evidence of, ..... 783

opinions of witnesses of, ----- - 783

verdict for, 808

excessive and insufficient verdicts, - - - - - 810

verdicts raust be certain, ..... §16

judgment for, ...... 827

restitution of, on reversal, - - - 830

the measure of, cm bonds, is the sum due by the condition. Vol. II, 6
they are allowed in equity where the condition is impossible, 8

the penalty in a bond is a limit of recovery, - 9-15

GENEEAL INDEX. 781

DAMAGES — continued. Pages.

and of the obligation of the obligors, - - Vol. 11, 9, 10

this limitation is only applicable when the suit is founded on the
bond, ....... 10

it does not apply when the suit is upon an affirmative agree-
ment, or upon some security, ... .10

nor when suit is upon a judgment rendered on a bond, - 10

equity may enforce a debt beyond a penalty against a complain-
ant compelled to do equity, - - 10
or against a litigious and dilatory debtor, ... 10
so where advantage is made of the money, - - - 11
why equity will limit the obligee as complainant to the penalty, 11
in a few cases the sum due by the condition exceeding the pen-
alty has been recovered, - - 12, 13
interest may be added to the amount of the penalty from the
date of forfeiture when the actual debt or damages equals the

penalty, - 13, 14-19

the measure of, on official bonds, .... 32-34

on probate bonds, ...... 38

on guardian's bonds, ...... 43

it is limited by the penalty, - - - - - 42

measure of, on replevin bonds, ..... 50

the value and interest may be recovered, and any special dam-
ages, -..-....60

and costs of the replevin suit, - - 43

measure of, on bonds given by defendants in replevin to retain
the property, --- ....57

measure of, on attachment bonds, - - 58

compensation should be given equal to the injury to the property
attached, the loss of its use, with costs and expenses incurred
to procure remo'^al of the attachment, - 58, 59, 61, 62

malice not necessary to be proved; damages cannot be enhanced
by proof of malice, nor mitigated by showing there was no
malice, ....... 58, 59

otherwise in Iowa by statute, - - - - 59

where a stock of goods attached, recovery may be had for inter-
ruption of business, ..--.--59
but not to the reputation of the goods, - - - 59

may be enhanced by proof that attached property was intended

for a particular use, - -

depreciation of the property in the officer's hands may be shown,
but only when it is personal of which the officer takes possession, 60
the obligors are prima facie liable for the value of the property

taken, --.-.---
what consequential damages in such cases excluded, - 60, 61

measure of, on forthcoming bonds, ... - 62

and on condition to pay tha judgment, . » - . 63

60
60

60

782 GENERAL INDEX.

DAMAGES — continued. Pages.

measure of, on injunction bonds, ... Yo\. II, 64

recovery may be had of costs and expenses, including attorney

fees, to procure dissolution, - - 64r-69, 74^76

damages recoverable for the injury sustained from the restraint

of the injunction, - ... 69-76

where the restraint keeps the owner out of possession, . 70, 73

vphere debts lost by reason of the restraint, - - 70, 73

where the enjoined party prevented from claiming land, - 70, 71
from working a mine, - - - - 71

where the owner is thus deprived of personal property he is

prima facie entitled to recover the value, - 71

where the party obtaining the writ takes possession, - - 71-73

measure of, on appeal and supersedeas bonds, - - 79

on supersedeas bonds for review in the supreme court of the

United States, - - - - 79

liability where the judgment or decree below is only in pai"t for

money, or is in rem, .... 81

liability on more specific conditions in use in state courts, - 90

on undertakings under the code, - 93

interest and damages awarded on appeal, - .98

damages in lieu of re-exchange, ... 173^ 177

statutes of the several states on that subject, - - 178-185

measure of, in vendor's action on contract for sale of land before

conveyance, - 196-199

effect of resale in determining amount, - 198

elements of, in vendor's action for purchase money, - - 198, 199

right of recovery where notes given for purchase money, 199

recovery against purchaser of land where the price is not fixed

by the contract, - 304

elements of, in the vendee's action against the vendor for breach

of the contract for the sale of land, - 321-337

damages against the vendor for dilapidations, when he retains

possession as security for the purchase money, - 241-344

for waste and dilapidations on rescission, - - 347, 348

damages in suits for specific performance, . . 349

courts of equity have sometimes given damages solely in lieu of

specific performance, - - - 249

they will give it in part where entire performance cannot be

specifically decreed, - 849

the measure of such damages is the same as at law, - - 249

it wUl entitle the purchaser to an abatement of the price or to

the value of the part lost, according to circumstances, 349

where the contract is in such terms as to imply no warranty of

quantity, there can be no abatement of compensation, 250

presumption as to benefits which would have accrued from per.

formance of a contract, ..... 351

GENEEAI, INDEX. 783

DAMAGES — continued. Pages.

may be given wlien specific performance would not be granted,

Vol. II, 251
measure of, on breach of covenants of seizin and good right to

convey, - • . ^_ ... 257

not affected by fact that the land has been enhanced in value by

improvements or otherwise, - - - - 257

reasons of policy for this exceptional rule of damages, - 357-359

when value of improvements may be included, - - 359, 260

if the consideration was property, its value wiU be adopted as

the basis of recovery, ... 263

and agreed value will be adopted, - - 363

when consideration will not measure the damages, 363

where it cannot be ascertained, - - 363

when paid by a third person, ... - 263

any recovery beyond nominal damages for breach of the contract

of seizin and good right to convey, requires proof of actual loss, 365
if the purchaser obtains anything by the deed, its value will

reduce recovery, ... gcs, 366, 373

where there is a total breach, consideration and interest are

prima facie the loss, - - 366

effect of grantee obtaining and enjoying possession, 866

where these covenants do not run with the land, possession will
not generally prevent recovery measured by consideration and
interest, - 267

possession may compensate interest when there is no liability to

the superior owner for rents and profits, - 268

where the defect of title is only technical, and there has been

long possession under the conveyance, - - 369

where outstanding title has been bought in, - - 269

elective total breach and reconveyance when title to part faUs, 270-373
damages will be reduced if the title has been made good by the

statute of limitations, 273

damages are assessed with reference to the facts affecting the

real loss at the time of the assessment, 273

at least nominal damages recoverable for any breach, - - 373

how damages may be prevented or mitigated for breach of these

covenants, ... . . 275

by the defect of title being cured, .... 275

by covenantor acquiring title and it inuring to covenantee

by estoppel, -..--- 375

how damages adjusted on a partial breach, - - 376-378

when the defect is an outstanding life estate, its value is measure

of damage, - 376

damages recoverable for loss of anything which was of the free-
hold, - - - - 378
for loss of things which would pass as appurtenant to the free-
hold, as fences, buildings and fixtures, - - 278

T84 GENEEAi INDEX.

DAMAGES — oontimied. Pages.

measure of, for breach of the covenant of warranty, Vol. II, 280, 281
consideration and interest, together with costs and expenses

of defending the title, ----- 281-284
it is an exceptional rule, ----- 381

increased or diminished value at time of eviction not regarded, 282
if property is the consideration, its value is the basis of the meas-
ure of damages, - - - 282, 284
the rule of damages in England and Canada, - - - 285
same in some of the older states, - . . - 286-288
rule in the case of a partial breach, - - - 288
they will be assessed pro tanto according to the rule for
total breach, - - - - 288
where the conveyance contains parcels and the title fails to one, 289
where it fails to an undivided part, - - 289
where the eviction is by some paramount charge or incum-
brance, - - - - 289, 290
if action not brought until after title absolute under the incum-
brance, - - - 290
effect of covenantee owing purchase money due to amount of

the incumbrance, - - - 290

or of the covenantor leaving suflBcient money in hands of cov-
enantee to discharge it, - /■ 290
rule of recovery where covenantee has extinguished the adverse

title, - - - 291

what may bfe included in the cost of extinguishing adverse title, 291,

308, 309
eflEect of covenantee repurchasing property after a legal eviction

on the damages for breach of the covenant of wan-anty, 293, 294
the recovery will be adjusted to the actual loss, 294

rule of, where remote grantee sues first covenantor, 296-299

interest as an item of damages in action for breach of covenant

of warranty, - - - 300

costs and expenses, including attorney fees, of defending reason-
ably and in good faith against superior title, 302-309
covenantee on covenants for title cannot recover for any dam-
ages resulting from his own wrongful acts, - 308
rule of, for breach of the covenant against incumbrances, 311, 315
in England and Canada, - - - - 315
comments on the American rule of damages, - - 324r-326
rule of damages for breach of this covenant when the incum-
brance permauent and cannot be removed, - - 826-329
and recovery beyond nominal damages will be limited to the

actual injury, - - 326, 327

amount paid to extinguish incumbrance recoverable for breach

of the covenant, - - - 327, 329

measure of, where the incumbrance is a right of way over the
granted land, --,..- 337, 333

GENERAL INDEX. 785

DAMAGES — continued. Pages.

where incumbrance consists of a prior grant of tinaber growing
on the land, - .... Vol. II, 338

where it is an existing contract running with the land to fence a
railroad, - - . .... 333

where it is an outstanding lease, - - . - . 328

where it is a life estate, . . ... 329

measure of, for breach of covenant to pay off and extinguish
incumbrances, - - 329, 330

where the promisor is purchaser of the incumbered property
and the promisee is not bound for the debt, - - 330

for not accepting goods contracted for, - 359

value of the goods refused may be ascertained by an immediate
resale, .... . 359^ 350

theory of such resale, - . ... 36O

if the net proceeds less than contract price the deficiency may
be recovered as damages, - - - 361

such resale not necessarily to be made at the place of delivery
fixed by the contract of sale, - 361

foundation of rule of damages against vendee for refusing to
accept goods contracted for, . . - 368

measure of, for non-delivery of property contracted to be sold, - 365,

368, 369

on a contract for a cargo, the vendee is not entitled to recover on
the basis of what the goods ai-e worth in broken parcels, - 366

nor will the general rule be departed from though one or both of
the parties were mistaken as to material facts, ... 366

where there is a mistake of quantity in close packages, - 367

rule of, where a purchaser agrees to sell to his vendor at a price
below the market, and violates his agreement by selling to an-
other for more than market price, - - 367

the basis of the general rule of, - - - 367

measure of, where the property not found in market and can be
obtained only at a price much above the contract price, 367, 368

or where the article is patented, . 367, 368

where other goods are purchased in market by the purchaser, the
price paid, and expense and trouble of doing so, included, 368, 369

where the market price fluctuates, and the refusal to deliver was
with a view to profit, - - 369

or raised and depressed by illegitimate combinations, - - 374

where there is no market ^ the place of delivery, how the value
there ascertained, ... 373

not admissible to inquire as to the probable effect of adding the
goods in question to the quantity in market; nor of the plaint-
iff going into the market to buy the kind and quantity in ques-
tion, - - - - 373, 374

profits on a contract for resale cannot be taken into account, 374

Vol. m- 80

7S6 GENEKAL INDEX.

DAMAGES — continued. . Pages.

nor can the vendor claim any mitigation because the vendee has

contracted them for less than the contract price, - Vol. 11, 374

if the vendor sells the contracted goods recovery may be had on

the basis of the amount the vendor sold for, - - 374

there is no actual injury if the market price is less than the con-
tract price, and the vendee then is only entitled to nominal
damages, - - - 375

where the vendor sells to another a part of the goods, and thus
puts it out of his power to perform, the vendee may refuse the
residue and recover as for total breach, 375

rule of, in favor of vendee when delivery becomes impossible, 379
measure of, against a vendor when the purchase price has been

paid, - - 379

in some states the highest market price to trial recoverable, 380, 381
on contracts for the delivery of stock, 382-387

on contracts to pay in or deliver specific articles, - 387-396

what consequential damages i-ecoverable from vendor for not de-
livering or delaying delivery of goods sold, 397-406
what profits may be taken into account, - 397-403
what other losses, - - 397, 399, 400, 401, 403, 404
on vendor's warranties, - 407
recovery on breach of implied warranty in sale of judgment

where one of several defendants had been released, 413

measure of, for breach of warranty of title, - 418

no more than nominal damages can be recovered if the para-
mount title has not been assex-ted, - - - 419
costs incurred may be recovered if vendee dispossessed by suit, 419
measure of, on breach of other warranties, - 433
recovery is limited to the actual loss, - - 433-436
may include interest, and special damages which are the proxi-
mate result of the breach, 434r436
damages resulting from resale with like warranty, - 434
lonsequential damages on breach of fraudulent warranty, - 424
recovery by employe for services on a hiring at fixed wages, 440
on quantum meruit, - 440, 443, 457, 459-163, 466, 471
recoveiy by attorneys for services, 445
by brokers, - - - - 449
for part performance of contract which is not apportionable, 454
same when performance prevented by sickness or death, 454-463
or other disability, - - - 457
for part performance on apportionable contract for services, 468
where employer gives employe cause to quit, or wrongfully
dismisses him, - - 471-476
other damages sometimes recoverable than the direct loss of sal-
ary or wages, - - - - - 475
liability of employe for violation of his contract of service, - 476

GENERAL INDEX. 787

DAMAGES — continued. Pages.

measure of, on contractor's breach of contract for particular

^orks, . ... Vol. II, 479, 483, 483

of contract to build a house to be paid for by conveyance of

a house and lot, - - . . . 431

on breach of a contract to sink an oil well on contractor's

land, - ... 479

on breach of agreement to saw all the timber on a lot on cer.
tain specified terms, ..... 433

on breach by contractor of contract for particular works, what

profits recoverable, ... . 479^ 433

damages recoverable may include amending and completing the

contractor's work, .... 433^ 433

consequential damages recoverable, . 483, 484, 496, 497, 498

for breach of contract for work contracted for a particular

pui-pose, - - .... 488, 489

for delay in completing, ..... 439, 490
interest on value, when paid for, .... 439

loss of use during delay, ..... 491

rental value, - - .... 493

must be such as were contemplated by the parties, - 493

what damages for delay or entire neglect to construct particular

works may include, - - 493

not for damages from extraordinary immediate cause for
which contractor's delay merely gave opportunity, - 493-495
damages recoverable where employer stops the work under con.

tract for particular works, 581-534

what may be shown to enhance damages, ... 535

where periodical measurements provided , for with a view to

periodical payments, they are final for the work so measured, 531
when employer violates the contract by stopping the work,

money earned and retained as security recoverable, 531

what may be shown to reduce damages, - - . ^ - 537

amount recoverable against a surety, ... - 537

and when interest added, ..... 537

same rule of, applies to principal and surety, ... 537

surety only liable for actual damages, . - 548

damages recoverable against surety in respect to interest, attor.

ney fees, and stipulated damages, - 550

on a guaranty of the amount due, - . . 550

measure of, against guarantor of commercial paper, - 551-558

discharge or reduction of the amount otherwise recoverable
from surety by creditor's conduct in respect to the parties lia-
ble, or sureties, - 561-571
defenses by surety alone or in suit in which he and the principal

are defendants, - ..... 571-575

extent of the surety's right of recovery against his principal for
indemnity, - - . . . ' . 576-588

788 GENEEAL INDEX.

DAMAGES — continued. Pages,

surety's right to recover costs which he has been compelled to

pay, - ... •- Vol. II, 588

consequential damages not recoverable by surety, - 590

what damages by way of contribution recoverable between co-
sureties, -------- 591

who are such, ------- 593-595

what may be recovered on contracts of indemnity, - - 604

under certain form of indemnity, costs and expenses of defend-
ing groundless action recoverable, - - - 604
confined to those which immediately result from the act indem-
nified against, ------ 604, 605

what costs and expenses recoverable when the indemnity is
against the consequences of a levy of attachment or exe-
cution, - ... 605
on an indemnity against breaches of contract, - 605
on an indemnity against loss, damage and harm by reason
of a suit for infringement of a patent, - - - 606
recoveiy may be had on indemnity for payment on a judgment, or
incumbrance, for service, trouble and expense, within scope
of agreement, ...... 608

also for property lost by act indemnified against, • - 608, 609

upon contracts to pay debts for purpose of indemnity, - 610

rule of, against unfaithful or negligent agent. Vol. Ill, 3, 5, 6, 11,

43, 45
what damages proximate consequences of his acts and omissions, 6-11
when principal liable to agent for, on his dishonest bills, - 47

measure of, against an agent acting without or beyond his au-
thority, .... ... 52-58

rule of, on open policies of insurance, ... 73

general rule of damage on policies of fire insurance, - - 86

liability for loss extends only to immediate effects, - - "86

damages for refusal of lessor to give possession, or on breach of

covenant for quiet enjoyment, - 146

for injury to business between landlord and tenant, - - 157-166

what, uncertain and speculative, ..... 170

profits from future performance of vocalist not certain, 167

damages on contract may be reduced for contributory neg-
ligence, - - ... 169
consequential, for lessor's failure to repair, ... 170, 171
loss of custom to a mill kept idle by failure to repair dam, 170
by fall of chimney, ...... 170

by goods getting wet, ... . . 170

by failure to repair saw-mill stocked with logs, - - 171

for fraud, may be recouped against rent, - - 174

for other torts less than eviction, . . _ 174-177

interest on, for use and occupation, ... 130

measure of, for breach of covenant to repair, - - 188-140

GENKEAL INDEX. 789

DAMAGES— continued. Pages.
landlord cannot recover, against tenant for loss to which he con-
tributed, - ' - - . / - - Vol. Ill, 139

measure of, for breach of covenant not to sublet or assign, - 143

for breach of covenant to insure, . . - . 149

for quiet enjoyment, ... - 146-1C6

damages in the nature of demurrage, » " " " ^^^

for carrier's refusal of goods to carry, - . . . 306

or his breach of contract to carry at specified rates, - - 208
for despatching goods by different route for which higher freight

charged, .... . . 313

for negligent delay of transportation, - . - - 213-285

consequential, against carrier for negligent delay, - - 228-235

for failure seasonably to convey money to pay premium on

life insurance policy, - ' - - - 234
wh er e statute of limitations run on account during such delay, 334
against carrier for injury to or loss of goods, - 235-^39
circumstances may reduce, below value at destination, - - 241
not affected by the kind of motive power employed, - 236
do not depend upon contract, - - 286
what evidence makes a prima facie case against carrier, - 236
when loss happens by one of the excepted causes, - - - 436
interest generally allowed on damages against earners, - 338
shipper may estop himself from recovering full value by his mis-
leading conduct, - - - - 243

proof of value against carriers, - - - - 247 -

damages recoverable from passenger carriers, ■- - 249-291

for refusal to carry, or delay, ... 350

for detentions and exposures causing sickness, - 250, 251

for personal injui-ies, - .... 35I-368

consequential damages, . - - . - 353, 254

exemplary damages, - - - 251, 370

statutory, resulting from death, . - - - 281, 291

for loss of baggage, ..... 391

damages recoverable from telegraph companies, - - 295-315

measure of, against such companies, .... 398-307

for breach of marriage promise, ... 316-335
for withholding possession of real property as regulated by stat-
utes, - - .... 339-343

mesne profits, action of trespass for, ... 343-350

under the code, ...... 350, 351

for detention of dower, - ... 353-363

for trespass to real property, - - - - - 363-393

for injury to inheritance, .... 393-394

for trespass, are such as are appropriate to plaintiflTs title, - 365
possession alone will entitle the plaintiff to recover.

365

but can recover only such, as affect his own right, - 365

except against a stranger, .... 366

790 GENERAL INDEX.

DAMAGES— continued. Pages.

where the defendant derives a benefit from the trespass, Vol. III. 366
measure of, in such action by tenant against landlord who takes
his minerals reserved, to which he has no access except with
consent of the tenant, - 367

the principle is compensation in absence of right to punitory

damages, - - •- - 369

may be assessed on the value of a part of land severed, - 367, 868, 378
valuation most favorable to owner to be adopted, - 373

for cutting and carrying away trees, - 373

rental value may be given when trespass suspends owner's en-
joyment, - - - - 367
damages for removal of a fence, ... ge-j
for injury to unfinished house delaying completion, - 368
for stopping a naiLl, - - 368, 419
laying down anaoperating railroad, - - 869
successive actions may be brought, - - - 369
w;hen a permanent injury done by single act, damages assessed

once for all, - - 373

depreciation of value of land an element of, - - 372

for deposit of sand bar, - .... 372

for causing land to fall away by removing lateral support, - 873

compensation to be made according to the value of the land or

soil to owner, - ... 373

for cutting trees, the severance the essential fact, - 373

value of the tiinber may be shown though not averred, 373

owner may adopt value of the timber as the measure of dam-
ages, - - 373, 374
what the owner entitled to recover for cutting and converting

timber, .-..-.- 374

for mining and converting ores, - - - - . 374

proper pleading in such a case, ..... 388

diversity of decision as to measure of damages, 375-881

the difference is between value in natural condition and value

immediately after severance, - 875

there may be recovery also for injury done to the land, - 881

for destroying or carrying away growing crops, - 381, 883

compensation allowed for labor and money to prevent damages, 383
trouble of looking after trespassers not an item of damage, 883

consequential, for removing fence inclosing dairy ranch, or other

fences, ... . 332

for trespassing sheep communicating disease, - - 388

for stopping a mill, - - 368, 384

depriving owner of his pasture for his cattle by over feeding, 384, 385
not necessary the damages from trespass be certain, 385-387

consequential damages from trespass — injury to business, 887

exemplary damages may be given, ■ 389-390

not allowed in action against personal representatives, 393

GENEEAL INDEX. 791

DAMAGES — continued. Pages.

pleading matters of aggravation, and effect of, on claim for

damages, - - - Vol. Ill, 388, 389

to inheritance and reversion, . - . 392-394

at least nominal damages recoverable for nuisance, 397

■when the act complained of lawful, actual injury must be shown, 397
theoretical injury only will not support action for nuisance, 398

what recoverable in first action for continuous nuisance, - 398, 399
what recoverable in subsequent actions, 398

continuance of nuisance after one recovery, ground for exemplary

damages, - - 399

damages for, may include expenditures necessary, not yet made, 403
the injury consists in exposing party to the necessity to

expend money, - 403

when such expenditures made not material, - 403

damages for nuisance not always assessed as for a continuing

wrong, .... . 403-414

measure of, for nuisance, - - 414r430

permanent damages may be measured by depreciation, or by add-
ing to amount of past damages cost of restoring premises, 414
how measured where injury is continuing, - - 414

special damages, - - - 415-419

loss of logs or destruction of ci-ops, .... 415
for depriving a party of the iise of land, - - 415

for loss of use of a ford, . - - - . 416

flooding cellar with filth, - - 416

to be assessed with reference to the particular circumstances, 416

the general elements of, for nuisance, - 416

liability of creator of a carrion or other nuisance causing sickness

or putting in fear, - 417

* for wrongfully setting up rival ferry, - - 417

removing lateral support, .... 417, 418

causing injury to business, ... 418, 419

preventing the renting of tenements, - 419, 430

apportionment of injury, where there are several causes, - 420, 436

where several persons contribute without concert, - 435

abatement of nuisance does not prevent recovery of damages, 430

mitigation of, for nuisance, .... 430-433

plaintiffs neglect to abate it, - ' 430, 431

private action for special injury from public nuisance, - - 433

parties jointly guUty of nuisance jointly and severally liable, 434

pleading in respect to, for nuisance, - - 436, 439

damages for exercise of the power of eminent domain, - 430

for taking private property for public use, - . - - 468

for trespass to personal property, ... 469-486

measure of, for conversion, ... 488-509

where the wrongdoer has improved the property, - - 509-518

for conversion of money securities, stocks, deeds, ?tc., - - 520

792 GENERAL INDEX.

DAMAGES — continued. Pages.

how affected by the nature of plaintiff's interest, - Vol. Ill, 534

for slander and libel, - ... 638-675

mitigation of, in trover, ...... 537-537

measure of, in replevin, ..... 538-573

measure of, for fraud, ..... 589-594

exemplary, for fraud, ..... 598

for infringement of patent rights, - - - 599-633

of copyright, 633-637

of trade marks, 628-637

DEALER — ~

implied vsrarranty in sales by, - - - - Vol. n, 409-439

DEATH —

no common law action for damages resulting from, - Vol. Ill, 381
statutory remedy for such damages, - - 381-391

these acts do not liquidate damages, .... 383

only pecuniary damages recoverable, ... 383

the word pecuniary in the rule of damages in such case not

strictly construed, - - - - 382, 383

iUustrations, - - 383, 384

no deduction made for money received on life insurance, - 384

nor for property inherited from deceased, ... 284
the statutes have no extra-territorial force,
conflict of decision as to action being local,

DEBT —

damages for detention of , -

value of, in foreign currency, ...

DEBTOR —

right of, to apply payments, ...

value of the custody of, to creditor, - - .

effect of being made executor of creditor,

effect of making, administrator of creditor's estate,

may pay debt by legacy, ...

cannot pay debt without discharging it,

DECEIT, see Feato,

DEED —

acceptance of, merges the contract of purchase, - - Vol. II, 353

usual covenants in, - - - ... 253

a promissory note given for a void deed is without consideration, 113

DEFAULT —

what it admits, Vol. I, 773-776

DEFENSES —

to actions for purchase money, - '• Vol. 11, 831-346, 437

DEL CREDERE COMMISSION —

liability of agent acting under, ... - Vol. Ill, 38, 89

-

384

-

284r-391

Vol. I,

138,

596

-

341,

343

.

399

.

.

251

.

357

-

.

357

.

354

-

353

Vol

.Ill

,574

GENEEAI. INDEX. 793

DBMUERAGE - Pages.

definition of, Vol. Ill, 204

not allowed in case of ineffectual effort to land, - - 300

consignee incurs liability for, by accepting goods, - - - 304

when damages in the nature of, may be demanded, - 304

detention by arrival of other vessels to unload first, 304, 305

for detention beyond days of demurrage allowed by charter, 305

DEMUREER —

what it admits, Vol. I, 773-775

DEPOSIT —

effect of deposit in court of a deed by vendor in action for pur-
chase money, .... Vol. II, 193-196

DEPRECIATED CURRENCY —

on notes payable in, the value the measure of damages, - 162

surety paying a debt in, only entitled to indemnity or contri-
bution on the basis of the value, 580, 600; Vol. I, 333, 334

DEVIATION —

liability resulting from, laid down in Davis v. Garret, - - 60

DILAPIDATIONS —

vendor retaining possession as security liable for, what it will
cost to restore premises, ... Vol. II, 244

DIRECT DAMAGES —

absolute responsibility for, - . . . . Vol. I, 19

DISEASE —

Buffering animals having, to go at large, ... 34

physician communicating infection to customer, ... 381

DISTRIBUTION, ... ... 303

DISTRIBUTEES —

how secured, and their remedies on probate bonds, - 35, 36-41

when they may sue on such bonds, - - - - 40

DOG —

damages for killing, ...... §03

proof of value of, ------ - 802

DOLLARS —

contracts between citizens payable in, - - - - 336

when contracts made in foreign country so payable, - - 337

when made in insurgent states, - - - 337

ambiguity in the word there, - - - - 337, 338
contract payable in, may require payment in other legal currency, 454

when this word expresses quantity' instead of value. Vol. II, 387, 388

DOUBLE DAMAGES —

must be specially claimed in declaration, - Vol. I, 826

court or jury may give, . , . 838

not recoverable by general verdict, if common law cause joined, 836

794 GENEl^AL INDEX.

DOWER — Pages.
damages recoverable on covenant against incumbrances for exist-
ence of inchoate right of, or of an unassigned right of, con-
summate, - _ . _ Vol. II, 327
damages recoverable on covenants for dower set off out of prem-
ises, ... ... 294

definition of, ... Vol. HI, 353
facts essential to, - - 353
on death of the husband the right perfected as a chose in action, 358
it is set off to widow on valuation, - . - - 353
the value in case of alienation is taken exclusive of improve-
ments made by purchaser, - - - 353
the dowress entitled to an equivalent of one-third of the value at

the date of alienation, 353
when value enhanced by other causes she is entitled to the benefit

of it, - - - 358
as to lands of which husband died seized she is entitled to, ac-
cording to value at date of assignment, - - 853
she is entitled to such part as will give her an income equal to one-
third of the income of the whole, - - 853
originally no damages wei-e recoverable for detention of dower, 354
this modified as to lands of which the husband died seized by the
statute of Merton, .... 354

in this country by statute or otherwise damages given against

alienee from time of demand, - - - . 354
heir or devisee in possession liable from death of husband without

demand unless he plead tout temps prist, ... 354

in South Carolina no damages recoverable in action for dower, - 354

nor interest on sum assessed in lieu of dower, 354

but by statute interest may be collected from husband's alienee, 855

the usual equivalent of dower in that state, 355

in Maryland, damages against alienee recoverable only in equity, 355

effect of assigning dower, - - 355

damages before assignment includes net annual value, 355

rule in Canada, - - ... 355
residence on the premises after death of husband not a set-off to

her damages, but may be considered in mitigation, - 355

damages may include more than the value or mesne profits, 355, 356

the original purpose of dower, and its protection in Magna Charta, 356

right to damages attaches after duty to assign, - 357

effect of plea tout temps prist sustained, ... 357

that plea not available where the heir has sold, - 357

at law, the dowress' right to damages extinguished by her death, 357
otherwise in equity, where she may ask part of a fund in lieu of,
where it has been produced by sale of lands of which she was

dowable, - - - - 857

how the value of dower ascertained when payable out of proceeds

of land sold free of it, - - - - - 358

GENEKAL INDEX. T95

DOWER — continued. p^ggg^

reprisals, - - - - - Vol. Ill, 358

limit to husband's beneficial interest, ... 359

extent of, in lands subject to paramount charge or incumbrance, 359,

363
widow has right of dower in the surplus, ... 360, 361
how contingent dower right satisfied out of surplus when sold on
paramount incumbrance, .... 353

DRAWER —

liability of, Vol. II, 147

of accommodation drawer, . ... 147

the warranty impUed from the act of drawing, - - 149

undertaking of, • - - ... 143

measure of damages in payee's action againsl^ . . 149, 150

in acceptor's action, . - ... 147

hability of, for re-exchange, ..... 1Q4.

by what law his liability is governed, .... 175

not liable for commissions of holder's agent for collecting bill of

acceptor, - - . 137

DRUGS —

liability for sending into market mislabeled, . Vol. I, 38, 73

DUTY —

of plaintiff to prevent damages, .... 143^ 150
in case of nuisance by fiooding, ... Vol. Ill, 415, 416

when failure to abate nuisance will go in mitigation, and to
what extent, - .... 420, 431

EARNINGS —

of wrongfully dismissed servant go in mitigation of his dam-
ages for wrongful dismissal, - - Vol. II, 473, 474

EJECTMENT —

damages in, at common law, nominal, . - Vol. Ill, 348, 344

for withholding possession of real property generally regulated
by statute, ...... 339-343

where plaintiflE's title expires after suit, . . - 344

ELEMENTS OF DAMAGE —

there is an elementary limitation to natural and proximate re-
sults, - - Vol. I, 137
damages are always correlative to the right violated, - 187
the injured party is entitled to damages which will place him in
as good condition as if the contract had been performed or
wrong not committed, 137, 138
interest for deferring payment of moneys due, - ' 138
gi-eater damages than interest sometimes recoverable for failure

to pay money, 138-130

injury to credit from failure to pay check, - 139

GENERAL INDEX.

ELEMENTS OF DAMAGE — continued. Pages.

to commercial venture and expenses of other arrangements,

by failure to pay drafts, - - Vol. I, 139

from failure to disburse money furnished to pay incum-
brance, - - . - . . 129
gains prevented by total or partial breach of contract, - - 130
losses sustained, - - 131-158
money, property and rights directly lost by breach, - - 131
expenditures in preparation to perfoi-m contract, - - 131, 133
part performance, besides profits, - - 131, 132
expenditures in expectation of performance, - - 133
sums necessarily paid to third persons, - - 134
compensation for things done to prevent damages, - 148, 156
extra expense incurred by plaintiff to secure benefits of contract

after defendant's breach, - - 155

for personal torts, loss of time, and ability to earn raoney, im-
pairment of faculties, etc., - - 158
distinction made for bad motive, - - . . . 159
on contract relating to real estate, .... 159
on quantum meruit claims for services, .... I60
in cases of fraud or other intentional wrongs, - . - 161
confusion of goods, - - ... 163
where property improved by wrongdoer, ... 164
value of property and interest, ... 173, 174

EMBEZZLEMENT —

of any part of the property saved, works a forfeiture of salvage,

Vol. n, 536

EMINENT DOMAIN (see Public Use) —

uncertain damages where one railroad crosses another. Vol. I, 110
entirety of damages, - - 191

interest allowed on assessment, - 604

when owner's i-ight to damages assessed absolute, - . . 604

EMPLOYE —

recovery by, where there has been a hiring at fixed wages. Vol. II, 440
his right of recovery on quantum meruit, 440-442, 457, 459-463, 471
various modes of compensating for services, 45

recovery for services on contract void by statute of frauds, and

repudiated by employe, - - - 453

• necessity of full performance by, of entire contract, - 454

in what cases the rule relaxed, - 457, 465, 466

recovery on contract in which he has reserved the right to quit

at pleasure on notice, 464

when entitled to pay as the work progresses, 468-471

recovery by, when employer gives cause to quit or wrongfully

dismisses him, 471-476

liability for violation of a contract of service, - - 476-478

GENERAL INDEX. 797

EMPLOYER— Pages.

is entitled to pay for services in tile very mode agreed on, Vol. II, 453
this rule applies though the contract void by the statute of

frauds, if he is ready and willing to perform on his part, 453

but if he repudiate such void contract, services rendered under

it may be recovered for on quantum meruit, 453

liability of, virhere he gives servant cause to quit or wrongfully

discharges him, - - - 471-476

payments made by, on contract for particular works, cannot be

recovered back, - - - 507

option of, when work not completed at the agreed time, - 510

liable for the work, though not done in time, if he afterwards

permits it to be finished, - - 511

may show cost of completing work, - - - '' 511

his voluntary acceptance and appropriation of work raises a duty

to pay for it, - 513, 514

if work not in compliance with contract, employer not bound to

receive it, and if he does not, he is not hable, 514

how he may avoid responsibility for work not done according to

contract, - - - 514

when done on his land or materials, - 514, 515

what not an acceptance or waiver of objections to work, - 515

damages recoverable when he stops the work, 531

under right to make alterations, not entitled to stop the work, 533

ENGINE —

damages on breach of warranty as to condition and capacity of, 439
when value of use of, recoverable in replevin, - - Vol. Ill, 540

ENTICING —

a party to break his contract, ----- Vol. I, 49
servants, etc., to leave their masters, - - - 49, 64, 68

ENTIRE CONTRACTS —

for services not apportionable and full performance required,

Vol. II, 454r457
laborer cannot recover if he quits without cause or is discharged

for good cause before the term expires, - - 454, 455

dispensation of strict performance in case of disability, - 457

general comments on a quantum meruit claim for part perform-
ance, - . - - 465
what hirings not entire contracts, . - - . 467
infant not precluded from recovery for part performance of, - 467
illustrations of entire and apportionable contracts of service, 468
for particular work, . - - - 485, 486
equitable recovery according to benefit for part performance in
certain cases, ------ 515-519

TOS GENERAL INDEX.

ENTIRETY OF DAMAGES — Pages.

tlie damages for a cause of action not divisible, - Vol. I, 175

all damages to be claimed in one action though they extend into

the future, .... .175

effect of bringing suit for part only of an entire demand, - 178-180
■what is an entire demand, - - - 177, 183-190

all the damages from a single tortious act an entirety, - - 196

not necessary that all the damages accrue before suit, - 187

what is not a double remedy, - - • - 191

prospective damages, - - - 187, 190, 193, 197

certainty of proof required of futui-e damages, - - 195

they are to be shown with reasonable certainty, - 196

future damages for enticing away servants, etc., - - - 196

for personal injuries, - .... 197

where property taken for public use, - - - 175

present worth of such damages given, , - - 198; Vol. Ill, 723

parties may sever an entire demand, - - - Vol. I, 177

what will be a severance by the parties, - - - 178

contracts to do several things successively, - - - 178

continuing obligations, ... - . 186

items of account, - . . 134

entire cause of action for total breach of contract, - - 177

for future delivery of property, - - - 176

contracts of indemnity, , .... 190

the test of entirety, ....... igs

continuous breach of contract, . - . . jgg

several claims or demands on one contract, - - - - 178

several agreements in one instrument, - - - - 208

the law win not presume a continuance of wrong, - 199

nuisance by flooding land, ... . 303

necessity of successive actions, - - 202

one instrument containing distinct and unconnected covenants, 184
parties to sue and be sued, - - - 203

damages to joint parties injured, entire, - 203

they must be sued for by party in whom the legal interest is

vested, - - - 204

not joint, when contract apportions the legal interest, - 205

implied assumpsit follows the consideration, ... 305

several persons claiming distinct rights cannot join, - - 205

where a cause of action accrues to several on contract, it is an

entirety, ----- 205

how joint claim can be severed, ..... 303
cannot be by partial assignments, - - - 305

nor by one of several entitled to sue jointly giving a release, 205

effect of such a release, ... 305

its effect when the co-creditors are partners, ... 306

effect of death of one, ...... 393

GEXEEAL INDEX. 799

ENTIRETY OF DAMAGES — continued. Pages.

a joint demand may be severed by consent, - Vol. I, 206

a pi-omise by debtor to assignee of part, - - - 206

■when misjoinder of plaintiffs fatal, - - 206
non-joinder of a party who should join as plaintiff in action on

contract, ... - 206

non- joinder as co-plaintiff in tort, - 207

joinder of defendants; effect of non-joinder and misjoinder, 207

survival in case of joint promise, - 207

representative of deceased cannot be joined, 207

effect of joining too many defendants in action upon contract, 208

effect of non-joinder, - 208

how joint liability extinguished or severed, 208

principles on which joint right or liability determined, 208

tortious act not an entirety as to parties injured, 209

sepai-ate actions by part owners, - 209

actions by general and special owners, 210
in one suit the court will not take cognizance of the separate

claims of different persons, ... 211
joint and several liability for torts, - - - - 211
what necessary to a joint liability for tort, - 313
joint liability of several parties acting without concert by a com-
mon agent, - - 213
joint liability for making a drunkard, - - - 210

ENUMERATED ARTICLES —

adjustment of damages or freight on, under charter. Vol. Ill, 188, 200

ESCAPE —

measure of damages for, - - - - Vol. I, 247

mitigation, in action for, ... - 247

recovery for, does not relieve debtor, - - - 243

EVICTION —

necessary to right of action for breach of the covenant of war-
ranty and for quiet enjoyment, - Vol. II, 279
where it takes place by virtue of judgment, such judgment ad-
missible to show that fact, - - , - 299
such judgment not admissible to show the eviction was by para-
mount title in action against covenantor unless he was vouched
in to defend, - - - 299
what is an eviction of a tenant, - Vol. Ill, 117, 118
the consequence of, between landlord and tenant, 146-166
how far available to plaintiff against whom rent claimed by way

of recoupment, - - - 119

damages for, or refusal of possession, - - 153-166

by landlord or a stranger, - - - - - 116

what will constitute, - - - - 117

the tenant must quit possession, - . - - - 117

no answer as to rent which has accrued, ... - 118

800 GENERAL INDEX.

EVICTION — continned. Pages.

Qo bar to rent which accrues afterwards if tenant has posses-
sion, - ... Vol. in, 119

landlord's trespass or other tort on the premises not such, 174, 175

EVIDENCE —

it must be adapted to the damages claimed, - - Vol. I, 783

the amount of pecuniary items to be proved, . - - 783, 785

what assumed when inquiry of damages commences, - - 783

burden of proof, ...... 783

matter of discharge or reduction to be shown by defendant, - 784
intendments against the party who holds back evidence, - 784
against party by whose fault uncertainty exists, 784
plaintiff not entitled to recover without proof on the presump-
tion contra spoliatorem, - ... 785
■witnesses can only testify to facts, except as experts, - ' - 785
opinions as to value received, - 783, 795, 798
opinions on matters of common observation and experience, 786
instances of the admission and of rejection of opinions, - 788
received on the fact of intoxication, imbecility, insanity, 789
on questions of size, time, distance, quantity, - - 789-793
received on questions of handwriting and identity, - 789
may be received upon matters of which the witness has
knowledge, but which cannot be adequately described, - 787
a witness cannot be permitted to give an opinion upon matters

which are uncertain and cannot be a part of any experience, 798

not of an injury from a competitive business, - 798
a witness may be asked as to the probable growth of crops, also

as to the probable amount of work a mill would do, , - 794
a witness may not be asked for an opinion of the amount of dam-
ages, - - 794
in action for personal injury, physician may be asked his opinion

from examination as to treatment pursued, and the effect, - 794

on proof of value, testimony of market prices, 795

classification of staple commodities, - ... 795

witness may testify of market prices from hearsay, - - 796

market value at a particular place and time, how proved, 796, 797

may be shown by circumstances, ... 797
value not only of property, but of services, may be proved by

opinions, ... 798

by actual sales, - ... . 799

by elements of value when there is no market value, - - 800

proof of the value of dogs, - 803

grounds of opinion should be given, - - . 803
proof of value against carrier, ... Vol. m, 347-349
possession is presumed to be in the owner in absence of other

evidence, ... 354

and that his possession is coextensive with his grant, 364

GENERAL ESTDEX. 801

EVIDENCE — continued. Pages.

in cases of personal injury, of detriment to business, Vol. Ill, 361-368

presumption whtere wrongdoer holds back evidence, - - 490

proof of the value of the property in an action on a replevin

' bond, ... . . Vol, 11^ 49

when judgment evidence inaction on covenant of warranty, and
for what purpose, ... ... 399

judgment conclusive against covenantor when he was vouched

in to defend, - . . - 399

life tables evidence of expectation of life, - . - 376, 339

proof of value, - 43, 188, 373, 875, 444; Vol. IH, 463, 476, 490^94
of value between vendor and purchaser, - - Vol, II, 433

vendee may show cost of replacing machinery, - - 430

of the value of services, ..... 444

opinions of witnesses admissible, .... 444

of the value of attorney's services, .... 445, 449

circumstaiices which may be proved as tending to show a fixed

sum tacitly agreed to, - - - - - - 445

or how much the services were worth, - - 445

evidence to support recoupment in action on contract for partic-
ular works, .... 5Hj 5ig

what facts admissible to show loss where employer stops the

work in violation of contract for particular works, - ■■ 535-537

what vidll sufiBce to show a debt not collectible, - - 558, 559

effect of judgment recovered against a party having ai right of
recovery over, . ... 430, 601, 603

what is, in suit against sureties in a probate bond, - - 41

•when judgment or decree not conclusive against sureties upon
ofllcial bonds, .....,, 41

EXCESSIVE DAMAGES —

verdict for, will be set aside, - . . - . VoL I, 810

objection for excess may be removed by remittitur, - - 812

EXCHANGE —

when rate of, recoverable, - - ... . Vol. II, 173

damages recoverable on failure to convey pursuant to agreement
for exchange of lands, ..---. 203

EXECUTION LIEN —

wiU be discharged by tender, .... VoL I, 472

EXECUTOR —

de son tort may mitigate damages by showing payment of debts
of deceased, - - ' ..... 349

cannot retain for his own debt, ..... 358

when debtor made such, released, ..... 357

not in equity, ...... 357

may retain for his debt, . - ^ . . . 357

Vol. Ill— 51

802 GEN-EBAI, INDEX.

EXEMPLARY DAMAGES— Pages.

compensation increased for wrongs done with bad motive, Vol. I, 716

or accompanied by insult, .... 726, 735, 743

damages given beyond compensation for wrongs done with mal-
ice, - ...... .717

maintained in Kentucky, ..... 717

was formerly in New Hampshire; not now for wrongs which
are criminal offenses, ..... 717

maintained in a majority of the states, and sanctioned by
supreme court of United States, ... 719-792

in what cases allowed, - - - - 718-725

in some states confined to liberal compensation for aggravated

wrongs, 726-729

the difference, ... - - - 722, 736, 737

the scope of exemplary damages in Michigan, - - 734

refused in New Hampshire, --.--- 729
in Massachusetts, Indiana and Nebraska, ... 732-734

diversity of opinion, where the wrong punishable as a criminal

offense, 738

the technical grounds on which double punishment justified, 738, 739,

741
the objections to, stated by Foster, J., ... 719,729

the objection is that there is a repetition of punishment, - 739, 741
not i-emoved by one being a pecuniary mulct for the benefit of

the injured party, ... . . 742

exemplary damages cannot be claimed as matter of right, - 742

their allowance left to the discretion of the jury, - 724, 742

but excessive verdicts for, may be set aside, ... 742

what may be proved to obtain or enhance these damages, 719-729

all the facts and circumstances, - - - . 724

gross negligence dangerous to persons, ... 719

aggravated misconduct or lawless acts, ... 730

allowed for slander, libel, seduction, - - ... 720

where the defendant acted recklessly, maliciously, or wilfully

to injure, - 717, 720, 734

in cases of outlrage and oppressive vindictiveness, - 717

the social standing of the parties and wealth of the defend-

p-nt, 743, 744r-746

allowed to induce wrongdoer to desist, .... 717

. and to deter others, ...... 717

as a punishment and a warning, .... 737

for correcting social abuses, ..... 719

^ for punishment and example, ... 720, 721, 728

aud an amount beyond compensation for these objects, - 733

the object of j)roving defendant's wealth, ... 734

not allowed in Iowa, - - .... 745

bad motive not itself a tort, ..... 743

what may be shown to prevent or reduce these damages, - 747

<JElfEBAL BSfHBX. 803

EXEMPLARY DAMAGES - continued. Pages.

advice of counsel, . . . - . Vol. I, 747

counsel must be entitled to act as such, ... 747

provocation, ....... 748

if actual injury trivial there is no ground for exemplary damages, 748
where several participate in the wrong and only one from bad

motives, he alone subject to these damages, ... 749

parties liable, - ...... 749

master for act of servant, when, .... 749

corporations liable like natural persons, .... 750

diversity of opinion as to extent of liability of corporations, 751-758
municipal corporations not liable to, ' - - - - 758

may be recovered against public officers, ... 758

not against estate of deceased wrongdoer, ... 758

liability of passenger carriers for, - - Vol, III, 351, 370

for breach of marriage promise, ..... 331

may be recovered against passenger carriers, though corporation,

270-379
whether jury may consider claim of, for trespass, the court to

decide, - 469

when submitted to jury, they to decide whether to allow them,
and their amount, ...... 469-473

duties of court and jury in such cases, .... 469

may be recovered in trover when conversion attended with aggra-
vation, ........ 580

when allowable for fraud, ...... 698

for slander and libel, .-.--- 661

for personal injury, ..... 736, 737

EXPECTANCY OF LIFE —

when value of dower calculated on, rather than its actual dura-
tion, Vol. I, 358

dower right, or other estate for life, estimated by, - Vol. II, 294
life tables evidence of, - - - - - - 376, 339

EXPENSES —

incurred to recover property an item of damage against wrong-
doer, - Vol. I, 98, 106

mitigation in favor of wrongdoer for return of property dimin-
ished by, - i - - 339; Vol. Ill, 580, 537
when expense of keeping horses must be alleged, Vol. I, 764
the law does not imply expenses for attorney to obtain discharge

from imprisonment, - - " " " '^^^

of a detained passenger recoverable from carrier, - Vol. Ill, 351
of other conveyance of passenger recoverable, - - 351

of sickness, - « 359-381

incurred by lessee who is refused possession, - - - 158

carrier must pay expenses of caring for goods during temporary
obstruction of transportation, , - - - - - 313

804 GENEBAL mnEX.

EXPENSES — continued. Pages.

shipper or consignee entitled to recover of carrier proper ex-
penses incurred to prevent damages, - Vol. Ill, 340
owner may recover from trespasser expenses to prevent damages, 382
to recover or restore property wrongfully taken, - 480
of suits when necessary consequence of defendant's wrongful

act, - .... Vol. I, 106

against party bound to indemnify, ... 134-147

of suits which are the result of defendant's breach of contract

or tort, ■ - - - 143

EXPEETS —

testimony of, ..--.-. 786-794

See Evidence..
EXPRESS COMPANY—

liability of, as collecting agent, .... Vol. m, 38

EXTRAORDINARY CIRCUMSTANCES —

no recovery when injury arises from, ... VoL I, 65

EXTRA "WORK —

what is extra work, - - - VoL 11, 499-503

at what rate compensation should be made for, - - 503

assent to deviations not alone sufficient to warrant a charge for
work as extra, - ..... 503

FACTOR —

his liabilities to his principal, - - - - Vol. in, 30-43

his right to make sales to reimburse himself, ... 47

valuation of his interest under policy of insurance, - - 91

FAILURE OF CONSIDERATION —

a defense between immediate parties to commercial paper, Vol. 11, 111,

113
as to defense of partial failure of, - - 114, 118, 119, 133-139, 303

instances of, - ...... 134^-139

admissibility of parol evidence to show, ... 134r-146

FAILURE OF TITLE —

measure of damages for, on covenants for title, 357, 880, 281, 384

FALSE IMPRISONMENT —

advice of counsel in mitigation, .... VoL I, 237
not a mitigation that the defendant acted on instruction of his

employer, - .... 237

officer may arrest for felony on suspicion, .... 256
what special injury not implied and must be alleged, - - 766

on default in action for, what defendant not allowed to show, - 778
damages recoverable for, .... Vol. in, 731-734

actual malice an aggravation, - - - «:■ - - 733, 783

FALSE REPRESENTATIONS —

person making, liable to make them good, - . Vol. I, 30

of receipts of property being negotiated for, . - - 68

See Fraud, Vol. IH, 583

GEHEEAI, INDEX. 805

FEELINGS — Pages.

no recovery on contract for injury to, - - Vol. I, 78, 100, 105

law implies injury to, in cases of personal injury and insult, - 766

^ may be the principal element of injury — when considered, 734, 735

injury to, an item of damages against carriers of passengers,

Vol. Ill, 259, 260
in action for breach of marriage promise, - - - - 319

injury to, subject of compensation in actions for slander and
libel, 645, 659, 664, 668, 669

FENCES —

consequential damages from defects of, - - - Vol. I, 25

for leaving open, - - - - - - 25, 47

duty of plaintiff to prevent damages by repairing or closing, - 150
damages for removal of, - - - Vol. Ill, 367, 368, 882

the expense of maintaining, when an item of damage in the

taking of private property for public use of raUroad, - - 443

where materials of, replevied, their value, and not that of fence,
recoverable, - - .... 539

FERRY —

damage for wrongfully setting up rival ferry, ... 417
damages on covenant to maintain, : " " YdL I, 98

FINE —

no interest recoverable on, ...... 598

FIRE —

consequential damages for setting, .... 37

for preventing extinguishment of, by cutting hose, - - 30
loss of houses puUed down to prevent spreading of, damnum

absque injuria, - .... 6

when recovery allowed for, exposure to, considered, - - 236

FIRE INSURANCE (see Instjbancb) —

' definition of, Vol. HI, 63

FISHERY-

the law infers damage from unauthorized fishing in several
fishery, - Vol. I, 13

FLOOD —

the law infers some damage from the fiowage of land, - 13

damages from, in consequence of removing earth from bank

which was a barrier, - - - - - 27

loss of goods from, by carrier delaying transportation, - 59, 60

defendant may show in mitigation that injury otherwise

would have come from same flood, .... 345

damages for removing barrier to, - - - - 27

FLUCTUATION IN VALUE —

how values ascertained which are subject to fluctuations. Vol. II, 374
of money, - Vol. I, 334,338

806 GKNEBAIi INDEX.

FOOD— Pages.

implied warranty on sales for, ... Vol. II, 408, 410

FORBEARANCE— ' '"' '

payment of interest, consideration for, - - . Vol, I, 531

FOREIGN CURRENCY— ~

how treated, - 319,320

how value of, ascertained, - - - - - 340

FOREIGN DEBT—

how payable, ----.-.- 331

amount recoverable on, ----- - 341, 342

FOREIGN JUDGMENT^

interest on, ........ 602

FORTHCOMING BONDS, Vol. II, 62

measure of recovery on, - - - - - . 62, 63

on condition to pay the judgment, .... 63

what not a defense, .......63

FOUNDATION —

of building, damages for negligently undermining, . Vol. I, 25

disturbance of lateral support of, when not actionable, - - 3

FRAUD —

for false public representations, liability to any party deceived
and injured, - - - - - 30

in sale of real estate, where improvements made, - - 30

in falsely assuming to be an agent, - . - - 31

in falsely representing condition of corporation to prevent attach-
ment, - - - - ... 52

damages for, in sale, may be recouped in action for purchase
money, - ...... 377^ 278

vitiates a contract at the election of the defx-auded party, Vol. II, 111
if not avoided, defense on the ground of, - - 111

where part of the consideration of a note or bUl fraudulent, - 129

where execution of note procured by fraud, - - 131

assurance by obligee to surety to get his signature, that signing a
mere matter of form, and he should not be called on for pay-
ment, .... 14g

of landlord in making lease, subject of recoupment against

rent, Vol. Ill, 174

scope of recovery for, ...... 574

illustrations, ....... 575-582

liability for false repx-esentations, .... 582-589

they must relate to existing facts, .... 584

not future facts,- nor to matter of law, ... 534, 585
not to matters of belief or opinion, .... 535

no defense that defendant beUeved his false representations to be
true, 587

GENEKAL INDEX. 807

FEATJD— continued. Pages.

what is not negligence of the Injured party, - - Vol. Ill, 586

false representations may be shown though contract in writing, 587

they must be fraudulent, .... 587

they need not be made to deceive the plaintiff in particular, 588, 589
not.necessary defendant should derive advantage from, - 583, 588

measure of damages for, ..... 589-594

special damages for, ...... 590-594

the value of property as represented to be, - - - 591, 593

costs of suits incurred on faith of false representations, . 593

damages for fraudulently inducing one to incur liability, 594, 595

or to buy diseased or vicious animals, - - 593

for falsely representing one worthy of credit, ... 594
the certainty of the proof of damages for, , . . - 594r-598

exemplary damages for, . - - - 598

FREIGHT, see Recoupment and GouNTEROiiAm, - - Vol. I, 281

See Cakeiee.

•FRIVOLOUS SUIT, 13, 14

FRUIT ORCHARD —

damages depending on growth of, - - - - - 113

FUTURE ADVANCES —

parol evidence admissible to show that a note absolute in terms

given for, Vol, II, 135, 143

FUTURE DAMAGES, see Prospective Damages, Vol. 1, 187, 190, 193, 197

See Personal Injury.

GARDEN SEEDS —

damages on warranty of, ----- - 111

GAS —

damages for refusal to supply, - - - - Vol. II, 436

GAS PIPE —

damages for negligently laying, .... VoL I, 35

GATE —

damages for breach of agreement to maintain on a farm, Vol. II, 489

GENERAL AVERAGE —

definition, Vol. Ill, 81

conclusive though made in a foreign country, . - . 83

what property must contribute, - - - - 83, 83

what property exempt, -..--- 83

on what contribution to, depends, ----- 83
importance of place where adjustment made, . - - 83

instance of, in fire insurance, ...--- 88

GENERAL ISSUE —

payment may be proved under, for mitigation, - - Vol. I, 360

not for complete defense, .----- 389

mitigation in slander under, ... - - 335

808 GENERAL IITDEX.

GIFT — Pages.

a note given for, without consideration, ... Vol. 11, 113

GOLD —

a legal tender currency of United States, ... Vol. I, 338

GOOD AND BAD FAITH —

distinctions made for bad motive, .... 1 150

in plea of justification in slander, .... 235

agent bound to act with, .... Vol. Ill, 1, 15

GOOD RIGHT TO CONVEY, COVENANT OP —

damages for breach of, ..... Vol. H, 357

GOODS —

proof of value of, - . - - - . Vol. I, 795

evidence to classify, ...... 795

how right to recover for destruction of, by mob, affected by
plaintiff's negligence in not apprising officers of the danger, . 154

GOOD WILL—

loss of, to a tavern stand, when an item of danaage, - .98

stipulations fixing damages in conti-aots relating to, -

opinions incompetent as to damage of raUroad to, -
GRIFFIN V. COLVER —

profits, when recoverable, ....

rule of damages contemplated, ....

certainty of damages, .....

GROSS NEGLIGENCE —

as to exemplary damages for, ....

GROUNDLESS SUIT —

no damages for, if not maliciously prosecuted, ... 4

GUARANTY COMMISSION—

liability of agent acting under, ... Vol. Ill, 38, 39

GUARANTIES —

construction of, - .... Vol. II, 538-540

instances of the construction of, - - . - 443-548, 550

what a guaranty imports, ..... 543

when a continuing, may be determined by notice, . - 549

on default made on guarantied contract, surety entitled to have

his liabUity determined by the damages then recoverable, . 540
of a contract to furnish an engine, ... 550

conflict as to the effect of blank indorsement of commercial paper

by third person, - ■ - - - - 551-558

effect of a guaranty of collection, .... 553

what essential to right of action, and the measure of liability, . 558
effect of there being collateral security not resorted to, - 559

GUARDIAN BOND, , . - 41

when action wUl lie on, - - , - - - . 41

measure of recoveiy on, ..... 42

.

507

. 793

-93, 94

.

94

- 94

73,

719, 731

GENERAL INDEX. 809

GUNPOWDER- Pages.

consequential damages for negligently keeping, - Vol. I, 39

HADLEY V. BAXENDALE —

rules of damage laid down in, - - • - 79, 84^90

HARBOR LIGHT —

damages for removing, --.... 28

HEIR —

how secured, and his remedies on probate bonds, - Vol. II, 35, 36-41
HIGHWAYS —

consequential damages for non-repair of, - Vol. I, 31, 36-46

HORSES —

liability for damages done when they run away, - - 21, 32, 65

damage done by, according to their natural inclination, - 53

when done contrary to their ordinary habit, - - - 53

damage for injury to, ----- - 100

HOUSE —

damages for injury to unfinished house delaying completion,

Vol. Ill, 868
for destroying house in peril from fire, ... 368

HUSBAND AND WIFE —

his action for personal injury to her, .... 723

they must jointly sue for her pain and suffering, - - 734

IDIOT —

anybody may make tender for, .... Vol. I, 449

IDENTITY—

of property when lost by wrongdoer's act, ... 164, 171

proof of, by opinions, - ..... 789

ILLEGALITY —

effect of part of consideration of note being illegal, Vol. II, 131, 138

note given for several considerations, one of which is illegal, not
valid in part, ........ 131

ILLEGAL ACTS —

consequential damages for, .... Vol. I, 71

illegal arrest, damages for, how mitigated, - - . . 227

for illegal seizure of goods, .... - 238

ILLNESS —

damages for, include pain and expenses, - - - 158, 159

damages not recoverable for, when caused by breach of contract, 78, 102

but for pecuniary consequences recovery may be had, - 104

IMPLIED PROMISE —

an express promise excludes implied promise, - - Vol. H, 454

otherwise where performance prevented by certain causes, - 457

general remarks on the demand for part performance, - 465, 466

what necessary to raise implied promise, - - 515

none of indemnity where there is an express promise, 576

as to parties, follows consideration, . . - Vol. I, 305

810 GENEEAL DfDEX.

IMPROVEMENTS — Pages.

vendor's liability for, when contract by parol, and he refuses to

fulfil, - Vol. II, 225

allowance made to purchaser for, in equity, on rescission for

vendor's failure to make title, after deducting rents and profits,

245-348
value of, not an element of damages! for breach of covenant 'of

seizin and good right to convey, .... 257

may be deducted from mesne profits, - - Vol, III, 348-350

INADEQUACY OF CONSIDERATION —

distinguishable from want or failure of consideration, Vol. II, 116
INCONVENIENCE —

recovexy for, as an item of damage, - - Vol. I, 78, 103, 158, 175;

Vol. Ill, 354, 359
caused to riparian owner by pollution of stream running through

farm, Vol. I, 96

INCUMBRANCE —

what not an e3q)ense recoverable on covenant against, - - 95

damages for failure to fulfil contract to discharge, - - 139

on warranty against, - - ... 755

what must be alleged in action on the covenant against, - 765

what is such, - - . . . Vol. II, 309, 810, 827

when a purchaser with a covenant against, not bound to see to

payment of, - - - - . - - 205

damages for breach of covenant against, - - 311-315, 839, 380

when dowress must contribute to, - - Vol. Ill, 359, 363

INDEMNITY —

agent entitled to, from principal, - - - . - 3, 50

insurance a contract of, - - - . - - 85

measure of recovery on, and how determined, - Vol. I, 135-147
effect of judgment recovered against indemnified party, - 135

when notice to principal to defend, material, - - 185, 143-147

when indemnified party may recover for costs, - - 136

in case of disputable or unliquidated claim, ... 135

the course taken by indemnified party must be reasonable — his

defense judicious-, ...... 136^ 140

recovery of attorney fees as part of costs, ... 133, 139
distinction recognized in Massachusetts, ... 133

what a warrantee may recover after being put to costs, - 140-143

rule in favor of party made liable for another's tort, in recovery

over against wrongdoer, .... 137^ 133

right of indemnitor to direct as to defense, - . 136, 137

up to what time damages may be computed, - . . 190

a note given as indemnity against consequences of an unlawful

act, illegal and void, - - . . Vol. II, 131

parol evidence admissible to show note given for indemnity

though absolute in terms, .... 134^ 135^ 143

GENEKAL INDEX. 811

INDEMNITY— continued. Pages.

damages the gist of the action for, - - - . Vol. 11, 603

there must be actual damage to support the action on an agree-
ment for, - ... 602
agreement may be so drawn as to admit of breach without actual

injury, 603

then, for such breach only nominal damages recoverable, - 603

a covenant against incumbrances an instance, - - 603

to actions for indemnity non-damniflcation is the plea, and dam-
ages must be proved, --.... 603

diversity of decision as to such agreements, - - 603

eflfect of a contract deviating from mere indemnity, - - 603

but for indemnity, - - - 611-615

in such cases damages may be given for probable injury, - 604

what recoverable as damages on agreements for indemnity, 60Jr-609
may include costs and expenses of defending a groundless suit, 604
effect of contract to save harmless from aU acts or debts, after

judgment has been obtained against indemnified party, 610, 611

contract to pay a debt or do any other act for the purpose of in-
demnity to promisee, ... - 613-615
where the promisee is not debtor and the existence of the debt
no detriment to him, ..... 613

INDOESER —

his implied warranty, .------ 149

measure of damages against, ..... 149, 150

liable for re-exchange on bills dishonored, . - - 166-169

what the liability includes, ..... 164-169

by what law his habihty governed, .... 175

not liable for commissions to holder's agent for collecting bill of
acceptor, - ...... 187

he cannot recover of prior parties costs which he has been com-
pelled, to pay, ....... 187

stipulation for attorney fees and costs in notes does not affect his
liability, ...--.- 186.

INFANT —

who may make tender for, . . - - . Vol. I, 449

INFRINGEMENT OF COPYRIGHT —

copyright is statutory, ..... Vol. Ill, 633

literary property is recognized at- common law, - - 633, 634

compensation and penalties for, - - . - - 635-637

INFRINGEMENT OF PATENT RIGHTS-

statutory remedies for, ...... 599

damages for, recoverable at law, . . - - . 601-607

recovery limited to actual damages, ----- 601

when license fee the measure of damages, ... 601

the proof of actual damages must depend on nature of monopoly, 601-606
effect of proof of defendant's profits, and when admissible, - 603-605

812 GENERAL INDEX.

INFRINGEMENT OF PATENT EIGHTS — continued. Pages.

the required certainty of the proof of damage, - Vol. Ill, 604, 605
damages where the infringement is confined to part of the thing
used or sold, - - .... 605

interest on damages for, ...... 606

exemplary damages for, not generally allowed, - - 606

compensation for, obtainable in equity, .... 607

includes profits made by infringer, and may be made adequate
by damages in addition, - - 607, 608

how profits ascertained, and what they include, - - 608-623

compensation when invention is part of a thing and gives mo-
nopoly of a particular demand, .... 614-618

INFRINGEMENT OF TRADE MARKS —

nature of right to trade marks, ... - 638

measure of damages for, at law, - - - - - 631-637

compensation for, obtainable in equity, . - - 630-634

INHERITANCE (see Reversion) —

injury to, ...... 392

when party injured has no estate in possession, - - 393

apportionment of damage between tenant and reversioner, - 393

damage to, by destroying buildings, - - - 893

injury to tenant in such case when he is bound to repair, - 393

pleading to show injury to, - - - - - 393

damages for waste, ...... 393, 393

INJUNCTION BONDS —

scope of the obligation, ..... Vol. H, 64

costs, expenses and attorney fees to obtain dissolution, as items
of damage on, ....... 64r-69

damages from the restraint of the injunction, - - . 69-76

what facts no defense, - - - - - 77

what facts may be shown in defense, - '^ 78

damages incurred by the real party in interest in procuring a
dissolution wUl be presumed to be incurred by the defendant
on the record, and may be recovered on the bond in his name, 78
INJURY —

compensation equal to, the cardinal rule, - - Vol. I, 17, 18

duty of plaintiff to exert himself to lessen, ... 148, 238
increase of, by plaintiff's voluntary act or negligence, matter of
mitigation, ... . . . . . 287

INQUIRY OF DAMAGES, 771

when properly entered upon, ..... 783

INSANITY —

proof of, does not require experts, . - - - . 789

INSOLVENCY —

of execution debtor as mitigation of damages for escape, - 346

when creditor may apply payment on debts for which he holds
collatiTals, in case of insolvency of debtor, - . 280

GENERAL INDEX. 813

INSPECTION- Pages.

effect of, on acceptance of goods bought, - - Vol. II, 407, 408

INSTRUCTIONS —

agent bound to obey principal's, - - Vol. Ill, 1, 8, 16

liable for losses resulting from disobeying them, 11-16, 31, 33-38, 43
INSUFFICIENT DAMAGES -

verdict for, may be set aside, -.---. Vol. I, 810
INSURANCE (see Marine Insurance) —

money from, received by injured party, not to be considered in
mitigation, - . . . . 243

covenant by tenant to insure, - - - - Vol. HI, 144, 145

agent's liability for neglecting to obtain or falsely reporting in-
surance effected, --..-..
different kinds, -------

definitions, .......

damage to be ascertained according to the policy, -
contracts of, to be interpreted like others,
valued policy, ...

stipulations as to ascertainment of damages, -

those to prevent resort to the courts void,
when proof of loss a condition of payment,
v^hether made within reasonable time, question of fact, -
waiver of such stipulations, ....

preliminary proofs for information only, ...
they do not bind in estimate of damages,
they are admissions of the insured, - . - .

proofs derivable from lost books excused,
the cases relating to proofs of loss, ...

pleadings, . - - ....

rule of damages on open policies, . . . -

how value to be proved, .....

damages on an agreement to insure, - - . -

where the insurance limited to half the value, -
stipulations relating to other insurance, . . -

where interest in the property limited,
evidence of value in ascertaining damage, . - -

damages in case of abandonment, ...

in case of insurance within limit of value,

in case of partial loss, - - - - .

what is a total loss, - ....

in what cases the insured may elect to claim for a total loss,
contract giving insurer option to rebuild or replace,
losses adjusted on the principle of indemnity, -
how damages on this principle arrived at, -
how cost of repairs reckoned, - - - .

one-third new for old, - . . - .

when made on first voyage, ... -

4,5

- 63

63

- 67

67

- 68

69, 70, 75

- 70

70

- 70

71

- 73

72

- 73

73

- 73

73

-73-77

74, 76

- 76

76

- 76

74

74, 75

76

- 76

77

77,78

- 77

78,79

■ 79

- 80

80

80, 83, 84

81

814 GENERAL INDEX.

INSURANCE — continued. Pages.

general average, ...... Vol. Ill, 81

damage for loss of ship, .---.- 84

where the ship has been sold, - - - • - . 84

difference between English and American rule, - - 84

fire insurance, - - - - - - 85

a contract of indemnity, - .... 85

contract of, to be interpreted like other contracts, - - 85

contracts for insurance, - - - - . 86

general rule of damages on, - - - - - 86

insurer only liable for immediate, not remote consequences, 86

when building destroyed, loss not estimated by cost of a new one, 87
proof of value in estimating loss, 87, 88

no right of abandonment as in ma,rine insurance, - - 88

when parties have agreed on the manner of ascertaining value, 88

general average in fire insurance, - - 88

construction of particular restrictions in policies, - - 89

contracts to pay loss not exceeding -certain sum, - - - 89

or a certain proportion of the value, ... 89

insurance on commission goods, - - - - 91

insurer's contract to rebuild or replace, - - 94
rights of insured where similar structure not permitted by

police regulations to be erected, - - - 94

adjustment among several insurers, .... 95

life insurance, ...... 96

definition of life insurance, ..... gg

character of the contract, .... .96

difference of judicial opinion as to its being a contract of indem-
nity, - - - - - 97

criticism of the original case in England, . . 97, 98, 100
if policy valid in its inception by being supported by requisite

interest in the beneficiary, vriU be held good, - - 99

when life insurance pledged for a debt, .... loi

accident poUoy, - - ... 104

secures actual loss-or injury within amount of policy, . 104

i-emote consequences of injury not included, - 104

difference between English and American decisions as to scope

of recovery, ........ 104

INTEREST —

on mesne profits recoverable, ...... 343

on damages for trespass to real property allowable in discretion

of jury, 383

generally allowed on damages against carriers, ... 333
when agent liable for, . . - . - 8, 29, 41, 43

when principal liable for, .---.. 49

is allowed on rent in arrear, - . . 129, 130

allowance of, on damages for infringement of patent rights, - 606

GENEEAL INDEX. 815

INTEREST — continued. Pages.
measure of damages for delay in the payment of money, Vol. 1, 128
on value of property, part of measure of damages, - - 174
general payment applied to interest-bearing debt, and first to in-
terest, --.-...-- 431
agreements to pay more than interest for failure to pay money, 493
definition of, - ..... 531

past use of money, valid consideration for promise, - - 531

relation of principal and interest, .... 533, 675

tender before debt due will not stop interest, ... 533

■when interest due it may be recovered, though principal not due, 532

interest as damages follows principal, - - - 534, 677

recoverable of right as damages, - - - - - 534

interest by the early common law, ... 535

legalized -by eai-ly English statutes, ..... 585

present English statute, - .... 536

interest at common law in America, .... 636

agreements for interest, -....- 537

promises to pay " with interest,'' ..... 539

liberally construed, ...... 539

law or custom fixes the rate of, - - - - - 541

legal or stipulated, applies from date, ... 541

same rate generally runs after maturity, ... 543

where it does not, if stipulated above ordinary rate, - 549

agreements for interest until principal paid, ... 553

binding until debt paid or put in judgment, - - 553

parties cannot stipulate for more than ordinary legal rate after

maturity, in Minnesota, - - - - 554

contracts for increased rate after deftiult, ... 555

question whether increased rate a penalty, - - - 555
damages cannot be liquidated for non-payment of money so as

to evade statutes against usury, - - - 556

agreed rate above what the law allows, a penalty, - 556
■within legal limits parties may agree upon a reasonaUe rate of,

as damages, -.---- - 553

effect of usury found, i - . . - 561
it is deemedequitable that the debtor pay the debt and legal in-
terest, - - - - - - - 563

who may take advantage of usury, .... 562

plea of usury not favored, ..... 561

computation under ^usury statutes, .... 571-576

agreements for more than legal rate after maturity, - - 576

they stipulate a penalty or liquidate damages, - . - 577

when debtor relieved in Illinois, ..... 578

interest as compensation, ..... 581

by tacit agreement, on accounts, .... 583

quantum meruit claim for interest allowed on money lent, - 587

on money paid, ... . - 588

816 GENBEAL INDEX.

INTEREST — continued. Pages.

on money advanced by surety, partner, trustee, etc., Vol. I, 589
between vendor and purchaser, ----- 593

interest allowed from the time when ruoney ought to be paid, 596

right to, as damages, extinguished by payment of principal, - 600
allowed generally on liquidated sums over-due,- - - 596

not allowed on statutory penalties, . - - - - - 598

may be recovered on stipulated damages, ... 598

not included in revival of judgment by boL fa., ... 605
allowed on sums due for rent, - - . . 606

so, if payable in services or property, - . - . 607

allowed on annuities and legacies, - - . - 608

recoverable on moneys due on policies of insurance, - - 609

not allowed on unliquidated damages, - - - - 610

when demand unliquidated so as to exclude interest, - - 610

discussion of this point by Bronson, J., - - - - 611

same by Johnson, J., --...-- 613
interest on accounts as damages for delay of payment, - 615

■why refused on running accounts, - . - - 615, 618

when demand of payment necessary, - . . - 619

when allowed on money had and received, . - . 631

when allowed against agents and trustees, 633; VoL in, 8, 39, 41, 42
on money obtained by extortion and fraud, - Vol. I, 628

mere depositary or stakeholder not liable for, - - - 633

on damages for torts, .---.. 639

the law of what place and time governs, ... 630, 663
allegation and proof of foreign law, - - . . 664

efEect of change of the law of the place of contract, - - 666

as an incident to the principal, ----- 675, 677

due by agreement, a debt, - - . . . 675

interest upon interest — compound interest, - - - 678

instances of interest upon interest, - ... - 679

interest on instalments of interest, .... 680

separate agreements for interest, - . . - . 683

periodical interest after maturity, - - . . 684

computation — application and effect of partial payments, - 686

suspension of interest, ------ 691

by judicial proceedings, -.---- 692

by war, -------- 695

by tender, 698

by offer to pay, less than tender, - - - - 698

how interest must be claimed in pleading, - . . 705, 763

interest on verdicts before judgment, ... 708

on judgment pending review in appellate court, - - 711

allowed on the damages between vendor and vendee of personal

property, - - - Vol. 11, 859, 365, 379, 880

interest as an item of damages for breach of the covenants of
warranty and of quiet enjoyment, ----- 300

GENERAL INDEX. 817

INTEREST— continued. Pages.

how affected by receipt of rents and profits and no responsibility

to superior owner therefor, - - Vol. II, 300, 301

beyond penalty, when allowed on a bond, - 13-19

allowed on the value of the property in action on a replevin bond, 50
when recoverable on bills and notes, - - 150

construction favorable to interest adopted, ... 151

rate stipulated before maturity enforced afterwards, - - 151

different in some jurisdictions, - - 152

agreement for interest generally is for legal rate, - - 153

validity of agreement as to rate determined by the law of the

place of contract, - - 152

by the law of the country where contract to be performed, 152

when made in one country and payable in another, the interest

agreement is good if conformable to the laws of either, - 153

when it violates the laws of both, its fate to be determined by the

law where made, - - - 153, 154

the foreign law governing interest must be proved, 154

otherwise interest given according to the law of the forum, - 154
interest as damages to be paid by maker or acceptor, - 154

only given after demand on notes payable on demand, - - 154

as damages, when not stipulated, given according to the law of

the place of contract, - 155

when no place of payment mentioned, the place where a note

made or a bill accepted is the place of contract, 155

the place of contract may be fixed by circumstances, 155

liability of drawer and indorser for interest, - 156

governed by the law of the place where their contract made, 156

when recoverable against a purchaser of land, - - 205

against vendor on rescission of land contract, - 246, 247

recoverable on consideration in the damages for breach of cov-
enants of seizin and good right to convey, - 257
on damages for public use of private property, Vol. Ill, 465-468
in trespass, ------- 472, 473

in trover, - ... - - 492

INTERMEDIATE DAMAGE —

between wrongful taking and return of property chargeable to
wrongdoer, ------ Vol. I, 289

INTOXICATION —

who jointly liable for causing habitual, - - - 216

expert not necessary to prove, ... 789

JOINT OBLIGATIONS OR LIABILITIES, - - - 203-219

principles on which determined, ... - - 208

how extinguished or severed, - . . . . 208

joint and several liability for torts, - - - - 211

owners of cattle joining to do damage, . - - 215

independent acts concurring in effect, ... 215,i316
Vol. Ill— 52

818 GENERAL INDEX.

JOINT OBLIGATIONS OR LIABILITIES — continued. Pages.

for nuisance, ... . VqI. Ill, 434

what parties not jointly liable, .... 434

JUDGMENT—

when judgment against plaintiff evidence against one bound to

indemnify him, - - Vol. I, 143, 143

effect of seasonable notice to defend, . - - . , - 143-144

may be paid to attorney who obtained it, ... 337

judgment lien will not be discharged by tender, - - 473

the money to satisfy, must be paid into court and judgment dis-
charged of record, - ... . 472
interest on, ..... 592
not included in, when revived by sci. fa., .... 605
pending review in appellate court, ... 711
definition of, - - - - - 837
must follow the verdict, - .... §28
what additions may be made from data in the record, - - 888
must be certain, •, - - - - 838
should state the amount precisely and in the denominations of

the lawful currency, - - - 838, 839

in words at f uU length, .... 839

in suit against a party having right of recovery over, conclusive
against party bound to indemnify, if he had notice of the
action, - - - - Vol. II, 430

effect of judgment between co-sureties, - - 601, 603

how judgment or decree against principal on probate bond affects

sureties, - - - 41

in replevin suit, when binding on sureties in the replevin bond, 51, 53
effect of, in condemnation for public use, - - Vol. Ill, 464

JURY —

when jury must be called to assess damages, - - Vol. I, 773

when new jury may be sworn to assess damages, - - 7S0

jury tam quam, ...... 779

deliberations of, - ^ . . . . 803

not bound to yield their judgment and adopt opinions of wit-

nes33S, - .... 808

may provisionally take arithmetical average, - - 803

prior agreement to adopt it as a verdict, vitiates a verdict so made, 803

what affidavits may or may not be read to affect the verdict, - 804

when the duties of a jury ended, ... goo

they must afBrm their verdict in court, .... 807

the court may direct them to seal the verdict, - . . 807
exemplary damages are in the discretion of the jury when the

question of their allowance submitted, .... 742

damages for compensation, when there is no legal measure, re-
ferred to the discretion of, - - - - - 3

OE^'EBAL INDEX. 819

JURY — continued. Pages.

cases of personal injury left to the discretion of, subject to
power of court to set aside insufficient or excessive verdicts,

Vol. Ill, 368
same in actions for breach of marriage promise, - - - 333

trespass to real property, - - - . . - 385-388

LANDLORD AND TENANT —

value of use and occupation, -.-... 107
when tenant holds after expiration of express agreement, - 108, 109
when tenant severs rent payable to two, ... 109

action for use and occupation, .... 108-111

actions for rent, ... ug

how different from action for use and occupation, - 113

amount of rent may depend on subsequent facts, - - 113

surrender, determination of lease or eviction, stops rent, - 114

no apportionment when rent ceases during rent period, - 115, 139
apportionment may be provided for by agreement, - . 115

win result from severance of reversion, - - 181

how adjusted, ... igj^ 133

what is an eviction, .... 117^ ng

no warranty by landlord that premises tenaatable, - - 117, 136

failure of landlord to repair according to his covenant, no defense

in action for rent except as a counterclaim, - - 118

eviction no defense against accrued rent, - 118

note given for rent accruing during partial eviction, good, 119

release by lessor to one of several tenants after partition will

sever rent, - - ... 135

no abatement of rent for bad , condition of demised premises on

account of a want of repair or partial destruction, 138

when entire premises destroyed, or taken for public use, or les-
sor's title ceases, ... 138
covenant to repair, - - - 131-140
liability of assignee for repairs, ... 140
a tenant holding over, how impliedly bound for, . - 133
damages recoverable from sub-tenant where his breach of cove-
nant is a violation of the lessor's covenant to his lessor, 136-188
covenant not to sublet or assign, - ... 143
covenant to insure. - - - 144^146
when plaintiff has paid the premium and the covenant to insure

has been broken, no loss occurring, . 144

measure of damages when la,ndlord has not paid the premijim, 144, 145
when covenant general to insure against Are, it will be intended

that there should be full indemnity, - 145

measure of damages for breach of covenant for quiet enjoyment,

146-166
effect on damages in case of eviction of tenant having made im-
provements, - - - - - l.'i3

820 GETTEEAL INDEX.

LANDLORD AND TENANT— continued. Pages.

damages recoverable by lessee for eviction or being refused pos-
session, - ... Vol. Ill, 146, 166
consequential damages to lessee for loss of business, - - 150, 154
expenses incurred to take possession, - - - 158
when value of lease includes damage to lessee's business, - 159
when loss of time an item of damage for refusing possession, - 164
lessor's covenant to rebuild or repair, .... 166
not extended by construction, ..... 166
measure of damages on, ..... 166
tenant may make repairs and charge cost to defaulting lessor, - 168
tenant has two remedies for lessor's breach of covenant to repair, 169,

170
what repairs tenant may charge for in such a case, - - 170

may exercise his judgment as to kind, .... 170
consequential damages for lessor's failure to repair, - - l70

what damages uncertain and speculative, ... 170

matters of mitigation against rent, - - Vol. 1, 255

involuntary payments in exoneration of landlord, - - 355

recoupment between, ... . . 335

damages stipulated between, for failure of tenant to surrender

possession, - - - - 509, 517

apportionm»nt of damages between, for taking demised property
for public use, ..... Vol. UI, 447

LATERAL SUPPORT —

the right of land-owners to, - - - - - 3

damages for removing, - - - . . 417^ 418

LAY DAYS. See Demueragb. ;

LEGAL TENDER —

contracts payable in such money, ... - Vol. I, 330

what contract payable in, ----- - 332

legal tender law of 1863, - - - - 326

tenders must be made in such money, .... 453

LEGAL TITLE —

party holding legal title to note or bill entitled to recover fuU

amount, - - Vol. II, 105, 106

exception, when plaintiff entitled to less than the face, and no
other person entitled to receive from the holder the residue, 106

LEGATEE —

how secured by, and his remedies on, probate bonds, - 35, 36-41
when he may sue on the probate bond, .... 40

LESSiliE —

liability of, on covenant for rent, ... Vol. m, 123

liability of, for rent not apportionable to him and his assigns, 123

measure of damages for eviction or refusal to give possession, 146-466

LESSOR. See Landlord and Tenant.

GENEEAL INDEX. 821

LIABILITY— Pages.

an element of damage, Vol. I, 143, 195; Vol. II, 164, 165, 190, 309, 607,

611-615

LIBEL. See Slander and Libel.

LIEN —

courts favor liens, - . . - , . 325

wlien recognized, - - - - ' - - . 325

attorneys', ....... 316

damages for failure to perform contract to discharge, - 139

LIFE —

presumption that it continues, .... Vol. I, 197

LIFE ESTATE —

value of, may be computed by life tables, - Vol. II, 376, 339

LIFE INSURANCE. See Insurance.

LIFE TABLES —

evidence of expectation of life, .... 276, 339

LIQmDATBD DAMAGES, see Stipulated Damages, . Vol. I, 475

LIQUOR —

joint liability of parties contributing to produce habitual drunk-
enness, ........ 316

LORD CAIRNS' ACT, - - . . . . Vol. H, 250

LOSS —

actual, the measure of oompeasation, ... Vol. I, 17 >

LOSS OF TIME —

a ground of damage, ...--. Vol. Ill, 259
LOST DEBTS —

when an item of damages, .... Vol. II, 70, 73

MAINTENANCE —

contracts for entire, ...... VoL I, 303

as they impose a continuous duty there may be a succession of
actions, . - - . ... 303

entirety of wrong which destroys security for, ... igg

MAKER OF NOTE —

his agreement express, .---.. Vol. 11, 103

amount recoverable against, for principal, - ■ - . 104

how he may repudiate note for fraud in consideration, - 129

by what law his undertaking governed, - - . . 175

separate suits may be brought against maker and indorsers at
same time, and costs of aU recoverable, - - 187

MALICE —

not itself a tort, but makes a bad act worse. Vol. 1, 748

plea of justification in slander not maintained, evidence of, 233;

Vol. Ill, 675
proof that acts were done under advice of counsel, to rebut, Vol. I, 237;

VoL III, 708

822 QENEKAL INDEX.

MALICI0U3 INJURY— Pages.

compensation for, given with liberal hand, - - Vol. I, 71, 161

See ExEMPLASY Damages, ----- 716

MALICIOUS PROSECUTION —

mitigation in actions for, -..--- 337
advice of counsel, - - - - 237; Vol. Ill, 708

instruction of employer, - - - - Vol. I, 237

nature of the wrong, . - - - Vol. Ill, 699

whether damages may be recovered for maliciously prosecuting

a civil action, - . - - 699-703

elements of damage, ------ 703-707

evidence in mitigation, ----- 707-710

MANDAMUS—

recoupment in, ----- - Vol. I, 286

MANUFACTURER —

implied warranty by, ----- Vol. II, 409, 439

MARKET VALUE —

usually the controlling value in the assessment of damages, - 875

but contract value to be taken if it was within the contempla-
tion of parties, .---..- 398
how proved, -------- 375

MARINE INSURANCE (see Insueance) —

definition of, - Vol. IH, 63

cause of damage must be proximate, . - - 63

illustrations, ------- 63-66

damages must be ascertained according to the policy, - 67

construction of instirance contracts, - - - - 67

contracts for marine insurance liberally construed in order to

effect the real intention of the parties, - - - 67

valued policies, --- .-.-68

open policies, ------- 73-77

MARRIAGE PROMISE. See Breach op Marriage Promise.

MARSHALING —

where incumbered property sold in parcels to different purchasers

at different times, - - - - - Vol. I, 303

Bale subject to incumbrance, ----- 303

effect of creditor releasing a part, . - - . 305

rights where a creditor may resort to two funds and another to

only one of them, . . - - 30.5

same, when, the funds belong to separate debtors, - 308

principle on which priority determined between creditors, - 310

MASTER (see Service; Employee; EmployIi) —

damages for injury to servant, - - . - 197

for enticing away servant, - - - 49, 54, 68, 196

recoupment in action for wages, - - - 279, ago

GENERAL INDEX. 823

MEASURE OF DAMAGES (see Damages) — Pages.

actual loss, for compensation, - . . . Vol. I, 17

interest for detention of debt, - - - - - 128

other damages for failure to pay money under special circum-
stances, - - . . . . 128
for total breach of contract, its value, - - - - 130
the losses sustained and gains prevented, . - - - 130
exception, on contracts relating to lands, - - 180
in trover and trespass, the value of the property and interest, 173, 174
same rule, when property lost to owner by breach of contract or-

tort, - , 173, 174

elements of damage in action for personal tort, . - - 158

MECHANIC'S LIEN —

wiU be discharged by tender, ... . - - 471

MEDICINE —

consequential damages for ship-owner not providing, as required
by statute, -.-... go

MENTAL SUFFERING —

compensation allowed for, in actions for personal injury, - 156, 733,

734-736
See Feelings; Pain.

MESNE PROFITS —

action of trespass for, Vol. Ill, 343-350

consequent on recovery in ejectment, - - ' 343

judgment in ejectment conclusive of title from date of demise

laid in declaration, - - - 344

antecedent profits recoverable on proof of title, 344

who may recover, - ... - 344, 345

what may be allowed as damages, - - 345-350

they must be proved, - - - - - - 845

not confined to rent, but costs of ejectment and all damages

resulting from being kept out of possession, - 345

during what period, - .... 345

what included in costs of the ejectment, ... 845-348

measure of damages, - ... 346

consequential damages may be recovered, ... 347

improvements may be deducted from, ... 348, 350

interest on, recoverable, - - - - 348

statutory remedy in New York and other states on a footing of

contract according to measure for use and occupation, - - 348

statutes regulate the remedy and damages generally, 348, 350

the common law action for, an equitable one, ... 349

remedy for, under the code, •* - - 350, 351

damages for withholding do not include rents and profits, 351

Oregon code and some others include waste, - - 329-343, 851

mitigation in action for, .... Vol. I, 354, 355

82i GENERAL INDEX.

MINE — Pages.

damages recoverable on injunction bond for being restrained
from working, . . . - - Vol. II, 71

MINISTERIAL OFFICER —

how liable to damages for neglect, - - - - Vol. I, 346

MISCONDUCT —

damages for, recoverable, though contract for waiver of. Vol. Ill, 214,

249
MISJOINDER OF PARTIES, .... Vol. I, 203-316

MITIGATION OF DAMAGES, 326

matters of excuse or tending to justify, ... 327

words of provocation may mitigate assault and battery, - - 327

when such words lose m.itigating effect, ... 328

facts which explain and negative presumptions from conduct, - 228
that parties fought by agreement, . - 329

that the parties mutually impugned veracity, - - 330

extent of nxitigation from provocation, - - 229

Judge Story's views, - .... 339

mitigates actual and not merely exemplary damages, - 339, 330

the cause of arrest may be shown, - - 337, 831

in case of libel and slander, - 231, 335; Vol. IH, 679-696

as to the matter of pleading to mitigate damages in cases of def-
amation, - Vol. I, 232, 336, 258, 360; Vol. Ill, 688
statutes in aid of, ..... Vol. I, 336
acts of plaintifiE enhancing injury, - - 337
or his neglect to exert himself to lessen damages, - 337
acts of plaintifiE and others diminishing loss, ... 333
wrong of taking goods mitigated by their return, 239
or sale on execution for owner's debt, .... 338
mitigation diminished by trouble and expense of procuring re-
turn, - - ... 239
when owner bought the goods at tortious sale, - - 338
offer to return goods of no avail, .... 340
for wrongful sale for tax, .... 341
to sheriff who sold on execution without notice, - - 241
subsequent attachment by wrongdoer, .... 341
no abatement when compensation from collateral or independent

source, ..... 248

insurance money no mitigation, ..... 243
debtor not relieved by recoveries for negligence against attor-
neys or officers, - - - 248
nor is accidental or indirect benefit to plaintiff from the wrong

a mitigation, - . 243

wrong of delaying ship not mitigated by plaintiff getting addi-
tional profit thereby from another boat, _ - 243
benefit from nuisance, - - . -'243, 345; Vol. III„431, 423
concurrence of other causes, .... Vol. I, 245

GENEBAL INDEX. 825

MITIGATION OF DAMAGES - continued. Pages.

offer to marry no mitigation of master's action for seduction of

servant, . . ... Vol. I, 244

mitigation by fuller proof of res gestae, ... 244

by proof showing defendant less culpable, . . 344

opposition of family as mitigation of breach of marriage promise, 344
that defendant was afflicted with incurable disease, - - 244

defendant in trespass may show title in himself in mitigation, 244, 360
officer may show he entered to make levy when sued for tortious

entry of house, - - - 244

may be shown that same damage would occur in another way

from flood, - . 345

in action for negligence it may be shown there was none, - 245

may show partial want or failure of consideration, 245

matter of recoupment only mitigation in England, 245

neglect of officers to collect a debt mitigated by showing debtor

insolvent, . - . 34g

not that debt still collectible, ..... 347
the contrary in some cases, ..... 347

mitigation in action for escape, . 349

consent of plaintiff, though not properly given for its purpose, 252

conduct of plaintiff impairing right to compensation, 253

his bad character, when a mitigation, - 253; Vol. Ill, 679, 738

whatever diminishes defendant's benefit, - Vol. I, 254

payment of gi-ound rent of premises tortiously occupied, - 354

may matters pleadable in bar be proved in mitigation, - 355

payments, - ... 355, 36O

proof in mitigation on assessment of damages, ... 355
notice of, in pleading, when necessary, - . 357

when not pleadable may be proved under general issue, - . 357

exception in slander, ... 357

courts may, in their discretion, require notice, . 357

by return of attached property, in action on attachment bond.

Vol. II, 60
by return of property of which the owner is deprived by the re-
straint of an injunction in action upon an injunction bond, 71
what admissible as such in actions for breach of covenants for

title, . - - - - 275

earnings of wrongfully dismissed servant in action against em-
ployer for such dismissal, - - 473, 474
in trespass to personal property, ... Vol. Ill, 481
return of property, - - - - 480
when property taken is applied under legal process for ownei-'s

benefit, - 482, 483

uncertain mitigation in action for breach of marriage promise,

Vol. I, 133
in action for nuisance, - Vol. Ill, 420

failure of plaintiff to abate nuisance by acts on the defendant's
land cannot be considered in mitigation, ... 420

-

421, 423

- 571

537-537

480-483

-

737-781

742,

743, 745

Vol. I, 318

- 319

\„-mt

330

lgm<

3nt

321

- 321

-

331

- 823

826 GENERAL INDEX

MITIGATIOiST OF DAMAGES — continued. Pages.

in other cases plaintiff's omission to abate will reduce his dam-
ages, - ... Vol. Ill, 430
it is no defense that plaintiff rented premises with nuisance on

them and at less rent, - - . ■ - . . 421

nor that the nuisance is a useful business, - - 431

in what cases an incidental benefit from nuisance will go in

mitigation, .....

mitigation of damages in replevin, ...
trover, - .....

trespass, - ...

in actions for personal injury,
seduction, . . . . -

MONEY,

money contract in one place such everywhere,

such contract payable in legal money, -

in whatever money a contract payable, when sued

given in the money of the forum,
bank bills and other conventional currency,
payments niade in bank bills,
effect of changes in the value of money,- -
the legal currency of the United States, ... 336, 333

contracts payable in dollars, ..... 335-339

See Interest, .... . 531

agent's risk and liability when he mixes his money with his

principal's, ...... Vol. Ill, 14, 29

his duty on receipt of, - - - - - 15, 16, 39, 41

his liability for interest on, - - - - - 8, 39, 41, 43

and for money lost in sub-agent's hands, ... 7

what agent may receive as money in collecting, - - 15, 29

remittance of, - - - - - - - 39, 41

MORTGAGE —

discharged by tender, .----- Vol. I, 471

MORTGAGEE —

recovery by, on policy of insurance, ... Yol. Ill, 92

MOTIVE —

how bad motive affects damages in actions upon contract. Vol. I, 156
in case of marriage promise, 156; Vol. Ill, 319-332

right to compensation independent of, - - Vol. I, 159

bad motive may increase damages in tort, but its absence wiU

not affect right to compensation, - - - 159

distinctions made for bad motive in cases of contract as well as

tort, - - - - - 159

in cases of contracts for sale of land, - . . 159

and for services, ..... leo

in case of confusion of goods, .... 183

GENEEAL INDEX. 827

MOTIVE — continued. pages.

when property tortiously taken, improved, - - Vol. I, 164

distinction made in matter of proof, - - - - 173

See Exemplary Damages, - - . . . 716

MUNICIPAL CORPORATION —

right of recovery over, when liable for negligence or tort of a

person acting under contract or license, - - - - 137

not liable for exemplary damages, - . . . 753

MUTUAL CREDIT —

only the net balance of connected accounts recoverable, - - 225

mutual debts do not compensate each other, - . - 334

courts favor liens, when, -.-... 335

NATURAL CONSEQUENCES —

right to recover damages confined to, - - - - 18

See Consequential Damages. ,

NAVIGATION—

consequential damages for obstructing, by gas-pipe, - - 97

channel to lock, .--....97

NEGLIGENCE —

scope of consequential damages from, - - 33, 33, 33, 33

there is liability for those consequences likely to follow, - 23

damages from negligent collision of vehicles, 22, 24

of owner of diseased sheep in allowing them to trespass and com-
municate the disease, ..... 34.

in leaving bars of pasture down near railroad, - 25

non-repair of fences by which animals escape and do damage, 25

or by which animals enter enclosure and get hurt, - - 35

non-repair of wharf, whereby a team drowned, - - 25

negligently laying gas-pipe, ...... 25

negligently setting fire, ...... 33

leaving horses unattended on a public street, - - 26, 65

or other dangerous property, - - - 26, 27, 29

negligently bottling and labeling poisons for market, - 38

non-repair of highways, - - ■ - 31-46

when non-repair of bridge remote cause, ... 48, 63

of water company for not keeping pipes charged with water for
extinguishment of fires, - - - - 41

neglect to give notice to repair .canal lock, - - - 50

negligently wetting wool in original package, ... 57

negligent delay of transportation of goods, - - - 59

delay in towing raft, ..... qq

negligently retaining money in bank by trustees, - - - 61

negligent driving of stage-coach, - ... 69

negligence in affording opportunity for injury by wrongful act of

third pei'son, - - 70

mitigation in action against notary for negligence in protesting
commercial paper, ...... ^54

828 GENERAL INDEX.

NEGLIGENCE — continued. Pageg.

liability of carrier for, cannot be contracted away, Vol. Ill, 214, 249

telegraph companies only liable for, - - . - 295
See Passenger Caeeibbs.

NEW TRIAL —

■will be given for excessive or insuflSclent damages, - Vol. I, 810

where finding as to damages not sustained by evidence, new trial

may be granted, . . . - . 813

objection may be removed by remittitur, - - - - 813

where jury fail to find nominal damages, ... 815

NOMINAL DAMAGES —

allowed absolutely for infraction of legal right, - - 2, 9-16

where actual damages assessed, nominal damages not added, 9

if a right is violated, at least nominal damages given, - 9

they cannot be controverted, - - - - 10

they will be allowed, though the violative act a benefit, - - 10

every breach of contract or duty gives a right to, - 145
every tortious interference with person or property gives alright

to, - - - - . 11

the maxim de minimis non curat lex has no apphoation, - 13
wiU be given for violation of contract, if actual injury not

shown, - - . . . . no

exemplary damages never added to, - - - - 748

when verdict will be set aside for failure to find, - - 815

court may add, by amendment of finding for plaintiff, - 837
these at least are recoverable for any breach of the covenants of

seizin and of good right to convey, - Vol. 11, 373
dissenting opinion of Dixon, C. J., in Wisconsin, against allow-
ance of, for mere technical breach, - - 373
recovery confined to, for breach of covenant against incum-
brances, until something paid, or actual damage, - 390, 312-315
such damages only can be given for breach of the covenant
against incumbrances consisting only of the existence of an
inchoate right of dower, - - 337
nor even after death of the husband unless dower has been as-
signed, - - 337
when only such can be recovered on probate bonds, - - 37

NON-DELIVERY OF GOODS —

value and interest, - - . - . Vol. I, 173, 174

NON-PAYMENT OP MONEY —

interest, ....... 128, 596

NOTARY —

mitigation in suit against, for negligence, ... 134

GENEEA.T. INDEX. 839

NOTICE -

of special circumstances may give a right to consequential dam-

ages, - - - - Vol. I, 79-84, 93

when necessary to principal to defend action against party hav-
ing right of recovery over, - - - 135, 143-147
adjoining owner required to give, when he digs so as to endanger

foundations, .... . . gg

advantages of, to party bound to indemnify, ... 134^147
when necessary to give a right to interest, - - 619

how covenantor may be vouched in to defend action against his

covenantee, ... . Vol. II, 399, 300

as to the necessity of, to subject covenantor to costs and expense

in defense of title, - - 306-309

after covenantor has come in on notice and assumed the defense,

the covenantee may not also employ counsel at covenantor's

expense, - - . . . ■ 306

of resale of goods rejected by purchaser, - 360

effect of, by vendee of goods before time fixed for deliveiy, of

his intention not to accept them, - - 361, 363

also in case of order to manufacture goods, 363

effect of vendee failing to give notice of rejection of goods sold

by sample, ... 364

necessity of, to party bound by certificate of architect, engineer,

etc., - .... 531

to party liable ultimately, or to contribute, - - 430, 601, 603

by covenantee of suit by superior owner, - - 399

effect of judgment on covenantor when he is vouched in to

defend, - - .... 399

same principle applies when covenantee sues for the granted

property, - - ..... 399

w^hen necessary to party bound to repair, - - Vol. Ill, 167

agent's duty to give to his principal,' of matter occurring in

agency important to his interest, ..... 4

NUISANCE —

definition of, -------- 394

may be anything wrongfully done or permitted which injures or

annoys another, - - 395, 397

in what the wrong of its continuance consists, - - 396

limitation on the right to use one's own property, - - 395,396

the erector of a nuisance liable not only for the erection but the

continuance of the nuisance, .... 395^ 401

his grantee only for its continuance, ... 395

difference between nuisance and trespass, ... 395, 396
remedy at law for nuisance, imperfect, - - - . 896

injunction necessary, ..... 396

judicial abatement generally provided for by statute, - - 396

QUisancee generally of a ccmtinuing nature^ ... 398

eSb. least nominal damages recoveraUe for, ... 396, 897

830

GENERAL INDEX

NUISANCE — continued. Pages.

■when the act complained of lawful, actual injury must be shown

to support an action, - - - Vol. Ill, 397

the action for, cannot be maintained on a mere theoretical injury, 398
successive actions for, generally necessary, - - - - 398

what decided and recoverable in first action, ... 398

what recoverable in subsequent actions, '. - . 398, 399

continuance of nuisance after one recovery deemed wilful and

contumacious, and is ground for exemplary damages, 399

the duty to abate, - ... 396, 399-403

when nuisance not a continuous wrong, .... 403-414

when the construction of a railroad a permanent nuisance for
which entire damages recoverable, .... 403

when other forms of nuisance permanent, ... 404

measure of damages for, ... 414

permanent damages measured by depreciation of property

caused by, ... 4x4

or by adding to past damages the amount necessary to restore
premises to former condition, .... 414

special damages from, - - - - ' . 415=-41 7

by blasting in quarry and throwing rocks upon building and

putting in fear, - ...-.417

by removing lateral support to land, - - - 417

for injury to business, - - - 418, 419

obstructing mill, and causing logs not sawed to deteriorate, 419
causing loss of rent by failing to keep privies and drains in

repair, - - 419

by establishing brothel on adjoining property to tenements
held for renting, - - 419, 420

abatement of, does not preclude recovery of damages which
. have been suflEered, - - 430

duty of plaintiff to abate, to prevent damage, - - 430, 431

no defense that plaintiff rented the premises with the nuisance
on them, and at less rent, .... 431

nor that the nuisance is a useful business, .... 421

how far incidental benefits from, will go in mitigation of daxa.-
ages, - .... 431, 433

private remedy for public nuisance, ... 433, 434

what parties jointly and severally liable, ... ^434-436

successive tenants, ...... 434, 435

pleading in respect to, - ... 436, 437

successive actions must be brought for, as a continuing injury,

Vol. I, 303
there is a legal obligation to discontinue, .... 193

mitigation in action for, - .... 345

what not a mitigation, ...... 343

particularity of allegation for proof of special damage, - 765

in case of public nuisance, special injury must be alleged, - 766

GENEEAL INDEX. 831

OBLIGEE- Pages.

effect of his assurance to surety that he should not be called on
for payment, Vol. II, 146

OCCUPYING CLAIMANTS —

statutes for relief of, - - - - Vol. Ill, 339-342

ODIUM SPOLIATORIS, - . . . Vol. I, 173, 784, 785

OFFICE —

loss of, as result of assault and battery, remote, - - 49

OFFICER —

mitigation in favor of, for arrest, - - . . 337, 331

for seizure of property, a subsequent levy or return of the

property, - . . . . . 336

that plaintiff bought the goods, - - - -^ 238

that officer seizing for tax paid it, - - - - 341

liability for neglect of duty to creditor, ... 346-350

for escape, ..---.-- 349

may justify arrest on suspicion, ... . - - 356

liable for interest on money detained, .... 638

when officer liable for exemplary damages, - - 758

loss from failure of, to perform public duty, not actionable, - 55

note given in part or in whole to induce neglect of his duty,

void, Vol. II, 131

OFFICIAL BONDS OP OTHER THAN FISCAL OFFICERS, 39

general mode of redress for official dereliction, - 39, 30

what private injuries covered by official bonds, ... 30-33
measure of damages, ...... 32

OIL WELL —

damages for failure to fulfil contract to sink, on contractor's
premises, ... .... 479

OPEN POLICIES (see Insurance) —

rule of damages upon, .... Vol. HI, 73, 74

adjusted to interest of the insured, - - - - - 74

how value to be established, ..... 74

OPINIONS —

of experts admissible on questions of science and skill, - Vol. I, 785
on questions of value, .... 795

of all persons on matters of common observation and experience, 786
not of the amount of damages, - - 794

admissible as evidence on questions of value, Vol. II, 375-378, 444

OWNER —

general and special, may recover according to interest. Vol. I, 309, 210

PAIN —

compensation for, recoverable when caused by wrong, - - 106

the law infers, from personal injury, - - - - 768

832 GENERAL INDEX.

PAIN — contiBued. Pages.

a gi-ound of damage, - - Vol. Ill, 259, 280, 711-716

in actions for false imprisonment, . - - - 732

mental suffering, when to be compensated, - - 712

in actions for seduction, ... 739, 744

it is rather an aggravation than a ground of action, - 715

wounded feelings of husband or parent for personal injury to
wife or minor child not an item of damage, - - - 734, 725

PAE OF EXCHANGE, Vol. I, 339

nominal and real par, - - - - - - 341

PAROL EVIDENCE —

when admissible to show want or failure of consideration.

Vol. II, 184-146
admissible to affect holder of note with trust, - - - 135, 140
to show a deed to be a mortgage, - ... 135
to turn a sale into a mortgage, - ... 135
to show defendant executed the paper for plaintiff's accommoda-
tion, 134, 146

to show a discharge by a collateral act, ... 135

to show note was given for indemnity, ... 134, 135, 143
to show real consideration; that it is contingent, conditional or

defeasible, - - - 136

but not admissible thus to show a different promise, - 137

instances of its rejection, - - - 137

the promise may be rendered nugatory by showing want or

failure of consideration, - 136, 137

PART PERFORMANCE. See Quantum Meruit.

PARTIAL FAILURE OF CONSIDERATION —

when a defense, 114, 118, 119, 132-129, 308

PARTICULAR WORKS (see Contract fob Particular Works) —

elements of damage for employer's breach of contract. Vol. I, 131, 132
mitigation in action against contractor, - . - - 253

damages for delay in completing, .... 109

liquidation of damages on contracts for, ... 508, 512

damages for failure to complete or delay, ... 109, 110

for stopping the work, - 113-118; Vol. II, 521-524

contractor not excused by accidental destruction of the work,

Vol. I, 485
when in such case he is entitled to be paid for part perform-
ance, .... 485,486
contractor not responsible for failure of plans furnished him, - 488

PARTIES —

to sue and be sued, --..... 203

damages to joint parties injured, entire, ... 203

should joilk in suit as plaintiffs, - . . . . gog

SEBTERAL INDEX. 833

PARTIES — continued. ■ Pages.

in actions ex contractu, they must, ... Vol. I, 204

damages must be recovered by persons having the legal interest, 204
who have legal interest in contracts, - - - - 204

contract not joint when it apportions the interest of the parties, 205
impUed assumpsit follows consideration as to party paying, - 205

effect of discharge of one jointly liable, - - . - 205

misjoinder of plaintiffs, when fatal, . -' . - 206

joinder of defendants, effect of mistake, - . - - 207

when contracts are joint or not, ... - 307

when joint obligation or liability extinguished or severed, - 208

who may join inaction for injury to property, - - - 209

, who cannot unite, - - ... 210, 211

extent of personal participation immaterial, ... 311, 212
case of nine writs for arrest, - .... 213

separate owners of cattle joining to do damage, - - 215

PARTITION WALL —

damage for causing the fall of, - - - - - 96.

injury to business and cost of reinstating the wall, - - 8ft

action for contribution, and interest on, .... 590

PARTNERSHIP AGREEMENT —

damages on, -.-..--- 119

PASSENGERS —

breach of contract to convey, ..... 78

may recover for inconvenience and aggravations, for expenses

of sickness, for failure to fulfil contract to convey, - 100-105, 157
in action for negligence, may recover for sickness of, caused by
failure to carry to destination, - - - - 78

PASSENGER CARRIERS (see Death) —

their obligations mostly imposed by law, - - Vol. Ill, 249

total refusal, when actionable, a violation of duty, - - 249

their duty to carry with care cannot be contracted away, - 249

damages substantially the same whether action on contract or

for breach of duty, .... 349

liable for damages for refusal to carry, or negligent delay, - ~ 250

. loss of time to be compensated, - . - - 250, 251

failure to furnish suitable accommodations, - - 250

unnecessaiy exposure by detention in unhealthy climate,

causing sickness, ... 250, 251

liability for exposure in consequence of carrier by water failing

to stop at advertised station, .... 251

exemplary damages may be recovered, - - 251, 270

passage money may be recovered back where carrier fails to

carry, and personal expenses, - 251

liable for consequences of putting passenger down at the wrong

place, or causing personal injury, - - 251, 258

scope of such consequences taken into account, - - 353-268

Vol. Ill — 53

834 GENEEAL INDEX.

PASSENGER CARRIERS — continued. Pages.

where object of passenger's journey known to carrier, he is lia-
ble for consequences touching that object, - Vol. Ill, 353, 354
his liability for failing to leave and arrive on advertised time, 354
mere inconvenience a ground of damage, - - - - 254
sickness is a ground of damage, - - - - 254
elements of damage in case of personal injury, - - 259-368
what facts not provable in mitigation, ... 269
what may be shown in mitigation, ... 270
statutory liability of, where death results from personal injury, 881-291
liability of, for loss of baggage, . - - - . 291

PASSENGERS —

may be salvors, .... - Vol. II, 531

PASTURE —

damages for trespass upon and over-feeding. Vol. Ill, 384, 385

PATENT RIGHT —

note given for one which is void or worthless, without consider-
ation, - Vol. II, 112
what not admissible as defense in action on such a note, - 137
See Infringement of Patent Rights, ... 599

'payment—

may be proved in niitigatibn, - - - Vol. I, 255, 260

what it is, - - - - - ^- - 345

what a payment includes, ... 34.5

creditor may assent in advance to a mode of payment which will
be effectual when thus made, - - - - 346

how payments may be made, ..... 345-351

what is not a payment, - - - - - -351

effect of payment, ...... 352

payment before debt due, ..... 354

payment by legacy, ...... 354

payment by gift inter vivos, .... 355

payment by retainer, ...... 357

when creditor makes debtor executor, - - - 357

when debtor appointed administrator, .... 357

when trustee may retain his debt, ..... 357

payment in counterfeit money, .... 353

or biUs of broken bank, - - - 858, 361

wheh a bank fails its biUs lose character of money, - - 364

doctrine in Pennsylvania, ...... 366

payment by note or bill, - - - 370

presumption when note taken for goods sold or other contempo-
raneous debt, ... . 370

effect in New York of receiving note with agreement that it is
payment, ....... 371

the doctrine elsewhere, ...... 373

GENEEAL INDEZ. 835

PAYMENT — continued. Pages.
presumption from mere receipt of debtor's note or property on
account of a debt in Massachusetts, Maine, Indiana and Ver-
mont, Vol. I, 373

same presiunption where debtor delivers third person's note, 373
it is a presumption of fact, and may be rebutted, - - 873
it is founded on the negotiable quality of the paper, - 373
the rule generally is, that a note, bill or check is taken as condi-
tional payment, - - - 374
renewal of a note not a payment of it, - - - - 376

unless renewal note discounted, and avails used to pay original

note, ........ 376

there must be agreement to take note or other paper as payment

to give it that effect, - . - 876
receipt of negotiable paper as conditional payment suspends

right of action, . - ... 377

it wiU not be presumed that such paper is not paid, - - 377

it is prima facie payment, - .... 330

such creditor accepts duty of diligence as to paper received on

account of debt, .... 379

lie must take proper steps to hold other parties, - - 378
consequences of neglect, - ... 378, 383

amount collected or lost by creditor's neglect treated as payment, 378

383, 383

he must show extent of loss, .... 383

transfer of collateral by creditor equal to its collection, - 383

creditor in that case liable for its face, - 383
he must settle with debtor for nominal amount when he has

settled with the collateral debtor, - ... 333

who may make, ....... 384

payment by third person good if ratified by debtor, - - 384
effect of satisfaction by a stranger, - - 384^386

purchaser subject to mortgage may make, ... 387

stranger not to be subrogated, ... 387
if one compelled by his own interest to pay another's debt, he is

entitled to subrogation, ..... 387

to whom payment may be made, - ... 387

may be made to attorney who obtained judgment, - - 387
possession of mercantile paper evidence of authority to receive

payment, - - - 387

circumstances may impeach this authority, ' - - f- 388

bad faith necessary to avoid payment to one having such paper, 388
paymeUt to one not having such paper at the peril of party

paying, - - - 388
payment to original holder of note and mortgage, - - 388
may not be made to assignor of demand after notice of assign-
ment, ... - 388
when payment by garnishee sustained, ... - 388, 389

836 GEarEEAi index.

PAYMENT — continued. Pages.

■when debt owing to two or more, payment may be made to
either, .... . . Vol. I, 389

good, made to administrator before his appointment, 389

pleading payment necessary for full defense, - - 389-396

may be proved under general issue whether made before or after

suit brought, - - - '' - 783

under general allegation of, any mode of payment may be proved, 39(3
possession of evidence of debt by maker, evidence of payment, 397
other evidence of paynaent, - - . - 897

receipts for rent and taxes imply payment of earlier rent and

taxes, - - - . - 897

presumption of payment when debtor becomes trustee to receive, 397
payment made on Sunday, good, - - - 397

indorsement of credit for part by payee will rebut presumption

of payment, - - - 398

creditor not obliged to receive part of his debt, ... 451
where payment to be made, - ... 638

cannot be appropriated by creditor to note, part of the consid-
eration of which is illegal, . - . Vol. n, 183
See Application op Payments.

PAYING- MONEY INTO COURT, .... Vol. I, 474

when amount paid is not sufficient, ..... 473
when payment into court proved, .... 474

effect of paying money into court, ... - 474, 781, 783

what is admitted by, - .... 781

PECUNIARY CIRCUMSTANCES OF DEFENDANT —

when provable to affect damages, .... 744^ 745

PENALTY—

effect of, in contract, ...... 478-490

as distinguished from stipulated damages, - 478, 503

the facts outside of contract may be investigated to ascertain if

it contains a penalty, - - - - 500

when larger sum promised to secure payment of a smaller, it is

a penalty, - ...... 497

when fixed sum in a contract a penalty, • - - - - 508

PERFORMANCE —

what is, for the purpose of recovery on a contract, - Vol. 11, 508

PERSONAL INJURY —

damages for, resulting from vice of animals warranted against, 424, 435

or from effects of selling a wrong drug, - - 435

or explosive illuminating fluids, ... 435

liability of oarrjer for, .... Vol. Ill, 351-368

loss and injury may consist of inconvenience, sickness, loss of

time, bodily and mental suffering, expenses and loss of

capacity, - - ... 259-368

GENEEAI- INDEX. 837

PEESONAL INJURY— continued. Pages.

prospective damages included, ... Vol. Ill, 261

recovery for injury to wife, child or servant, - - - 379

damages for, how assessed under accident policy of insurance, 104

elements of damage for, .... Vol. I, 158

physical pain and mental suffering, - . Vol. Ill, 711-716

insult, vexation, disgrace, - . - - . 713

impaired health, disfigurement, .... 713

loss or decrease of capacity to work, - . 714, 716-720

aggravation of existing disease, .... 714

expenses of nursing and medical treatment, - - 720,721

the law presumes pain from, *. . . . Vol. I, 766

and injury to feelings from insult, - - 766; Vol. Ill, 711-722

pleading where the injury affects working capacity in a special

employment, - - ... 717

entire damages to be recovered in one action, ... 722, 723

a husband's action for, - ... 733, 734

a parent's action for, to minor child, .... 725, 726

what may be included in damages for abduction, ... 726

exemplary damages for, .... 736

evidence in mitigation in actions for, .... 727

provocation to assault and battery, .... I^";

bad character of plaintiff, ..... 728

plaintiff's want of care, ..... 729

province of court and jury in actions for, ... 730, 731

damages for false imprisonment, .... 731-784

PILOT —

when he may claim for salvage service, ... Vol, II, 530

PLACE OF CONTRACT —

law of, Vol. I, 631

law of place where contract to be performed governs, - 632

bond of officers of the United States, .... 637

between parties residing and doing business in different states, 637
effect of change of the law, ..... 666

PLAINTIFFS DUTY —

to exert himself to lessen and prevent damages, - - 148, 156

not arbitrarily imposed, — reasonable exertion required, - - 150

his duty on this principle as employer of builder, - . 150, 154

as a purchaser, - ..... 151

when injured by trespass, ..... 150-154

not required to commit a tort, ..... 153

not to anticipate one, ..... 153

. this is a duty of fair dealing, - - - - - 153

notary not liable for amount of commercial paper to a plaintiff

who failed, against an indorser, by refusal to urge his liability

on another ground, ... . . 154

838 GENEEAL INDEX.

PLAINTIFF'S DUTY— continued. Pages.

plaintiff's claim will be reduced to the loss he would have suffered

if this duty performed, - - - . Vol. I, 148

this duty exists in oases of contract and tort, . - - 153
how a claim against a city for injury by a mob affected by negU-

genoe of his duty, .---.-- 154
the right of a tax-payer to resist tax after omitting steps to cor-
rect, ..-.-... 155
loss of interest by neglect to enforce decree, - - - 155
refusal of offers which would have mitigated damage, - 155

PLAINTIFF'S RIGHT —

to finish contractor's contract at his expense, - - 155

a shipper to employ other means of transportation, - - 155

a passenger to get other conveyance, .... 155

must be a reasonable thing to do under the circumstances, - 156
the plaintiff cannot incur an expense on this pnnciple which he

would not on his own account, . - - . . 156

PLEADING —

of matters in mitigation, ...... 357

notice of recoupment, necessary, .... 301

payment, - - . . . . sgg

what must be alleged to give benefit of tender, - - 468

pleading for recovery of interest, ..... 534

foreign interest laws to be alleged, .... (J64

how interest m.ust be claimed in pleading, .... 705

the plaintiff must state a case which entitles him to damages —

to at least nominal damages, - - 759
the claim of damages will not entitle him. to more than the case

stated warrants, .... 759

too large a claim of damages will not vitiate verdict, - . 759

erroneous claim of damages not ground of demurrer, - . 762

, ad damnum is the logical and legal conclusion of case stated, 759

not of substance, and if left blank, judgment will be sustained, - 760
ad damnum at the conclusion of declaration, where there are

several counts, sufficient, - - . . 760
demand of damages in complaint under code, ... 760
principally important in default judgment, ... 76O
the court hsis authority to grant relief according to the case stated, 760
effect of not answering allegations of damage, . 761
the particulars of the wrong in trespass or case not admitted, 761
ad damnum limits plaintiff's recovery, . . - 761
it may be amended, or excess of verdict remitted, - 761, 762
under general allegation of damages plaintiff may recover dam-
ages that necessarily result from act complained of, - 70a
interest as damages may be recovered under it, . . 763
special damages must be alleged, - . . 753^ 764
where damages are gist of the action they must be alleged, - 76C

GENEKAL INDEX. 839

PLEADING — continued. Pages.

not necessary to itemize damages in pleading, - - Vol. I, 770

statutory damages must be specially claimed in the declaration, 770

special damages to be pax-ticularly stated, - - - Vol. Ill, 427

illustrations, .--... 437-439

PLEDGE —

will be released by tender, - - . "' . . Vol. I, 471

POISON —

consequential damages for injuries resulting from mislabeling
and sending into market, ... 33

POLICY OF INSURANCE, Vol. Ill, 63

See Insubance.
POSSESSION.

effect of purchaser's taking and retaining, in action fcr purchase

money, - - . - - - - Vol. II, 303

purchaser in possession cannot object that contract is invalid, 304

when vendor retains possession pending a question incidental to

specific performance, he will be charged like a mortgagee, 341-344
effect of, by purchaser to subject him to interest, - - - 305

damages against vendor for withholding, - - 835

in absence of other evidence owner presumed to have, - Vol. Ill, 364
the gist of the action of trespass is injury to, - - 363

possession alone wiU entitle one to recover in trespass, - 365

damages confined to injury to, unless plaintiff shows title, 365, 866
one in, under color of title to fee may recover against stranger as

owner, ------- 366

PREVENTING LOSS —

plaintiff's duty to exert himself for, - . - Vol. I, 148

PRINCIPAL —

liability to surety or agent for costs, - . . 139, 140

liability of, to indemnify surety, - - - - Vol. II, 576

PRIVATE INJURY —

special, must be shown to give right of action for public wrong. Vol. I, 6

PRIZE —

damages for preventing competition for, . - - 133

PROBABLE INJURY —

when damages for, may be given, . - - - Vol. II, 604

PROBATE BONDS —

bonds for faithful administration of decedent estates, - 35

what the principal's duties include, - - - 35

the assets a trust fimd for creditors, legatees and distributees, 35

a summary of the conditions, - - - - 35

their history, - - , - - - 35-38
what recoveries may be had thereon, .... 36-41

effect of recovery on, - - - - - 36, 37

when only nominal damages recoverable, - - - 37

840 GEHTEEAI, rUTDEX.

PROFITS— Pages.

what profits recoverable on breach of contracts for particular

works, - - VoL II, 479, 483

on resale when not contemplated, rejected, - 491, 493

when recoverable upon resale of land contracted for, - 804, 221
may be recovered f (jr, when provable with certainty, - Vol. I, 106, 126
of vendor against vendee, - 107

vendee against vendor, - 107, 108; Vol. n, 403, 429, 437, 438

against ship-builder for delay in completing, Vol. I, 106

for failure to complete any particular works, - 109, 110

for preventing the performance of special contract, 113-118

conjectural profits of whaling voyage not recoverable, - 110, 111

of special contr9,cts, ------ 118

of commercial ventures, - . - - - 118

of refusal to perform partnership agreement, - - 119-131

gains prevented, proper subject of damage, - - 130

to\ total breach of contract, its value, - - . 130

proportionately for partial breach, - - - - 130

when an element of damages against an agent. Vol. m, 11, 13, 31.

33-88
when loss of, an element of damages to evicted lessee, 154, 155, 157, 158
allowance of, as damages, - - 155-156

what profits remote and speculative, - - 153, 157, 160, 167

injury to business involves loss of, - - - 164

may be an item of damage w^hen reasonably certain, - 1.53-171

of business injured by nuisance, an element of damage, - 418, 419
of infringer of a patent xight, how ascertained, - 608-622

of copyright, ------- 636

of trade m.ark8, ------ 630-637

PROMISE —

parol evidence not admissible to show a different promise from
that stated in written agreement, . - - - Vol. II, 137

PROMISE OF MARRIAGE —

action for breach of, . . - . VoL 1, 156

See Beeach of Maeriagb PrOsose.

PROinSSORY NOTES AND BILLS OF EXCHANGE —

the liability of the maker of a note and that of the acceptor

similar, - - VoL II, 108, 104, 169

their agreements, ' - - - 103

what the recovery against the several parties may include, 104

such paper is given for a sum certain, - 104

and payable only in money, - - - 156

the party having the legal title may recover the full amount, 104

he will be trustee of any other beneficially interested in the

amount recovered, - • 104, 105

when a holder having a right to a part only of the amount due,
will be limited to the amount of his interest, - - 106, 107

GENERAL INDEX. 841

PEOmSSORY NOTES, Etc.— continued. Pages.

a defense between the original parties, when unavailable, Vol. II, 106
how the payment of less than the full value of a note in its pur-
chase will affect the amount recoverable by an indorser with-
out notice of an existing defense, - 106, 107
defense of want of consideration ia whole or in part, - ilO
consideration presumed, - - . . . no
it has been held otherwise, ---... no
the presumption not conclusive, - - . HI
if there is a total want or failure of consideration there can be no

recovery, . . m^ ng

defense of fraud relating to consideration, - - 111, 112

when acconmiodation paper without consideration, - - 112

a note made for a gift, without consideration, - 112

note given for property having no existence, void for want of
consideration, - .... ng

so if given for void deed of land, - w 113

effect of total breach of warranty in suit on note for purchase

money, - - - 112

the covenant of warranty not sufficient consideration, - 112

instances of total want of consideration, - . 112, 113

what is a total- failure of consideration, - - - 113

instances of , . ..... 113^ 133

effect of a partial want of consideration, .... 114

may be shewn though unliquidated, . 114

partial failure of consideration good when the part which fails

is certain, - - 115, 119

part failure of consideration different from inadequacy, - 116

not a defense in England when the part failure is unliquidated, 118
nor where the partial failure consists of matter for which a

cross action might be brought, . . - 117, 118

unliquidated partial failure of consideration is held to be no de-
fense in some of the states, - - - 118
in others it is allowed, and in several by statute, - . 119, 139
for partial failure of consideration there is generally some remedy, 122
remedy w^here the partial failure is a default in the performance

of some other stipulation in the same contract, - 123-129

instances of defense of that nature, - - . 124-129

where part of consideration fraudulent or Illegal, - 129

where execution of note procured by fraud, ... 131

holder cannot appropriate general payment to, if part of consid-
eration illegal, ... . . 133

parol evidence to show want or failure of consideration, - 134

instances of same, ... . - 134-146

limitation of the right to affect note by such evidence, - 137

liability on premium note given for open policy, - 136

liability on accommodation paper, . 136

it may be shown that note delivered on conditions, - 138

S42 GENEEAL INDEX.

PROMISSORY NOTES, Etc.— continued. Pages.

amount recoverable as principal sum. against drawer and in-
dorser, - - - - Vol. II, 147

in acceptor's action against drawer the bill is only an item of evi-
dence, . - . . - - - 148
drawer's contract is conditional, ..... 148

what the drawing and negotiating of a bill implies, - - 148

the indorsement of bill or note is like the drawing of a bill, - 148
the warranty of the indorser, - - - - - 149

warranty on transfers without indorsement, ,- - - 149

measure of damages against drawer or indorser, - - 149, 150

interest on, .... ... igo

only allowed before maturity when expressly provided for, 150,

154
general promise sufficient, ..... 150

collectible on debt for which a note or bill was promised, 154

if payable on demand, interest does not commence until de-
mand, - - - - - - 155

when not stipulated, allowed as damages at rate given by the

law of the place of contract, - - . . 1,5,5

liability of drawers and indorsers for interest, - - 156

what notes are deemed payable in money, ... 15&-163

opinion of Campbell, J., in Black v. Ward, .... 156

measure of recovery when note given payable in a special cur-
rency, not legal tender, --..-• 162
exchange and damages on bills dishonored, - - - 164r-184
the practice in respect to purchase and sale of foreign bills in
England, ... .... 165

when re-exchange or- damages not recoverable, - 173-174

only allowed in favor of parties at whose risk remittance is made, 174
by what law the liabilities of the parties governed, - 175

stipulation for attorney fees and costs in notes, - - . 185

do not render note uncertain, - - . - I86

value of notes and bills, .... 188-190

the value the measure of damages against parties by whose fault

they are lost, - ... 189, 190

damages recoverable for conversion of a paid note, - - 190

vendor's action on notes given for purchase money of lands, 199

when receipt of them by creditor payment, - Vol. I, 371-379

one in possession of, may receive payment, ... 337

in Kentucky not necessary for jury to notice credits on, - 396

interest on, - - - - - - - 618

law of place of contract, ...... gsg

PROOF OF VALUE —

of goods, 795; Vol. II, 43, 188, 373, 375, 444; Vol. Ill, 463, 476, 490^94
of the value of crops, ..... Vol. I, 194
dogs, 803

GENERAL INDEX. 843

PROOFS OF LOSS (see Insttrance) — Pages.

stipulations for, how construed and enforced, - Vol. Ill, 70, 71

should be made at the time and in form required by the
policy, --..... 70

how construed, - ..... 71

may be waived expressly or by conduct, - - - 71

when waiver of, a question for the jury, - - - - 71

preliminary, for information only, . . . . 73

effect of, - . . ..... 72

cases relating to, ---... . 73

PROSPECTIVE DAMAGES —

when recoverable, .... Vol. I, 175, 190, 193

to insurance agent, --... -110

in cases of personal injury, - . Vol. Ill, 361, 379, 380, 733, 733

for recovery in advance, how present worth ascertained, - 733

PROVOCATION —

effect of, as a mitigation of damages, - - Vol. I, 338, 239, 231

in case of assault and battery, ... Vol. Ill, 737

libel and slander, ...... (391

PROXIMATE CAUSE —

damages hmited to, - - - - - Vol. I, 18-73

PUBLIC USE —

when entire demised premises taken for, rent ceases, - Vol. Ill, 138

taking part produces no effect between landlord and tenant, 138

each entitled to his compensation, - - - 138, 139

apportionment of damages between landlord and tenant, - 139

the power of eminent domain, ..... 430

what is subject to be taken, - - - - - - 430

what is a public use, ..... 430

taking of property for, subject to condition of making just com-
pensation, ....... 430

what the compensation must be, ... 430, 433

universally provided for, ..... 431

scope of compensation in cases of taking for, - - 430-438
measure of, and the facts which may be taken into consider-
ation, - - ... 433
the injury of property for use for dock purposes by erection of a

bridge should be compensated, . - . . 441
the compensation should be the difference between the value

before and the value after the erection of the bridge, 441
the damages should not be computed with reference solely to any

particular use, ....... 441

the jury should consider the market value of the land before

and after the injury, - - - - - 441

everything which gives the land intrinsic value should be con-
sidered, - ...... 441

and all its capabilities for any use, - - - - 441

844 GENERAL INDEX.

PUBLIC USE — continued. Pages.

a mine in the land condemned is only to be considered so far as it

affects market price, - - "Vol. Ill, 441, 442

aggravations connected with the entry to take and use land for
public purpose are to be considered only with a view to com-
pensation, .... 443

no allowance for remote or fanciful damages, ... 443
none for new competitions, - ... 443

nor for changes made by the progress of the age, - - 443

none for inconveniences suffered alike by the whole commu-
nity, ... 443
allowance should be made for expenditures made necessary by

the taking of part of a tract to protect residue, 443

the expense of fences and farm crossings, - - 443, 445

not if the railroad is required to fence it, 444

in the assessment of damages it is assumed that it will be appi-o-
priated and used according to law, and all legal duties per-
formed, - - - 444, 464, 465
what included and excluded in assessing compensation where

one railroad crosses another, - - 445

where a highway laid over a railroad, - - 445

if a building must be removed from land condemned, the ex-
pense of and loss of time in removal to be assessed, - 445
and expense of restoring adjacent structures, - 445
damages assessable, when allowed, for changing grade of street

adjacent to ground built on, - - 445

not confined to injury from vtdthdrawing lateral support, 445, 446
property taken for one public use may be again condemned for

another, - . . . . . 446

how damages then apportioned, .... 446, 449

what a condemnation wUl include, .... 446, 447

the right to remove other property, .... - 447

the injury to all partial interests to be compensated, - - 447

the division of ownership not to increase total compensation, - 447
to whom payment of compensation to be made, - - 448

the necessary investigation of title, - - . 448

where a claim has accrued to an entire tract by construction of
railroad over part, the damages though not assessed belong to
then owner, ... . 443 449

with reference to what time should damages be assessed, - 449-453
how damages assessed when taken for public use and improved
before condemnation, ...... 451

deduction for benefits, ...... 452-461

in Kentucky, ...... 456

proof of value and damages, ..... 453

effect of judgment, .... 454^ 455

owner may demand further damages where there is a change of

the plan of public use, making it more injurious, 465

when interest allowed on the damages, - - 465-468

GENEEAL INDEX. 845

Pages.
PUNITIVE DAMAGES, see Exemplary Damages, - - Vol. I, 71G

PURCHASER —

his right to rescind for sellei-'s inability to convey a good title,

Vol. II, 203
he is entitled to perfect title, - - - - 302

effect of his taking and retention of possession, . - - 303

right of recoupment for defect of title, - - - 303

measure of recovery against, for land where the price is not

fixed by the contract of sale, - - 204

measure of damages in his favor against vendor who is unable

to convey a good title, - - 207

the rule laid down in Flureau v. ThornhiU, - . - - 307

doctrine of this case adhered to in England, ... 308

what exceptions there admitted, .... 309, 210
conflict of American decisions, ... 211-221

the general rule is the same as applies in other cases, but relaxed
in many jurisdictions where vendor unexpectedly finds him.
self unable to make title, .... 212-214, 221

this exception not universally recognized, - . - 215

sometimes disapproved when followed, ... 216-330

elements of damage tinder the milder rule, - 231-335

elements of damage where Flureau v. ThornhiU does not apply, 337
where the vendor has extinguished or bought in the adverse

title, - - - - - 228

his right of recovery when contract not in writing, - - 323

rights of a defaulting purchaser, .... 338-333

rights of, on rescission of contract, ... 332, 345

•adjustment of equities between vendor and purchaser in suits

for specific performance, - - 384, 349-352

allowed more liberally than to vendor to have specific perform-
ance as to part, compensation being allowed as to residue, - 253
after acceptance of deed, must look to covenants in latter, - 253
extent of his right of recovery for breach of the covenant of

seizin and good right to convey, - - 257

damages recoverable by, on vendor's breach of contract for sale

of goods, - - - 865, 868, 369

consequential damages recoverable by, - - . 397, 424r436

PURCHASE MONEY —

vendor's right to collect before conveyance, - - 192

purchaser's defenses against collection of, - - - 198-303

what may be shown on defense to note for, 137, 143, 143, 145, 146

defenses and cross-claims against, - - - 331-346

in New York there must be eviction to entitle a party sued for

purchase money to defend on the covenants for title, - 381-338

in Alabama recoupment for breach of covenants for title not al-
lowed at law in actions for, ..... 333

846 GENERAL INDEX.

PURCHASE MONEY — continued. Pages.

nor in Mississippi where there is a partial failure of title, Vol. II, 334, 335
it is deemed that the incidental questions necessaiy to full deter-
mination of such cases require the exercise of the jurisdiction
of courts of equity, ..... 338-335

in Maine and Massachusetts it is no defense at law to a purchase

money note that there is a partial failure of title, - - 335

in other states recoupment allowed against, where there is a
right of action for substantial damages on the covenants for
title, - - ' -. 335

effect of the code in blending equity and legal jurisdiction, - 336

chief point of conflict, where such defenses allowed, has been

with reference to the effect of the covenant of seizin, 337

courts of equity exercise the most effectual jurisdiction, 337

where the only covenants in the deed ai'e those of warranty and

for quiet enjoyment, there must be eviction, ... 335
doctrine in South Carolina, .... 339-343

doctrine in Texas, ....... 342

doctrine in Pennsylvania, .... 343-346

defenses to actions for, in case of sales of pei'sonal property, - 437
none where there is no fraud nor warranty, - 437

QUANTITY —

what description of land in contract implies no warranty of, - 350
measure of damages on breach of warranty as to quantity of
land conveyed, ...... 237

QUANTUM MERUIT —

recovery on, for services rendered, ... . 440

any evidence admissible to show merit and value, as well as to

controvert same, - - 443

good defense that service so unskilfully and carelessly done as

to be of no value, - - - 443

what they are reasonably worth may be recovered, if faithfully

performed, though employer not benefited, - - 442

instances, - - ... 443^ 443

attorneys may recover for their services on, ... 445

and brokers, - - 449-451

services may be recovered for on quantum meruit, where they

have been rendered under contract void by the statute of

frauds, if employer repudiate it, - - - - 453

when services verbally agreed to be paid for in land, - 453

recovery by employe on, for services, 440, 443, 457, 459-463, 466, 471
when recovery may be had on, for services performed under en-
tire contract not completely fulfilled, - 454-467
when recovery may be had on, for work done under special con-
tract partly performed, - . 458, 467
contracts for personal services, on implied condition that life
and health continue, and recovery may be had for any work
done, if prevented from completing by sickness or death, - 463, 463

GENERAL INDEX 847

QUANTUM MERXnT — continued. Pages.

general discussion of, for part performance, - Vol. II, 465, 466

this claim, when the privilege of quitting at pleasure reserved
in contract, - - - - 467

recovery may be had on, for services performed where employer

gives servant cause to quit or wrongfully discharges him, 471

in contractor's action on, contract price should be taken as true

value of work done, - - 507

recovery may be had on, for part performance, where entire
contract has been rescinded, or full performance prevented by
law or act of God, - 507

there is then an apportionment of so much of the agreed com-
pensation as he has earned, - - - 508
recovery may be had on, when there is a deviation, by consent,

from contract, - - 508

when recovery for part performance requires this count, - 509

when recovery cannot be had in general assumpsit, - - 509

effect of fraudulent or intentional violation of contract, - 509, 517
where objection for delay in performance waived, - - 510

what will be a waiver of objections to work, so as to entitle

contractor to recover on, ... - 511

recovery on, is not precluded by the contract having provided for

payment otherwise than in money, - - 513

recovery allowed in some states for part performance of contract ,

where there has been an honest endeavor to fulfil it, - 516

in such cases recovery can be had to the extent of the benefit to

the employer, - 517

such recovery limited to particular cases, - 517

what is a substantial performance for the piu*pose of this equi-
table recovery, ... 517-519
what deductions wiU be allowed, - - 517
contractor may recover on, for work done, where employer stops

the work and prevents full performance, - 521, 532

claim on, how affected where contract intentionally violated. Vol. 1, 160

claim, interest on, - - ... 588

between vendor and purchaser, .... 592

tender may be made on, ...... 443

claim for use and occupation is such, ... Vol. Ill, 110

QUIET ENJOYMENT, COVENANT FOR —

what is a breach, and the measure of damages therefor, Vol. II, 280, 381
implied condition on which tenant bound to pay rent. Vol. Ill, 116, 140
damages for breach of, may be recouped against rent, 173

measure of damages in favor of tenant against lessor, - 148-156

RAILROAD COMPANY —

on condemning land for right of way, may take less than legal
width, and less than that described in petition, ... 446

8i8 &ENEEAL INDEX.

RATE OF EXCHANGE— Pages.

^when creditor entitled to it in addition to debt, - Vol. I, 342

REAL PROPERTY —

damages for withholding, . - - - Vol. Ill, 339-351

injuries to, - - - - - - - " ^^^

trespass to, ------ - 363-391

injury to inheritance, ------ 393-394

damages on contracts relating to, exceptional, - - Vol. I, 130

stipulation of damages for breach of contract to buy or sell, - 506

RECEIPT —

when note given in place of, facts may be shown in defense to
action on the note, - . - Vol. II, 145

RECOUPMENT AND COUNTERCLAIM —

definition and history of recoupment, - - Vol. I, 361

formerly sums certain, and even quantum meruit claims, not sub-
ject to defenses for reduction, - - 261-264
founded on the natural equity that connected demands shall com-
pensate each other, - - - 365
it is also founded on the policy of saving litigation, - 365
not confined to oases of fraud, ... - 264
it is a mutual set-off of demands growing out of the same trans-
action, - - - 365
it is not based on failure of consideration, - - 365, 369, 370
but on the opposite principle, - - - . 270
some American cases proceed on that theory, . . - 265
and also English cases, - - - 366
finally the English counterclaim settled in Mondel v. Steel — a

mitigation of damages, . - . . - 266

constituent features of recoupment, - - - - 372

defendant's claim for, must not be a void cause of action, - 273

differs from mitigation of damages, . - - - 373

Judge Bigelow's resume of recoupment, . - . - 370

defendant's claim must be against the real plaintiff, - - 374, 375

a demand against a sheriff for his tort cannot be recouped from

his demand in behalf of execution creditor, - - 374

damages for fraud of executors in sale cannot be used as a de-
fense to purchase money due them as executors, 274
cross claim belonging to defendant and another, admissible, - 275
a surety may set up demand due principal, - - . 375
this refused in New York, ----- 275
where plaintiff is an assignee, ----- 275
where note sued on taken by husband payable to his wife

without consideration moving from her, - - - 375

whether defendant's cross claim must be due when action

brought, - - - - . 275, 27.6

defendant's demand must arise out of the same transaction as the
plaintiff's cause of action, ------ 277

GENERAL INDEX. 849

RECOUPMENT AND COUNTERCLAIM — continued. Pages.

whatever the nature of the contract, damages may be set off by-
recoupment, - - - Vol. I, 279, 280
master may recoup for servant's negligence in his action for

wages, 380

or for any tort or misconduct in connection with his employ-
ment, - - - 280; Vol. n, 476^78, 504, 511, 512
mutual right of, between pledgor and pledgee, VoL I, 280, 281
between landlord and tenant, 385; Vol. Ill, 172-177
between carrier and shipper. Vol. I, 281; Vol. Ill, 203
between vendor and purchaser, Vol. I, 277, 381, 383, 289, 290;
Vol. II, 137, 143, 143, 145, 146, 202, 381-346
against notes and bills, - - 112-129
against physician's suit for services that he carried small pox,

Vol. I, 281
where contract on the part of plaintiff has been executed, 281

Judge Bronson's statement of the doctrine of, - 383

the transaction the same though notes be given on one side, or

agreement be only in part written, - 284, 291

may be connected though agreement relate to distinct things, 283, 285,

291
there may be recoupment against claim arising on contract,

though cross claim be for a tort, - . . 387, 393

explanation of counterclaim, - - - - 337, 388

the damages may be unliquidated on either or both sides, - 293

must be pleaded and proved by defendant, 298, 294, 297, 301

recoupment available only as a defense; defendant cannot re-
cover a balance, - - - - - 393
defendant has an election to recoup or sue, - - - - 294
but it must be practicable by recoupment to do justice, - 295, 296
judgment on a claim offered for recoupment, a bar, - 298
recoupment for breach of warranty in actions for purchase

money of personal property, ... Vol. II, 438

for fraud in sale, - ... 43a

REIMBURSEMENT —

agent entitled to, ..... Vol. Ill, 46

RE-EXCHANGE ON BILLS DISHONORED, - - Vol. II, 16*

what re-exchange bUl may include, ... - 164

not necessary to the right to re-exchange that re-exchange be
actually paid, - - - - 164, 165

the doctrine of re-exchange founded upon equitable principles, 166

the amount depends on actual course of exchange, - - 166-169

question whether acceptor liable for, ... 169-171

liable to reimburse it to drawer, .... 169-171

when not recoverable, - ... - 172^ 173

not allowed on promissory notes, .... 173

but damages equal to rate of exchange between the place where
sued and vpliere payable, ...... 172

Vol. Ill— 54

850 GENBEAL INDEX.

RE-EXCHANGE ON BILLS DISHONORED — continued. Pages.

such damages do not depend on any principles peculiar to com-
mercial paper, ....-- Vol. II, 173
notes may be drawn to include exchange, ' - 173

damages in this country given in lieu of re-exchange, - 173

RELEASE —

definition of, Vol. I, 433

differs from accord and satisfaction, ... 434

when a seal not necessary, - - 434

agreement without seal can operate to discharge a demand if

upon sufficient consideration, - - 434

a release not under seal and without consideration, void, - - 434

a mere receipt may have the effect to discharge a demand, - 434

scope of release, - ... 434

constmction of, ... 435^ 436

release by one of several entitled to claim, - - 435

effect of, when executed by or to one of several claiming or

liable, 435

release of one of several discharges all, .... 436
a simple contract cannot operate as a release and be pleaded as

such, ... r 438

may so operate by way of accord and satisfaction, - - 438

what acts will operate as a release, ... - 440

covenant not to sue, - ... 440

release of the principal will release surety, - - 443

a release by express provision may release one and except others

from its operation, - - - - 442

a release cannot take effect in futuro, .... 442

REMITTITUR —

to cure error or remove objection of excessive damages, - - 813

the court may indicate amount to be remitted, - - 813

when and how excess should be remitted, . - - 814, 815

REMOTE CAUSE —

as distinguished from proximate cause, ... 30-73

RENT —

actions for, - .... -Vol. 111,113

amount, how fixed, - -----113

construction of rent agreement, - . . 113-114

when payable in a proportion of product of mine or quarry, 113, 114
contract to pay, in specific articles, - - 114

effect of surrender, eviction or other determination of lease
during the term, ...... 114_116

apportionment of, ----- - 116-120

follows the reversion, ------ 121

covenant for, runs with land, -----. 131

loss of, when item of damage to landlord, ... 155

GENEEAL INDEX. 851

RENT— continued. Pages.

no abatement of, on account of bad condition of the demised

premises, - ... Vol. Ill, 126, 140

nor on partial destruction, - - . - . 126

entire destruction of premises ends liability for rent, - - 137

same result from entire premises being taken for public use, - 138

so when lessor's estate is determined or defeated, - - - 138

interest allowed on, though payable in service or property, - 139, 130;

Vol. I, 606
doctrine in Virginia, ... .Vol. Ill, 131

conditional agreement for reduced sum for prompt payment.

Vol. 1, 498
when lien for, discharged by purchaser, he may recover on im-
plied warranty of title, ..... Vol. II, 431

RENTS AND PROFITS —

what account made of, on rescission of land contract, - 346-348

vendor's liability for, when he withholds possession, - 385-341

consideration of, in reduction of damages for breach of cove-
nants of seizin and good right to convey, ... 366-373
same in case of breach of covenants of warranty and for quiet

enjoyment. 300, 301

See Mesne Profits.
REPAIRS —

consequential damages for non-repair of highway, - Vol, I, 31

of fences, ... . . . gg

mitigation of trespass on the ground of plaintiff's fences being

out of repair or defective, - - 354

damage recoverable against lessor for failure to make. Vol. Ill, 166, 171

such damages may be recouped against rent, - 173

covenant for, . . ., 131

binds covenantor to make good any injury to premises, - 131, 133

extends to new buildings, - - 133

does not bind tenant to insure against natural wear and

decay, - - - - - 133

nor to give landlord new buildings for old, - - - 133

how term good repair construed, .... 133

covenant for, to be construed according to its particular words, 133
exception of damages by the elements or acts of providence, - 133
covenant to keep outside premises in repair, - 133, 134

damages, how recoverable for continuing breach of covenant to

repair, - - ... I34

what not a continuing covenant for, - - - . 134

rheasure of damages for non-repair in action by landlord during
term, .... . 135-140

, where landlord has made the repairs, - - - 139

measure of damages for tenant's failure to repair at end of his
term, 139,140

53a

,539

539

540

-

539

538-540

-

539

540

-

540

540,

, 541

-

541

543,

543

546,

547

852 GENEEAL INDEX.

REPAIRS — continued. Pages.

where there is a covenant to insure for stated sum and to repair,

Vol. Ill, 140
covenant for, runs with land and binds assignee of the term, - 140
damages for repairs and non-repairs in special cases, - - 141.

REPLEVIN —

aggravations connected with wrongful taking of property prov-
able in, without special allegation, ... Vol. I, 767
measure of damages in, when plaintiff obtains property. Vol. Ill, 538,

'543

securities for money, - - • - .

corporate stock, ......

Sioux half-breed scrip, ....

damages in, limited to compensation, ...

interest on value or value of use recoverable, -
value of fence not recoverable in replevin for materials, -
exemplary damages recoverable in, -

aggravations need not be averred, ...

special and consequential damages in, -
damages in, when property not obtained on the writ,

when alternative judgment must be rendered,
when value recoverable, at what time taken,
recovery for depreciation or destruction of property between

taking and return to owner, - - 547-553

where the value has been increased by vrrongdoer, - 553-555

damages recoverable by defendant, .... 556

a plaintiff obtaining possession by, and failing in his suit, a
wrongdoer, ...... 550, 558, 559

measure of damages in favor of defendant, ... 559-561
special and consequential damages recoverable by defendant, 561

what may be estimated as part of the property replevied, and

what must be estimated as damages, - . - 563-571

mitigation of defendant's damages, - - - 571

how recovery affected by special interest of prevailing party, 573

recoupment in, ....... 573

recoveries where part of property found for each party, - 573

REPLEVIN BONDS —

the original condition, ...... Vol. II, 43

the condition to prosecute, and that to return the goods if return

be awarded, independent, ..... 43

what the former requires, - - - - 43

on forfeiture, there can be recovered, within the penalty, the

value of the property and costs of the replevin suit, - 43

the liability of the sheriff for taking insufficient bail, or other
official neglect resulting in a loss of the security, governed by
the same rule, - - - - - - -43, 44

the condition for return, ..--.- 44

GENEEAl INDEX. 833

REPLEVIN BONDS — continued. Pages.

defendant may, but is not obliged to enforce return by writ, Vol. II, 44
he may sue at once on the bond, - - - - - 44

the provision for the return of the goods is for the benefit of the

defendant, - - .... 44

the consideration and import of it, - . - - 44 45

the condition required by modem statutes more direct and precise, 4S
there are generally three conditions — to prosecute to effect or
to final judgment; to return the property if adjudged, and to
pay such sum as shall be recovered in the replevin suit, - 45

explanation of them, - - . . - 43, 46

•whsbt is a breach and what a satisfaction of them, - - 46

not necessary to assess damages in the replevin suit, ,, - - 46

if there assessed and paid, they cannot be again assessed on the
bond, - ... .48

when sureties not bound by the judgment in the replevin suit, - 47
measure of recovery on the bond not invariably the value of the

property and interest, - - 47, 48

when returned interest will compensate for delay, but not deteri-
oration, - . - 48
neither plaintiff nor defendant can claim damages for depreciar

tion while he has the property in his own possession, - , 48

the party in default should be charged with the value of the

property at the date when the duty to return attaches, - 48

if of less value than when taken, the difference should also be

compensated, - . - . . - - 7 48

and such damages are recoverable on the bond, - 48

the statement of value in the bond evidence against the plaintiff

and his sureties, - ..... 49

the defendant is not bound by that valuation, - - 49

if the value has increased in the possession of the obligor, the
obligee is entitled to the benefit of it, - - - - 50

not, however, if the value has been increased by the labor of the
obligor, ---- ..-50

interest recoverable on the value, from the time of fixing the
value, ........50

also special damage, if any, .... 50

expenses of procuring teams, etc., to remove the property, ren-
dered useless by the replevin, have been recovered, - - 56
attorney fees incurred in the replevin suit, it has been held, can-
not be recovered on the bond, nor compensation for the obligee's
attendance in court in that suit, .... 50

it has been ruled otherwise in Alabama, - - - - 51

effect of the judgment in the replevin suit, ... 51

how far conclusive upon the parties and sureties, - - .51,62

what may be shown in defense, . - . - 52

the limited nature of the obligor's property, or that be had
none, may be shown, if not precluded by the judgment in
replevin, - - - - - - -- 53-54

85-i GENEEAL INDEX.

REPLEVIN BONDS — continued. Pages.

when the obligee will only be entitled to recover as special owner.

Vol. II, 54
not 80 when the replevin suit brought by a mere stranger, without

right or title, - - - - 55

bond by the defendant to retain the property, - - - 57

measure of recovery thereon, .... - 57

EEPORT —

agent bound by his, to principal, . . - . Vol. Ill, 4

REPRISALS —

against damages for detention of dower, ... 35S

RESALE —

damages on contracts of sale, when measured by price on re-
sale, - - - - - Vol. I, 81, 84, 92, 131
when evidence of value against a vendee, - Vol. II, 198, 359, 360

RESCISSION —

the parties to be put in statu quo on, and for this purpose com-
pensation to be reciprocally made for what has been enjoyed, 245
payments to be recovered back and expenditures compensated, 245, 246
in equity, allowance to be made purchaser f or.beneflcial expend-
itures, either in improvements or repairs, ... 345
limitation as to time of, - - - - - 245

rents to be deducted, ...... 345

where vendor cannot make title to part, vendee may elect

whether he will rescind in toto, or as to that part, - 245

compensation in case of election to rescind in toto, - - 246

compensation in case of partial rescission, - - 246

allowance for improvements, taxes, etc., only made in account

for rents where only nominal damages allowed for loss of the

bargain, .... . 347

and purchaser will be charged with any waste or deteriorations

by his act or negligence, - - 247, 248

the compensations to purchaser where, for vendor's default, he

is entitled to recover the value of his bargain, - . 243

recovery for total breach of contract of seizin and good right to

convey not on theory of rescission, 264

defense of failure of consideration produces it, - . - 128

adjustment of the right of the parties on rescission of a land
contract, .---.-.. 232

RES GEST^ —

defendant entitled to prove, in mitigation, - Vol. I, 244, 260, 776

RESPONSIBLE CAUSE —

it must be the efficient cause, - - . - 40-46

when such, it is immaterial what other causes concur or co-
operate without the plaintiff's fault, ... 61-73

GENEEAL INDEX. 855

RESTITUTION AFTER REVERSAL— Pages.

action may be brought for, ----- "Vol. I, 830

may be obtained by motion, ----- 830

what may be restored, ------ 830-833

when discretionary, ------ 833

RETURN OF PROPERTY TORTIOUSLY TAKEN —

goes in mitigation, ----- 239

a mitigation in case of wrongful attachment, - - Vol. II, 60

in trover, Vol. Ill, 528

right of defendant to return property, - - - 556, 557, 560

REVERSION (see Inheritance) —

damage to, - - ----- 393

what the declaration in action by reversioner should allege, - 393

definition of, and damages for waste, . - . 393, 394

rent foUows it, Vol. I, 131

injuries to, in case of non-repair, - - - - 135-140

RIPARIAN OWNER —

rights of, ------- - 13

may recover for polluting stream, ----- 96

may recover for loss of opportunity to rent mill, - - 98
inconveniences in working of farm, caused by pollution of
stream, -- -----96

what provable under general allegation, - - - 766

ROADS AND BRIDGES —

consequential damages resulting from non-repair, - - - 31

ROOF-

damages for breach of contract to roof a livery stable. Vol. II, 489
ROPE —

damages for breach of warranty of suitableness for crane, - 430

SALES —

damages for breach of contract for, - Vol. I, 83, 91, 173, 174

when measured by price on resale, - - - 81, 84, 93, 131

when contract made for special use of property, - - 75, 80, 83-88

when agent entitled to make, to reimburse himself, - Vol. Ill, 47
when he is liable, and to what damages, for making sale con-
trary to instructions, - - . - . 30-87

SALVAGE —

requisites of salvage service, - - - - Vol. 11, 538

how claim for, distinguished from one on the quantum meruit, 528
a quantum meruit claim may be good for services not amounting

to salvage services, - . - . 533

a specific amount may be fixed by agreement, - - 528

such agreement will not be set aside because a hard one for the

salvor, - - - - 528

what wiU liniit the claim of one hired to assist, - - 539

S56 GENEEAL INDEX.

SALVAGE — continued. Pages.

contracts . for exorbitant amounts for salvage service will be
closely scrutinized, ------ Vol. II, 529

a special contract must make the compensation depend on saving

the property in peril, - . . - . 529
parties may agree on the principles on which salvage service

shall be compensated, - ' . . - . 530

what is necessary in respect to the peril, - - 580

how the claim affected by the claimant's duty to the vessel, - 530

salvors cannot force themselves on a vessel in distress, - 530

the objection to seamen being salvors, .... 530

when they may be such, ------ 531

when pilots may be, - - ... - 530, 531
property must be saved by salvage service, ... 533
those are salvors who begin the service and successfully prose-
cute it, though wrongfully interrupted, - - . 533
ship, cargo and freight saved make one salvage fund, - 533
salvage is a single service, - .... 534

amount recoverable as salvage, - . . . . 532

it is in the discretion of the court, ..... 533

the amount is not reducible to rule, - - . . 533

depends on the peculiar circumstances of each case, - 532, 533

the amount varies from one-eighth to half of the property saved, 583
when less is allowed it is usual to adjudge a compensation in

' ■ numero, - .-.-.. 533
there is made a fair division of the saved property between the

owners and the salvors, - - - . 533
what may be considered to enhance the merit of salvage service, 583
where money is saved, a fifth or a tenth, according to circum-
stances, has been allowed, - - - 534
under special circumstances the whole net proceeds have been
awarded. ...... 533^ 534

in awarding on a foreign vessel the rate vrill be that of the courts

of the owners' country, - .... 534

the rate for services at sea inapplicable to rivers, - - 584
where there are several sets of salvors they do not have separate

liens, for salvage service is a single service, - 584, 535

derelict property, -----. 535

salvage on, governed by sanae principles as where other prop-
erty involved, ..-.-.- 535
amount allowed out of such property, ... 535
reasons why reward for services in cases of such property should
be liberal, ....... 535

salvage forfeited by misconduct, - - . - . 536

what is such misconduct, ...... 536

SAMPLE —

implied warranty in sales by, ..... 410

GENEEAL INDEX. 857

SATISFACTION— Pages.

effect of satisfying judgment for total breach of covenant of
seizin and good right to convey, - - - VoL U, ?65

SEAMEN —

reasons for excluding them from claiming for salvage service, - 530
under what circumstances they may be salvors, - - 531

SECUEITY —

released by tender, ...... VoL I, 471

SEDUCTION —

what is admissible in mitigation in father's action for, - 253

master's action for, not mitigated by offer to marry, - 244

in fathers action, mitigation that he not married to mother, 253'

carelessness in affording opportunities, - 254

actual connivance a bar, 254
an aggravation of damages in action for breach of marriage

promise, VoL III, 316, 328

the technical not the real gist of the action for, 735

there must be some loss of service, or expenses incurred, 736-740
an action for, not maintainable on mere relation of parent and

child, - - - 740

who may maintain an action for, - 737

recovery for, not Umited to the loss of service, - 735

nor to compensatory damages, - - - 739

what a jury may consider in the estimate of damages, - 739, 741

what may be considered in mitigation, - 742, 743

criminal conversation, — what must be proved in actions for, 744

damages for, - - - 744

evidence in mitigation, . . - . . 745

SEED —

damages for breach of warranty of genuineness, - - Vol. I, 111;

VoL n, 430^35
SEIZIN, COVENANT OF —

damages for breach of, ----- - 257

SEIZXTRE OF GOODS —

damages from, to business and credit, - - - - 59, 60

SEEVANT —

damages for enticing away, ... VoL I, 49, 54, 68

no recovery therefor in consequence of losses in dealings with

others hired in their place, - - - 54

beating an actor so he cannot perform gives latter's employer 110

cause of action, - - - »49

enticing away employes maliciously, - - - - 49

must exert himself to find employment after being discharged to

lessen damages, - - - - - - 150

recoupment in action for wages, .... 279, 280

liquidation of damages in contract with, ... 610

858 GENERAL INDEX.

Pages.
SERVICES — - - . - - - - Vol. II, 440

recovery on a hiring for fixed wages, ... - 440

on quantum meruit, - ..... 440

contract to pay may be inferred from circumstances, - - 440

and tlie price may be tacitly fixed by circumstances,. - - 440

duty to pay may be imposed by law when there was no intention r-

to pay, - ..... 441

promise generally implied to pay for, .... 441

may be made in a will, - . 441

no recovery for services rendered as a gratuitous kindness, 441, 443

trustees not entitled to recover for, .... 442

statutory day's worli, -..--.. 444

recovery for attorney's services, . - - . . 445

what may be shown to reduce recovery, ... - 445

commissions of brokers, - ... 449

when a broker sells goods to arrive pursuant to his employment he

may recover his commissions, though the goods fail to arrive, 449
he is entitled to compensation though his services do not prove

beneficial, - - - 450

where, by custom, he is not entitled to pay unless the business

entrusted to him is completed, - 450
where no special compensation agreed on he is entitled to cus-
tomary brokerage, - 451
if one not a broker employed to negotiate he is entitled to reason-
able compensation, - - - 451
a broker must perform his services in such manner as to reason-
ably answer the intended purpose, 451
if he or any agent so carelessly perform his services that they are

useless, he cannot recover for them, - - 451
he will forfeit his right to compensation by misconduct, 451
various modes of compensating, - - - 451
the compensation may be a share of net profits of a business, 451
may be a share of crops to be raised on a farm, 451
may be such sum as may be raised by voluntary subscrip-
tion for that purpose, . . - . . 453
may be specific property, - . . . . 453
and then if not delivered its value may be recovered, - 452
employer has a right to make compensation in mode agreed, 453
and if in no default, he cannot be required to pay otherwise, 453
this so though the contract void by the statute of frauds, - 453
but if he repudiate such void contract, services rendered under
* it may be recovered on quantum meruit, - 453
presumption of same terms where employe continues work, 453
necessity of full performance of entire contract, - - 454
dispensed with in certain cases, .... 457-463
where the right to quit reserved on giving notice, and notice not
given, - - ..... 464

GENEEAL INDEX. 859

SERVICES — continued. Pag^.

distinction made on a wilful breach of the contract of hiring, "Vol. II, 465

3ntire and apportionable contracts of service, - - 488, 471

wliether apportionable or not depends on the intention of the
parties, ..... 468

, illustrations of entire and apportionable contracts, - . - 468-471

liability of employer where he gives servant cause to quit or
unreasonably discharges him, - - 471-476

employe may recover damages on the contract, and recover ac-
cording to actual loss, 471

cannot afterwards recover in general assumpsit for services
actually performed, - - - 471, 473

full damages on the basis of wages cannot be prospectively
recovered, - - ... 473

after expiration of term, agreed wages may be recovered if there
has been a wrongful dismissal, - 473

but subject to reduction by amount the servant has otherwise
earned or could have earned, ..... 473

duty of dismissed employe to seek other employment, - 473

opportunity for other employment will not be presumed, but the
employer must show the deduction he is entitled to, 473, 474

in some states the employe as plaintiff must show diligence and
what his loss has been as part of his case, - - 474

employ^ "dismissed is not obliged to engage in a different busi-
ness nor go to another place, ..... 474
SEVERAL DELIVERIES —

contracts for, when severable, . . -

SEVERAL RIGHT OR LIABILITY, -

See Entirety op Damages.
SET-OFF OP JUDGMENT —

power of courts to order it, - - -

when it will or will not be granted, . - -

such set-off discretionary, - -

will be allowed only between real parties in interest,

cannot be granted until judgment rendered, -

assignee must make absolute purchase,

set-off does not depend on the nature of the cause for judgment ^
given, - - . - -

attorney's lien, .-----
SHEEP —

liability of owner for allowing, to trespass and communicate disease, 24

damages from trespassing sheep communicating disease. Vol. Ill, 383

SHERIFF — ■

damagesagainst, for neglect of duty, - - - VoL I, 246

SiCKNESS —

a ground of damage, Vol. Ill, 3o9

an element of damage for nuisance, - - - - 416, 417

-

356,

, 358

Vol.

I

, 203-219

311

.

.

311

.

313

-

313,

,314

-

315

iudgi

m(

3nt

315
316

.

.

316

860 GENERAL INDEX.

SIDE TRACK ON RAILROAD — Pages.

damages for breach of contract to build and maintain in front
of covenantee's lots, ------ Vol. 11, 493

SIDEWALK —

damages for removal of, - - - - - - 367

SLANDER AND LIBEL —

law implies some damage from, - - - - Vol. I, 13

provocation in mitigation, ----- 231

truth of words not provable in mitigation, - - - 333

necessary to give notice of excuse for uttering to prove it in mit-
igation, - . - - - 257
consequential damages from, - - - - 66

nature of the wrong, , - - Vol. Ill, 638, 668

the law decides what elements may enter into compensation for, 668

general damages for, need not be proved, - - 643, 651

left to the discretion of the jury, - - 643, 644

malice as an ingredient and an aggravation of, - 642, 650, 651

when plaintiffs good reputation may be proved, - - 655-657

what the jury may consider in their estimate of damages, 645, 661

repetitions of the same charge, - - 647-650

repetitions by others, ----- 671-674

that defendant knew the charge to be false, - - 652

refusal of editor to publish a retraction, . . - 653

expressions indicative of ill-will, - - . - 658

language and manner of publication, - 653

injury to feelings, . - - 645, 659, 664, 668, 669

the rank and condition of the parties, - 653, 654

evidence supporting or disparaging plaintiff's reputation, 655, 656
the action for, intended to aSoi"d indemnity and vindicate plaint-
iff's character, - - 651, 653
defamation of one in his office or calling, - - - 657-659
special damages for, - - - 660, 661-674
action for words not actionable in themselves, - - 663-673
how it differs from action for actionable words, - - 668
slander of title, - - - - - - 674

effect of pleading and not establishing justification, 675

in some states imsupported plea of justification does not neces-
sarily prove malice, - - - - 677

changes made by statutes, - - - - 678

proof of plaintiff's bad character in mitigation, - 679-685

must be of general reputation, not of particular acts, - 679, 680
as to the admissibility of rumors and common report, - 681-685

truth of the words not provable in mitigation, - - 685-688

generally allowed under statutes, . - . 688

other facts provable in mitigation, - 689-698

effect of giving name of author in repetition of slander, - 696

SLANDER OF TITLE, - - - - 674

Pages.

- Vol. I, 113

_

763

.

- 766

-

6

1. Ill,

383, 388

-

383-391

.

477-480

-

518

- 660,

661-674

GENEEAL INDEX. 861

SPECIAL CONTRACT—

damages recoverable on, ...

SPECIAL BAMAGE —

must be specially alleged, ....

in case of public nuisance,
necessary to private action for public wrong, -
in trespass to real property, to be alleged, -

instances, ....

in trespass to personal property,

in trover, .....

for slander and libel, ...

SPECIAL OWNER —

damages recoverable by, .... - VoL I, 310

entitled to recover full value against stranger, ... 340
recovery by legal holder of commercial paper -who has only a

partial beneficial interest, ... - Vol. II, 104^106

recoveries by, in other cases, - - 54, 55

his right of recovery in trespass to personal property, Vol. Ill, 473, 474

in trover, 434-427

in replevin, -....--- 573

SPECIFIC ARTICLES —

rent payable in, bears interest, ..... 130

SPECIFIC PERFORMANCE —

by vendor recovering full purchase money before conveyance,

Vol. II, 192
objections to, ....... 193

the practice in Pennsylvania, --...- 197
adjustment of counter equities in suits for, ... 334

damages decreed in suits for, --.-.- 349

SPLITTING OF CAUSES OF ACTION, - - Vol. I, 175-186

duty of banks to pay checks, an exception to rule against, - 497

See Entirety op Damages.

STATION ON RAILROAD —

breach of agreement to establish, ... Vol, 11, 350, 484

STATUTES —

8 and 9 Wm. Ill, and the effect, ...

3 and 4 Anne, and the effect, . . - -

statutes regulating security on appeals, -
STATUTORY BONDS —

their requisites, --.---
STATUTORY DAY'S WORK,
STIPULATED DAMAGES —

contracts to stipulate damages, valid,

damages can be liquidated only on a valid contract,

modes of liquidating damages, ...

1,89,

2

3

90, 93

7

-

444

Vol.

1,475

475

• 476

862 GENERAL INDEX.

STIPULATED DAMAGES — continued. Pages.

alternative contracts, ----- Vol. I, 477

stipulated damages as distinguished from penalty, - - 478

in what sense the intention of the parties governs, - 479-491

such agreements should liquidate damages for compensation, 479, 491,

513
a bond is prima facie a penal obligation, - . . 489

the use of the word penalty, or stipulated damages, in contract, 489
tendency and preference of the law to treat sum as penalty, - 490

not so when damages uncertain and otherwise difficult of proof, 490,

491
contracts for the payment of money, - - - 493, 555^ 777

a large sum to secure payment of a smaller, - .- . 497

where the larger sum is the actual debt, - 499

the real transaction may be investigated to ascertain if there is
a penalty, .-....-. 501

where the damages would be certain or otherwise, - - 491, 503

stipulatioas to liquidate uncertain damages favorably considered, 504

what damages deemed uncertain for this purpose, 505

contracts for good will of business, and for not engaging in it, 507

to liquidate damages for defaults on particular works, 508

stipulations for uncertain damages not sustained when the amount

is extravagant, - - - - . 509, 510

the question between penalty and stipulated damages will gener-
ally be answered according to the justice of the c9.se, - 512, 514
when doubtful, courts incline to penalty, - - - - 512

stipulations may fix part only of damages, ... 517

general statement of doctrine by Agnew, J, , - - 520

stipulations fixing same sum for total or partial breach, - 531

partial breach of agreement not to engage in a business, - 525

effect of part performance accepted when damages stipulated for

total breach, - - - 528

liquidated damages when in lieu of performance, - - - 529

not so when given for default or delay on some detail of con-
tract, ----- - - 530

STOCK —

damages on contracts for the sale or replacing of, - Vol. II, 882-387
for converting, - - Vol. Ill, 496-509

in replevin for detaining, --.-.- 539

STREAM -1

nominal damages at least to riparian owner for fouling, Vol. I, 11

what actual damages recoverable, - - - - 96

SUB-CONTRACT —

damages on principal contract may include, . - - 130

when damages on, excluded, --.-.- 116

SUBROGATION —

stranger paying debt not entitled to, » - - • 387

JSENEEAL INDEX. 863

SUCCESSIVE ACTIONS- Pages.

may be brought for continuing nuisance, - - Vol. Ill, 398, 399

damages recoverable in, - - - - - 398, 399

the principle requiring such actions, - - - - 400

See Nuisance; CoNTiNuiua Obligations and Wrongs.

SUIT —

for continuing cause, damages limited to commencement of,

Vol. I, 198, 203
damages for single tortious act, occurring after, recoverable, 175, 190,

193, 197
for wrongfully causing one to be sued, ... - 106

SUPPORT —

contracts for, entire or severable, .... 203

SURETY —

effect of assurance given by obligee that signing only a matter

of form, and that he should not be called on for payment, Vol. II, 146
a favorite of the law, - - - - - - 561

liability of, cannot extend beyond that of principal, - - 537

when bound to the same measure of responsibility, - - 537

only liable on his contract, ..... 538

obligations of, strictly confined to his contract, - - 541-548

it cannot be extended by implication, .... 541

instances of the application of this principle, - - 541-548

liability of, on bonds given for good conduct of clei'ks to a part-
nership afterwards changed in menbership, - - 541
his right on his principal making default on a guarantied con-
tract, ...•.---- 549

when liable to interest, ..... 537, 549, .550

liable like the principal for attorney fees when stipulated in the

contract, - ..... 550

or stipulated damages, ..... 550

discharge of, by creditor's conduct, - - - - - 561

whatever will discharge him in equity will have that effect at

law, ...-.-..561

his right of subrogation, - - - - - - 561

effect of creditor rendering securities unavailable to surety, - 562, 563
discharge by tender, - - - - 563

diligence required ol creditor to preserve securities, - 563, 565-567
not discharged by release of securities by creditor unless injured, 563
and only to the extent he is injured, . - - 563

illustrations, - - - ... 563-565-571

his right to defend between the principal parties, - - 571

and what defenses may be set up by principal and surety, or the
surety alone, ..... 571-574

failure of surety to defend, .----- 573

when sued alone may make the judgment conclusive as to the
principal by notice to defend, ... - - 572

864 GENERAL INDEX.

SURETY— continued. Pages.

entitled to indemnity for money paid for principal, - "Vol. 11, 576

the law implies a promise by principal to refund to surety all
sums he has had to pay as such, - - - 578

if there is an express indemnity surety confined to it, - - 576

the law implies promise of repayment by principal; not by all
persons who may be benefited, - - - 577

who may be considered principal within this rule, - - 577, 578

he has a right of action where he has paid money for his princi-
pal to the extent of the payment, - - - 578

it is not necessary to obtain leave of the principal to make the

payment, - . , .... 573

the law implies request, ... . 573

when he pays a debt in instalments, he is entitled to sue for each
instalment as soon as he pays it, - 579

he may pay the debt before it is due, but cannot sue for reim-
bursement until it would be due, ... 579

he must be legally bound to pay the debt, - 579

he is not bound to set up the statute of limitations where it has
not run against the principal, - - 579

the implied undertaking of the principal is one of indemnity,
and he has no right of action merely because the principal has
not paid the debt when due, - - 579

nor can the surety recover more than he has paid and interest
thereon, - ... 579

when he pays in depreciated curx-ency he can recover only its value, 580

he may recover the amount he pays to compromise, if there was
an actual liability, * 580

his relation of surety precludes him from speculating at the ex-
pense of his principal, - - x 580

if he has knowledge that the debt is tainted with usury, and
still pays it, he cannot recover from his principal beyond what
"the creditor could have recovered from the principal, - 581

he may pay a judgment against himself and principal, though
part is usury, and recover of the latter, - 582

usury which he pays to obtain- time to pay his principal's debt he
cannot recover, - - - 583

how surety's right to indemnity affected by statute limiting the
right of recovery of interest against a decedent estate, 582

what is payment by a surety to entitle him to recover for money
paid, ... . 583-587

liability of principal for costs incuiTcd by or recovered against a
surety, - - 588-590

principal not liable to surety for consequential damages, - - 590

contribution recoverable between co-sureties, - - 591

foundation of the obligation and legal liability to contribute, 592

who are and who are not co-sureties, .... 593-596
See Contribution.

GENEEAL INDEX 865

SURETY — continued. Pages.

adjustment of liability between different sets of sureties on

bonds of ofllcial depositaries of money, - - Vol. II, 23-37

the liability of sureties on a probate bond, ... 41

liability of, on a guardian's bond, - - - - - 41

surety in replevin bond, when bound by the judgment in the re-
plevin suit, ... . - 51
sums necessarily paid by, recoverable, - "Vol. I, 134
when sued on his agreement, what costs he may incur on account

of principal, - - - - - 135

not bound to pay principal's debt to lessen damages, - - 153

discharged by tender, - - - - 473

entitled to interest on money paid, ... - - 588

SURETYSHIP— " *"'

the contract of ,----- - Vol. II, 587

the contract of, interpreted like other contracts, - - 538

illustrations of the interpretation of such contracts, 91-95, 538-540

obligation of, not to be extended to any other subject, person or •

period of time than is expressed, .... 541, 549, 350

illustrations, ....... 550, 551

SURRENDER, see Landlord aito Tjenant, - - - Vol. Ill, 174

TAXES —

damages for failure to fulfil contract to pay, - - Vol. I, 139

to what extent a vendor is entitled to compensation for payment
of, on rescission, -.-.-. Vol. H, 337
TELEGRAPH —

clto^es, when an item of damages, . - - . Vol. I, 139

tele^aph company liable to nominal damages at least for failure
to send or deliver message, - - - 10

TELEGRAPH COMPANIES —

nature of the duty and responsibility of , - - Vol. Ill, 395

liable only for care, skill and diligence, .... 295

they may adopt reasonable regulations, .... ggg

that requiring repetition of message, reasonable, - - 396

exonerating them from liability for negligence, not so, - - 397

measure of damages against, .... 398-307

where contents of message not known to operator or affords

no information of its purpose, - - 398, 399

when contents known, effect of negligence, ... 300

illustrations, 300-307

construction of messages to give operator notice of object, - 307-314
action against, may be on contract or for tort, - 314

in England company owes only contract duty and not Uable to
receiver, - - .... 314

otherwise in this country, .----- 314

instances, ....... 315

Vol. Ill -55

866 GENEBAL INDEX.

TENDER— Pages.

on what demands tender may be made, - . - Vol. I, 443

when it may be made, - . - 443

strictly, only when there has been no default, - - - 444

by the old cases, should be made so money can be counted before

sunset, - ... 446

must be made in legal money, . . - 446, 447, 454

who may make tender, - - 448, 453

strict authority as agent to make, not required, - - 449

to whom tender must be made, - - 449

must be sufiScient in amount, , . . 45I

creditor not obliged to receive part of a debt, - - - 451

tender on a bond should be of the amount due by the condition, 452
tender not invalidated by being more than the debt, - 452

how tender must be made — money must be present and produced, 455
production of the money may be dispensed with, - 456, 467

must be unconditional, 7 - 459

cannot be clogged with any condition to which creditor can rea-
• sonably object, 459, 461

an offer of a sum in full of a demand is not good, 459

asking for simple receipt will not vitiate, - 460

tender to pay negotiable paper may be accompanied by demand

of its surrender, - - 462

when mutual acts tp be done, - - - 464

effect of tender accepted, ... 464

acceptance of tender in full operates to satisfy the demand, - 464, 465
appeal is not waived by acceptance of payment, - 465

tender must be kept good, .... 464

not necessary to keep identical money, - - -\ 465

tenderer must always be ready to pay the money when requested, 465
refusal of the money tendered on demand vitiates the tender, 466

deposit with a third person, and notice, unavailing, 466

though tender made by agent or attorney, demand should be

made of the debtor, - 466

demand must be made of the precise sum tendered, - - 466

must be made by some one authorized to receive it, - 466

when tender made for two, demand of one sufiScient, - - 466

if tender made in conventional funds with which the debtor has
a right to pay, creditor refusing it must bear loss of a subse-
quent depreciation, - - 466
effect of waiving strict tender, - - 467
will stop interest, - .... 467
must be pleaded and money paid into court, ... 468
what must be alleged, - . 468
how plea of, should conclude, - ... 473
effect of plea of, - - 468
plaintiff entitled to take the money paid into court, . 469
not so, the money paid into coui't, in equity, on bUl to redeem,
where dsfendant contests and succeeds, . . 469

GENBRAL INDEX. S67

TENDER — continued. Pages.

effect of regular tender when money paid into court, "Vol. I, 470, 473
effect of tender on collateral securities, . - - - 471

when insufficient sum paid into court, . - - . 473

TENANT. See Landlord and Tenant.

TENANTS IN COMMON —

may apportion rent between themselves, - - Vol. Ill, 125

TERM OP YEARS —

right to land for, how estimated as an item of damages for
breach of the covenant pf warranty, - - Vol. II, 294, 295

TITLE —

implied warranty of, ----- - 411, 412

on purchase of notes, shares, etc., - . - - 413, 413

exception in cases of sales by executors, etc., - - 411

measure of damages on breach of warranty of title, - - 418

same on breach of warranty on sale of notes and other choses in

action, ... - - . 413

defendant in trespass may show title in himself in mitigation,

Vol. m, 244
TORT —

why damages for, may be given more liberally,

joint and several liability for, - ^-

extent of individual participation in, immaterial, -

when interest allowed as damages for, . - -

TOTAL BREACH —

stipulation of damages on, . . . -

elements of damage for, - . - - -

of contract for support, what is, -
of other contracts, - - -

when value of bargain or profits recoverable,
when not, - ...

on covenants for title, . - - -

TOWNS —

liability of, for non-repair of highways,

TRADE —

stipulation of damages for violating agreement not to carry on, 505

TRADE MARK, see Infringement op Teudb Mark, - 638

TRANSACTION —

scope of same transaction in the law of recoupment and counter-
claim, ........ 377

TRANSPORTATION —

damages for delay of, - - - Vol. Ill, 213-385

consequential damage for delay of, - - - - 315-226

TREASURY NOTES, Vol. I, 328-338

Vol. L

.161

.

311

.

211

-

629

.

505

.

180

.

303

- 186,

,195

Vol. II,

215

- 307,

,217

-

266

Vol. 1

[,31

GENEEAL INDEX

TRESPASS— Pages.

law infers Bome damages from, - . . . Vol. I, 13

value and interest measure of damages, when, - - 173, 174

special owner may recover according to his interest, - - 310

defendant may show title in himself in mitigation, - 244

mitigation that property was destroyed to stay progress of Are, 236
that defendant as landlord entered to make repairs, - 287

that defendant had license, - - 237

when interest on dg,mages recoverable, - 174, 629

matter of aggravation connected with trespass to real property

may be proved without being specially alleged, - 787

when, gist of the action, other following acts only aggravation, 769
to real property, ... Vol. Ill, 863

the gist of the action is injury to possession, ... 363

the party actually or constructively in possession may sue, - 363

vacant lands in possession of the owner, - - 863, 364

lands presumed, in absence of other evidence, to be in possession

of the owner, - - - - 364

and that his possession is co-extensive with his grant, 364

every unauthorized intrusion upon another's land a trespass, 364

the amount of actual injury not material to the cause of action, 364

the owner's legal right being invaded he is entitled to at least

nominal damages, . . - . . 3^4

when illegal entry made there is at once a cause of action; what

is done after the entry mere aggravation of damages, 364

what the action embraces, - - 364

one act may be injurious to several persons having different in-
terests, ... 365
each may have a separate action, .... 365
the injury to a tenant when stranger cuts trees, - - 365
or puts premises out of repair, ..... 365
hmits to tenant's right to recover, .... 355, 366
measure of damages, - .... 365-383
what facts may be shown, ..... 357
principle of compensation governs except when facts exist which

warrant exemplary damages, ... 367

damages may be assessed on value of a part severed, - - 367, 368

damages for removing a sidewalk, - . 367

where the trespass suspends the enjoyment of the premises, 367, 868

removing and converting part of land where part severed

is valuable, - ... 368, 373

delaying the complstion of house, - , . . . 368

injuring sluiceway to and stopping a miU, - - 368

laying down and using railroad track over land, - - 369

such occupation a continuing wrong, .... 369

and successive actions may be brought, - - 369, 372

when by single act a permanent injury done, damages assessed

once for all, - .... ^rj^

GENERAL INDEX. 869

TEESP ASS — continued. Pages.

depreciation of the value of the land an element of damage, Vol. Ill, 373
what an estimate of damages on this basis presupposes, - 373

as in the deposit of a bar of gravel on the plaintiff's land, - 873
where trees severed, the severance the essential fact, - - 373

value of property severed may be recovered, ... 373

when trees severed and carried away, the injury two-fold, - 374

diversity of decision as to measure of damages, - 375-381

destroying or carrying away growing crops, - - . - 381, 883

removing fences, - - . . 383

mahcious trespasser liable to any person injured, - - 386, 387

injury to business, - . - _ 387

exemplary damages may be given, ... 339

when damages for trespass to personal property may exceed

compensation, .... 459

when exemplary damages for, recoverable, ... 469-473
what the damages for, may include, - 469

measure of damages for taking or destroying property, - 473-477
retail price not taken as value, but the market value of quantity

in question, - - - - 475, 476

proof of value, - - - - 475, 476, 490-494

special and consequential damages for, ... 477-480

return of property as a mitigation, .... 480

expenses to recover or rbstore property, .... 480
mitigation of damages, .... 480-483

where property taken is applied under legal process for
owner's benefit, . - - - - 483, 483

damages against trespasser from beginning, ... 483

liability of the trespasser from beginning, - - - 483-486

TRESPASSER FROM BEGINNING —

liabUityof, - - .... 483-486

TRIAL-

when damages may be computed down to. Vol. I, 187, 190, 196, 197
interest should be computed to verdict, - - - - 187

TROVER (see CoifVEESiON) —

measure of damages in, - - - 173, 174; Vol. Ill, 520

special owners to recover according to interest, Vol. I, 310; Vol. Ill, 534
mitigation of damages in, - - Vol. I, 338, 340; Vol. Ill, 527

damages in, assessed on equitable principles, - - Vol. I, 340

interest allowed in, on the value of property, - - - 174, 629

TRUSTEE —

depositing funds in bank which fails, - - 61

damages against, for property lost, value and interest, - 173, 174

mitigation, where guardian authorizes waste, - - - 340

executor de son tort, what mitigations to, - - - 240
tender should be made to, .... 451

entitled to interest on money paid, - - - 591

when interest allowed against, - . . 633

870 GENERAL INDEX.

TRUTH- Pages.

of words uttered, in action of slander, not provable in mitiga-
tion, - - - Vol. I, 233, 238; Vol. Ill, 685-688
UNDERTAKINGS -

under the code to stay proceedings on appeal, - - Vol. II, 93

UNLIQUIDATED DEMAND —

interest not allowed on, - - - - - Vol. I, 610

what is such a demand withia the law of interest, - 610, 611

USABLE PROPERTY —

damages for taking or depriving of use of, - - - 97, 99

for injuring, - - . . . - . 100

where holder of note for price of, takes it, - - - 383

USAGE —

when agent must conform to, - - - - - Vol. Ill, 15

USE OF PROPERTY —

loss of, when an element of damage, - - Vol. II, 48, 58, 59, 70

USE AND OCCUPATION —

no recovery after eviction for use during part of rent period.

Vol. Ill, 116
interest allowed on damages for, - - 130

action for, may be general assumpsit, ... 106

must be founded upon contract express or implied, - 107

how amount recoverable for, determined, ... 107, 108
evidence of former rate continuing or not, - 108, 100

special action for, may he maintained on agreement though

tbere has been no enjoyment, .... 109

general assumpsit will not lie in such a case, - - 109, 110

mere tenant at will liable only for actual occupation, - - 110

action for, an equitable action, - - - - - 111

recovery based on quantum meruit, .... HO, 111
, evidence of rental value, - - - - 111

USURY —

damages for non-payment of money cannot be so fixed by stipu-
lation as to evade the laws against, ... Vol. I, 556
effect of usury found, --.... 531
plea of, not favored, - - - 561
it is deemed equitable that creditor should receive the debt and

legal interest, ... 5(33

debtor required to make such payment when required to do

equity, - - .... 503

who may take advantage of , -' - - . . 563

when contracts not declared void for, ... 533

law of what place governs, .... 54.3

validation of contracts void for usury, .... 373

VALUE —

measure of damages, when, . . . J73

diminished and mitigated when destroyed to stay progress of fire, 380
proof of, 793

GENERAL INDEX. 871

VALUED POLICY (see Insxjrance) — Pages,

definition of, Vol III, 68

can only be impeached for fraud, .... 68

recovery on, where a partial loss has happened, - - - 68

illustrations, - - .... 68

what is a total loss, ... ... 68

effect of requiring proof of loss under such a policy, - 69

VENDOR —

effect of deposit of his deed in court in action for purchase

money, . . Vol. II, 193-196

his right of recovery on notes given for purchase money, 198

effect on the contract of purchase of giving notes for the pur-
chase money, - . . . 200
defense thereto after deed due that vendor is unable to make

good title, - - - 136, 137, 203-

liabiHty of, when he retains possession as security for purchase
money, ... . 241-24.4

at most entitled to purchase price and interest, - 193

reciprocal rights of parties where agreement to pay and to convey
mutually dependent, . ... 193

theory of the vendor's legal remedy, - - - - 192

not for specific performance, but damages, - . - - 193

some cases give vendor legal remedy which is specific perform-
ance, .... . . ■ 193

the legal rights of the parties, - 193

the objections to allowing the vendor to recover the full purchase
money, .... . 193

the proper measure of damages, - 194^199

what he is entitled to recover for land when price not fixed by

contract, - - 304

adjustment of rights of vendor and purchaser on rescission of

land contract, - - - 232

and in actions for specific performance, - . tri. 334

may sometimes have, though not able in all particulars to fulfil

contract, compensation being made for deficiency, 233

defaulting vendor liable for consequential damages, - 397

liable for profits on resale of personal property when within the

contemplation of the parties, .... 398

or damages with reference to a known special use, 399, 425

to damages for delay of performance, - - 400-406

interest on the value, ...... 400

increased freights where goods bought for transportation, 400

for delay of earner to transport, what damages disallowed, 403

what profits may be taken into account as part of damages against, 403
liability of, on warranty in sales of choses in action, - 413, 414

on breach of warranty of title, - 418, 419

bound to protect vendee from all actions on prior and paramount
rights to the property, - - - 43]

872 GENEEAL INDEX.

VENDOR — continued. Pages.

elements of damages against, for breach of this obligation, Vol. II, 431
liability on breach of other warranties, - - - 432

VERDICT —

courts have power over, .... Vol. I, 3, 810

interest on, before judgment, ----- 708

deliberations of jury, ------- 803

agreeing to abide an arithmetical average, - - - 803

when arrived at by a game or process of chance, - - - 804

when affidavits of jurors may be read to affect, - - 804

rendering and amending verdicts, ----- 805

must be affirmed in open court, - - - - 806

after being received by the court, affirmed, and jury discharged

and separated, their power exhausted, - - - 806

sealed verdicts, - - - - . 807

court cannot amend, in matter of substance, - - - 809

may in matter of form, ----- 809

when court may require jury to reconsider, . - - 809

excessive and insufficient verdicts, - - . - 810
court may set it aside when excessive or insufficient, 810, 811
court should not interfere with province of jury to decide facts

and determine the amount of damages, . . - 810
when objection of excess may be removed by remittitur, - 813, 818
how and when remission of excess should be entered, - 814
when new trial will be granted for failure to find nominal dam-
ages, - , - - - - 815
must be certain in itself, or with the aid of facts appearing in

the record, 816-818

the purpose of a verdict, - . - - 816

surplusage in a verdict may be rejected, - - - - 818
general verdict when there are several counts, some of which are

bad, - - - - 818
wherethere is but one cause of action in several counts, 830, 831
where there are several breaches of contract assigned and not aU

good, - - 820
where the plaintiff is not entitled to the whole demand made in

a count, - - - 820

whei-e there are several parties, - - 833

the action must be maintained as to all the plaintiffs, - - 823

and as to all the defendants in actions upon contract, - - 823
as to parties in actions for torts, - - 833, 824

when plaintiff may enter judgment de melioribus darcnis, 835
joint damages must be found against several defendants found

guilty, - - - 836

double or treble damages, - - - 836

VINDICTIVE DAMAGES, see Exemplary Damages, - - 716
WAGES. See Service.

GENBKAI, INDEX. 873

WARBANTIA. CHARTS — Pages.

measure of damages for breach of the covenant of seizin analo-
gous to that by this ancient writ, - - Vol. II, 257, 365

WARRANTY —

party having, may incur costs on the faith of, - Vol. I, 140, 141
not after he learns that the vi^arranty is false, - . - 141-144

recoupment for breach of, - - 278-283

when no consideration for note, - Vol. II, 112

when breach of, may be shown in reduction of damages in action

on note, 128

breach of, when shown to establish failure of consideration,

works rescission, - - - 128

what no waiver, - - - 128

implied from drawing of a biU or indorsement or transfer of

commercial paper, - ... 149

measure of damages on, .... 149, 150

in what cases goods sold warranted, ... 407

classification of English decisions, - . - - 408

theory of vendor's liability there, ... 414

effect of acceptance of goods on contract for those of particular

description, - - 407

acceptance where defect warranted against, or absence of quality

stipulated for, can only be determined by consumption, 407, 429-436
implied warranty of articles bought for food, - 408, 410

in case of sales by sample, - - 410

sales by certain name or description, - - 410, 411

no implied warranty of title in sales by executors or trustees, 411

implied warranty of title in other cases, - 412, 413

on sales of notes and other choses in action, - 412

damage for failure of title, assignor liable for costs, - 413

recovery in case of payment of forged check against payee who

indorsed it, - ," ^^^

exceptional doctrine in regard to, in South Carolina, - - 414, 415

no particular words necessary to constitute, - - 415

what defects covered by general warranty, - - 416, 417

vendee not entitled to return goods on breach of warranty, 417

other vrise, in some states, 417

not obligatory to return warranted goods unless required by the

contract, 418

action may be brought at once on a breach, 418

measure' of damages on breach of warranty other than of title, 422
what evidence of value at time of sale, - 422

warranty of title protects against prior lien as weU as adverse

title, - - - 431

damages from disease of animals warranted against, - - 435

from personal injury from vice of animals or other thing war-
ranted against, - - - 436

874 GENEEAL INDEX,

WARRANTY — continued. Pages.

agent's warranty of his authority, ... Vol. Ill, 54

no warranty by lessor of fitness of demised premises for any use, 117,

127

WARRANTY, COVENANT OF —

damages for breach of, . - - - Vol. It, 280, 281

WARRANTY AGAINST INCUMBRANCES —

no more than nominal damages can be recovered on a general as-
signment of breach, - . - Vol. I, 765
the plaintiff must allege the discharge of an incumbi-ance to re-
cover for it, ------ - 765

WASTE —

what it is, Vol. Ill, 393

damages recoverable for, .... 393

vendor liable for, on rescission of land contract, - Vol. II, 247, 248
vendor liable for, while he retains possession as security for pur-
chase money, ...--.- 236-244

WEALTH OF DEFENDANT —

when provable in mitigation or aggravation of damages, Vol. I, 743,

745
WIFE —

husband's right to damages for personal injury to. Vol. Ill, 279, 280

WILFUL WRONG —

damages for, given with liberal hand, - - Vol. I, 71, 161

diffierence made in cases of confusion of goods, .- - 163

WRIT OF INQUIRY, - - - 771

plaintiflE has the option to take, in all cases, ... 773

WRONGDOER —

who improves property taken or converted, ... 163

distinction made against, in matter of proof, - . 172

partial satisfaction made by one of sevei-al, a mitigation, 244

See Exemplary Damages, - - - 716

liable for probable consequences, - - - 20, 73

for expenses to recover property, - - 106