malice, or oppression intervenes, the measure of compensation is determined by fixed rules. So in an action of trespass without any circumstances of aggravation, the Supreme Court of the United States said that, the case. not being one which called for vindictive or exemplary damages, the plaintiff was only entitled to recover for his actual injury.' So the Supreme Court of New Jersey said in an action of trespass quare clausum fregit: “In actions of trespass, 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." And so again in North Carolina, in an action for trespass for destroying a building by fire, the jury at Nisi Prius were directed. that the measure of damages was not the value of the building, but the amount it would have taken to rebuild it if destroyed. But this, on review, was held wrong; and the court said: "The proper measure in actions of this kind, is the real value of the property destroyed, unless the trespass is committed wantonly or maliciously, when the jury may, if they think proper, give vindictive damages. But whether they should have been given or not was a question which ought to have been submitted. with proper instructions to the jury."'

§ 429. Measure of relief independent of form of action.— *It follows, from what has been said, that in the cases of wrongs such as we now proceed to consider, the measure of relief does not depend on the form of the action;

1 Conrad v. The Pacific Ins. Co., 6 Peters, 262, 282. See, also, Bell v. Cunningham, 3 Peters 69; Tracy v. Swartwout, 10 Peters, 80, 95.

? Berry v. Vreeland, 21 N. J. L. 183.

3

Wylie v. Smitherman, 8 Ired. 236.

whether case or trespass would have been the proper form of action at common law, if no aggravation be proved, the rule of damages is a question of law; though it is always competent to show those circumstances of evil motive which, as we have already seen, go to place the subject of relief largely within the control of the jury. In regard to this class of cases generally, it will be noticed that the object is to limit relief to compensation, as that term is legally understood; and we shall find, therefore, that while the power of the jury over the subject in cases of aggravation is fully recognized, still, even where such facts are presented, if evidence has been admitted or directions given at the trial, which, had the intention of the jury been to give compensatory and not vindictive damages, would have been incorrect, the court, assuming that such was the purpose of the jury, will exercise their control over the subject. "We consider the law," says the Superior Court of New York, “as properly and wisely settled, that the quantum of damages, with the exception of cases in which exemplary or vindictive damages may properly be given, is strictly a question of law; so that the jury are bound by the rule which the judge directs them to follow." In an early case in Pennsylvania, for running down a ship, it was intimated that where the act complained of was purely fortuitous, the jury might give less than the value of the property; but if there be any right of action, the least compensation is certainly the value of property taken or destroyed.1 ** In Milwaukee & S. P. Ry. Co. v. Arms, (*) Mr. Justice Davis said: "It is undoubtedly true that the allowance

1

Bussy v. Donaldson, 4 Dall. 206.

(^) 91 U. S. 489; acc. Swayne, J., in Oelrichs v. Spain, 15 Wall. 211, 230.

of anything more than an adequate pecuniary indemnity for a wrong suffered is a great departure from the principle on which damages in civil suits are awarded. But although, as a general rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to be shaken, that exemplary damages may, in certain cases, be assessed." This being so, the same rules of compensation should apply in contract and in tort. The decided cases are generally to this effect, and this is the tenor of Judge Rapallo's remarks, in Baker v. Drake.(^)

§ 430. Aggravation and mitigation. We have already seen (") that where the amount of compensation is wholly or in part in the discretion of the jury, the circumstances attending the injury may be shown for the purpose of enhancing or mitigating the damages. It is to be observed, however, that whether the action be in tort or in contract, if the damages are measured entirely by the value of property, or by the amount of injury to property, no circumstances can be shown for this purpose.

§ 431. Joint wrong-doers.-In an action of tort the damages are not divisible. There can be but one verdict and for one amount against all of those found guilty. All are principals; and each defendant is liable for all the damages

(*) 53 N. Y. 211, 216. The dicta to the effect that a more liberal rule applies in torts than in contracts (see especially Allison v. Chandler, 11 Mich. 542; Walsh v. Chicago, M. & St. P. Ry. Co., 42 Wis. 23) can hardly be sustained. They will generally be found to be cases against carriers in which the courts, attempting to follow Hobbs v. London & S. W. Ry. Co., L. R. 10 Q. B. 111, have been led to interpret the rules of Hadley v. Baxendale as generally allowing damages for all natural consequences, but as limiting damages in cases of contract to such as are within the contemplation of the parties; this distinction is founded on the assumption (now generally conceded to be erroneous) that the field covered by the contemplation of the parties fixes a sort of conventional or contractual measure, including less than the natural or normal rule.

() $51.

sustained, without regard to different degrees or shades of wrong-doing.(*) The fact that one of the defendants received only a small proportion of the proceeds of the tort, or none at all, does not lessen the recovery against him.(*) So, where all the defendants, in an action charging them with a joint trespass, are defaulted, and the case referred to an assessor to assess the damages, they are all liable for the whole damage actually sustained by the plaintiff, although it appears, by the evidence before the assessor, that one of them did not participate in the trespass. (©) But where the tort is really made up of several tortious acts, each defendant is liable only for those in which he participated. In an action for the wrongful seizure of the plaintiff's cattle, Fleming, one of the defendants, had recovered a judgment against a brother of the plaintiff, on which the execution was issued; Fleming, with her attor ney in that suit, who had directed the wrongful seizure, were joined as defendants. A verdict was found against both defendants for £83 15s. 10d. Of this £25 was for the seizure; and the rest was the amount of the costs ordered against the defendant Fleming in an interpleader suit, which had been had to try the title to the cattle. An order had been made in that suit that Fleming pay those costs, and as this order was equivalent to a judgment, it was held that the judgment against Fleming must be reduced by that amount. And as the plaintiff could not recover these costs against her, and could not recover against her attorney any other damages than he was entitled to against her, the court reduced the verdict by the

(*) Beal v. Finch, 11 N. Y. 128; Posthoff v. Bauendahl, 43 Hun 570; Grantham v. Severs, 25 Up. Can. Q. B. 468; Barker v. Westover, 5 Ont. 116.

() Stix v. Keith, 85 Ala. 465; Crumb v. Oaks, 38 Vt. 566; Macklem v. Durrant, 32 Up. Can. Q. B. 98; McMillan v. Fairley, 1 Han. 325.

(c) Gardner v. Field, 1 Gray 151.

amount of the costs. (*) Where damage is done by cattle belonging to different owners, each owner is liable for the damage done by his own cattle, and for no more; and in the absence of all proof as to the amount of damage so done, the law will infer that the cattle did equal damage.()

INJURY TO PERSONAL PROPERTY.

$432. General rule.- We proceed now to notice the general rules which govern in trespass for taking or injuring personal property. Where personal property is taken or injured, the remedy at common law was by an action of trespass de bonis asportatis, or by an action on the case. As has been seen, however, the form of action should cause no difference in the measure of damages; and the distinction has in fact been very generally abolished under the modern systems of pleading. In this discussion injuries which would formerly have been remedied by an action of trespass and those where case would have been brought have been grouped together, no distinction being noted. It has been often decided, that where trespass is brought for personal property, and no circumstances of aggravation are shown, the action is to be regarded as similar to one of conversion, and the value of the property, with interest, furnishes the measure of damages.() In a case in Massachusetts, trespass was

(*) Power v. Fleming, 4 Ir. R. (C. L.) 404.

() Partenheimer v. Van Order, 20 Barb. 479. (The Henry Buck, 39 Fed. Rep. 211; Louisville & N. R.R. Co. v. Kelsey, 89 Ala. 287; St. Louis, I. M. & S. Ry. Co. v. Biggs, 50 Ark. 169; Dorsey v. Manlove, 14 Cal. 553; Oviatt v. Pond, 29 Conn. 479; Gilson v. Wood, 20 Ill. 37; Toledo, P. & W. Ry. Co. v. Johnston, 74 Ill. 83; Yarborough v. Nettles, 7 La. Ann. 116; Schindel v. Schindel, 12 Md. 108; Briscoe v. McElween, 43 Miss. 556; Walker v. Borland, 21 Mo. 289; Funk v. Dillon, 21 Mo. 294; State v. Smith, 31 Mo. 566; Felton v. Fuller, 35 N. H. 226; Hopple v. Higbee, 23 N. J. L. 342; Campbell v. Woodworth, 26 Barb.