J^ — V ^OFCAUF0«i|^ ^ .^ '^JSU'JHVSOl^ .^WFUNIVERS/A 3 »v § 1 i<— ' ^ ^OFCAUFCW^ «^-^UNIVH% ^&>uivHan# i iCfei ^OFCAIIFOff^ ^^WEIINIVER% ^lOSANCEl^r^ ^L23>s5 gf ft Q^S ^aOJITVOiO^ ^OFCAllFOff^ (-3 5 ^^OJI ^OFD >&Aavaan-i^ ^^auv g '^i v^lOSANCFlfx^ o 3 ^OFCAUFOff^ ^OFCAllFORji^ o u:. .^WEUNIVERS/A r»i •—I I 11 t~n FOi?^ ^OFCAUFORf^ ,55^EUNIVER% ^lOSANCElftVK o ■^/saiAiNnawJ^ ^5J\EUNIVER% in-iV^'- ^^/JiHVMfliiAV^ SS' yn\y[\i 'ER^ ^lOSAHCElfJ-^. <^t-UBRARY^/^ ^-UBRARY-Or soi^'^ ^/saaMNajW^^ '^^ojiivjjo'^ ^^ojiivdjo'^ .l<5\EUNfVFRS^A A)clOS- ^v c^ c> ^ ^ • I T V O u- >V.OFfAllFO% aOFCAUF0% aWEUNIVERS/a >. •->.. v ^- ^.->». yL ^. 1^ i yn\'M'mvi$> j^n-iwrnw^ '^fJlJ'WVW>^ >i. ,5MMIHlVERy/A ^vjclOSANCElCfo. 3Vs 2 ^tUBRARYd?/. -^vNt-UB THE LAW OP REMEDIES EOll TORTS, INCLUDINO REPLEVIN, REAL ACTION, PLEADING, EVIDENCE, D.ViMAGES. BY FRANCIS HILLIARD, I 'I AUTHOR OF "the U.VWtOB" TORTS," " TH^ I^W OF MORTGAGES," ETC. SECOND EDITION, GREATLY ENLARGED. BOSTON: LITTLE, BROWN. AND COMPANY. 1873. n ^j-^ a V H SS'^S'to Entered according to Act of Congress, in the year 1867, by FRANCIS HILLIARD, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1873, by FRANCIS HILLIARD, In the Office of the Librarian of Congress, at Washington. CAMBRIDGE: PRESS OF JOHN WILSON AND SON. PREFACE TO THE SECOND EDITION To this edition the recent cases have been copiously added, making an increase of about two hundred pages. With respect to the titles of Pleading^ Evidence^ and Dam- ages^ the present work, except so far as strictly limited to Torts, must take its place by the side of others on the same subjects. Upon the two important topics, Replevin and Real Action, it is believed that the book in its enlarged form contains a much more complete abstract of the law and collection of the authorities than can elsewhere be found. 1873. F. II. LiiHy.1 PREFACE. The following work is specially designed to be a sequel or supplement to another book which has been received with some favor by the profession, — "The Law of Torts or Private Wrongs." This explanation is necessary, in order to save the present treatise from the charge of being more desultory and disconnected than any legal text-book ought to be. Had my original plan been more comprehen- sive, the contents of the following pages might without marked impropriety have been scattered among the succes- sive chapters of the former work. Constituting, therefore, as they now do, the material of a separate book, they re- quire to be read in connection with the former one, before the question of their pertinency, utility, and methodical propriety can be fairly passed upon. A few remarks will explain the plan of the present book. In treating of remedies for torts, of course it is not pro- posed to enter into a consideration of those matters of mere process oy practice, which are for the most part com- mon to all suits at law, whether founded upon contracts or upon wrongs ; and which are generally and variously regulated in the several States by express statute. In such a plan would be included the writ, service, entry, trial, ver- dict, judgment, execution, and numerous other incidental points, all of great practical importance, but having no special connection with the main subject of this work, and PREFACE. the law pertaining to which depends so extensively upon positive legislation. Another limitation of the plan of the present work, depending on somewhat different considerations, is, that it omits those remedies which are directed to the recovery of compeiisatioii ; and is confined to that restricted class, which claims specifically the property, personal or real, alleged to be wrongfully taken or detained ; including replevin, and real action or ejectment; — the action of detimie, though it belongs to the same class, being now substantially obsolete. With reference to actions for dam- ages, the remedy has to some extent unavoidably been treated, in the work to which the present is a supplement, in connection with the wrong itself. Thus it would be impossible to treat of the wrong of conversion, without at the same time treating of the remedy of trover. And so with the wrong and remedy, both entitled trespass, and the wrong of negligence, redressed by the action on the case. But it is otherwise with the specific remedies, which we are about to consider. There is no particular wrong for which rejylevln is the appropriated remedy. And, in reference to the unlawful withholding of real property, the wrong of disseisin and the remedy of ejectment are so inseparably connected together, or rather the remedy so far regulates and controls the wrong, that to treat of the subject at all was found inconvenient in the former work, and the whole was reserved for future consideration. There are, however, three topics, applicable alike to all torts, and still strictly coming under the head of remedies, which will be found fully treated in the present work. These are j^leading, evidence, and damages. All have been heretofore incidentally noticed, but could be appropriately considered at length only in this connection. The last of the three, — damages, — instead of being restricted to actions for the specfic recovery of the property detained. VI PREFACE. is, on the contrary, from necessity, applied almost wholly to actions for the recovery of damages. It may perhaps be suggested, that the principles of exclusion or limitation above stated, namely, to omit that which applies indiscriminately to tort and contract, and that which is copiously and variously regulated by the statute law, would shut out these three important topics. I would say, in reply, that while, in some instances, the general rules of pleading, evidence, and damages are the same with reference to torts and contracts, it will be found that the illusb^ations, upon which the point of a rule often depends, are in the present work strictly confined to the former. And with reference to the statutory law, though in regard to mere forms it has largely changed the rules of pleading, it has not undertaken, to any great extent, to modify the ^9ri?ic//9?es which govern either pleading, evi- dence, or damages; and therefore, unlike other points of remedy, all these subjects admit a mode of treatment which is of general and not mere local applicability. The/on?is and jwecedents at the close of the volume are such only as have been in substance tested by actual deci- sions, each of which is referred to in connection with the form which it is supposed to sanction. In actual practice, commendable caution will lead to an inspection of the entire pleadings, as set out in the Reports cited. F. H. CONTENTS. BOOK I. REPLEVIN. CHAPTER I. Pages General Nature and Objects of the Action . . 1-1(5 1. Definition and general nature of the action. 2. Delivery of the goods to the plaintiff. 3. Tortious taking, whether necessary — cejnt and detinet; practice in different States. 11. Lies, in general, only for personal property; — things pertaining to the realty; choses in action. 14. A local action. 16. In what courts. 17. Successive replevins of the same property. CHAPTER n. Replevin in Case op Distress, Impounding, &c. . . 17-21 1. Originally limited to this class of cases. 2. Trespass ab initio. 8. Practice in different States as to cattle, impounding, fences, &c. CHAPTER III. Distress for Rent 22-26 1. General principles — practice in different States. 2. Pleading, evidence, verdict, judgment. 17. Miscellaneous points. CHAPTER IV. Property and Possession necessari: to Maintain Re- plevin. 27-39 1. Right of possession necessary and sufficient. 2. Qualified possession or special property. Vlll CONTENTS. 6. PlaintifT must prevail upon his own title. 10. I'leadiiif^, evidence, &c., in relatioTi to property and possession. 14. Cases of manufacture to order, incomplete sale or delivery, &c. 20. In case of the decease of a party interested. 21. Title gained b^- service of a writ of replevin and bond; sale by the plaintiff in replevin. 23. Title and possession of the defendant. CHAPTER V. Replevin for Pboperty taken by Legal Process . . 40-57 1. General rule as to property in custody of the law. 2. Goods in possession of the plaintiff. 3. Owner may replevy, where the property is taken on process against a third person. 4. What may be taken by virtue of the writ of replevin itself. 7. Liability of an attaching or execution creditor. 8. Title or possession necessary to maintain the action. 17. Defence of an officer; plea, evidence, judgment, &c. 29. Replevin in cases of successive processes. 32. Replevin in favor of an officer holding by legal process. 37. What possession of an officer will sustain an action against him. 38. Successive suits of replevin; justification of officer under the replevin writ. 41. Miscellaneous. CHAPTER YI. Parties in Replevin 58-72 1. Servant, assignee, &c. 1 d. Joint parties — plaintiffs. 11. Joint defendants. 15. Death of a party interested. 20. Husband and wife. 22. Principal and agent. 23. Parish. 24. Buyer or seller, in case of alleged fraud. 28. Conditional sale. 31. Mistake. 32. Replevin in case of mortgage, pledge, and lien. CHAPTER VII. Writ, Bond, Declaration, Pleadings, Evidence, etc. . 73-116 1. (and note.) General remarks as to pleadings and practice, and the statutory changes on these subjects; points of practice. 2. Description of the property. 6. Statement of title. 9. Motions, pleadings, &c., subsequent to the writ and declaration — motion to dismiss. 16. Pleadings — avowry and cognizance. 17. General issue ; non cepit and detinet. CONTENTS. IX 18. Title to the property. 26. Several pleas. 27. Pleading; in case of seizure by legal process, distress, &c. 36. Replication, &c. 51. Amendment. 52. Evidence. 71. Verdict. 75. Damages. 77. Verdict and judgment in special cases. 84. Judgment for return. CHAPTER VIII. Replevin Bonds . . 117-138 1. Necessity of a bond. 3. Form of the bond; by what informalities avoided. 13. Time of commencing a suit upon the bond; judgment in the replevin suit. 17. Damages. 30. Defence to an action on a replevin bond. 42. Pleadings and evidence. 46. Construction of replevin bonds; prosecution of the replevin suit; final judgment, &c. 50. Efl'ect of tiie death of a party. 54. Appeal and review. BOOK II. Disseisin, Ejectment, Real Action .... 139-230 1. Recovery of real property by action ; practice in the United States and in England ; real action; ejectment. 2. Entry. 8. Title; general requisites; as against trespassers, &c. 10. Ejectment requires ownership; grounds of title. 13. Conflicting titles; claimants under the same person. 15. Defence; title in a third person. 16. Equitable title, whether sufficient for plaintiff or defendant. 22. Equitable title arising from a purchase of the land. 33. Documentary title; title by public grant, &c. 35. Title by deed. 46. Vendor and purchaser. 49. Title bj' execution. 54. Ejectment and adverse title in connection with possession. 56. Adverse possession; disseisin; ouster. 64. Constructive or implied possession. 71. Possession is hut pi'imd facie evidence of title. 74. Possession of the defendant. 75. Successive and continuous possession. 76. Notice, in connection with adverse possession. CONTENTS. 78. Estoppel against denial of title. 79. Abandoment of title. 84. Parties in ejectment — the commonwealth. 85. Party beneficially interested. 88. Death of party in interest. Heirs, devisees, executors, &c. 100. Miscellaneous cases. 102. Joint title. 124. Disseisin and ejectment as between parties jointly interested. 126. Pleadinj!; — declaration. 132. Pleadings of the defendant. 143. Evidence. 151. Damages; mesne profits; improvements. 156. Verdict and judgment. BOOK III. PLEADING. CHAPTER I. General Rules of Pleading ...... 231-261 1. Tort and contract; definition and purposes of pleading. 2 a. Recent statutory changes on the subject. 3. Pleadings must state facts. 4. Pleading in case of statutes. 8. Allegation of direct or immediate injury. 8 a. Allegation that the plaintiff was not in fault. 9. Variance; the pleadings and evidence must conform; limitations and exceptions. 11 a. Truth of a plea. 11 b. Departure. 12. Directness and certainty. 14 a. Pleading in case of fraud. 15. Statement of a legal conclusion. CHAPTER II. Parties 262-273 1. Plaintiff; party injured; legal right. 6. Name and description. 11. Joint parties; plaintifis. 20. Joint defendants. 25. Pleading in case of joinder. 20. Construction of statute. 32. Trust. CONTENTS. XI CHAPTER III. The General Issue and Subsequent Pleadings . 274-281 1. As a defence to the action. 4. In mitifTiition of damages. 6. Wliat shall be construed as a denial ; implied admissions. 8. Miscellaneous points. 11. Replication, &c. CHAPTER IV. Tort and Contract. — Fraud 282-300 1. Joinder of tort and contract; erroneous pleas, &c. 5 Pleading in case of fraud. 11. P;irties in case of fraud — joint parties, &c. 17. Fraud — joinder of several causes of action. 20. Variiince in case of fraud. 23. Defence of fraud; rescinding and restitution. CHAPTER V. * Pleading in Trespass 301-324 1. General remark; statutory law; action of trespass. 3. Declaration; description of property, &c. 8. Statutory trespass. 9. Time; contiiuiando. Sec; number. 16. Pleas in trespass; general issue; justification. 17. Statutory moditications. 27. Plendlng of title before justices of the peace. 34. ^Miscellaneous pleas. 37. Joinder of action; trover; different trespasses; several counts. 45. Replication. 50. New assignment. 58. Joinder of trespass and other forms of action; statutory changes. 68. Trespass to the person; assault and batterj'. CHAPTER VI. Pleading in the Action on the Case, including Trover 325-339 1. General rule; nature of the action. 2. Nuisance, negligence, and conversion. 2 a. Nuisance; distinction from trespass; declaration. 7. Subsequent pleadings. 10. Negligence; declaration. 13 Subsequent pleadings. li> a. Conversion; trover and case. 20. Declaration. 25. Subsequent pleadings. xii CONTENTS. CHAPTER VII. Pleading ix Actions for Injukles to the Person. — False Imprisonment 340-346 1. General remark. 2. False imprisonment; declaration; distinction between this action and the action for malicious prosecution. 5 a. Subsequent pleadings. CHAPTER VIII. Pleading in Actions for Libel and Slander, and Mali- cious Prosecution 347-861 1. General remark. 2. Declaration. 12. Counts. 18. Joinder of slander and malicious prosecution. 19. Innuendo. 24. Colloquium. 27. Words in a foreign language. 28. Miscellaneous points as to the declaration. 31. Variance. 36. Miscellaneous points of practice. 39. Pleading subsequent to the declaration. 53. Malicious prosecution. CHAPTER IX. Pleadings in Actions for Injuries to Property . 362-371 1. General remark — possession. 4. Watercourses and mills. 14. Lights, &c.; common; patent. CHAPTER X. Pleadings in Actions for Injuries to Relative Rights ; Officers of the Law ...... 372-378 1. Justices. 2. Clerks. 3. Sheriffs, &c. CHAPTER XL Pleadings in Actions against Railroads and Towns, and in Cases of Master and Servant, Bailment, Landlord, &c., Seduction 379-390 1. Railroads. 12 a. Highways — towns. CONTENTS. XIU 22. Master and servant. 23. Innkeepers. 26. Carriers. 32. Landlord and tenant. 35. Ci-im. con. and seduction. BOOK IV. EVIDENCE IN ACTIONS FOR TORTS. CHAPTER I. General Rules of Evidence 391-400 1. Proof of the affirmative of the issue; exceptions to the general rule. 3. AfUrmative proof of wrong or illegality; fraud; official neglect or misconduct, &c. 5. Proof as to possession. 7. Burden of proof; to what it extends. 8. Change in the burden of proof. 9. Nonsuit for want of proof. 10. Presumptions. 11. Presumption of innocence as to official conduct; possession, &c. 12. Reasonable doubt. 14. Miscellaneous. IG. Rebutting evidence. CHAPTER II. Evidence op Oplnlon, Reputation, Custom, &c. . 410-435 1. General rule — experts. 3. Taking of land by railroads, &c. 7. Miscellaneous cases relating to land. 10. Injuries arising from defective roads, &c. 15. Bodilj- health and disease. 23. Opinions predicated upon assumed or hj'pothetical facts or premises. 25. Miscellaneous points as to the opinions of experts and others. 43 a. Intention. 44. Reputation and character. 50. Rumor and report. 53. Custom and usage. 55. Distinction, as to evidence of reputation and of specific conduct or facts. CHAPTER III. Admissions ant) Declarations 436-473 1. Admissions of a party against himself. 2. Effect of admissions; how controlled and construed; implied admissions. 6. Admissions made in attempts to compromise. XIV CONTENTS. 8. Admissions of agents, oiScers, &c. ; admissions connected or unconnected with acts; questions of time. 10 a. Declarations, of parties not against their interest, and of third persons; res gestce. 11. In case of bodily injury or disease. 15. Boundary and title. 16. In case of legal process. 17. IMiscellaneous examples. 18. Limitations of the general rule; must be sim^Xy ex2}lanatoi-y, not narrative ; questions of time, place, motive, and purpose. 24. Declarations, &c., of a joint party. 26. Declarations in a party's own favor accompanying acts; res gestm. 28. Estoppel by admission. 30. Acts and declarations of third persons. 81. As to possession. 35. Declarations of persons connected with a party. 39. Declarations in case of alleged fraud. 44 a. In reference to title. 47. Evidence of the acts of a party or his agent. 49. Declarations in writing. 53. Irrelevant declarations. CHAPTER lY. " Res Inter Alios Acta " 474-488 1. General rule. 2. Exceptions — fraud, neglect, illegality. 12. Actions against towns, railroads, &c. 17. Injuries caused by gas. 22. Questions of time. 24. Evidence of reptttaiion. 25. Evidence as to value and amount. 34. Motive, intent, malice. CHAPTER V. Pakol Evidence 489-495 1. General rule. 3. In case of fraud. 4 a. As to conveyances. 5. In case of lease. 6. As to contracts. 7. Officer''s return. 8. Loss of writings. 15. As to application of writings. CHAPTER VI. Miscellaneous Points of Evidence. — Variance ; Testi- mony OF Parties 496-500 1. Variance. 9. Testimony of parties. CONTENTS. XV CHAPTER VII. ToET AND Contract. — Fraud as a Ground of Action OB Defence . . . 501-506 CHAPTER VIII. Injuries to the Person ; Assault and Battery ; False Imprisonment ; Injuries to Health . . . 507-510 1. Assault, &c. 6. False imprisonment. 12. Injuries to health. CHAPTER IX. Evidence in Actions for Libel and Slander . . 511-525 1 a. Proof of other words than those allef^ed. 3. Evidence as to the understanding of the words. 5. As to damages. 8. Variance. 10. Malice. 17. Evidence in mitigation of damages; repetition; report; character; property. 25. Justification of the truth. CHAPTER X. Miscellaneous Injuries to Property .... 52(>-530 1. "Watercourse. 2. Way. 4. Negligence; carrier; railroad, &c. 9. Conversion. 9 e. Copyright. 10. Patent. CHAPTER XI. Evidence in Actions relating to Public Officers . 531-539 1. Evidence of being reputed and acting as an ofBcer; act of deputy. 4. Presumption and burden of proof in ca^e of officers. 7. Return of an officer, and evidence relating thereto. 14. Declarations and admissions. 21. Records, writs, executions, &c. 24. Miscellaneous cases. XVI CONTENTS. CHAPTER XII. Evidence in case of Husband and Wife, and Parent AND Child 540-543 1. Ci-im. con. — proof of marriage. 2. Proof in reference to adultery, damages, &c. 8. Abduction of wife. 10. Seduction of daughter. 13. Abduction of daughter. BOOK V. DAMAGES. CHAPTER I. General Rules op Damages 544- 53 1. General remarks. 1 b. A question for the jury; subject to any legal rule or measure of damages. 4. Nature of damages ; general and special. 5. Possible injury; de minimis, &c. 6. Liberal construction in favor of the plaintiff; exceptions and limitations. 7. Mode of ascertaining damages ; writ of inquirj', &c. CHAPTER II. Amount of Damages ;] Nominal Damages ; Mitigation OF Da3iages 554-569 1. Nominal damages. 2. Mitigation or reduction; recoupment; set-off. 6. Equitable and statutory grounds of reduction ; counter claim. 15. Keturn of the property taken; application of proceeds to the plaintiff's benefit. CHAPTER III. Damages in Reference to Time . . . . . 570-587 1. General remark as to time. 2. Value of property at the time of taking, &c., the general measure of damages. 4. Prospective or remote damages. 5. Damages estimated to the time of trial. 8. One recovery a bar to a second action for continuing damage. 9. Exceptions to the rule of prospective damages. 10. Miscellaneous cases as to the time for which damages shall be estimated. 15. Damages resulting in part from the plaintiff's own fault or neglect. CONTENTS. XVll CHAPTER IV. Measure of Damages in Actions for Particular Wrongs 588-594 1. General remark. 2. Fraud or deceit. 3. Taking or detention of personal property; including trover and trespass. 9. Trover. 22 e. Trespass. 26. Statutory remedy. CHAPTER V. Special, Exemplary, and Vindictive Damages; Mal- ice, ETC 595-609 1. Nature and definition of special damages. 2. Must be expressly alleged. 3. Exemplary damages. 5. As depending on malice, insult, Sec. 9. As afl'ected by actual or possible criminal prosecution for the same act. 12. Injuries to propertj', not indictable. 16. Disallowance of exemplary damages; misconduct of the plaintiff. CHAPTER VI. Damages for Fraud, etc ...... GlO-615 1. General remarks. 3. General rule of damages; value of the propertj', «&€. 5. Miscellaneous cases. 7. Exemplary damages. 8. Miscellaneous cases. CHAPTER VII. Injuries to the Person; Assault and Battery; False Imprisonment ; In,juries to Health . . . G16-619 1. Assault, &c., — exemplary damages. 2 a. Mitigation — provocation; criminal prosecution, (S:c. 6. False imprisonment, — malicious arrest. 11. Injury to health. CHAPTEPt Vlll. Libel, etc., and Malicious Prosecution . . . 620-G25 1. Measure and grounds of damages; special and exemplary damages; wealth of the defendant. 10. Plea of the truth; mitigation of damages. 15. Malicious prosecution. b XVI 11 CONTENTS. CHAPTER IX. Negligence ; Nuisance ; Watercourses ; Railroads ; Towns 62G-G37 1. Negligence. 4. NuiMiiice; AVatercourse ; Patent; Trade-mark. 11. Kaitroatis. 19. Towns; Highways. CHAPTER X. Damages in Actions Against Officers . . . 638-651 1. General rule of damages, as affected toy the motives, &c., of the defendant. 8. For failing to return process. 10. For false return. 14. For wrongful taking of property, — action by the defendant in the process. 16. For loss of property taken. 18. Action by one not party to the process for seizure of his property; value of the prop- erty; additional damages; motives of the oflicer. 24. Damages for neglect to levy, &c. 29. Mitigation of damiiges; application of proceeds to the plaintiff's benefit, &c. 31. Damages for neglect to arrest. 82. For escape; taking insufficient bail, &c. 42. Miscellaneous cases. CHAPTER XI. Damages in Case of Principal and Agent, Master AND Servant, Bailment ...... 652-663 1. Master and servant; principal and agent; — action of the principal against the agent. 6. Li;ibility of a principal for liis agent. 7. Action of agent, &c , agidnst his principal, Sec. 8. Of master against third person. 9. Bailment. 11. Pledge. 14. Common carriers; neglect or dclnj' in delivering. 19. Injury to property from neglect. 22. Special and prospective damages. 25. Miscellaneous points. 29. Damages in actions by bailees. 32. Telegrams. CHAPTER XII. Landlord and Tenant ; Mortgage .... 664-669 1. Action by reversioner against a third person. 5. By lessee against a third person. 6 ff. By a third person against lessee. 7. By lessee against landlord. CONTENTS. XIX 13. For distress. 18. For fraud. 19. By landlord against tenant. 20. Mortgage. CHAPTER XIII. Damages for the Taking or Conversion of Notes AND OTHER Paper Securities 670-675 1. Conversion, &c., of negotiable securities. 5. Neglect in the collection of notes, Sec. 8. Kefusal to transfer stock. 9. Miscellaneous cases. CHAPTER XIV. Wrongs connected with Sale ..... 676-678 1. General remarks. 2. Hu}-er asiainst seller; refusal to deliver, conversion, &c. 3. Conditional sale. 6. Fraud. CHAPTER XV. Interest, Costs, Counsel-Fees, Expenses . . . 679-683 1. Interest. 3. Costs and expenses. CHAPTER XVI. Injuries Resulting in Death 68-4-693 CHAPTER XVII. Husband and Wife; Parent and Child; Seduction; Abduction 694-695 CHAPTER XVIII. Marine Torts 606-698 1. Prolits of the voynge. 6. Collision. 10. Capture. 14. Liability of master and owner. XX CONTENTS. CHAPTER XIX. Miscellaneous Points; Joint and Several Liability; Double or Treble Damages; Remittitur; Exces- sive Damages ......... 699-708 2. Joint and several damages. 10. Statutor}' damages; double, treble, &c. 18. Amount of damages clMimed in the declaration ; remittitur. 28. Exces'^ive damages; new trial. 37. Too small damages. 39. Miscellaneous. INDEX TO CASES (TIED. A. Abbey V. IVIerrifk Alibott V. Swiilcnhower Abeel r. Van Gelder AbraiiKs v. Ervin Academy v. Ilaikrtt Acker v. Campbull V. Finn V. Wliite Ackerman v. King Ackerson v. Erie Ai'kley v. Chester Acton V. Knowles Adams v. Adams V. Barry V. Bissell V. Blodgett V. ]\rDonald V. Trigg Adler v. Sewell AfFerty v. Connover Agee V. Williams Agnew V. Steamer Aliern v. Collins Aiken v. Stewart Aikin v. Benedict Aitcheson v. Maddock Alcock V. Wilsliaw Alden v. Carver Alexander v. Eastland V. Helber V. Macauley Aldricb v. Palmer AUbrd V. Bradcen V. Dewin Alger V. Curry Allen V. Blunt V. Conrad V. Craig V. Doyle V. Dunlap V. Prater V. Scott 220 161 202 694 683 45 124 16 131 606 639 255 9, 20 596 335 694 658 277 193 491 248 431 230, 547 306 181 395 224 28 213 563, 645, 650 538 646, 549 59 193 318 631 655 602 641 186 460 313, 314 Allen V. Shackleton V. Smith V. Sta])les V. Wiiiard V. Woodlbrd Allie V. Schmitz Allison V. Chandler 546, AUred v. Bray AUsop V. AUsop Alston V. Hu<:gins Altemose v. Ilul'smitb Altes r. Ilinckler Ahhof V. Wolf Aniann v. Damm Amer v. Longstreth American v. Bradford V. Haggard V. Parsons Ames V. Harper V. Hazard Amiable Ammerman v. Crosby Amos V. Sinnott Amsden v. jMaiichester Anderson v. Dunn V. Fisk V. Hapler V. Hill V. Lane V. Parker V. Rhodiis V. Sutton V. Taleott V. Tysen Andre v. Johnson Andrews v. Lymh t'. Cliadbourne V. Stone Angell V. Keith A.ngier v. Taunton Angrave v. Stone Annis V. Bis 201 Boardman v. Beckwith 149 207 V. Lafferty 257 373 V. Kibbee 433 Bills V. Vose 19, 20 V. Woodman 429 Bingham v. Garnault 321 Boatright v. Porter 168, 432 Birchard v. Booth 441 599 Bockee v. Crosby 145 Bird V. Great 393 Bodley v. Ferguson 152 V. Lisbros 186 Bogard v. Jones 28 V. Pace 469 Bohanan v. Bonn 142 V. Randall 279, 325 Bolander v. Gentry 280 Birdsall v. Perego 557 Boiling V. Doneghy 242 Bishop V. Williamson 570 Bomberger v. Turner 233, 278, 615 Bissell V. Beckwilh 445 Bond V. Mitchell 77 Bissill V. Williamson 208 V. Quattlebaum 549 Black V. Camden 446, 657, 658, 660, V. Ward 638 664, 680 Bondurant v. Lane 644 V. Drury 261 Boner v. Ogden 48, bQ V. Foster 407 Bonesteel v. Orvis 105 V. Thornton 451, 462 Bonner v. Coleman 109 V. Tricker 209 Bonsall v. Comly 23 Blacketer v. Gillett 327 V. M'Kay 602 Blackie v. Neilson 336 Boorman v. American 388 Blackman v. Johnson 460 Booth V. Ableman 60, 51 , 56 V. Wheaton 94 V. Clive 552 Blade v. Chicago 492 V. Small 220 Blain v. Coppedge 165 Borron's v. Landers 29 Blair v. Milwaukee 546 Boston V. Richardson 177, 217, 440 V. Ridgely 373 Bostick V. Brittain 61 V. Smith 145 Boswell V. Green 49 Blake v. Dennett 207, 211 Botkin V. Osborne 265 V. p]verett 409. 469 Boucicault v. Fox 530 V. Graves 456, 464 Boulard v. Calhoun 609 INDEX TO CASES CITED. XXV Bonrk r. Rlpgs Bowen v. Aiibrt-y V. Huntington V. Ilutchins Bower v. Earl r. Higbcc V. Talinan Bowler V. Lane Bowles V. MFarland Bowman i\ Bowman V. Cornell V. Eaton V. Noyes V. Parker Bowser r. Cravener Boyce v. Brown V. California Boyd V. Brown Boyden v. Burke Boylar v. INIeeker Boyle V. Rankin Boynton v. Page V. Tidwell V. "W'illard Boyreau v. Campbell Bracegirdle v. Bailey V. Orford Bradbury v. Bardin Bradford v. Edwards Bradlaugh v. Edwards Bradley v. Chamberlain V. Gamellc V. Gardner V. Geiselman V. Morse V. Northern Bradshaw v. Treat Bradstreet v. Erskine Bradyll v. Ball Bragg V. Massie's Brake v. Board Braneh v. Branch Brancker v. Molynoux Brand v. Hammersmith Brandt v. Cra V. Harris Davey v. Field Davidson v. Gunsolly V. Nichols Davies v. Davies Davis V. Caswell V. Charles V. Davis V. Elliott V. Freeland V. Harding V. Hill V. Jackson V. Jones V. Judge V. Marshall V. Mason V. Morford V. New York V. North Western V. Perley V. Sherman V. Tyler Davison v. Gert Dawson v. Calloway V. Mills V. Wetherbee Day V. Berkshire V. Cochran V. Woodworth Dayton v. Fry V. Pease Dean v. Ball V. Blackwell V. Comstock V. Dazey V. Vaccaro 6, 14 641 675 445, 564 170 668 686 685 4 671, 572 602 649 545 181 456 126 182 152 364 207 75 77, 79 494 459 71 243 282 272 485 189 424 167 130 384 290, 299 215 203 369 308 651 656 609, 659 183 469 23 146 412 459 30, 112 703 173 600, 629, 680 50, 84 586 22, 120 434 153, 183 218 656 Dearborn v. Kelley 113 Dearing v. Ford 99 Dearmon v. Blackburn 14 Dearmond v. Roe 142 De Benedctti v. Mauchin 457 Decker v. Anderson 119 V. Judson 121 De Costa v. Massachusetts 628 Deering v. Ford * 91 De Haven v. LandcU 145 Dehn v. Heekman 672 Deitzler v. Mishler 149 Delamere v. Queen 364 Delano v. Curtis 560 Delaney v. Holcomb 91 Delaware v. Barnes 691 Demarest v. Terhune 402 De Moss V. Haycock 611 De Mott V. Hagerman 10 Dempsey v. Paige 612 Den V. Lloyd 183 V. Lunsford 219 Denison v. Hyde 694, 600 V. League 242 V. Raymond 74 Dennie v. Middlesex 648 Dennis v. Kelso 141 V. Snell 373 Dennison v. Benner 503 Dennistown v. Draper 78 V. Merchants' 233 Denny v. Lincoln 639 V. Middlesex 648 V. Reynolds 132 Depuy V. Williams 143, 144, 17D, 203 Derby v. Gallup 679 V. Jacques 143 De Reguine v. Lewis 120 Derrickson v. White 182 Deshler v. Dodge 84 Desmond v. Stone 158 Detroit v. Van Steinburg 411, 444, 580 Devaughn v. Heath 601 Devendorf K. Beardsley 298 Devries v. Phillips 454 Dewey v. Hoag 150 De Witt V. Morris 76 De Wolf V. Harris 69 Dews V. Ryley 373 Dexter v. Paugh 643 Diana, The 697 Dil)ble V. Morris 600 Dickey v. Andros 354 V. McDonnell 616 Dickensheets v. Kaufman 255 Dickenson v. Barber 416 V. Breeden 162 Dickerson v. Crisman 469 INDEX TO CASES CITED. XXXI Dickins i\ New York Dickinson v. Boyle V. Lowell V. Maynard V. Worcester Dickson V. Mathers Dietus V. Fuss Dikfinan v. Taylor Dill V. Rather Dillaye v. Wilson Dilley d. Sherman Dilliiiirham v. Smith Dillon V. Douj^herty V. \Vviis.ht Dilworth V. Arivelvey Diniick V. Deringer Dininny v. Fay Dixon V. Hancock V. Smith V. Thaclier Doane V. Garretson Dobson V. IJlackmore Dodd V. MCraw Dodge V. Chandler V. Walley Dodworth n. Jones Doe V. Cunningham V. Howell V. Jumell V. Lewis V. Roe V. Swails Dolby V. Miller Dole V. Er.skine V. Kennedy Donaldson v. Johnson V. Mississippi Donnell v. Jones Donnelly i'. Harris Donohue u. Dyer Doolittle I'. Tice Dore V. Hight Dorian v. East Dorman v. Ames V. Kane Dorsett v. Frith Dorsey v. Manlove Dotliage V. Stuart Doty V. Moore Dougherty v. Dorsey V. Douglierty V. Matthews Douglas V. Mitfhell Douglass i\ Kraft V. Stephens Dove V. Smith Dow V. Gould Downer v. Flint V. Smith 687 672 100 62-t 355 3, 85 3;]6 1«4 244 196, 1!)8 144 82, 101 188 2, 49 lie 202 647 33 513,621 87 424 664 53 51, 707 183 27 122 182 168 189 165 490 184 507 81 78 690 359 609 390 175 101 582 475, 576 406 670 599 220, 221 461 700 288 242 458, 476 650, 590 585 306 275 271 151, 160, 165 Downer v. Woodbury 244 Dows V. Rush 98 Doyle V. Jessup 542 Duzier v. Jerman 679 Drake v. Mooney 404, 535 V. Sykes 632, 537 V. Thayer 255 Draper c. Richards 275 Dresser v. Waterston 684 Drew V. Sixth 683 V. Spaulding 337 Drummond r. Hopper 3, 4 Duane v. Hilzhenn 99 Duberley v. Gunning 706 Dublin, City of 656 Duliois V. Glaub 672 Duffield V. Dt'lancey 391 Duffy V. Murrill 7 Duke V. Germaine 542, 694 I'. Vivian 302 Dumont v. Dufore 437 Dunaway v. School 215 Duncan v. Watson 397 Dunham v. Wyckoff 27 Dunkin v. M'Kee 52 Dunn V. Large 597 V. Starkweather 218 Durbrow v. McDonald 476 Durrell v. Carver 703 Dutro V. Wilson 664 D wight V. County 414, 415 V. Enos 115 Dyer v. Pacific 383 V. Toothaker 161 Dyke v. Aldridge 638 Dyson v. Bradshaw 147 E. Eames v. Morgan 280 Earle v. Sawver 631 Early v. Friend 199 V. Smith 355 East V. Evans 8 V. Hottenstine 572 Easter v. Allen 505 Easterbrook v. Erie 630 Eastman v. Bennett 634 V. Fletcher 167 V. Hills 19 V. Lamprey 170 V. St. Anthony 272 Eaton V. Caldwell 103 V. Giles 144 V. Jacobs 175 V. Melius 4s6 V. Monroe 36 xxxn INDEX TO CASES CITED. Eaton V. 0 Rush V. Vought 216 V. Calloway (M Russ ('. Brooks 520 V. Fitfhburg 303, 407, 40.S, r. Steamboat 577 439 , 443, 480 Russel V. Allen 59 V. Forrest 167 Russell V. Brooks 171 V. Maiisfiuld 643 V. Clapp 261 V. Mead 12 V. Erwin's 174, 198 V. IMtoer 463 V. Gray 43, 107 V. I'itzer 466 V. Horn 415 V. Ki>l)i'rts VX) RusselTs V. Maloney 224 V. Rohiiison 4(i9 Ivust V. Flowers 275 V. Wliilc 491 Ruiland i\ Ilathora 453 Rochilale v. Radcliire 367 Ryan r. Baldiiek 547 Kockwc'll r. Saunders 27, 36, 99 V. 'rondiiison 147 Roi'kwooil V. Allen 647 Ryers v. Wheeler 218 Rodericks v. Payne 2 Ro(lfj;ers v. Rodgers 336 s. Rodwell V. Redge 392 Roe V. Doe 223 V. Lalonette 238 Saekett v. Kellogg 21 Rogers v. Aekertnan 423 Sadler v. Anderson 471 V. Arnold 83 Saffell u. Wash 41, 113 V. Beard 658 Saiford v. Hynds 160 V. Crombie 585 Sage V. ]Mosl>er 291 V. Parish 225 Sager v. Blain 9 Roland v. Fischer 214 Salmon v. Orser 384 V. Gundy 68 V. Symonds 203 207 Romaine v. Commissioners 651 Saltus V. Genin 295 V. Van Allen 674 Saniuions v. Newman 233 Romig V. Roniig 670 Sampson v. Hein-y 565 Ronge V. Dawson 7 Sanborn v. Baker 533 Ropes V. Lane 67,87 V. Leavitt 14, 54 Ropps V. Barker 311 Sanders v. Anderson 551 Rose V. Lewis 670 V. Bank 641 V. Story 551 Sanderson v. INLirks 76 V. Tolly 107 Sanibrd v. Eighth 632 V. Trcaclway 252 Sankey v. Noyes 159 176 I'lS Rosebrooks v. Dinsmore 394 Sargent v. Franklin 673 Rosinbury v. Angell 536 V. Hampden 6;l6 Ross V. Boston 481 V. South 668 V. Hay lie 634 Sargi V. Colmer 166 V. Ileiiitzen 201 Sas-man v. Bri.>-bane 23 V. Hadiga 196 V. Goo(lwin 318 c. ]\lann 81 V. Huir 94 V. LT])dike 396 Saxton t'. Williams 105 Rowley v. (iibbs 101 Say«'rs v. Holmes 104 Royall V. Lisle 175, 179 Sayles v. Davis 332 Roys V. Lull 309 Sayre v. Rockford 323 Royston v. Wear 205 Savward c. Warren 39, 83 Rudd 0. Williams 527 Sciiaeirer v. ]\Iarienthal -.69 Rundlett v. Weeber 278 Schaelzel v, Germantown 234 247 Hi INDEX TO CASES CITED. Schenk v. Evoy Schindel v. Scliindel Schmidt V. New York Schloy V. Lyon Schlosser r. Fox Si-hluniherger v. Lister Schoenberger v. Baker Schofield V. Ferrers 2, V. Whitelegge School r. Lord Sihoonover v. Myers Schrack v. Zubler Schrader v. Woldin Schrunhain v. Carter Schuler v. Hudson Schultz V. Ariiot V. Lindell Schurdel v. Schurdel Schuyler v. Marsh Schwerin v. M'Kie Scisson V. M'Lane Scott V. Crego V. Elliott V. Granger V. Hughes V. Ray V. Rogers V. Seymour Scudder v. Worster Seabury v. Field V. Stewart Seaman v. Luce Seamans v. Smith Searles v. Costillo Seaton v. Son Seaver i'. Boston V. Dingley Secrest v. IM'Kenna Secrist V. Zimmerman Sedener v. Essex Seeley ik Brown Seger v. Barkhamsted Seibert v. M'Henry Seitzinger v. Ridgway Selch V. Jones Selkirk v. Cobb Sellars v. Zinmierman Sellers V. Till Selsby V. Redlon Semayne's Semple v. Hagar Seneca v. Auburn Seris v. Bellocq Sevey v. Blacklin Sevier i\ Holliday Sewairs V. Fisk Sexton V. Nevers Seymour v. Harvey V. Maddox 209, 210 Shackford v. Goodwin 640 698, 599 Shaddock v. Clifton 466 405 Shaddon v. Knott 27 3,SG Shanks v. White 142 322, (il8 Shannon v. Shannon 1 371 Shannonhouse v. Bagley 229 157 Sharp V. Johnson 186, 4()6 02, 116, 525 V. Mayor 289, 502 75 V. Miller 450 28 Shattuck V. Stoneham 415 524 Shaw V. Boston 381, 427, 687 162, ](;3 V. Charlestown 414, 415 128 V. Cummiskey 683 62 V. Etheridge 681 333 V. Nicholay 190 171 V. Robertson 503 491 V. Tobias 124, 133 570 Sheafe v. Gerry 160 164, 175 Sheaffer v. Eastman 215 654 Sheahan v. Collins 517, 519 174, 181 Shearick v. Huber 6 149 Sheen v. Bumpstead 412, 432 48, 127 12S Sheets V. Selden 148, 229 330 Sheik IK M'pjlroy 170, 175 47, 86 Shelbyville v. Shelbyville 403 317 Shepard v. Butterfield 99 652 V. Milwaukee 647, 573 345 Sheppar v. Furniss 316 82 Sheridan v. Andrews 225 145 V. Welch 160 141 185 Sherman v. Dutch 667 115 V. Fall River 686 665 412 V. Kortright 428 173 V. M'Keon 170 149 V. Western 707 419 502 Sherrod v. Langdon 613 ( 3, 90 Sherwood v. Sutton 613 165 Shinloub v. Ammerman 232 228 Shipman v. Baxter 179 637 V. Clark 77 649 Shore v. Smith 350 385 546 Short V. Coulee 229 64 V. Hubbard 22 155 V. Tinsley 463 305 Shrewsbury v. Smith 428 458 692 Shroyer v. Miller 429 320 Shumway v. Cooper 268 614 V. Phillips 70 463 Shuter v. Page 85 75 Sibley v. Hoar 681 257 V. Hulbert 672 318 Silloway v. Brown 59 652 Sills V. Brown 422 135 Simcoke v. Frederick 30, 83 336 Simmons v. Bradford 459 ,649 650 675 V. Brown 574 640 V. Southeastern 660 647 Simonds v. Parker 80 235 Simons v. Monier 417 INDEX TO CASES CITED. liii Simpson v. Carlcton 478 529 Smith V. Miller 208 V. IM'Farland 30, 85 , 113 V. Milwaukee 386 V. Talbot 247 V. Mitchell 548 Simser v. Cowan 75 V. Modus 864 Sinch V. Champion 266 V Mor gan 85 Sinclair r. Jackson 405 V. Kew York 394, 397 , 402 V. Iloush 426 V. Over by 647 V. Worthy 1C7, 202 225 V. Perry 566 Sinfrer v. Bott 230 V. Powers 815 Singleton v. Kennedy 612 V. Pretty 226 I'. Pacific 276 V. Sherman 695 Sisson r. Cleveland 656 V. Smith 349, 353, 357 .619 Sissons I'. Dixon 392 V. Snyder 5 1,82 Sitcr i\ Jewitt 277 V. Taylor 459 , 514 Sitgrcaves v. Farmers' 055 V. Thackerah 556 Six Carpenters' 4 V. Tooke 876 Skid more v. Taylor 9 V. Wallace 442 Skiff t'. Cross 269 V. Warner 645 Skinner v. Stense 7 V. Weage 363 V. Stuart 258 V. Whiting 135 Skowhcgan r. Cutler 503 V. Wiggin 181 Slack V. Heath 122 V. Williamson 28 Slater v. Swann 270 V. Winston 49 103 Slaii<:hter v. Detiney 213 V. Woodfine 705 Sleeper r. Miller 131 V. Woodman 235 Small r. Hutchiiis 54 Smithers i'. War Eagle 387 Smallwood v. Norton 129 Smithwick i'. Ward 507 618 Smart v. Blanchard 354, 512, 518 Smyth I". Carlisle 198 Smit V. Peojjle 394 Snedeker v. Quick 76 Smith V. Ashtbrth 667 Sneed v. Osborn 163 tK Bryan 178 V. Wegman 637 V. Causey 243 V. Woodward 215 V. Chapin 183 Snively v. Fahnestock 598, 599 V. Condry 579 Snook V. Davis 84 V. Coolbaugh 29 Snow V. Carruth 566 V. Crockett 3 V. Chatfield 275 V. Dillinfrham 127 V. Halstead 286 V. Downing 392 Snowball v. Goodricke 637 V. Felt 263 Snyder v. Vaiix 10 V. Fisher l:i3 Soilleaux v. Soilleaux 641 V. Fox 575 Soule V. White 655 V. Gaffard 512, 515 Sourse v. Marshall 269 V. Gage 169 South V. Foster 553 V. Geortner 283 Sonthall V. Garner 81 V. Grant 99 Southern v. Crook 232 V. Harrison 627 V. Hixon 12 V. Hill 423, 45G, 532 I'. Kendrick 553 606 V. Hollister 351, 354 Southgate i'. Walker 142 • V. Houston 97 Soiithwick V. Smith 34 V. Howard 122 Spalding v. Hallenbeck 160 V. Hiiizar 655 Spaulding v. Goodspead 165 r. Huntington 40 V. Harvey 277 V. Hyndnian 624 V. Warren 163 V. Lee 435, 527 Spear v. Ridiardson 419 t'. I-isher 131, 132, 27(5, 366 ' S[)ears v. Burton 491 V. ]\r(\ann 148, 166 Speer v. Hadduck 160 V. M'Fall 118 Spence r. Spence 255 V. M"Gregor 117 Spencer v. Dickerson 132 V. M'Lean 79 ,91 V. Godwin 461 liv INDEX TO CASES CITED. Spencer v. IM'Gowen I'. Toht'v Spigelinover v. Walter Spikes V. Eiierman Watt V. Potter Watts V. White Weall V. King Weaver v. Alabama V. Aufuur V. Darliy V. Lawience Webb V. Hendrick V. Kelly V. Ross Webber v. Eastern V. Liversuch V. Roddis V. Shearman Webber's v. Underbill Weber v. Coussy V. Henry Webre v. Gaillard Webster v. Hill V. Price I'. Webster Weed V. Bibbins 350, V. Hill V. M'Guire Weeding v. Mason Weeks v. Barron V. Sparke Weinrich v. Porter Weisbrod v. Chicago Welch V. Nash i\ Northeast i\ Sullivan V. Whittemore Weld V. Bartlett V. Locke Wells V. Head V. Jackson V. Reynolds V. Sawyer WMton r. Pacific Wendell v. Abbott IK Mayor Wentworth v. Pratt 30,47 Wentworth v. Remick 196 loo Wernke v. Haren 220 i>n Wespole V. Smith 27 155 Wesson V. Waslibiirn 425, 453 30 West V. American 255, 278 281 V. Anderson 588 407 V. Chase 415 423 V. Forrest 616 626 V. Hannibal 383 465 V. Rice 551 649 504 V. Rousseau 324 321 V. Wentworth 589 192, 193 Western v. Carlton 550 189 Westiall V. Dungan 558 21, 22 Weston V. Clark 167 204 V. Grand 656 570 V. Higgins 402 298 Wetherbee v. Marsh 516 497 Wetherell v. Hughes 534 426, 2/.8 Wetzell V. Waters 551 o^i-i Weymouth .f. Chicago 593 30 Whaling v. Shales 124 6 Wheaton v. Catterlin 89, 96 348, 515 Wheeler v. Allen 12 454, 461 V. Framingham 442 496 V. Hambright 537 485 V. RPCorristeu 49 323 V. Train 28 299 V. Winn 165 22,25 Wheelock v. Cozzens 22 63 Whipple V. Cumberland 554 228 V. Thayer 30 102 Whitaker v. Sumner 641 244 Whitbeck v. New York 590 145 Whitiher v. Shattuck 69 118 White V. Ballou 426 155, 191 V. Brown 90 351, 512, 520 V. Chadbourne 503 54 V. Dinkins 461 197 V. Dow 325 707 V. Evans 147 440, 443 V. Mosely 572 484 V. Van Kirk 492 465 V. Watkins 288 182 V. Webb 662 , 669 306 V. Woodruff 203 680 V. Wyley 624 220 Whitehall v. Smith 279 317 Whitehead v. Foley 157 646, 639 V. Root 289 300 V. Varnum 647 405 Whitehouse v. Androscoggin 635 164, 180 Whitesides v. Collier 61 699, 700 Whitfield V. Westbrook 625 705 V. Whitfield 423, 437, 469, 383 548 432, 441 Whiting V. Johnson 624 420 Whitman v. Boston 415, 484, 560, 364 571 INDEX TO CASES CITED. lix Whitney v. Allaire V. Krown V. Fieiicli V. Ilitclicock ('. IjL'liiiiur Whitteinoru o. iJoiies r. Ware Whittier v Franklin Whitton r. (Joddard 258, Whitwortli ('. Humphries Wible r. Wible Wickershain r. Reeves Wifks V. M'Xauiara Wier IK Covell Wiji^^in V. l^luiner Wike V. LijrI'tner Wilboni V. Odell Wilbur r. Ueeciier V. Hrown V. Flood Wilcoxon ('. Annesley Wilde V. Hixter Wile V. Sweeny Wilkcrson r. Moulder Wilkins r. (iilmore Wilkinson v. Moseley 283, V. Pearson Wilklow V. iiane Willard i\ Kimball Willfv ('. AVilliams rurtsniouth V. Beede V. Birch V. Bramble V. Cash V. East V. (Jilraan V. Hall V. Hartshorn V. lluhnes V. Keyser V. Newberry V. Pliclps V. lleil V. Smith V. Welch I'. West V. Williams Willis V. Ilavemeyer ('. (juiml)y V. Wozencraft Wills V. Barrister Willson V. ('leavciand Wilson V. Carne•. Trinqjer, 8 Allen. 3'.i8. In Michigan, replevin does not lie. if the goods are in the plaintifT's j)ossession, thougli an officer claims tlieni bv a levy. Hickey v. Hinsdale, 12 Mich. 99. REPLEVIN. [book I. simjily, tlio plaintiff must strictly follow the statute.^ (a) Hence "where the slave of A, a resident of New Orleans, ran away, and was afterwards sold at auction in Natchez, and bought by B, who sent him to Little Rock, and sold him afterwards to 0, who had no knowledge of A's title ; it was held that A could not main- tain replevin against C for unlawfully detaining the slave. So a person receiving property, knowing it to have been obtained by a trespass, is held not liable to an action of replevin.^ § 4. The same rule is sometimes expressed by the proposition, that " in general, when trespass will lie, replevin will also ; " " or in all cases where trespass lies. ** (&) § 5. But, even upon this restricted view of the remedy in question, it is held that an unlaiofid intermeddling with, or an €xe7'cise or claim of do7ninion over, property, Avithout authority or right, will render the party liable to trespass or replevin.^ So a taking, under color of a contract with a drunken bailee, may be regarded as a tortious taking ; ^ or obtaining goods by fraudulent pretences ; and replevin will lie for them without a demand.'' 1 Dame v. Dame, 43 N. H. 37 ; Trapnall I'. Hattier, 1 Eng. 18; Drummond v. Hopper, 4 Harring. 327. See Johnson v. Jolm, ib. 171. '■2 1 Eng. 18; Harper v. Baker, 8 Men. 421. 3 Per Shaw, C. J., Esson v. Tarbell, 9 Cush. 415. (a) To this general rule tliere was at common law one exception ; where cattle were distrained datiuu^e feasant, and before impounding sufficient amends were ten- dered. The New Hampshire statute has made some other exceptions. Dame v. Dame, 43 N. H. 37. (b) The question has involved the recognized distinction between abuse of an autliority conferred by law and that conferred by act of pari//, as consti- tuting a trespass ah initio. See Six Car- penters' case, 8 Co. 290 ; Gates v. Lowns- bury, 20 Johns. 427. By a late decision in England, replevin is not maintainable, unless there has been a taking of the goods out of the possession of the owner. Thus A, being indebted to the plaintiff, brought him 15/. towards payment, but requested and obtained permission to lay the money out in the purchase of a horse and cart, which were to be the plaintiff's, but of which A was to have the posses- sion and use, subject to such occasional use as the plaintiff luight require to have of them, and to their being given up to * Marshall v. Davis, 1 Wend. 109; Hopkins v. Hopkins, 10 Johns. 369 ; Bruen V. Ogden, 6 Halst. 370. 5 Haythorn v. Rushforth, 4 Harring. IGO. ^ Drummond v. Hopper, 4 Harring. 327. T Ayers v. Hewett, 1 App. 281. the plaintiff when he should demand them. After A had purchased the horse and cart, and had the possession and use of them for some time, he determined to emigrate. They were used in transport- ing his effects to the pier at which he was to embark, and the defendant, to whom he owed money for fodder supplied to the horse, went with him, to procure payment if he could. At parting, A delivered the horse and cart to him, telling him to take them for the debt ; but adding, that he owed the plaintiff money also, and that, if he would discharge the debt due to the defendant, which was much less than their value, he was to give them up to him. The plaintiff for some time re- mained in ignorance of what had passed, and, afterwards coming to the knowledge of it, demanded them ; but the defendant refused to deliver them unless his debt was paid; whereupon the plaintiff re- plevied. On the plea of non cepit, held, there was no taking which would main- tain replevin. Mennie v. Blake, 37 Eng. L. & Eq. 169. CH. I.] GENERAL NATURE AND OBJECTS OF THE ACTION. 5 So, in replevin, any evidence, which shows that the defendants obtained possession from one not authorized to sell, is sufficient evidence of an unlawful takiiif:^.^ So where A, having the pos- session and management of a farm, forbade H to take his liorse therefrom ; held a sufficient taking to supj)ort repiuviu.- (a) § 6. These distinctions, however, as to what constitutes a tor- tious taking, have become comparatively unimportant ; because the prevailing and almost universal rule now is, that replevin lies for the recovery of any personal chattel unlawfully detained from the owner, although there may have been no tortious tak- ing.^ The reasons for this more liberal application of the action are well explained by the court in Massachusetts. " It is a gen- eral remark in the books, that, where there has been a tortious taking, replevin will lie . , . Where the taking was originally without wrong, but the party detains the goods wrongfully, the owner should have some remedy for them specifically, if to be found. The defendant contends that detinue, in such case, is the only remedy. . . . This is certainly not so effectual a remedy, if, indeed, it be not entirely obsolete. The judgment in detinue is to recover the thing, or the value of it, if it cannot be found, with the damages for the taking. In replevin, the thing is im- mediately seized ; but in detinue the possession is not changed until after judgment ; and, this being conditional, the value, as estimated by the jury, may be but a poor compensation. After a judgment in detinue, a distringas goes to the defendant, ad deliberanda bona; and, if he will not deliver them, the plaintiff shall have the value, as ascertained by the jury. So that it is at the defendant's election to deliver the goods or the value. 1 Gray v. Nations, 1 Pike, 557 ; Eg- Trevill, Sid. 81 ; Jacobsen i\ Lee, Lil. gleston V. Miindy, 4 Midi. 2'.)5. Eiit. 349. " Everj' unlawful detention is - Moore v. Moore, 4 Mis. 421. a taking." Per Ld. Deinnan, C. J., Wil- 3 Marston i-. Baldwin, 17 Mass. GOG ; Hams, 5 Ad. and Ell. 144; 31 Com. L. Baker v. Fales, IG Pick. 147 ; Badger v. 5d'J. Phinney, 15 Mass. 359 ; Arvuidel v. (a) After an action, to recover posses- he commenced the action in the morning, sion of .sjiecitic personal property, and dam- and, after lie had put the jiajiers in the ages for its detention, has been commenced sheriff's liands for service, found the by the service of summons ; a voluntary goods lying in front of the defendant's taking of the ])roperty, not from the de- door, and took ]iossession of them, there, feiidaiits tliciiiselves, but by plaintiff's about noon, or soon after noon, there being picking it up where he chanced to find it, no evidence as to tiie time of serving the does not e.xtinguish the right of action, summons; held, upon this evidence, a ver- Where tlie only evidence, as to the time diet for the plaintiff should lie sustained, of cominencenicnt of the action, was the Tracy v. Neiv York, 9 Bosw. 390. testimony of the plaintiff (a lawyer) that 6 REPLEVIN. [book I. Replevin is, then, the only certain remedy, and it may be main- tained where the taking was lawful, but the detention unlawful." This extended application of the remedy is further justified, by a statutory provision for it, where goods are taken, distrained, or attached.^ In a later case, argued for the defendant by very eminent counsel, the same learned judge reaffirms the former decision, upon a full examination of the English and American authorities on both sides of the question.^ And, in still another case, Mr. Justice Wilde holds that " such is clearly the law of Massachusetts, whatever may be the law of England," referring to the terms of the writ prescribed by statute, — " taken, detained, or attached" (as the case may be).^ And, in a compar- atively recent case it is said : " By our statute, replevin will lie for a wrongful detention only."^ § 7. And as, upon the theory of a wrongful taking, replevin is held a concurrent remedy with trespass ; so, upon the ground of wrongful detainer only, it is concurrent with the other action for damages, trover.^ § 8. The prevailing doctrine in relation to replevin, in still another aspect, is stated by a writer of high authority, as follows : " Replevin may be brought to recover goods which are still de- tained by the person who took them ; and this is called replevin in the detinet, which has been long since obsolete. But the mod- ern action is in the detinuit ; which is so called, because, as the word imports, it is brought when the goods have been delivered to the party, which is done by the sheriff upon a writ of replevin, or plaint, levied before him. The plaintiff in replevin in the detinet was entitled to recover as well the value of the goods as damages for taking them. But in the present action in the detinuit he can only recover damages for the taking. " '° If the allegation is in the detinuit, the damages are presumed not to include the value of the property. " (a) 1 Per Putnam, J., Badger v. Phinney, bins, 2 Blackf. 415; Waterman v. Mat- 15 Mass. 362, 363. teson, 4 R. I. 539 ; Seaver v. Dingley, 4 ■^ Baker v. Fales, 16 Mass. 147. Greenl. 306. See Amer. Law Eev., Jan. 3 Marston v. Baklwin, 17 Mass. 610. 1873, p. 364. 4 Esson V. Tarbell, U Cush. 415. Ace. & Eggleston v. Mundy, 4 Mich. 295. Weaver v. Lawrence, 1 Uall. 156 ; Shea- •> Potter v. Worth, 1 Wms. Saun. 347 b, rick V. Huber, 6 Bin. 3; Stougliton v. n. 2. llappalo, 3 S. & K. 562; Cullum v. "• Fox i>. Prickett, 34 N. J. 13. Bevans, 6 Har. & J. 469 ; Daggett v. Rob- (a) The law upon this subject in the Hampshire it is held, that, at common different States is variously modified by law, and before the statute in relation to express statute and local usage. In New replevin, replevin could, be maintained CH. I.] GENERAL NATURE AND OBJECTS OF THE ACTION. § 9. A somewhat intermediate view of the point in question is, that replevin lies against a possessor of property unlawfully for the wrongful detention of a distress. Osgood V. Green, 10 Fost. 210. 15nt where goods come into tlie hands of the defendants iawfull}', as carriers, rei)levin cainiot he maintained for mere detention. Woodward r. Orand T. 4i') N. 11. i'yj.i. In reniisylvania, re])levin lies, wlier- ever one man claims goods in the jiosse.s- sion of another. IJoyle r. Kaiikin, 22 Tenn. 1C.8. In Indiana, it is necessary to prove cither an unlawful taking or an uidawful detainer. Baer r. .Martin, 2 Cart. 22'J. In Arkansas, to maintain rejilevin in tlie (leliiKf, the plaintill' is not l)ound to prove a hailment by himself or some per- son for him to the defendant. IMielan v. Boniiam, 4 Eng. 38'J. In Misso\iri, replevin will lie, although no trespass lias been conimitted by the defendant in taking the property. Skin- ner r. Stense, 4 Mis. '.13. In(ieorgia, unlawful taking is required to maintain a possessor!/ warrant. Bryan V. Wiiit.sett, 3'J Geo. 71o. In Ohio, it has been held that replevin lies in all cases, imless specially excepted by statute. Stone v. Wilson, Wright, ir/J. liut by a late decision, it is wrongful detention, verified by affidavit, that gives the right of action. A tortious taking is insufficient. State, &c. v. Jennings, 14 Oiiio St. 73. In North Carolina, a power of distress, given to a navigation company, uj)on a refusal to i)ay their tolls, is constitutional, and replevin lies for its abuse. Tiie State r. Patrick, 3 Dev. 478. The act of North Carolina in relation to rejilevin (Rev. Sts. c. 101) does not repeal or supersede the common law remedv. Dufly v. Murrill, 'J Ired. 46. In I'ennsylvania, replevin is not alto- gether a proceeding in rem, but against tiie defendant in the writ personally, with a summons to appear. Bower v. Tallman, 5 W. & S. 556. In Delaware, replevin is not confined to distress for rent in arrear, but may be used wherever one claims ])roperty in another's possession. Clark v. Adair, 3 llarring. 113. The provisions of the (Del.) iiev. Code, 379, 380, extending the common-law remedy of replevin to cases of wrongful detention, do not ai)])iy, where goods are seizetl by a sheriff on execution against a party who holds them under a contract of hiring with the plaintiff, which is to be terminated on the latter's giving him notice; if no such notice is given. Stapleford v. White, 1 Iloust. 238. In Wisconsin, a verdict, that the prop- erty detained is that of the plainlitl', and awarding damages for the detention, is defective, and must be set asiile, unless it be also found that the detention was unjust. Swain r. Koys, 4 Wis. 150. But, in replevin in the n jiii, a veniict of "unjust detention" does not dispose of the material issue raised by the allegation of taking, and is therefore bail. Iteplevin in the rtjiit, under the Code, resembles the old tresjjass vi el unnis, and only ])uts the taking in issue. Heplevin in the (letinet is a substitute for the old action of detinue, where the injury is only in the keeping. Konge v. Dawson, 9 Wis. 246. In Minnesota, under the statute, the plaintiff must allege that the defendant " wrongfuUv " took the property. Coit V. Waples, 1 Min. 134. The statute of Wis- consin, adopted in Minnesota, retains the common-law action of replevin, and also gives it in lieu of detinue, where only the detention is wrongful. lb. In Mississipi)i, replevin was held to lie only in case of distress for rent. Whee- lock V. Cozzens, 6 How. Miss. 279. In New York, the " claim or delivery of personal property," under the Code, is a substitute for replevin as it was reg- ulated by the Uevised Statutes. That action was a possessory action for the re- covery of specific property in the defend- ant's possession or control, with damages for the detention. If the pro])erty were removed or concealed (in fraud of the re- plevin) so that the sheriff could not find it, and only in such case, the Ki'vised Statutes added the remedy of arrest and bail. Heplevin could not be maintained against a party who had neither the pos- session nor control of the chattels claimed, and had not parted with them in frau Brewer v. Flemin{i, 51 Peiin. 102. ' Harlan v. Harlan. 3 Harring. 507. ^ Ogden v. Stock, 34 lU. 623. * Clement v. Wrigiit, 4U I'onn 250. (a) Replevin does not lie by the as- that he had cleared and fenced tlie ground, signee of a mortgage for a house erected and put in the crop of wheat, and was in by the mortgagor after the mortgage, and possession of the jiremises. and that the sold to the (lefendant. Clark v. Key burn, defendant cut and carried away tiie grain ; 1 Kans. 281. held, it was an admissil)lo and sufficient (6) In rejilev in for eighty dozen of wheat defence, that the plaintiff in sowing the in the sheaf, the plaintiff having proved gram was a trespasser, that the defendant 12 REPLEVIN. [book I. § 12. The record book of a corporation may be replevied.^ Thus, parish records.^ So, a deed, by the grantee.'^ (a) § 13. An equitable assignee of a chose in action cannot re- plevy it from tiie legal owner.* § 14. Replevin is local, and must be brought in the county where the goods are taken or distrained.^ So, although brought for a cause of action for which trespass de bonis asportatis would lie.^ And the venue will not be changed from the county where the cause of action arose.'' Upon this point, it is stated by a writer of high authority : " Replevin differs from trespass clau- sum /regit. In the latter it is held to be sufficient for the plain- tiff to allege the trespass to have been done in a vill or parish only, without mentioning any place, for it is not material ; and if the plaintiff do mention a place, the defendant may justify in another place without a traverse, and the plaintiff must ascer- tain the place in a new assignment. But as there can be no new assignment in replevin,^ and it is also an action which requires greater certainty in the declaration, the plaintiff is bound to mention the place of taking at first in his declaration." ^ In the late case of Strong v. Lawler, upon a careful examination of the authorities, the strict rule is held to be, that, in case of distress for rent, the writ of replevin must allege the place as well as the town where the distress was made. But the rule is held inappli- cable to replevin in other cases.^*^ 1 Southern, &c. v. Hixon, 5 Ind. 165. 6 Williams v. Welch, 5 Wend. 290. - Sawyer v. Baldwin, 11 Pick. 492. ^ Atkinson v. Holeomb, 4 Cow. 4-5. 3 King V. Gilson, 32 111. 348. 8 Cockley v. Pagrave, Freeman, 238. ■* Clapp V. Shepard, 2 Met. 127. 9 Potter v. Nortli, 1 Wms. Saun. 347 a, ^ Ilobinson v. Mead, 7 Mass. 353 ; 1 note. Saun. 347. But see Crocker v. Mann, 3 '" 37 Conn. 177. Mis. 472. entered and took actual possession of the diana Code for the recovery of personal land, wliicli he had ever since maintained, property. Wilson v. Rybolt, 17 Ind. 391. and while in possession cut the grain. By A party cannot recover scrip, of which the his entry, he came in possession of the legal title is in the defendant, by the plain- land and the grain, and the title to the tiff's permission, in an action of replevin, land could not be tried in the action, or of claim and delivery, which is of the Elliott V. Powell, 10 Watts, 454. same legal nature. The remedy is in («) The old doctrine was, that replevin equity. Wheeler ?;. Allen, 49 Barb. 460. does not lie for title-deeds, as they sai-or of Replevin will lie for a note which the the realti/. Brooke, Abr., Replevin, 4. See maker has paid to tlie holder, and the latter Clark V. Nevill, 1 Phila. 28. A title-deed is has promised to deliver up, but afterwards a personal chattel ; but it is so connected refuses to deliver. Savery v. Hays, 20 with, and essential to, the ownership of Iowa, 25. In replevin for a note, a copy real estate, that it descends with it to the of tlie note need not be set out in the heir. The possession of title-deeds may comj^laint. 26 Ind. 202. be recovered in the action under the In- CH. I.] GENERAL NATURE AND OBJECTS OF THE ACTION. 13 § 15. But the plea of the plaintiff need not mention the place of taking, but only refer to the property mentioned in the pre- vious pleadings.^ («) § 16. The courts, in which the action of replevin may be brought, are of course prescribed by statute in the diflerent States, {b) 1 Judd V. Fox, 9 Cow. 250. See Gardner v. Humpliroy, 10 Joliii. 53. (a) It is saiil tliiit ropli-vin may l)e broiij,--!!! in any county in wliich tlie defendant lias liad tiio goods since the taking. Morr, Kopl. lot. Tlie di't'cndant, in replevin lor a Iiorse, answered, tliat uj) to and after the date of the suit tiio liorse was in anotlier county. Held, tliis was a (pieslioii of fact, pleaded in abatement ; and, if not jilcaded, it would have been waived. Keller r. Miller, 17 Ind. 20G. Sec. 1 of (Ind.) Acts of 18lll, p. 141, covers suits for the recovery of personal property, or for injury to it, and requires such suits to be brought in the tcjwnship •wliere the defendant resides, and where the i)roperty was taken or detained, if this township be in the county where the de- fendant resides. Jocelyn v. Barrett, 18 Ind. 128; IJeddinger v. Jocelyn, ib. 325. Actions of replevin may be instituted be- fore any justice of the i)eace in thecountj^ though the defendant reside in a different township from that in wliich the justice resides. Test v. Small, 21 Ind. 127. Rei)levin was brought in the county where the jtlaintiff resided, but not in tiie county where the property was detained, and tor this reason the action was dis- missed on motion. Held, notwithstanding this disjyosition of the cause, the comity court had jurisdiction ; and it was their duty to render judgment Ibr a return, without an\' proof of the defendant's right or aii\' tbrmal plea or avowry; and the plaintiff could not contest such judg- ment on the ground that he owned the projierty. But such judgment is not con- clusive as to the ownership of the defend- ant. This may be tried in another action. After such dismissal, the de- fendant cannot have his right to damages tried. Collamer v. Page, 35 Vt. 387. [b) In Massachusetts, it is held that a justice of the jieacc has no jurisdiction, nor the Court of Common I'leas any ap- pellate jurisdiction, in an action of re- plevin, except for beasts distrained for going at large, or impounded for doing damage. Jordan v. Dennis, 7 Met. 5'JO. See Gen. Sts.; Kidlon v. Emory, G Greenl. 2G1 ; McKnight v. Crinnion, 22 Mis. 55!). Where an action of replevin for goods, commenced before a justice of the peace, was carried to the Court of Common Pleas by ajijieal ; and that court rendered judgment for the defendant for a return, with damages and costs; and the jilaintiff brought a writ of error, for want of juris- diction : so much of the judgment as awarded a retui-ii and damagt's was re- versed, and so much as awarded costs was affirmed. Jordan r. Dennis, 7 Met. 5'JO. Where the parties indorse upon tiie writ an agreement that the value of the property is less than twenty dollars, the (^lass.) Superior Court has no jurisdic- tion. Leonard v. Harmon, 105 Mass. 113. In Vermont, a justice of the peace was formerly held to have no jurisdiction in replevin, except for beasts distrained or impounded, even where the value of the projierty is less than seven dollars, (ilover ?•. Chase, 1 Williams, 533. But, by a later case, a justice of the jieace has jurisdiction in replevin for goods and chattels, unlawfully taken or detained, of value not exceeding twentv dollars. Tripp V. Leland, 3'J Vt. ()3. In Kansas, a justice of the peace, imder sec. 131 of the justice's act, has jurisdiction to try an action in replevin only when the projierty is of less value than one luni- dred dollars. If, in any stage of the pro- ceedings, it shall be ascertained that the value amounts to that sum, although ajipraised at less, he is then ousted of jur- isdiction, and any further ]irocee. Adverse possession of a horse, which had strayed from the original owner, for the full term of limitation against any claim, gives a good title tiiereto, sufticientto sustain replevin for him in the hands of the original owner.'-^ So when the plaintiff, being in possession of a stray horse which he iiad never posted, bailed it to the defendant, who failed to return it according to the bailment; the plaintiff is entitled to a judgment for the horse, in an action for its recovery, or, if a return could not be had, for its value, as assessed by the jury.-"^ § 1 c. The mere act of capturing, by a federal scout, and jjlac- ing under military control, the private property of a citizen residing within the permanent lines of occupation of the federal army, did not divest the owner of his title so as to prevent his resisting replevin.* § ii. A qualified possession sustains replevin.'^ So one who has a special property in a chattel may bring replevin against the seller of the chattel, for refusing to deliver it,'^ § 3. In replevin between the general owner of property and one having a special interest therein, the measure of damages in favor of the latter is the value of such interest." § 4. By agreement between A and B, A was to furnish funds to purchase, in his name, a certain quantity of timber from differ- ent persons, to be selected in the woods, standing, by B, and to be cut, hewn, rafted, and delivered by him at T., for which he was to receive so much per cubic foot. Held, A had the general property in timber got out under the contract, and which B was 1 Parham v. Kilcv, 4 Cold. 5. 2 Hicks V. Fliiit, ill Ark. 4G3. 8 Borron's v. Laiules, 1 Duv. 299. * Taylor v. Jenkins, 24 Ark. 337. the second niort.iraf,'ee, the defendant lieinjj the first, moved to stay ])roceedin<;s, nntil an action, instituted sid)se(iuently to the replevin, to jji-rt'i-ct liis cause of action therein, siioiild he determined. Held, the motion must he denied, as the i)lain- tifl's atlidiivit failed to show that his mortgage deht was due, or that his mort- liR'^e entitled him to take possession he- tore the deht should mature. .Smith r. Coolhaujih, I'J Wis. KIG. A sold B a cow, imder a written ajireenieiit that A should keep her as long as 15 thought best, and under an oral agreement that A 5 Mead r. Kildav, 2AVMtts, 110. 6 Woods i: >'i.\on, Addis. l:;i. ^ Khoads v. Wouds, 41 Barh. 471. might redeem on repaying tlie jiurclmse- money, the written agreement heing in- tended only as security for the lf)an of the so-called pnrchase-moiie}'. Jlehl, A might maintain replevin for the cow, if she was unlawfully taken or detained from him. Wills r' Barrister, 86 Vt. 220. A lessee of land, who had the privilege of removing huildings at the end of the term, mortgaged a huilding. Held, his widow, in a replevin suit hy the mortgagee for the mortgaged projierty, could not set up a homestead claim or the landlord's title. Ballou V. Jones, 37 111. 95. 30 REPLEVIN. [book I. transporting to T., but no riglit of possession. That, as between the parties, B had a special property and right of possession, liable to levy and sale on execution ; and, in an action of replevin brought by C, an execution purchaser, against B, A's general property was not a good defence. That C was entitled to re- cover, having the riglit of possession as against B, and the right of property, united ; but, as he had gained only a special prop- erty, he could only have a verdict finding the property in him, and an assessment of the value at the amount of B's special property therein, to wit, the agreed price per foot, deducting the cost of transportation to T. Also, that the case presented merely a question of law for the court.^ § 5. The assignee of goods under attachment, having paid the claim of the first attaching creditor, may, upon giving the officer notice of such payment and of the assignment, and demanding possession of the goods, maintain replevin therefor against him, the delivery of the instrument being a suflScient delivery of the goods.2 -g^^^ a receiptor to an officer, or any other bailee for safe-keeping merely, has not sufficient interest to maintain re- plevin. ^ § 6. A plaintiff in replevin, as in other actions, must prevail on the strength of his own title ; and, if he fails to show a title in himself, it is immaterial whether the defendant has or has not any title, and possession should be restored to him ; * (a) and the burden is upon him to prove his title, more especially if property in a stranger is pleaded, although not proved.^ The plaintiff cannot rely on a merely colorable sale to himself.^ But, if he show a primd facie right, he must recover as against all who do not prove better title." § 7. In an action of replevin, it appeared that A, the former owner of the property, became an insolvent debtor, but his as- signee had taken no possession and made no conveyance of the 1 Weaver r. Darby, 42 Barb. 411. ■* Johnson r. Neale, 6 Allen, 227; Stan- 2 Whipple V. Thayer, 16 Pick. 25. ley r. Neale, 98 Mass. 348. !* Warren v. Leland, 9 Mass. 265 ; Per- ^ Sinicoke v. Frederick, 1 Cart. 54. ley V. Foster, ib. 112; Waterman v. Rob- ^ Dawson v. Wetherbee, 16 Gray, 123. inson, 5 ib. 303. See Simpson v. McFar- "^ Ingersol i". Emmerson, 1 Cart. 76. land, 18 Pick. 427. (a) In an action of replevin for a span the statutes of Minnesota ; he must prove of horses levied upon as the property of a his own title as alleged in his complaint, third party : held, the plaintiff could and could not sustain himself by proving not claim that the horses were exempt title in another party. Howland v. Ful- from levy against such third person under ler, 8 Minn. 50. en. IV.] PROPERTY AND POSSESSION NECESSARY, ETC- 31 property. The plaintiff claimed under a conveyance from B prior to the insolvency. The action was brought against a sheriff who attached the property, after the insolvency, as belonging to A, in whose possession it remained. It was held, that, whether it was attachable or not, the plaintiff could not maintain the action, as he could derive title only from the assignee ; and that he must, like plaintiffs in other actions, maintain his case on the strength of his own title or claim, in the absence of which proof it is immaterial whether the defendant has or has not any title. ^ § 8. So replevin cannot be maintained, merely by evidence of the defendant's having gone into insolvency, and the failure of his assignee to appear and defend. The plaintiff is still bound to give affirmative proof of title. " Neither the assignment nor omission to interpose could oblige the defendant, without being heard, to suffer judgment against him in favor of those who prove no title, and from which a certificate would not protect him." 2 § 9. An officer, upon a writ against A, in favor of B, attached personal property. C served upon him and upon B a notice that a replevin suit would be brought, and the next day the writ of replevin was served upon the officer. After the notice, and before service of the replevin writ, the attachment suit was withdrawn, and the officer delivered the property to A. C applied for a mandamus, to compel the officer to deliver the property to the officer serving the writ of replevin ; alleging that C was in possession of the property at the time it was attached, but not that he was the owner, nor that the writ of replevin alleged such ownership. The officer returned upon the writ of mandamus the withdrawal of the attachment suit, and the delivery of the property to A. To this C demurred. Held : 1. That the return would seem to be sufficient, since the object of the statute, pro- viding for the action of replevin in such cases, was to give a claimant of the property an opportunity to try the question of title, and C could try this question in a suit against the original defendant as well as in the replevin suit. 2. But, whether the return was in itself sufficient or not, it was sufficient for the application, which was clearly demurrable in not alleging that the property sought to be replevied belonged to the plaintiff 1 Johnson r. Neale, 6 Allen, 227. '^ Hallett r. Fowler, 8 Allen, 93, per Metcalf, J., 94. 32 REPLEVIN. [book I. therein.^ (It was doubted whether the application was not in- sufficient, in not also averring that the writ of replevin contained an allegation of property in the plaintiff.) § 10. The declaration stated the chattels to be the property of the plaintiff, and the plea, to an avowry and cognizance, that the property and possession of the chattels were in the plaintiff. Held, no departure from the declaration, there being nothing in the declaration inconsistent with the possession alleged in the plea.2 § 11. In replevin for two oxen, the defendant pleaded that they were not the property of the plaintiff, and issue was joined thereon. The plaintiff had leased the oxen for three months ; during which they were attached by the defendant, a deputy sheriff, as the property of the lessee. Held, the action could not be sustained, inasmuch as the plaintiff had not the right of pos- session ; and, although the term had expired before judgment, a return was ordered, because the question in whom was the gen- eral property had not been tried. ^ § 12. A delivered to B cattle claimed by B as his own, upon receiving a receipt from him, conditioned to return them if B did not prove his title satisfactorily to A. Upon replevin brought for non-delivery, A not being satisfied with B's evidence ; held, evi- dence of B's title was admissible.* § 13. By a bill of sale, eight family pictures were conveyed to A by his grandmother, subject to a life-interest in her. At her death, he took them to his father's house, and his father removed them to his daughter's house, when he went there to reside. After- wards, the father brought an action for these pictures against his daughter's husband, and made an affidavit that " he is owner " of the pictures. The father died pending this action, and A then began a similar action, in which this affidavit was objected to his title, but it was not shown that A ever read it. It was proved, however, that he signed an undertaking in that action as surety for his father, which recited that the plaintiff therein " has made an affidavit that the defendants wrongfully detain certain personal property, &c., and the plaintiff claims the immediate delivery," &c. The attorney who brought that action proved that he 1 Meritlen, &c. r. Whedon, 31 Conn. 3 Collins v. Evans, 15 Pick. 63. 118. * Dimond v. Downing, 2 Wis. 498. ^ Judd V. Fox, 9 Cow. 259. CH. IV.] PROPERTY AND POSSESSION NECESSARY, ETC. 33 advised that suit to be brought by A as owner, but tliat the father insisted on bringing it as bailee, and was advised that he could do so. Held, the finding of the court at special term, " that the plaintiff (A) is the owner of the eight several pictures mentioned," ought not to be disturbed. The expenditure of money on the pictures by the defendant, without objection by the plaintiff, the former not claiming, nor the latter disclaiming, their ownership, would not bar the plaintiff's recovery. ^ § 14. Replevin will not lie for an article manufiictured to order, until it is completed and delivered. Thus A accepted an order to build a boat for B, and proceeded to build one, which he repeatedly declared he was building for B, on the order ; but, after it was finished, refused to deliver it. Held, B could not maintain replevin for the boat, his remedy being by an action on the contract.^ So A contracted to build a house for B, and find the materials, for which he was to receive his pay as the work advanced. After the house was enclosed, he worked the house- plank, belonging to him, into columns for a piazza, and removed them, for convenience, to an adjoining house, where they were levied upon by virtue of an execution against A. Held, in replevin by B, he could not maintain the action, the materials being personal property, and not passing to B until delivery, or until affixed to the freehold.^ § 15. A, residing abroad, having contracted with a manufact- urer in Massachusetts for the building of certain machines, which were to be delivered to A's general agent here, by whom they were to be received and shipped, and paid for out of funds furnished him for the purpose ; a part of the machinery was accordingly manufactured and delivered to the agent, and the whole thereupon paid for by him. Held, the agent, inasmuch as he was to pay the price ouly for A, and charge it to him, did not thereby acquire any such property in the articles not delivered, as would entitle him to maintain replevin therefor against the manufacturer.* § 16. A quantity of hides was delivered by A to B, for which B's note was taken, at their agreed value, payable in eight months. At the same time, a written agreement was made by B 1 Hunt I'. Moultrie, 1 Bosw. 531. » Johnson i'. Hunt, 11 Wend. 137. ^ Pettengillu. Merrill, 47 Maine, 109. See U. S. v. Kennan, Pet. C. 168. * Dixon V. Hancock, 4 Cash. 96. 3 S4 REPLEVIN. [book I. with A, that, in case of the non-payment of the note at maturity, the leather, which was to be manufactured from the hides, should be redelivered to A, to be sold by him, and the proceeds of the sale to be applied first to the payment of the note, and the sur- plus, if any, to be given to B. Held, the property in the hides was vested in B, and A could not maintain replevin for them against an attaching creditor of B.^ § 17. A writing in these words, " We have this day sold to W. L. & Co. four hundred tons of pig metal at our landing, or that will soon be delivered there," is not such evidence of delivery to the vendees, as will support an action of replevin by tiiem against one who had obtained possession, before the arrival of their agent at the landing mentioned, under a valid contract with the vendor.^ § 17 a. A's intestate, in 1862, placed a horse with B to break and use for its feed, and in 1864, in order to keep it from being impressed by the confederate government, arranged with B that B should claim it as his own, and took B's note for $400. A, after qualifying as administrator, made demand for the horse, but without a formal tender of the note. Held, A could maintain replevin for the horse, notwithstanding the fictitious sale.^ § 17 6. A contracted for a steam-engine and boiler, to be of a certain power, and, when they were delivered, paid a portion of the price, taking a receipt, which showed that the money was received in " part payment for the steam-engine and boiler sold to A by me," and also provided that, if they should not prove to be of the power specified, B, the maker, should repay the money and take them back, and, if he should fail to do so, A should have a right to sell them. On trial they proved not to be of the power specified, but B on request refused to repay the money and take them away. Several months afterward, A allowed B to take away and use the boiler, on his agreeing to pay for the use of it ; and, after removing it, B mortgaged it. Held, the title was in A, and he could maintain replevin, although he authorized B to sell it at the time of allowing him to take away and use the boiler.4 § 17 c. A sold to B certain specific articles, and agreed to fur- 1 Southwick V. Smith, 29 Maine, 228. 3 Lutz v. Yount, Phill. (N. C.) L. 367. 2 Winslow V. Leonard, 2-1 Peun. 14. * Stevens v. Cunningliam, 3 Allen, 49L CH. IV.] PROPERTY AND POSSESSION NECESSARY, ETC. 35 nish Lira certain supplies iu a lumbering operation, for all of which B was to pay him by cutting and hauling logs at a stated price per M. feet, A " to retain entire ownership of the" specific articles "until he received entire payment for the same." Upon a settlement of the lumbering operations, by deducting the price of the articles and supplies from the amount due B for cutting and hauling, a balance of $634 was found due him, which A paid. Subsequently it was found that $250 too much was paid B. An action of replevin having been brought for the chattels by B's vendee against an agent of A, who had possession of them; held, the title had vested in B notwithstanding the error in the account, and that A had no lien upon them for the amount overpaid.^ § 17 c/. A gave his bond to convey to B certain timber lands on the delivery of a certain amount of lumber, part at the time and part in annual instalments ; B to have possession and use of the premises " without impeachment of waste or claim of dam- ages against him," so long as he performed the conditions on his part. B assigned the bond to C. In replevin by A against C, for lumber made from timber cut by him on the lands after Jan. 1, 1858, there was some evidence that an instalment of lumber due on that day had not been paid. Held, a default of C in de- livering the lumber did not give A any property in the lumber in controversy so that he could maintain this action. Also, that B had a right to cut timber on the land, and that this right passed to his assignee.^ § 17 e. A vendor of a horse, who reserves the title until pay- ment of the purchase-money, can, before payment, recover the horse from a purchaser from his vendee.*^ § 17/ The defendant agreed that the plaintiff should cut staves upon his land at a certain price per thousand. The de- fendant removed the staves which had been cut and counted, but not paid for. Held, the plaintiff could maintain replevin for the staves, and without a tender of their price* § 17 gr. A let B have canvas for a sail, under an agreement that it should be and remain the property of A until paid for. B made the sail, furnishing further materials for it, and then sold 1 Hodgkins v. Dennett, 55 Maine, 559. 3 Holmark v. MoVm, 5 Cold. 482. 2 Beckwith i'. riiillco, 15 Wis. 223. * Molin c. Stoner, 14 Iowa, 116. 36 REPLEVIN. [book I. it without having paid for it. Held, A could maintain replevin against the vendee to recover the sail.^ § 18, In replevin for a mare, alleged to have been stolen and sold by the plaintiff's son, it is error for the court to instruct the jury, tliat they might infer a ratification of the sale by the plain- tiff from his delay to sue for more than a reasonable time, to be judged of by them.^ (a) § 19. Where the master of a ship has received goods on board, under a contract to deliver them at A, and, being with the ship- per in a port short of A, there refuses to proceed with the goods to A ; the shipper may replevy the goods. If the owner of the ship again replevy them from the shipper, upon these facts being disclosed in a plea in abatement, such second writ shall abate. Otherwise, if the master and owners claim by distinct rights. In such second writ of replevin, it is improper to join the officer, who served the first writ, as a defendant, with the shipper.^ § 20. In New York, in an action of replevin (or to recover pos- session of personal property), the plaintiff cannot recover, if the property belonged to a person deceased, and letters of adminis- tration have been issued, and the plaintiff has taken possession wrongfully.* § 21. Questions of title have arisen, as depending upon the possession of goods, obtained by the service of a writ of replevin itself, with the accompanying bond. Thus A, by a writ of re- plevin against B, obtained possession of B's property, and sold it to C ; A's suit was abated by his death, and no judgment was rendered ; and B afterwards demanded the property of C, and, on C's refusal to give it up, replevied it. Held, C acquired no title, and B might maintain replevin against him.^ In this case, it was claimed that a plaintiff in replevin has the right to sell the property replevied. Mr. Justice Dewey remarks upon this prop- osition : " If it were limited to replevin in cases of wrongful 1 Eaton V. Munroe, 52 Maine, 63. * Rockwell v. Saunders, 19 Barb. 473. 2 Watkins v. White, 3 Scam. 549. ^ Lock wood v. Perry, 9 Met. 440. 3 Portland, &c. v. Stubbs, 6 Mass. 422. (a) A petition, in a suit to recover a paid for the horse ; and that the defend- horse, discloses a good cause of action, ant knew that the plaintiff did not suffer when it states, that the defendant pur- said son to trade in his property, and that chased a horse belonging to the plaintiff the son was a minor and under parental from the plaintiff's minor son ; that the control. Ice v. Lockridge, 21 Tex. 461. plaintiff never received the consideration CH. IV.] PROPERTY AND POSSESSION NECESSARY, ETC. 37 distress for rent, or of cattle damage feasant, it miglit be more readily assented to, as in sucli cases the property is held by the defendant in replevin for a particular purpose, and he does not claim to be the owner of it. And where the plaintiff, wlio in such case is the actual owner, has given the requisite security, by a bond, to pay such rent, or such damages, if the property is not returned, it may be all that is requisite to do perfect justice." The learned judge proceeds to comment upon the case of Gor- don V. Jenney, 16 Mass. 409, in which the language of tiio court would seem to extend the same principle alike to all cases of replevin. " The case before the court was that of a plaintiff in replevin, who was the real owner. . . . That had been already settled. ... In ordinary cases the purchaser buys subject to the question of the vendor's title ; and we think none the less 80 because the vendor has acquired his possession under a writ of replevin issued upon his own representation, and which may be wholly unfounded in truth. . . . The plaintiff in replevin has, by virtue of his writ, acquired the right of possession pend- ing the action, and the real owner cannot lawfully disturb that right during the pendency of the action, nor institute an action against a third person who may become possessed of the goods. This is precisely the extent of the right." ^ § 22. It is held in Texas, that, in an action for damages for taking and carrying away property, the defendant may prove a title, though the property, when taken, was in possession of the plaintiff by replevin. But where A brought a suit against B for the recovery of slaves, and procured a writ of sequestration to be issued and the slaves seized; and B replevied the slaves; and A then forcibly took them out of the possession of B ; whereupon B brought an action of trespass against A : held, this gave B the legal custody and possession of the slaves, for the purposes of the first suit, and the defendant had no right to disturb that pos- session ; that it was not competent for A to prove, that he acted under the well-founded belief that B was about to place the prop- erty out of the reach of legal })rocess, and to put it out of his power to comply with the condition of his bond ; nor that B, before the first suit, had wrongfully taken the slaves out of A's possession, and attempted to remove them out of the State.- 1 9 Met. 444. ^ Fowler v. Stonum, G Tex. GO. 38 REPLEVIN. [book I. § 22 a. An owner of goods transported by an express com- pany may, after tender of legal charges for transportation, &c., and after demand and refusal, maintain replevin therefor against the agent of the company having the care of the goods. ^ § 22 b. When the defendant, in an action to recover possession of certain machines, has in his pleadings admitted the plaintiff's ownership without qualification, and neither there nor on the trial claimed to hold by virtue of any one's authority, but, on the contrary, denied that the goods were in his possession ; it is too late to assert, on appeal, that the property was partnership prop- erty, and that he held it as bailee for the plaintiff's partner. ^ § 22 c. A tanner, who contracts to tan hides furnished him by a firm, and to return the leather in a reasonable time, at a price agreed on for tanning and transportation, payable after delivery, has no property in the leather, after it is finished and ready for delivery, such as will justify its detention by him. Hence, where finished leather was carted from the tannery by a different road to a difierent place from the usual and accustomed place of shipment to the consignors, and there stored in a barn, never before used as a place of storage ; held, replevin would lie therefor by the surviving partner as for an unlawful taking or detention.^ § 23. The alleged title or possession of the defendant is equally essential to the maintaining of an action of replevin with that of the plaintiff". In order to maintain replevin in the detinet, the plaintiff must show that the defendant had the possession, either actual or constructive, by himself or his agent, at the time of the institution of the suit.^ (a) Mere acts of ownership are insuffi- cient.^ In New York, before the Revised Statutes, the action of replevin was purely possessory, and could not be maintained against a party who had entirely divested himself of the goods claimed, except where a distrainor for rent proceeded fraudu- lently or in violation of the statute regulating distresses. And the remedy given by the Code, for the " claim and delivery of personal property," cannot be maintained, where the defendant 1 Eveleth v. Blossom, 54 Maine, 447. * Beebe v. De Baun, 3 Eng. 510 ; King 2 Tell V. Beyer, 38 N. Y. 161. v. Orser, 4 Duer, 481. 3 Lee V. Gould, 47 Penn. 398. 5 Wallace v. Brown, 17 Ark. 449. (a) Proof of demand is not necessary conversion, will dispense with proof of in all cases ; and conversion on the part demand. Beebe v. De Baun, 3 Eng. 510. of the defendant, or acts amounting to CH. IV.] PROPERTY AND POSSESSION NECESSARY, ETC. 39 has not, in fact or in law, the possession or control of the prop- erty claimed.^ § 24. But it is held, that replevin may be maintained against one who has wrongfully taken the property, and for a time detained it, but before commencement of suit sold and delivered it to another.^ And where the plaintiflF fails to prosecute his suit with effect, the law presumes title in the defendant, and he has only to prove the amount of his damages in order to recover restitution.'^ 1 Roberts r. Randall, 3 Sandf. 707 ; - Sayward r. Warren, 27 Maine. 453. Brockway v. Burnap, 12 Barb. 347. ^ Rickner v. Dixon, 2 Greene, 6"Jl. 40 REPLEVIN. [book I. CHAPTER V. REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 1. General rule as to property in custody of the law. 2. Goods in possession of the plaintiff. 3. Owner may replevy, where the property is taken on process against a third person. 4. What may be taken by virtue of the ■writ of replevin itself. 7. Liability of an attaching or execution creditor. 8. Title or possession necessary to main- tain the action. 17. Defence of an officer; plea, evidence, judgment, &c. 29. Replevin in cases of successive pro- cesses. 32. Replevin in favor of an officer holding by legal process. 37. What possession of an officer will sus- tain an action against him. 38. Successive suits of replevin; justifica- tion of officer under the replevin writ. 41. Miscellaneous. § 1. It is sometimes held, that goods taken under an execution, being iri custody of the Imu, cannot be replevied by the defendant or a stranger ; (a) though, after they are sold, they may be re- plevied by the true owner.^ Replevin of goods taken on execu- tion has been regarded as a contempt.^ And late cases in this country recognize the rule, that, at common law, replevin cannot be maintained against an officer, who has the custody and posses- sion of property under an attachment or a valid execution.-^ So it is held, that replevin will not lie by the owner of goods against an officer attaching them as the property of a third per- son, where the officer has never had actual possession, and no right to possession other than is founded upon the receipt for the goods given by the owner, in whose possession the goods are, in which 1 Gilb. 121; Lev. Ent. 152; Lutw. 1191. Cromwell v. Owings, 7 Har. & J. 55 ; Reeside v. Fischer, 2 Har. & G. 320. 2 Gilb. Replev. 161 ; Winnard v. Fos- ter, 2 Lutw. 1191. (a) The exemption of an officer, under § 5 of the Missouri Act of March 3, 1855, from liability on account of levy of an execution, where a bond of indemnity has been given, as required by the act, extends to an action of replevin brought against liim. St. Louis, &c. v. Castello, 30 Mis. 124. 3 Spring V. Bourland, 6 Eng. 658 ; Mc- Leod V. Gates, 8 Ired. 387 ; Goodrich v. Fritz, 4 Pike, 525; Ilsley v. Stubbs, 5 Mass. 280 ; Smith v. Huntington, 3 N. H. 76. The owner of spirituous liquors, seized on a warrant lawfully issued under (Mass.) St. 1855, c. 215, § 25, and legally served, cannot maintain replevin against the offi- cer for the liquors and tlie vessels con- taining them. Allen v. Staples, 6 Gray, 491. CH. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 41 there is no acknowledgment tliat tlio property is not in himself.^ So the defendant may avail iiimself" of a delivery to him, pursuant to a writ of replevin issued out of a court of competent jurisdic- tion in another State, the litigants and the thing delivered being subject to the law of the place of delivery .^ And this, on a plea of property and without special plea. Though, where a n)otion in arrest of judgment is made on the ground of process, the defend- ant, having neglected to demur to the declaration, cannot recover costs."^ So it has been held that a defendant in execution, whose property is levied on, cannot prosecute a writ of replevin, although the property may be exempted by law.** (a) So it is held, that replevin does not lie against an oiEcer who has received the amount of an execution after a levy.^ § 2. The qualified rule is sometimes adopted, that an owner in possession of goods, which arc taken on execution against a stranger, may replevy them.*^ But not where they are taken from the possession of the debtor." Replevin does not lie lor ])roperty attached on a writ served upon the plaintiff, althougii he is mis- described therein, and has pleaded in abatement thereof; and cannot be supported by evidence that he did not make the con- tract therein declared on.^ (&) § o. But the distinction is made, and now generally prevails, — sometimes depending, however, upon express statute, — that 1 Latlirop v. Cook, 2 Slicp. -114. ^ Lowry i'. Hall, 2 AVatts & Serp. 129. 8 Ilatliaway v. St. John, 20 Conn. 343. * Keynokls v. Sallee, 2 B. Mon. 18; Saffell V. Wash, 4 ib. 92. (a) Whore exempt property is attached, the owner does not forfeit his rij,dit to it, nor estop himself from recovering by replevin, by failing to move for a dissolu- tion of attachment or a release of the property. Wilson v. Stripe, 4 Greene, 551. Where pro])erty exempt from attach- ment was levied upon, rcjilevin was held to lie to recover it. Mosely v. Anderson, 40 Miss. 49. (/)) In Vermont, replevin by a debtor of his goods, when attaclieil by a creditor, is in no sense an adversary suit, and the writ is not to bo entered in court upon the docket like ordinary cases. It is only an apjjondage to the original action, and all proceedings thereon must be had as a part of tiie original action. Green v. Holden, 35 Vt. 315. 5 Gardner v. Campbell, 15 Johns. 401. 6 Judd V. Fox, 9 Conn. 259. ■? Kellogg V. Churchill, 2 N. II. 412; Molcher v. Lamprey, 20 ib. 403. ** I'erry v. Richardson, 9 Gray, 216. In Ohio, where a mortgagee brings replevin against an officer who lias at- tached the property as the mortgagor's ; tiie creditor may become party to tlie suit, and bj' counter-claim obtain ecjuita- ble relief. If the officer has set up the seizure as a defence in the court below, the cro'litor may thus become jiarty after an appeal. After a verdict upon the issues between the original parties, and a judg- ment for damages thereujion ; the court shonlil retain the clause for the jiurpose of deciding the counter-claiiii. If by agree- ment tliis question is submitted to a jury; their verdict is not conclusive, but sub- ject to review b}- the c(un-t at its discre- tion. Jlorgan v. Spangler, 20 Ohio St. 38. 42 REPLEVIN. [nOOK I. although goods, taken by a sheriff on execution out of the pos- session of" the defendant in the execution, being in the custody of the law, cannot be replevied ; if an officer, having an execution against A, undertakes to execute it on goods of B, B may bring replevin for them, more especially if they were in B's posses- sion.^ (a) § 4. Questions have often arisen in reference to the author- ity of an officer by virtue of the writ of replevin itself An officer is not protected in taking, under a writ of replevin, the property of a third person in no way a party to the replevin suit, although the goods seized are the specific chattels which the writ of replevin directs him to take.^ So it is held, that a writ of replevin does not justify the taking of property from one not in 1 Thompson v. Bulton, 14 Johns. 84 ; 5 Mass. 280, Mass. Sts. 1789, c. 26; Hanna v. Steinberger, 6 Blackf. 520 ; Clark V. Skmner, 20 Johns. 465 ; Chinn V. Russell, 2 Blackf. 172 ; Louisville, &c. V. Holborn, ib. 267 ; Philips v. Harriss, 3 (a) An ofl5cer attached property of M. in his office, and packed it in a trunk in the office, to which there were two keys, one of which was taken by the officer, and the other left with M. The property was not removed from the office. Tlie officer locked the office and carried away the key, but afterwards delivered it to an attorney of M., but with the understand- ing that he did not relinquish the levy. Held, M. was not in possession of the goods, and could maintain replevin. Maxon r. Perrott, 17 Mich. 332. In Michigan, replevin under the stat- ute is peculiarly a possessory action ; and its primary object is, to give the plaintiff actual possession of property wrongfully detained from him by the defendant, at the time tlie action is brought. Where an officer, in levj'ing an execution, made an inventory and appraisal of the goods, but did not remove them, and left the house and property as he found tliem, but still claimed them by virtue of the levy ; held, as the property was in the actual possession of the plaintiff, he could not maintain replevin. Hickey i'. Hins- dale, 12 Mich. U9. Where a sheriff levies upon personal property, owned in common by the debtor and A, he has the right to take the entire property into his possession, and A can- not maintain replevin. Lawrence v. Burn- ham, 4 Nev. 361. When an officer so seizes chattels under an execution, that he may main- tain trespass or replevin against a wrong- J. J. Mar. 121 ; Caldwell v. Arnold, 8 Min. 265. A. Coursey v. Wright, 1 H. & McHen. 394; Ilsley v. Stubbs, 5 Mass, 280. 2 Stimpson v. Reynolds, 14 Barb. 506. ful taker ; replevin may be maintained against the officer by the real owner, if a stranger to the writ. Gallagher v. Bishop, 15 Wis. 276. The owner of goods, not being named in the writ, may maintain his possession against the officer by force. Com v. Kennard, 8 Pick. 133. The word " stranger," as used in § 2536 of the (Ala.) Code, which author- izes a replevy by the defendant, or, in his absence, by a stranger, of goods taken in attachment, means a person not a party to the suit, acting for the defendant's benefit ; and, on demand made by the defendant, the stranger must deliver the goods to him or to the sheriff. Kirk v, Morris, 40 Ala. 225. Where trust property is attached in a suit against the trustee as an individual, he may maintain replevin, being substan- tially a person " otlier than tlie defend- ant," in the attachment suit, within the meaning of the (Conn.) statute. Jackson V. Hubbard, 36 Conn. 10. Where an officer levies upon partner- ship property a process against A, one of the firm ; in replevin by B, the other part- ner, B may show that A had a merely nominal interest. Gillham i\ Kerone, 45 Mis. 487. In replevin against a sheriflf", it is not a sufficient defence, that a third person was interested in the profits of sales of the goods. The plaintiff may still be the owner, and entitled to possession. Eapp V. Vogel, 45 Mis. 524. CH. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 43 possession ; and the owner, if in possession, may maintain an action against the officer. Tiie court, in Oliio, remark : " While tlie riglits of tiie defendant are sedulously guarded, by a bond required from the plaintiff, no guard or protection is afforded in the proceeding to the rights of third persons. . . . Unlike (in) proceedings strictly in reyn, as in admiralty and in chancery, where an officer is directed to take possession of specific property, that the rights of parties thereto may be ascertained, the property is not retained in the pos- session of the officer, but is delivered to the plaintiff, and no provi- sion is made for third persons to intervene and assert their claims." ^ But replevin does not lie against an officer who replevies from one in possession.^ In a very late case, it is remarked : " By the English law, if the defendant in replevin claim property in the goods, the officer cannot lawfully deliver them to the plaintiff until the question of property has been determined in his favor on a writ de proprietaie j^^'O^'^inda, sued out by him. But, by our law, the question of property is to be tried in the replevin suit." 3 (a) § 5. In New York, although, before the Code, the sheriff could not be made liable as a trespasser for taking the goods described in a writ of replevin from a third person, claiming to be the owner; yet, in the action which the Code has substituted for that ot replevin, he can only take the property described in the affi- davit of the plaintiff, when it is found in the possession of the defendant himself, or of his agent.^ § 6. In the same State it is held, that the 17th section of the Replevin Act (2 Rev. Sts. 525) was enacted for the benefit of the sheriff, and not for that of the party. The indemnity therein mentioned is for his security, and what shall be the extent and form of it, is for him to determine. As soon as the inquisition is found by the jury, under that section, it becomes a question ex- clusively for the sheriff to decide to which party he will deliver the property ; or, if he delivers it to the plaintiff, what indem- nity he will require.^ 1 State, &c. V. Jennings, 14 Ohio St. 3 pgr jMetcalf, J., Willard v. Kimball, 73. Per Gliolson, J., 77. 10 Allen, 212. 2 Willard r. Kimball, 10 Allen, 211. * King v. Orser, 4 Duer, 431. » Kussell V. Gray, 11 Barb. £41. (r;) "There is a difference between a the words are general, namely, to levy of replevin and other process of law, with the goods of the party, and tlierefore 'tis respect to the otticers ; for, in replevin, at tiieir peril if they take another man's they are expressly commanded wiiat to goods." Per Lord Holt, llallett v. Byrt, take, in specie; but, in writs of execution, Carth. 381. 44 " REPLEVIN. [book I. § 7. In Massachusetts, a creditor, at whose suit an attachment is made of goods not the property of his debtor, is not liable in replevin, either alone, or jointly with the attaching officer.^ (a) But it is held in Vermont, that the owner of property, attached in a suit against another, may maintain replevin therefor against the creditor and the officer jointly, when the former assisted in taking the property, and took it into his own possession after the attachment.^ So if an attaching creditor claims to own the goods, and attaches them in order to enforce his title ; he is estopped to deny that replevin is rightly brought against him.^ So, in Indiana, replevin lies against an attaching creditor who assumes control, and directs as to the execution, of the writ.* So, in New York, replevin lies against a party, jointly with the officer, who orders the levy of an execution upon the goods.^ The court remark, that it is immaterial that the defendant never had the property in his possession. The order itself was a suffi- cient taking. A distinction is made between this case and that of Brockway v. Burnap, 12 Barb. 347, in which the defendant, who once had possession, had transferred the property and parted with the possession before suit brought. And the court further remark : " I do not think the Revised Statutes, or the Code of Procedure, have made any change in the law as to the nature of the possession in the defendant which is required to warrant an action for the delivery of personal property."^ And, in Connect- icut, a writ of replevin for goods attached, in favor of a claimant who was not a party to the attachment, must be brought against the attaching creditor, and not against the officer. If the credi- tor resides in another State, the replevin may be served upon the goods, which will give jurisdiction to the court ; and then the creditor may be made a party, in the same manner as though his property had been attached in this State.''' So if the vendee of 1 Richardson v. Reed, 4 Gray, 441. '= Knapp v. Smith, 27 N. Y. (13 Smith) 2 Esty V. Love, 32 Vt. 744. 277. 3 Tripp V. Leland, 42 Verm. 487. « Per Denio, C. J., 27 N. Y. 281. * Firestone v. Mishler, 18 Ind. 439. "? Bowen v. Hutchins, 18 Conn. 550. Where a lawful writ commands the tachment suit to be made a codefendant. seizure of specific property, replevin to Vallc v. Cerre's, 36 Mis. 575. recover sucli property cannot be main- In Oliio, where a creditor of a mort- taincd against tlie officer. Griffith v. gagor seizes tlie property by legal process. Smith, 22 Wis. 646 ; Battis v. Hamlin, ib. and the mortgagee replevies it ; the cred- 669. itor may come in and have relief by (a) In replevin against a sheriff to counter-claim. Morgan v. Spangler, 20 recover goods attached by him, it is Ohio St. 58. proper to allow the plaintiff in the at- CH. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 45 goods sold on condition procures them to be sold, on execution against him, to one who has knowledge of the condition ; the original vendor may maintain replevin against the second pur- chaser, without a previous demand.^ So replevin in the cepit lies against a judgment creditor, or the sheriff acting by his authority, in levying, by virtue of an execution, upon property which a vendor has a right to reclaim, because the conditions of the sale have not been complied with.''^ (a) § 7 a. A sale of A's property upon mesne process against B is void, and A may maintain replevin against the purchaser.^ (6) § 7 6. In case of replevin of goods as attached, which were not attached, but held by the party as owner ; trover lies against the replevying officer.^ § 8. Substantially the same requisitions, as in other cases, of title in the plaintiff, are demanded in replevin against officers. § 9. Where property is left with a person who has advanced money upon it, and which he is to keep in his own right until he shall be reimbursed, he may replevy it from an attaching creditor. And unless it is made to appear that the attaching party was really a creditor, he cannot complain that it was a design to pro- tect the property for the debtor. The rights of the parties must depend upon the facts existing at the time the writ issued. The writ does not, of itself, show that the defendant in it was a debtor of the plaintiff. It only shows that the officer acted in behalf of an assumed creditor.^ § 10. Where a firm, engaged in sawing lumber, contracted with the plaintiff to receive all pine saw-logs belonging to the plaintiff, and manufacture them into lumber, ship it, receive pay- ment for it, and pay a certain percentage to the plaintiff per thou- sand feet, keeping the balance for their services ; and the contract provided that the logs should be the plaintiff's at all times, till he received his percentage as agreed ; and the logs were attached in 1 Blanchard i: Cliild, 7 Gray, 155. * DriscoU v. Place, 44 Verm. 252. 2 Acker v. Campbell, 23 Wend. 372. » Currier v. Ford, 26 111. 488. 3 Coombs V. Gorden, 5'J Maine, IIL (a) Wliere a constable of St. Louis as bailee ; held, the possession of the coimty had levied upon a slave by vir- T)ailee was that of the constable, and an tue of executions from a justice of the action for delivery of the slave could not peace, and, upon a claim of projjcrty by be maintained against the bailee. Ilam- A, had taken a bond of indemnity from bleton v. Lynch, 32 Mis. 259. the plaiiititls in the executions, in accord- (b) In Georgia, replevin does not lie ance with the statute, and had placed againt one who purciiases from an officer, the slave in possession of the defendant Bryan v. Whitsett, 39 Geo. 715. 46 REPLEVIN. [book I. the hands and as the property of the firm : held, the plaintiff might maintain replevin, and had a right, as against the officer attaching, to immediate possession.^ § 10 a. A owned corn, purchased for him by B, a warehouse- man, who put it in a mixed mass with other corn, owned by different persons, who had stored it with B. B delivered the whole mixture to A, from whom it was wrongfully taken on execution by C. Held, A might maintain replevin against C.^ § 11. By a custom among brewers and retailers of beer, as beer cannot be removed in warm weather without injury, the brewer in the spring delivers to the retailer such quantity of beer as he expects to retail in the ensuing season. The barrels belong to the brewer, and are to be returned to him when emptied. The retailer pays for all the beer that he sells in the course of the season, at the price at which it was originally furnished. If any of the beer becomes sour or stale, or is lost by casualty, the loss falls upon the brewer. If any remains unsold at the end of the season, the retailer has a right to return it, but the brewer has no right to take it without his consent. Payment is never made in advance. The profits of retailing belong to the retailer, and he bears all losses by bad debts. The brewer's price of beer never varies. Held, that beer so delivered was not liable to attachment as the property of the retailer. If the sale of the beer is stopped by the acts of the retailer, his right to retain ceases ; and where the beer was attached as the property of the retailer, and the retailer assigned all his special property in it to the brewer, it was held that the brewer had such right of pos- session as would enable him to bring replevin against the attach- ing officer.^ § 12. Personal property being attached in a suit by A against B, C served upon A and the officer a notice that he should bring replevin, and the next day a writ of replevin was served upon the officer. After notice, and before such service, the former suit was withdrawn and the property surrendered to B. B then applies for a mandamus to compel the attaching officer to deliver the property to the officer serving the replevin writ, alleging that C was in possession at the time of attachment, but not his owner- ship, or that the writ of replevin claimed such ownership. The 1 Bassett v. Armstrong, 6 Mich. 397. 3 Meldrum v. Snow, 9 Pick. 441. 2 Warner v. Cushman, 31 111. 283. CH. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 47 officer returned upon the mandamus the witlidrawal of tlic attach- ment suit, and the delivery to B. Upon demurrer by C, held, the return was apparently sufficient, since the purpose of the statute, providing for replevin in such cases, was, to give the claimant of property an opportunity to try his title, which could be done in a suit against B as well as in the replevin suit ; but further, that the return was sufficient for the application, which was demur- rable in not alleging title. Under the statute of Connecticut, the plaintiff in replevin must claim to be the owner.^ § 13. Replevin lies at the suit of the owner of a chattel against an officer, who has taken it from his servant or agent while in his employ, by virtue of an execution against such servant or agent; the actual possession, in such case, being considered as remaining in the owner.^ (a) § 14. In Connecticut, the right of one person to replevy goods, attached in a suit against another, is given by the eighth section of the statute authorizing writs of replevin, as revised in 1821, and exists only in favor of the owner of the goods, who is required to make out a title thereto. It does not apply to one having a lien on goods, attached in a suit against the general owner.'^ § 15. The messenger of the commissioners of a bankrupt having delivered goods of the bankrupt to a stranger, taking his obligation to keep them safely and to redeliver them on demand ; the bailee cannot maintain replevin against one who had taken them, not having property, either general or special.^ § 16. Where a parol gift of slaves was made by a father to his daughter, who retained them two years and then exchanged them for others at the request of her father, still claiming them as her own ; and, after they had been in the father's possession six years, they were sold under execution against him : held, an action of replevin did not lie by the daughter and the heirs of her hus- band.'^ (6) 1 Meriden, &c. v. Whedon, 31 Conn. 3 Brown r. Chickopee, &c. 12 Conn. 87. 118, Conn. Rev. Sts. tit. 1, § 253. * Waterman v. Robinson, 5 Mass. 303. - Clark i;. Skinner, 20 Johns. 4G5. 5 Scott c. Hughes, 9 B. Mon. 104. (rt) When goods in the hands of a (h) In New York, actual possession, bailee are attached as his i)roperty, re- accompanied by an equitable interest in plevin lies against tlie officer by the the plaintifl' at tiie time of seizure by the owner, altiiough the goods reinam in the officer, is sufficient to maintain an action hands of the bailee, the attachment not to recover possession and entitle the being dissolved. Ralston v. Black, 15 phiintifl' to a return of the property Iowa, 47. Frost v. Mott, 34 N. Y. 253., 48 REPLEVIN. [book I. § 17. In replevin against a sheriff, who sets up a right under civil process, and claims to have a return of the goods, the sheriff must show a good title in omnibus, and a foundation for the writ.^ But, it seems, an officer sued in replevin may plead property in himself, and prove it by showing his special property under an attachment.^ § 18. The distinction is taken, that, if an execution is levied on goods not of the defendant in execution, and the owner replevies ; the officer, to defend t e taking, must show a judgment and execution, and that the goods are the property of the defendant in execution. But if the defendant in execution be the plaintiff in replevin, it is sufficient to show judgment and execution.^ § 19. Where the defendant in replevin was emjDloyed by a cred- itor to attach the goods, but the attachment proved ineffectual because the general property was in a third person ; it was held, 1 Brown v. Bissett. 1 N. J. 46. 2 Quincy v. Hall, 1 Pick. 357. St. 24 Geo. II. c. 44, § 6, which enacts that no action shall he brought against a constable, acting in obedience to the warrant of a justice of the peace, till demand of a copy of the warrant, and refusal thereof; and 2 & 3 Vict. c. 93, § 8, and 1 & 2 Wm. IV. c. 41, § 19, which require a calendar month's notice of ac- tion to be given to any constable for any thing done in the execution of his office ; do not apply to actions of replevin. Gay V. Matthews, 4 B. & S. 425. In Arkansas, where the plaintiff's horse, in possession of A, has been sold under an execution against A ; he can maintain replevin therefor against the purchaser, or the proprietor of a stable in whose cliarge he was placed, without demand. Hicks v. Britt, 21 Ark. 422. In an action to recover personal prop- erty, it is error to strike out a part of the answer, which alleges that the plaintiti"s only title was under a sale made by a con- stable in pursuance of certain fraudulent schemes, and that the property was not sold by the constable, but that he made a false and fraudulent certiticate that he had sold it. McDonald r. Prescott, 2 Nev. 109. A sheriff sold a steamboat, with the understanding that, if the sale was not valid, the purcliaser should be bailee for the slieriff. Held, the title under such sale was sufficient to maintain replevin, although, after the seizure by the defend- ant in replevin, the supreme court had adjudged the sheriff's sale void. Scott v. EUiott, Phill. (N. C.) L. 104. 3 Bruer v. Ogden, 6 Halst. 370. "When a constable makes a levy upon property which is afterwards replevied by one claiming by purchase from the judgment debtor prior to the levy, the plaintiff in replevin, on executing an undertaking as required by law, acquires a right to possession, and all the interest of such constable by virtue of his levy ; and this, notwithstanding it should be found that the purchase was fraudulent and void as against creditors. When the officer sells the property, sucli plaintiff may maintain replevin against tlie pur- chaser. Crittenden v. Lingle, 14 Ohio (N. S.), 182. Where the mortgagee of personal prop- erty failed to take possession for two days after the debt became due, and then a constable levied upon it, on an execution against the mortgagor ; lield, the mortgagee could not maintain replevin therefor against the officer. Reese v. Mitchell, 41 111. 865. A mortgagee of chattels may maintain replevin for them after their attachment by trustee process against the mortgagor, without making the demand required by (Mass.) Rev. Sts. c. 90, §§ 78, 79. Put- nam V. Gushing, 10 Gray, 334. A foreign attachment, served upon the transporter of goods, who has the posses- sion of them, does not constitute such custody of the law as to prevent a stop- page in transitu by replevin. Hayes v. Monille, 2 Harr. 48. CIT. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 49 tliat the defendant niiglit still justify under a lien of the attach- ing creditor, independent of the attachment, and as the servant of the creditor.^ § 20. An officer, who defends in replevin, should set up that he took the property by execution.^ § 21. In the cognizance of a constable in replevin, the statement of the amount of the ji. fa. from the justice in blank will not bo fatal after issue and verdict.** § 22. An avowry of seizure upon execution must allege that the property belonged to the debtor and was liable to the execu- tion."^ § 23. More especially, a plea of justification to an action of replevin against an officer, for seizing the property on execution, if the property was not in the possession of the defendant in execution when taken, must aver that it was his property.'' § 2-4. The avowries admit the taking, and traverse property in the plaintiff. What precedes this traverse — to wit, the allegation of the delivery of the executions to the sheriff, the time when they were delivered, and when seizure was made, and that the goods were then the property of the judgment debtor — is matter of inducement merely, and not traversable.*" § 25. If, in trespass for taking chattels, the defendant justifies as an officer under a writ of replevin ; it is sufficient to allege in such plea, that the plaintiff in replevin gave bond, Polite v. Jefferson, 5 Ilarrin?. 088. ■-! l)o(l(l V. McCraw, 3 Eng. 83; Iluber ^ Pugh v. Callowa3% 10 Ohio (N. S.), V. Sliaivk, 2 Browne, KiO. 488. » Ward V. Taylor, 1 Penn. 238. 8 ib. * Copan r. Stoutenburgh, 7 Ham. ^ Freeman r. Howe, 24 How. 450. (part 2) 133. See p. 44. 10 Angell c. Keith, 24 Vt. 371. 5 Baker v. McDuffie, 23 Wend. 289. 54 REPLEVIN. [book I. owner, although the goods remain in the possession of the bailee, the attachment not being dissolved.^ But, to bring a case of replevin within § 2 of the Pennsylvania Act of April 3, 1779, it must appear that the goods, when replevied, were in the posses- sion, custody, or control of the sheriff.^ § 38. Where goods have been taken by a sheriff by a writ of replevin, they cannot be taken from him by another writ of re- plevin, at common law, nor by statute.^ (See chap. 1, § 17.) If one, from whom goods are taken by a writ of replevin against him, himself replevies them ; it is held that the second writ will be superseded, with costs, upon motion made before return of the writ, or set aside after the return.* § 39. Where property had been first replevied, and there was evidence that the plaintiffs in that suit had vyaived delivery to them under their writ, and it was then taken upon a subsequent writ of replevin; the court will not instruct the jury that the plaintiff cannot recover, if they find that such subsequent writ issued while the property was in possession of the sheriff. But the objection may be made, unless there is evidence of such waiver, although the defendant subsequently may agree to waive the irregularity, and to ratify and confirm the proceedings of the sheriff.^ § 40. Trespass cannot be maintained by the owner of goods against a sheriff, for taking them under a writ of replevin against another person having the goods in his possession. The law fully recognizes the owner's right, and, if he can without force obtain the property, will not hold him a wrong-doer for taking it ; but it withholds from him an affirmative remedy by action against a ministerial officer ; allowing him an action only against other per- sons concerned in, or who instigated, the taking.*' § 41. Where attached goods are replevied from the officer, a judgment for the plaintiff in replevin is conclusive evidence of his title against the attaching creditor, and against one who has made a second attachment after notice of the replevin ; though the latter erroneously supposed the former would defend the replevin suit." 1 Small V. Hutchins, 1 App. 255. 5 Powell v. Bradlee, 9 Gill & Johns. 2 Weed V. Hill, 2 Miles, 122. 220. 3 Sanborn r. Leavitt, 43 N. H. 473. « Foster v. Pettibone, 20 Barb. 350. * Morris v. Dewitt, 5 Wend. 71. But ^ Carlton v. Davis, 8 Allen, 94. see Lovett v. Burkhardt, 8 Wright, 174. CH. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 55 § 42. Goods found in possession of A, an execution defendant, were levied on by the sljerifT. B claimed the goods as his, and a jury, summoned to try the right of property, found that they belonged to A. Held, in replevin by B against the sheriff, that the finding of the jury was not conclusive against B.^ § 43. If an officer voluntarily or collusively suffers property to be retained by the replevin plaintiff, after judgment in the officer's favor, it is an injury to the execution defendant. It is the duty of the officers to use ordinary diligence to procure a proper judgment on the replevin bond.^ § 44. In replevin for a horse seized on a Ji.fa., irregularities in the proceedings before the justices cannot be taken advantage of.3 § 45. In an action of replevin against a sheriff for the act of his deputy, it is sufficient for the plaintiff to show that the deputy was a deputy of the defendant, and that he acted colore officii, in order to make his declarations in relation to his official acts admissible in evidence against the sheriff.* § 45 a. Where replevin is brought for property taken in the hands of A, by a sheriff, which, two months afterwards, is restored to A ; this is no answer to the action.^ § 45 h. In case of replevin for a seizure on execution and sale; it is held that the plaintiff cannot prevail upon the ground that the property is exempt from execution.^ § 46. Sect. 216 of the New York Code, requiring an affidavit of property to be served on the sherifi" taking personal property, claimed by a person other than the defendant or his agent, applies only when the taking was in the proper discharge of his dut}', not wrongful.'^ § 47. In Ohio, a party replevying property from a constable who has levied an execution upon it, upon the ground of a pur- chase prior to such levy, upon executing the undertaking required by law, acquires the riglit of possession and all the officer's inter- est by virtue of the levy, paramount to any title under a subse- quent levy ; although such purchase be found fraudulent and void against creditors. And an action of replevin lies against a purchaser under the subsequent levy.^ 1 Cliinn )-, Russell, 2 Blackf. 172. « Ilowlaml v. Fuller, 8 Min. 50. See - Stewart r. Nuneinaker, 2 Cart. 47. p. 41. 3 Haiioiil r. Griflie, 8 Md. 54. ^ Kinfj v. Orscr, 4 Dvrer, 431. < Stewart v. Wells, 6 Barb. 79. 8 dittendcn v. Lingle, 14 Ohio St. 5 Caldwell v. Arnold, 8 Min. 265. 182. 56 EEPLEVIN. [book I. § 48. In New York, in replevin, the judgment being for dam- ages only in favor of the plaintiff, the sheriff is not liable for such damages by reason of the failure to justify sureties, who, on the arrest of the defendant in replevin, had given an undertaking for delivery of the property, if adjudged, and for the payment of such sum as for any cause might be recovered against such de- fendant. To render him liable, there must be a judgment, under the execution upon which the property might be sought and delivered.! § 49. In an action against an officer and his sureties on his official bond, for taking the property of A, under a writ of re- plevin against B ; a verdict and judgment against the officer, in an action of trespass for such taking, are p7'imd facie evidence for the plaintiff, though the sureties had no notice of the former suit.^ (a) 1 Galaraliv. Orser,27N.Y. (13 Smith) ^ gtate, &c. v. Jennings, 14 Ohio. St. 277. 73. (ff) It has been held that the owner of goods, wronst'ully levied upon by the marshal of tlie federal court, may sustain replevin against the marshal. Hanna v. Steinberger. 6 Blackf 520. See Buck v. Colbath, 3 Wall. 335; Booth v. Ableman, 18 Wis. 495. So that replevin may be maintained in a State court, against the marshal of the United States, by the owner of goods taken by such marshal by virtue of proc- ess issuing from a district court of the United States, in favor of the United States, and under the direction of the district attorney of the United States. Boner v. Ogden, 6 Halst. 370. Upon the issue of non cepit, proof that the defendant took the goods as marshal is sufficient proof of the caption. I^e Wolf r. Harris, 4 Mason, 515. In the case of the Koyal Saxon, 1 Wall. 311, it was held, in replevin, that the lien of an attachment from a State court under which a vessel was sold should have pre- cedence of a subsequent libel for mariners' wages in the United States court. Replevin does not lie for goods seized for the water-tax of Philadelphia. Stiles V. Griffith, 3 Yeates, 82. Wiiere there is a want of authority to levy a tax, replevin will lie for property seized by the officer for payment of the tax. Otherwise, where there is authority irregularly exercised. Buell v. Ball, 20 Iowa, 282. Mich. Com. Laws, c. 152, providing that "no replevin shall lie for any prop- erty taken by virtue of any warrant for the collection of any tax," applies only to cases in which a valid tax might by legal possibility have been imposed and collected by regular and proper proceed- ing under some statute au hority. Other- wise, the fact that a warrant is regular on its fiace, and discloses no illegality of the tax, will not protect the collector, in an action of replevin for the property levied upon. Le Roy v. East, 18 Mich. 233. Where the taking is wrongful as against the plaintiff, and he establishes his riijht to the property ; no prior de- mand is necessary. lb. Replevin will not lie against an officer acting under a warrant for the collection of taxes assessed by a board having com- petent authority and jurisdiction, al- though erroneously assessed. Bilbo v. Henderson, 21 Iowa, 5(5. Kor if a por- tion of the tax is legally assessed. Emer- ick V. Sloan, 18 Iowa, 139. Where a defendant justifies as collec- tor of taxes, he need not set out the war- rant in full. jMount v. Andrews, 53 111. 176. Where the defendant justifies as collector of taxes ; a replivation, in order to question his authority, must deny that he was collector ehher de inif or de facto. Mount V. Andrews, 53 111. 176. A rep- lication, denying the existence of the corporation of which the defendant claimed to be collector, is bad. lb. Property seized for a tax, under an CH. v.] REPLEVIN FOR PROPERTY TAKEN BY LEGAL PROCESS. 57 act of Congress, and a warrant on its face rejiular, cannot lie replevieil. Tlie constitutionality of the act, or reyrnlarit^' of tlie ))n)cee(linfrs, can bo tric'(l only in a proctH'tlinij for damages. O'lieilly v. Good, 42 Barb. 521. " The constitutional relation of the State to the United States, and the most self-evident considerations of i)id)lic pol- icy," are held to forbid sucli J)r()(•eodinf,^ " Innniner:il)le replevin suits niiyht ileia_v, if not wholly defeat, the collection of the national revenue." Per Sutherland, J., p. 52. Replevin does not lie for property taken on a warrant against the owner, issued by a magistrate having jurisdic- tion under a valid statute. Musgrave V. Hall, 40 Maine, 4'J8. Nor against a ndlitary officer author- ized by the legislature to detain the goods. Gist V. Cole, 2 N. & Mc(". 4.%. Nor for ])ro])erty seized for non-i)ay- ment of a militia tine. Pott v. Uldwine, 7 Watts, 173. A messenger in insolvency, liolding goods for wliich a vendee of the in.solvent debtor has made a demand, ma\' show the title of such vendee in bar of an ac- tion of replevin brought by A, wlio claims under a contract of sale with the debtor. Ropes ?'. Lane, 9 Allen, r>02. It is held, that re])levin does not lie for pro])erty seized for a sheriff's fee-bill. Morgan v. Craig, Hard. 101. 58 REPLEVIN. [book I. CHAPTER YI. PARTIES IN REPLEVIN. 1. Servnnt, a?pignee, &c. 23. Parish. 1 d. Joint parties — plaintiffs. 24. Buyer or seller, in case of alleged fraud. 11. Joint defendants. 28. Conditional sale. 15. Dentil of a party interested. 31. Mistake. 20. Husl):ind and wife. 33. Replevin in case of mortgage, pledge, 22. Principal and agent. and lien. § 1. One having charge of goods as a servant cannot maintain replevin for them.^ On the other hand, the lender of a chattel, sold by the borrower, may maintain replevin against any one in possession.^ § 1 a. Where personal property is wrongfully detained, the owner may assign his title, and his absolute or qualified assignee can maintain replevin therefor, whether he ever had possession of the property or not.^ § 1 6. A plaintiif in replevin cannot recover against one not in possession or control of the property."* More especially if the defendant did not claim any interest in the property, or collude with a co-defendant with regard to it.^ Thus where the plaintiff went to the defendant's house to demand the property, and the defendant disclaimed all ownership or control of it, but told the plaintiff who was the owner, and advised the owner to retain it.^ But replevin will lie against one who has control of property, although it is in the hands of another,''' So against one or all the members of a firm, when one is in possession claiming for all.^ § 1 c. The plaintiff, in replevin for a horse, obtained the horse from the defendant's special agent for the care of the animal, who had been instructed not to deliver him to the plaintiff until he was paid for, to try, until a certain day, when he was to return 1 Harris v. Smith, 3 S. & R. 20. See 5 Coffin v. Gephart, 18 Iowa, 2.56. p. 64. 6 Johnson v. Garlick, 2-5 Wis. 705. 2 Roland v. Gundy, 5 Ohio, 202. 1 Bradley v. Gamelle, 7 Minn. 3.31. 3 Lazard v. Wheeler, 22 Cal. 139. 8 Howe v. Shaw, 56 Maine, 291. * Myers v. Credle, 63 N. C. 504; Ramsdell v. Buswell, 54 Maine, 546. CH. VI.] PARTIES IN REPLEVIN. 59 or pay for him. The defendant gained possession of the horse without the plaintiff's knowledge, after the appointed day had passed without payment. ITehl, the action could not be maintained.^ § 1 d. One joint tenant or tenant in common cannot maintain replevin against the other,'-^ " because they liave each and equally the right of possession."*'^ Thus one cannot maintain replevin against the other for taking all the crops.* So one ten- ant in common of a horse cannot maintain an action against the other, where it was agreed that the latter might retain the horse for breaking, exhibition, and sale.^ So replevin does not lie until a formal division or settlement, where two make a crop togetlier, which is gathered and equally divided, and placed in different cribs on the place, each having a key to a distinct crib, with leave to feed his stock from it.^ And, in New York, where one tenant in common brings re{)lovin in the detinet, under the Revised Statutes, against the bailee of the other, and the property is taken and delivered to the plaintiff; the defendant is entitled to a verdict and judgment for the full value of the prop- erty, on waiving judgment for its return." So where one tenant in common sells a right to cut timber on the land, the other can- not replevy it.* So it is held, that one of two joint owners of goods cannot maintain replevin to recover them of a stranger;^ nor for his undivided sharc^*^ Non-joinder of part-owners may be pleaded in bar or abatement,^^ or made a ground of motion in arrest of judgment.^2 And if it appear, from the plaintiff's own showing, that he is but part-owner, the court will abate the writ ex officio}^ § 2. But the distinction is made, in a case of authority, that replevin will not lie by one joint owner ; but the objection can only be taken by a plea in abatement, where he sues for the whole. If" he sues for a moiety, the court will ex officio abate the writ.^* And, in New York, one having a general or specific property in goods, either alone or in connection with others, can 1 JefTcTson r. Cliase, 1 Ilonst. 210. 8 Alford v. Bratlcen, 1 Neva. 2'28. - Kiissi'l I'. Allen, 8 Seld. 17:^; Barnes ^ M'Artlier v. Lane, 3 Sliep. 245; V. Bartlett, 15 Pick. 71 ; Wills v. Noyes, Low v. Martin, 18 III. 28G ; 2 Saun. 116, 12 ib. 324; M'EUU'ry v. Flannapm. 1 liar. n. 2. & (Jill, 308 ; Noble r. Epperlv, Ind. 414. >» Ellis & Culver, 1 Har. 76; Pritcliard 3 Per Sliaw, C. .1., lo Pick. 75; Hoi- v. Culver, 2 ib. 12-. FitZL'crald, 2 .Mass. 5(('J. 6 Usry V. Rainwater, 40 (Jeo. 328. '< l)"\Volf" v. Harris, 4 Mass. 515. See 1 liussel V. Allen, 2 Seld. 173. Talvande v. Cripps, 3 M'Cord, 147. 60 REPLEVIN. [book I. rniiiiitain replevin in tlie ddinet against a stranger. Joint owner- ship with others is no bar to the action, either under the plea of non ddinet or a special plea; although it would be proper matter for a plea in abatement. If the defendant connect him- self with the title through any of the owners, he may avail him- self of the rights thus acquired in bar of the action. But, as a stranger, he will not be permitted, by a technical defence, to defeat the claim of a person entitled to the possession as against him.i § 3. The general rule will not be applied as against a plaintiff in replevin, unless the case is strictly one of joint or common ownership. Thus, A being possessed of a quantity of coffee in bags, of which a certain part, contained in a number of bags, not distinguished by marks, nor in any manner separated from the rest, was the property of B ; a creditor of A caused the whole to be attached as the property of A. B replevied from the sheriff the quantity owned by him; and, issue being joined on B's prop- erty, and a verdict found for him, he had judgment. The parties were not tenants in common. Though the bags of the plaintiff had no distinguishing marks, he might have taken the number and the quantity of coffee to which he was entitled by his own selection. If a return were to be ordered, the defendant would still be accountable to the plaintiff for the proceeds.^ So A was to furnish wheat to stock a mill, and B, with money advanced by A, to purchase wheat and convert it into flour, and, after deduct- ing the original cost of the wheat, and two and a half per cent, thereon, to receive the proceeds of the sale of the flour. If the wheat is levied on as the property of B, A may maintain replevin to recover it.^ So where, in an action of replevin, there is proof tending to show that a part of the goods belong to a third person, the defendant is entitled to a verdict for the value of those goods.^ So where grain belonging to different owners has been stored in mass with their consent, each may maintain replevin for his share, subject to deduction of his proportion of loss or waste while in mass. As where, after shipments from the mass until a quantity not greater than that due the plaintiff was left, the' warehouseman disposed of the wheat wrongfully.^ So the gen- 1 Wright V. Bennett, 3 Barb. 451. * Morss v. Stone, 5 Barb. 516. '^ Gardner v. Dutch, 9 Mass. 427. ^ Young v. Miles, 20 Wis. G15. 3 Johnson v. Miller, 16 Ohio, 431. CH. VI.] PARTIES IN REPLEVIN. 61 eral agent of a whaling-ship, at a port wlierc it is tlie usage for such agents to take possession of supplies remaining on l)oard at the end of a voyage, and distribute or sell them in settlement, may, after demand, bring replevin against the master for the supph'es, although both parties, with others, are joint owners of the supplies and the vessel. The plaintiff has the exclusive right of possession. 1 But if A, a warehouseman, mix the goods of B, the plaintiff, with his own, so that they cannot be distin- guished apart, but not wrongfully or without B's consent ; B cannot maintain replevin for his goods against A, as they become joint owners of the whole.^ § 4. A partner cannot maintain replevin against his copartner for any of the partnership property. And where one partner has in his possession partnership property, which the other takes from him, and the former replevies, the defendant is entitled to judg- ment pro retorno ; for, where one has been deprived of his prop- erty by an abuse of the process of the law, the law should restore it, and place the parties iti statu quo.^ But a partner may main- tain replevin for his interest and right of possession.^ § 5. In Kentucky, replevying a judgment against one obligor is a legal discharge, not only of the judgment for which it was executed, but of a separate judgment against another for the same debt.^ § 6. In New York, an action for the penalty given by the stat- ute, against an officer who makes a deliverance of property under a writ of rejjlevin, before trying the validity of a claim of prop- erty interposed, must be brought in the names of all the claim- ants ; and this, although one was a landlord and the other his baililf in making a distress for rent, against whom a joint action of replevin was brought.'' And the defendant need not plead non-joinder in abatement, but may avail himself of it at the trial.' § 7. If a constable deliver to the owner property taken under execution, thereby enabling him to impose on three persons hav- ing claims ; they may replevy the property.^ § 8. Where a sheriff' takes partnership property in a suit 1 Kich V. Rvdcr, 105 Mass. 306. 5 Justices, &c. t;. Lee, 1 Mon. 327. '-' Low (•. Martin, 18 111. 286. « Colton v. Mott, 15 Wend. 619. 3 Whitesidcs v. Collier, 7 Dana, 283. "^ lb. * Bostick V. Hrittaiii, 25 Ark. 482; 8 Mulholm v. Cheney, Addis. 301. Smith V. Wood, 31 Md. 2y3. 62 REPLEVIN. [book. I. against one of several partners, and removes it to a place of safety ; the others cannot bring replevin. ^ § 9. Replevin cannot be maintained, either at common law or under the Connecticut statute, by one joint owner of a personal chattel, against another joint owner, for a taking away of the joint property, by virtue of a writ of attachment against a third person.- § 10. Personal property owned in common being attached against A, one of the owners, and replevin brought in the name of all against the officer, and dismissed; the measure of damages in an action on the bond is the value of A's interest.^ § 11. The seller of goods may bring a joint action to recover them, against the fraudulent purchaser, and his assignee for ben- efit of creditors, to whom the goods have been delivered, and who refuses to give them up on demand. It is said by the court, *' the Code provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. Both these defendants claim an interest in the goods adverse to the plain- tiffs ; Pumer claiming that the purchase of the goods was free from fraud, and that they should be retained by his assignee, and disposed of for the benefit of creditors — Michael claiming the possession for the same purpose, and refusing to surrender on demand."* § 12. A judgment for the plaintiff in replevin, against one of two joint takers of goods, for a part of the goods taken, is a bar to a subsequent action against both to recover damages for the same trespass, if the other goods are not shown to have been con- cealed, or otherwise disposed of, so that they could not be re- plevied.^ § 13. The owner of property, attached in a suit against another, may maintain replevin therefor against the attaching creditor and the officQr jointly, when the former assisted in taking the prop- erty, and took it into his own possession after the attachment.^ § 14. In replevin against two or more, one may be found guilty and the others not guilty.' But where, in replevin against A and 1 Scrugham v. Carter, 12 Wend. 131. 5 Bennett v. Hood, 1 Allen, 47. 2 Prentice v. Ladd, 12 Conn. 331. 6 Esty u. Love, 32 Vt. 744. 3 Bartlett v. Kidder, 14 Gray, 449. '' Carothers v. Van Hagan, 2 Greene 4 Nicliols V. Micliael, 23 N. Y. (9 (Iowa), 481. Smith), 264; per James, J., 269. CH. VI.] PARTIES IN REPLEVIN. 63 B, the sheriff seized the property and executed the writ on A, and made return without service on 15, and the plaintill" declared against both, and neither appeared ; heki, judgment by deiault against both was erroneous as to both.^ § 15. The death of a party to the action of replevin lias given rise to some questions.^ § 16. The suggestion, on record, of the death of the defendant, is held to abate the action, and it cannot be revived against the administrator."^ And the distinction is taken in an early case in Massachusetts, that, " if the defendant in replevin die pending the suit, his executor or administrator cannot come in and defend, because the action is founded on a tort which does not survive. But if the plaintifl" in replevin die, his executor or administrator may come in and prosecute, within the equity of the statutes of 4 Ed. 111. c. 7, & 31 Ed. III. c. 11."'* And in a subsequent case it was held, that the administrator of a deceased del'endant in replevin could not be admitted on his motion to defend the suit. And further, the action being against a deputy sheriff for attach- ing property of the plaintiff in an action against a third person ; that a statute, providing for the surviving of actions for the malfeasance of the sheriff or his deputies, did not apply to the case.^ § 17. In New York, where a verdict Avas rendered for the de- fendant in replevin for a part of the property, and a new trial ordered, and the defendant died after such order and previous to the next circuit; the executors are not entitled to come in and ask that the suit be contintied against thcm.^ § 18. But, in South Carolina, coheirs, or joint tenants, with a defendant in replevin, may come in and defend an action abated by his death." § 19. Evidence, that a slave belonged to a person deceased, and that the plaintiff, his widow, administered jointly with another person still living ; that there were several heirs, and had been no distribution of the estate; and that after the death of the intestate the plaintiff obtained possession of the negro, who had been called her own and been in her possession 1 Ouly V. Dickinson, 5 Cold. 48G. = Mellen v. Balilwin, 4MabS. 480. - See Keite v. lioyd, l(j S. & H. 300. ^ Webber's Executors v. Underhill, 19 "* Kector v. Chevalier, 1 Mis. 345; Wend. 447. Pitts ('. Hale, 3 Mass. 321. V Talvande v. Cripps, 2 M'Cord, 164. * Tilts V. Uale, 3 Mass. 321. 64 REPLEVIN. [book I. until a short time before suit commenced : were held to clearly show a want of title in the plaintiff to support replevin.^ § 20. It is doubted whether an action of replevin in the detinet will lie against the wife, where the detention is in fact the joint act of both husband and wife.^ § 21. It is held that replevin does not lie, by husband and wife, to recover chattels, the property of the wife before mar- riage.-^ A husband alone may replevy timber cut on the joint property of himself and his wife.'* , § 22. In reference to the relation of principal and agent in con- nection with replevin ; an auctioneer who, as the agent of the owner, sells and delivers goods on a condition which is not com- plied with, may maintain replevin therefor. He *' has a posses- sion, coupled with an interest, . . . not a bare custody, like a servant or shopman, but a special property, with a lien for the charges of sale, the commission, and the auction duty, which he is bound to pay. . . . The auctioneer might maintain trespass. He is liable to his employers for the goods, or for the price at which they were sold. . . . He is also the ' party entitled to possession,' within the meaning of the Mass. Rev. Sts. c. 113, §27." 5 § 23. Replevin may be maintained in the name of 2i parish for the parish records.*^ § 24. Replevin is often founded upon an allegation o^ fraud, and brought by or against an alleged fraudulent seller or buyer.' Thus it may be brought in case of purchase by false representa- tions, though upon credit.^ And in an action commenced under § 206, &c., of the New York Code, for the claim and delivery of personal propertj^, where the complaint is in the form of the old declaration in replevin in the detinet, and charges that the defendants have become possessed of, and wrongfully detain, the goods and chattels, and the plaintiffs proceed upon the ground that the title to the goods was never changed, but remained in them, because purchased of the plaintiffs, and the delivery thereof procured, through the false representations of the vendees as to their solvency and credit ; proof of the purchase of the goods 1 Robinson v. Calloway, 4 Pike, 94. ^ T3-ler v. Freeman, 3 Cush. 261, per 2 Huntington r.Gilmore, 14 Barb. 243; Metcalt, J., 263. Seep 68. See Musser v. Gardner, 66 Penn. 242. ti First, &c , v. Stearns, 21 Pick. 148. •» Seibert v. ^IcIIenry, 6 Watts. 301. "^ Hotclikiss v. Ashley, 44 Verm. 195. * Fairchild v. Cliaustelleux, 8 Watts, ^ Hail v. Gilniore, 40 Maine, 678. 412. CH. VI.] PARTIES IN REPLEVIN. 65 by the agent of the defendants, by their direction, and that at the time the defendants were insolvent, is competent evidence on the question of fraud.^ In such an action, it is not necessary that the complaint should aver a demand of the goods, or the insolvency of the defendants, or any of the facts going to estab- lish the fraud. It is sufficient if it is in the form of the old declaration in replevin in the detinet, and charges that the de- fendants have become possessed of, and wrongfully hold, the goods and chattels.^ And, to warrant a recovery against a pur- chaser from a fraudulent vendee, the actual mala fides of the defendant — that is, his positive knowledge or belief — is not nec- essary to be proved. It is sufficient to prove, that the circum- stances known to him were such as ought reasonably to have excited his suspicions, and led him to inquire.^ § 2-1 a. Replevin lies, without demand, for property sold or exchanged in consequence of false representations made to the owner. But he must first restore whatever he has received as a consideration, unless the other party has waived his right to such restitution.* § 24 6. A defendant in replevin alleged that the property belonged to his minor son; that he, as natural guardian, was bound to keep it, and his son was fraudulently inveigled by the plaintiff to part with it. Held, that the last averment was sur- plusage. Also, that, although the plea of fraud was defective, in not setting out the facts, evidence was admissible that the plaintiff acquired possession by fraudulent representations.^ § 24 c. A took from B a sewing-machine on a writ of replevin sued out from a justice of the peace, but, on the day set for the trial, told her that the suit had gone against her, and that he had the costs to pay, and then got the suit dismissed and paid the costs. Held, B might replevy the machine in the (111.) Supe- rior Court, her remedy on the replevin bond not being exclu- sive.^ § 24 d. G. replevied goods fraudulently delivered to him, under a sale of goods of a different kind, and which had been attached as his vendor's, but, discovering the wrong description of the property in his writ, altered his writ and described it 1 Hunter v. The Hudson, &c., 20 Barb. < Thayer v. Turner, 8 Met. 550 ; Frost 493. V. Lowry, 15 Ohio, 200. 2 lb. 6 Bliss ('. Badger, 3G Vt. 338. 8 Pringle v. PhiUips, 6 Sandf. 157. « Bruner v. Dyball, 42 lU. 34. 5 66 REPLEVIN. [book I. correctly. Held, as against the fraudulent vendors, the election to take the property was valid, and he could hold it.^ § 24 e. It is a good defence, that the defendant purchased the property for value, without notice that it had been obtained from the plaintiff by fraud.^ § 24/. Replevin lies for goods obtained by fraud, and paid for by a note on time with worthless securities, though the plaintiff has transferred the note for value, and never reclaimed it.^ § 24 g. Where, in replevin between the parties to a sale, the defendant claimed the goods, in order that he might deliver them to the assignees in insolvency of the vendors, and prayed the court that an issue might be framed, which would permit him to show that the plaintiff's title was acquired in fraud of the insol- vent laws ; held, the court was not bound in this action to try the right of the assignees, whose title, if any, accrued during the pendency of the action.* § 24 li. Under the (Iowa) Code of 1851, the defendant in re- plevin could not attack the plaintiff's right of possession as having been obtained through fraud, unless the fraud had been specially pleaded.^ § 25. A chattel was attached, as A's, for a just demand, but by means of a set-off the defendant recovered a balance with costs. B claiming under a sale from A, replevied the chattel from the officer, pending the suit. Held, the officer might avoid the sale as fraudulent ; although, after the original judgment, B might have a right to the chattel as against him, he having no execution to levy upon it.*^ § 26. If tenants in common make separate conveyances to the same purchaser, one of which is fraudulent and void as against creditors ; the purchaser cannot maintain replevin for such property against an officer attaching it as the property of the vendors. *' If either deed was void, the plaintiff would have a title to only an undivided share, for which replevin could not be sustained. ... If either was the owner of an undivided share, . . . the taking by the officer was lawful." " § 27. Where property is exchanged for other property, known by the party giving it in exchange to have been stolen, and is 1 Gardner v. Lane, 98 Mass. 517. 5 Gray v. Earl, 13 Iowa, 188. 2 Lee V. Portvvood, 41 Miss. 109. 6 Gates v. Gates, 15 Mass. 310. 3 Manning v. Albee, 14 Allen, 7. ^ Kimball v. Thompson, 4 Gush. 441 ; < Gardner v. Lane, 98 Mass. 517. ' jer Wilde, J. 449. CH. VI.] PARTIES IN REPLEVIN. 67 retaken by the rightful owner ; the party injured may maintain replevin for his property,^ But where A exchanged a horse, which he had stolen, with B, and afterwards sold B's horse to C for a valuable consideration, and without notice, on the part of B, of the theft; held, replevin did not lie by B against C- § 27 a. In replevin for goods seized on execution, the plain- tiff cannot question the consideration of the note upon which the judgment was founded.^ § 28. If an owner sell chattels on condition of immediate pay- ment, but waive the condition and deliver them ; he parts with the property, and cannot, in replevin for the chattels, avail him- self of a fraud between the first and a second purchaser.^ So a vendor cannot maintain replevin against a vendee, after delivering a quantity of flour on board a vessel, on a credit of sixty days, the defendant refusing to give his notes, having failed in the mean time, and having consigned the flour to a foreign house, who had advanced money on the consignment.^ § 29. The defendant contracted to tan hides furnished him by a firm, and return the leather in reasonable time, at an agreed price for tanning and transportation, payable after delivery. He carted a quantity of finished leather from the tannery, by a dif- ferent road, to a different place from the usual place of shipment, to the merchants who had furnished the hides, and there stored them in a barn never before used for storage. Held, the evi- dence showed an intention to retain and sell the leather as the defendant's property; that he had no lien upon it, inasmuch as delivery was to precede payment ; and that, in an action of re- plevin brought by the surviving member of the firm, an instruc- tion to the jury, that there had been neither an unlawful taking nor detention, and the action did not lie, was erroneous.'' § 30. Where goods are fraudulently sold by a carrier, and the purchaser takes them loithoiit deliver?/, it seems that replevin in the cepil will lie by the owner against the purchaser, although he bought the goods in good faith." § 31. Mistake, as well as fraud, may be the ground of an action 1 McDonald i'. Sniitb, 21 Ark. 4G0. See 5 ib. 392; Kurtlians v. Owings, i Har. 2 Brown v. Canipsall, 6 Har. & J. 491. & J. 2G3. 3 Ilotclikiss V. Aslilev, 44 Verm. 195. « Lee v. Gould, 47 Penn. 398. * Mixer v. Cook, 31 Maine, 340. 1 Ely v. Ehlie, 3 Comst. 50G. 5 Cleinson v. Davidson, 4 Biun. 405. 68 REPLEVIN. [book I. of replevin. An inspector of tobacco, by mistake, delivered to the holder of certain notes other hogsheads of tobacco than those mentioned in such notes. The hogsheads corresponding with the notes were by A delivered over to B, his successor, and, on B's advertising them for sale, under the Maryland Act of 1802, c. 27, they were demanded by A, and an action of replevin brought for them by him. Held, that he was not entitled to recover.^ § 32. A mortgagee of personal property, in the absence of any agreement to the contrary, is entitled to immediate possession of the property, and may maintain replevin therefor before the time of credit has expired.^ More especially, after default in payment of a chattel mortgage, the mortgagee's title becomes absolute at law, and he is entitled to immediate possession. Hence he may maintain replevin in the cepit against any one who tortiously takes the property from the mortgagor. So although, after the default, the mortgagee filed a copy of the mortgage and a state- ment, pursuant to the New York Act of April 29th, 1833 ; for that will not operate an extension of credit, or give the mort- gagor any additional right of possession.^ § 33. But where it was agreed, at the time of making a mort- gage of a chattel, that the mortgagor should retain possession ; the mortgagee cannot maintain replevin against one who takes the chattel.* In such case, the mortgagor has the right of pos- session, and a legal interest in the goods, capable of being seized upon a distress warrant or an execution.^ And where the evi- dence conduced to prove that the mortgagor held the possession by contract ; instructions, that, if the plaintiff held a valid sub- sisting mortgage, &c., the law was for him, are erroneous, be- cause they did not submit the question of possession to the jury.*^ But, in such cases, if at the time of trial the plaintiff have a right to possession, the defendant cannot have judgment for a return.7 § 34. When a mortgagee has the right of immediate possession, no demand is necessary, in order to sustain replevin against a subsequent vendee of the mortgagor.^ i Stevenson v. Ridgely, 3 Har. & J. ■* Pierce v. Stevens, 30 Maine, 184 ; 281. Eedman v. Hendricks, 1 Sandf. 32. 'i Ferguson v. Thomas, 26 Maine, 499. ^ Eedman v. Hendricks, 1 Sandf. 32. See Hutt v. Bruckman, 55 111. 441 ; 6 M'Isaacs v. Hobbs, 8 Dana, 268. Cook ('. Farrington, 104 Mass. 212. ■? Ingraham v. Martin, 3 Sbep. 373. 3 Fuller V. Acker, 1 Hill, 473. 8 Partridge v. Swasey, 46 Maine, 414. CH. VI.] PARTIES IN REPLEVIN. 69 § 35. In an action of replevin, brought by the assignee of an insolvent debtor ; the defendant, who claims under a mortgage from the debtor, by which the possession and control of the goods are secured to the mortgagor until after default, may show, by parol evidence, that the mortgagor has waived this right, and allowed him to take possession.^ § 35 a. Upon a petition in insolvency against the mortgagee of personal property, the officer took possession under a void warrant. The condition being afterwards broken, he took pos- session under a valid warrant, and delivered the property to the assignees. The mortgagor brings replevin against the officer and the assignees. Held, it could not be maintained against the former, because he was not in possession ; nor against the latter, because they held under the assignment.^ § 36. The service of legal process upon mortgaged property has often given occasion to the action of replevin in behalf of the mortgagee. § 37. In Massachusetts, independently of statute, the pro- visions of which must be strictly observed, personal property mortgaged cannot be taken on execution against the mortgagor ; and replevin will lie by the mortgagee against a purchaser of the property at the sale on execution.^ § 38. A, the owner of a vessel, resident in Nova Scotia, mort- gaged her to B, also resident there, who had his mortgage duly recorded, under the laws of the province, at the custom-house, and a memorandum thereof indorsed on the register of the ves- sel; these acts, by the lex loci, making B the owner of the vessel, so far as was necessary to give him security for his debt. Held, he had thus acquired possession of the vessel, sufficiently to maintain replevin against an attaching creditor in Massachusetts.* § 39. Where an officer levies upon personal property mort- gaged, which remains in possession of the mortgagor, the money not having become due, and replevin is brought against him for asserting his claim under such levy, and refusing to surrender the property after the mortgage-money has become due ; the plaintiff must declare for the detention, not for the taking of the property.^ 1 Whitcher v. Shattuck, 3 Allen, 319. * Esson v. Tr.rbell, 9 Cusli. 407. 2 Hall V. White, 106 Mass. 599. 6 Randall v. Cook, 17 Wend. 53. 3 Lamb i'. Johnson, 10 Cush. 126. 70 REPLEVIN. [book I. § 40. The Kentucky statute, subjecting the interests of mort- gagors to execution, makes no reference to the state of the possession at the time of levy ; and, as a levy on personal prop- erty implies that the officer takes possession of it, so, where an execution against the mortgagor is levied on the mortgaged property in possession of the mortgagee, the officer has a legal right to assume the possession and control of the property be- tween tlie levy and sale, and the mortgagee cannot maintain replevin ; and a failure of the officer to recognize the mortgage (because he did not know of it, or doubted its validity), it seems, would not render the levy and seizure unlawful. If, in any case, where an execution against a mortgagor is levied on the prop- erty, it can be replevied by the mortgagee, it must be surren- dered for the sale of the mortgagor's interest. ^ § 41. In replevin in the detinet, the finding was, that the plain- tiff was a mortgagee and in possession ; that the defendant as constable took and detained the chattel on an execution against the mortgagor ; and that by law a mortgagee of a chattel in possession might maintain replevin in the detinet against a con- stable, who took and detained the mortgaged chattel for the mort- gagor's debts. Held, the finding did not, even by necessary implication, show a right of possession in the plaintiff.^ The finding further ordered an allowance of five per cent, on the value recovered by the plaintiff as indemnity for his expenses, and fixed the value at $105. Held, fatally defective, in that it did not assess damages for the taking ; and that the judgment thereon could not stand. '^ § 42. A mortgagee of personalty, having the right to take possession whenever he deems the debt insecure, has an imme- diate right of possession, and may maintain replevin where the whole property has been sold on execution, instead of the mort- gagor's interest.* § 43. Replevin will not lie for levying an execution against a mortgagor and mortgagee upon the mortgaged chattels by direc- tion of the mortgagee.^ § 44. In Ohio, personal property mortgaged may be attached as the mortgagor's, when in his possession. The levy and seiz- 1 M'Isaacs v, Hobbs, 8 Dana, 268. * Frisbee v. Langworthy, 11 "Wis. 375. '•i Bates V. Wilbur, 10 Wis. 415. ^ Talbot v. De Forest, 3 Iowa, 586. 3 lb. CH. VI.] PARTIES IN REPLEVIN. 71 ure creates a lien, which is not divested by the recovery of the property in replevin by the mortgagee. The attaching creditor may apply the surplus proceeds of a sale made by the mortgagee to his judgment, though, after levy of the attachment, and before commencement of proceedings tlius to subject the surplus, the mortgagor had assigned it to the mortgagee.^ § 45. In the same State, if the lien of a mortgage exceeds the value of the property, the officer, against whom an action of re- plevin is brought for taking it upon process against the mort- gagor, can recover only nominal damages.^ § 46. To an action of replevin for detaining goods, the defend- ant may plead generally property in himself, and specially that the goods were delivered by the plaintiff to the defendant as a pledg-e, and retained until the plaintiff should pay, &c., which he had not done.*^ So A pledged goods to B, to secure his debt. A was indebted to C by note. By agreement between the three, A was to work for C, who was to apply his wages to the payment of B's debt. A Avorked for C until his wages exceeded the amount of his indebtedness to B. C then offered A his own note, and the balance of B's debt to A in cash, which A refused. C then paid A the amount of his wages in cash. Held, no satisfaction of the debt secured by the pledge, and therefore A could not maintain replevin for the goods, especially after receiving the full amount of his wages from C.^ § 47. In replevin, under the Revised Statutes of Michigan, one having a lien or a special property, at the commencement of the suit, can recover only according to his special interest against the general owner ; but against a stranger he may recover as though he were the general owner, the statute being intended to introduce in actions of replevin the rules governing in actions of trover.^ § 48. It seems, the defendant in replevin cannot object that a third person had a lien, as against the plaintiff, upon the property ttached.^ § 49. Where the defendant, in replevin for manufactured arti- cles, avows the detention of them on the ground of a mechanic's 1 Carty v. Fenstemaker, 14 Ohio St., * lb. 457. 6 Davidson v. Gunsoily, 1 Mann. 388. '■i Coe V. Peacock, 14 Oliio St.. 187. ^ Wilson v. Nichols, 2y Maine, 566. ' Amos V. Sinuott, 4 Scam. 440. 72 REPLEVIN. [book I. lien ; the plaintiff may plead in bar an agreement by which the lien was waived.^ § 50. Where a purchaser of horses, at a sale on execution, which were subject to a lien for keeping at a livery-stable, suf- fered them to come again into the custody of the stable-keeper, and afterwards took them away against the will of the latter, who claimed to detain them for his lien ; it was held that replevin was the proper form of action for the stable-keeper in enforcing his lien.2 § 51. "Where the defendant sets up a lien for storage, the plaintiff may prove, that, through his negligence, goods had been destroyed exceeding in value the claim for storage.'^ 1 Curtis V. Jones, 3 Denio, 590. 3 Babb v. Talcott, 47 Mis. 343. 2 Young V. Kimball, 23 Penn. 193. CH. yii.] WRIT, BOND, DECLARATION, ETC. 78 CHAPTER VII. WRIT, BOND, DECLARATION, PLEADINGS, EVIDENCE, ETC. 1. (and note). General remarks as to pleadinj^s and practice, and the statutorj' changes on tliese sulijects; points of practice. 2. I)escri])tion of the property. 6. Statement of title. 9. Motions, pleadiiigs, &c., subsequent to the writ and declaration — motion to dis- miss. 16. Pleadings — avown/ and cof/nizance. 17. General issue ; 7ion cepit and detinet. 18. Title to the property. 26. Several pleas. 27. Pleading in case of seizure by legal process, distress, Ike. 36. Replication, &c. 51. Amendment. 52. Evidence. 71. Verdict. 75. Damagi'S. 77. Verdict and judgment in special cases. 84. Judgment for return. § 1. With regard to the pleadings, practice, and forms of pro- ceeding in replevin, we have already seen that they are for the most part peculiar to this action.^ In consequence of such peculiarity, the numerous statutory alterations in this country, with reference to mere matters of form, the purpose and effect of which is to simplify remedies and do away with long-established technicalities, have comparatively little application to the action of replevin, (a) 1 See Wadley v. Harris, 25 Ark. 36. (a) There are, however, numerous points of form and practice in the action of replevin, which are variously regu- lated by the local usages and express legislation of different States. Questions may frequently arise, in reference to the bo»(l, which is generally required to ac- company the writ of replevin. (See ch. 8) In Connecticut, if the plaintiff in an action of replevin be not an inhabitant, he must give bond for prosecution pursuant to the first section of the act regidating civil actions ; otherwise the process is abata- ble. And this, notwithstanding the giv- ing of a bond, pursuant to tiie 8th section of the statute authorizing writs of re- plevin, such bond not securing to the defendant his costs in replevin. Fleet v. Lockwood, 17 Conn. 233. In Maine, the plaintiff in replevin is not a trespasser in taking the goods re- plevied, if he offers sureties satisfactory to the oflBcer, although in fact insufficient. Harrinian t\ Wilkins, 2 App. 93. In Kentucky, though no bond may have been executed on suing out a writ of replevin, yet, if the writ be not exe- cuted, and the property not delivered to the plaintiff, it is error to quash the writ and render judgment for a return of the property. Tlie writ is good as a citation, and the cause should progress. Green- wade r. Fisher, 5 B. Mon. 167. Under a statute requiring " all original writs " to be iudorsxl, a writ of replevin must be indorsed. The fact that the re- ])k'vin bond furnishes all the security derived from such indorsement cannot change the effect of an express statute. Nor does it make any difference tliat this statute is prior in time to the act jtrovid- ing for replevin. But if the defendant pleads the want of an indorser in abate- ment of the writ, without any suggestion 74 REPLEVIN. [book I. § 1 a. Replevin is a summons, not an attachment, and must be served accordingly.^ 1 Giiffield V. Avery, 43 Verm. 668. Contra, Baldwin v. Cash, 7 W. & S. 425. entitling!: him to possession of the goods, and the writ is abated ; lie shall have judgment tor his costs, but not for a re- turn. Gould i\ Barnard, 3 Mass. 199. In Massachusetts, it is not necessary that it should aj)])ear, in an officer's return of a writ of re])levin, either that the defendant was requested or had notice to appoint an appraise?- of the property, or that the par- ties did not agree as to the value thereof Wolcott V. Mead, 12 Met. 516. Though it is the general duty of the officer to ap- point three appraisers, yet he is justified or excused for omitting so to do, when the parties agree as to the value. If the parties do so agree, he should certify that fact in his return, when he for that reason omits to appoint appraisers. lb. In Massachusetts, a writ of replevin may be issued by the clerk of the courts in one county, returnable in another. Judson v. Adams, 8 Cush. 556. A constable has no authority, by Rev. Sts., c. 15, to serve a writ of replevin, except where the sheriff or his deputy is a party, and the value of the property does not exceed seventy dollars. The statute provided, that con- stables might serve writs and executions in any personal action in which the dam- age is not laid higher than seventy dol- lars. By a subsequent section of the same chapter, " constables may also serve writs of replevin, in cases where the sheriff or his deputy shall be a party, and in which the value of the property to be replevied shall not exceed the sum of seventy dollars." The construction of the two provisions, taken together, is as above stated. " And this conclusion is confirmed by a reference to the subject- matter. In most personal actions, the matter ultimately claimed in the suit is a sum of money expressed in the ad dam- num. The obvious purpose of the statute being to give constables a limited au- thority only to serve writs . . . this may be well measured in most personal actions by the ad damnum. But it is otherwise in replevin, where specific property, often of great value, may be the subject of judi- cial controversy, whilst the damages are merely incidental, and may be compara- tively small." Conner v. Palmer, 13 Met. 302 ; per Shaw, C. J., ib. 303. Under the Rev. Sts., c. 113 (see Gen. Sts), a writ of replevin may delivered to an officer, and lie may commence the service, but not de- liver the property to the plaintiff, nor do any thing more than is necessary to effect an apju'aisement, before taking a liond. Wolcott V. Mead, 12 Met. 616. In New York, a plaintiff' in replevin cannot regularly declare, until the writ be returned with the names of the sureties annexed. Wilson v. Williams, 18 Wend. 581. A writ tested at one term, and re- turnable at the next term but one (an entire term intervening), is voidable. Cayward v. Doolittle, 6 Cow. 602. In Wisconsin, an alias writ of replevin maj' be issued and directed to the sheriff of a county other than that in which suit is brought. Hiles v. McFarlane, 4 Chand. 189. In Vermont, a writ of replevin of prop- erty attached cannot be served by a con- stable. Ralston v. Strong, Brayt. 216 ; ib. 1 Chip. 287. In Connecticut, a writ to replevy goods taken by attachment is not an adversary suit, but a mandatory precept, and ought to be directed to the officer who served the attachment. Denison v. Raymond, Kirby, 274. In Iowa, a petition in replevin before a justice of the peace must be sworn to. Cure V. Wilson. 25 Iowa, 205. In New York, proceedings in the nat- ure of replevin, to obtain immediate de- livery of personal -property, in which the plaintiff's affidavit states that the property has not been taken for a tax, should be set aside on a motion founded on the affidavits of a collector and deputy collector of taxes, stating that such property was taken for a tax under an act of Con- gress ; the deputy annexing to his affi- davit the warrant under which he seized the property. O'Reilly v. Good, 42 Barb. 521. In Arkansas, if a writ of replevin is improperly executed, the clerk can issue an alias without any order of court. The return must show execution by reading, or delivering a copy, or leaving a copy at the defendant's usual place of abode, with some white person of his family over fifteen years of age. It must also set forth with certainty the contents of the notice required to be delivered to, or left for him, and state that it was signed by himself A defect in the return is not ground for dismissing the suit. Nor is a refusal of the plaintiff to amend. Pool v. Loomis, 5 Pike, 110. In Illinois, where part of the property CH. VIT.] WRIT, BOND, DECLARATION, ETC. 75 § 1 Z>, The officer may enter the defendant's house to search for the goods. ^ By St. Westm. 1, c. 17, where one had taken beasts and driven them into a castle or fortress to prevent a re- plevin ; the sheriff, after solemn demand and refusal, might break the castle or fortress to make replevin. And it is held, that, at common law, the privilege of one's house extends only to him and his family and to his own goods. ^ § 2. The writ and declaration must contain a description of all the goods, ^ (a) which will enable the officer, with reasonable certainty, to distinguish them from other property of like nature. In replevin for six oxen, the writ and declaration may describe them merely as ** six oxen." ^ Or " one white shoat of the value of fifteen dollars."^ But " a quantity of corn (consist- ing of about 200 bushels), and a quantity of rye (consisting of about 100 bushels)," is not a sufficient description." So, although 1 Kneas v. Fitler, 2 S. & R. 263. Pope v. Tillman, 1 Moo. 386. See Story 2 Semayne's Case, 6 Co. 01 a. But v. O'Dea, 23 Iiul. 326. see 2 Inst. 193. * Farwell v. Fox, 18 Mich. 166. 3 Magee v. Siggerson, 4 Blackf. 70; ^ Oustatt v. Keani, 30 Ind. 259. *» Stevens v. Osman, 1 Mann. 92. claimed cannot he found, and there is personal service, the plaintiff may add a count in trover. Dart v. Horn, 20 111. 212. The failure of a sheriflT to return the value of property replevied, as required by the third section of the Kentucky Act of 1830, is no cause for quashing the writ. Fryer ;;. Fryer, 6 Dana, 54. In Maine, a writ of replevin return- able before a justice of the peace, like other justice writs, is to be " duly served, not le. Brown i'. Keller, 32 111. 151. * Bloomer v. Craige, 6 Dana, 310. ^ Smith v. McLean, 24 Iowa, 322. * Bent V. Bent 43 Verm. 42. 8 Jaques v. Sanderson, 8 Gush. 271. 80 REPLEVIN. [book I. as a cause for dismissal. The action will not be dismissed, for that cause, upon a motion which merely states, as a reason for dismissing it, that the officer made his service, or commenced his service, before any bond was given, as the law requires.^ § 14. In Massachusetts, where a writ of replevin was framed according to the form prescribed by the repealed statute of 1789, c. 26, and the officer proceeded in the service, according to that statute, taking and returning a bond from the plaintiff to the defendant with one surety only, and in a certain sum, without causing an appraisement, &c., as directed by Rev. Stats, c. 113; held, a motion to dismiss the action could not be received after the return term, at which the defendant appeared, and the action should proceed to trial, as the bond taken and returned was valid by the common law, and the court had jurisdiction of the parties and of the subject-matter.^ § 15. It is no ground for dismissing a writ of replevin, that an animal described in the writ as a heifer is termed a cow in the certificate of appraisement ; that the plaintiff has caused the officer intrusted with the writ to bring an action against the de- fendant and another officer, for taking the property from him before its delivery to the plaintiff; or that the plaintiff, as execu- tor, has brought a suit against the defendant and the latter officer for conversion of the property, unless such conversion is shown to be the same for which the replevin was brought.^ § 16. The pleadings in replevin are termed avowry and cog-ni- zance^ " An avowry is where the defendant, in an action of replevin, avows the taking of the distress in his own right, or in right of his wife, and sets forth the cause of it, as for arrears of rent, damage done, or the like."^ Cognizance is "where the defendant (not being entitled to the distress or goods) acknowl- edges the taking, and insists that such taking was legal, not because he himself had a right to distrain on his own account, but because he made the distress by the command of another, who had a right to distrain." ^ (a) On the same subject, it is fur- 1 Wolcott V. Mead, 12 Met. 516 ; Rich * See Lecky v. M'Dermot, 5 S. & R. V. Ryder, 105 Mass. 308 ; Gen. Sts. c. 129, 331 ; Thomson v. Cross, 16 S. & R. 350 ; § 79. Bratton v. Mitchell, 5 Watts, 70. 2 Simonds v. Parker, 1 Met. 508. ^ Bouv. Law Diet. 3 Pomeroy v. Trimper, 8 Allen, 398. ^ ib. {a) Under § 65 of the (Cal.) Practice restitution or for the yalue, contains only Act, a pleading by the defendant, which matters of confession and avoidance, and admits the taking, but justifies under is deemed controverted by the plaintiff, legal process, and prays judgment for a Stringer v. Davis, 35 Cal. 25. CH. VII.] PLEADINGS. 81 ther remarked as follows : " The plaintiff and defendant are consid- ered as actors, the defendant in respect of his having made the distress (being a claim of riglit, and the avowry in the nature of a declaration), and the plaintiff in respect of his action." ^ " An avowry partakes of the nature of a declaration. It is the asser- tion of a claim for the return of the goods replevied." '-^ " There is a difference between a justification to an action of trespass, and an avowry or cognizance. In trespass, it is sufHcient for the defendant to allege in his plea matter to excuse the trespass ; but, in replevin, the avowant, or person making cognizance, is in the nature of a plaintiff, for he is to have a return ; and, therefore, the avowry or cognizance, which is in the nature of a declaration, must show a good title in omnibus, and contain sufficient matter to entitle him to a return." ^ § 17. " By the common law, replevin lies only for the wrongful taking of chattels, and the general issue is non cepit, (a) which admits that the property ... is in the plaintiff, and denies only the taking. Of course, property in the defendant cannot be given in evidence, under this issue." ^ (6) 1 SSteph.N. P. 2482; 1 Saun. 347b,e. Eaves v. King, 1 Har. 141; Vickery v. See p. 2. 81ierl)urne, 2 App. 34 ; Wilson u. Koys- - Per Strong, J., Burr v. Hughes, 44 ton, 2 Pillt, with brief statement that " the property was the property of the defenditnt, and not the property of the plaintiff," the bunlen is on the plaintift', under the statute of Maine, to prove property in himself. Otherwise, it seems, if the brief state- ment merely alleges ])roi)erty in the de- fendant. Cooper V. Bakeman, 32 Maine, iy2; Green v. Diugley, 11 Shepl. 131. 84 EEPLEVIN. [book I. defendant. An omission to do so is held not to be cured by the plaintiff's pleading over, and a verdict upon the issue. ^ § 22. Upon plea of property, a mere naked possessory right, without any title to a right of possession at the time of suing out the writ, is not sufficient. On such issue the plaintiff can never have judgment, unless the jury find the property to be in him as alleged in his declaration and maintained in his replication. It is not sufficient that the inducement to the defendant's plea is not proved true.^ (a) § 23. A plea, that the goods had been distrained for taxes, is good either in abatement or in bar.^ But a plea justifying under a writ is demurrable, unless it aver that the writ was in full force, the money unpaid, and the property taken in pursuance of its authority.-i (See § 27.) § 24. In Delaware, the short plea of property in defendant can be understood only as a claim of the entire property in the thing. It is to be construed as if drawn out in form. Even where, under an agreement, parties were changed, and the case went to trial on a plea of property ; the court would not look beyond the legal meaning of the plea, into any supposed intention of the parties, to try the case on a general claim of property, not covered by the plea, nor allow an amendment of the plea after the jury was sworn. The court will, on motion, allow any short pleading to be drawn out.^ § 25. As has been already suggested, a plea that the property of the goods is in a stranger, not in the plaintiff, is a good plea in bar or abatement, and justifies a return without an avowry,^ (6) 1 Harrison r. M'Intosh, 1 Johns. 380; 6 Harrison v. M'Intosli, 1 Jolins. 380; Hopkins V. Hopkins, 10 ib. 369 ; Bain v. Edwards v. McCurdy, 13 111. 496 ; Martin Clark, ib. 424. See p. 83, n. a. v. Ray, 1 Blackf. 291. See People v. 2 Chambers r. Hunt, 3 Harr. 239. New York, &c., 2 Wend. 644 ; Wright v. 3 Deshler v. Dodge, 16 How. 622. Williams, ib. 632 ; Presgrave v. Saunders, 4 Dayton r. Fry, 2 ib. 525. 6 Mod. 81, 2 Cro. 519. 5 Mcllvaine v. Holland, 5 Har. 10. (a) An answer, that the defendant was Wis. 568. An allegation, in an answer to and is the owner of the property, and a plea that the defendant " is rightfully denying the plaintiff's right to maintain entitled to the property and to the posses- the action, puts in issue the plaintiff's sion thereof," following a denial of all the title. Chase v. Allen, 5 Allen, 599. It is averments in the petition, is cumulative no defence to an action of replevin, in of these denials, and is not new matter, which the plaintiff claims only the right requiring a denial. Hunt v. Bennett, 4 of possession, that the legal title is in a Greene, 512. third party. Corbitt v. Heisey, 15 Iowa, (b) In Michigan, the defence, that the 296. property belonged to a third party, and A defendant, who puts in issue both the was taken by legal proceedings against title and the right of possession, is en- him in replevin, is admissible under the titled to have both questions passed upon general issue, without notice. Snook v. by the verdict. Appleton v. Barrett, 22 Davis, 6 Mich. 156. CH. VII.] PLEADINGS. 85 and without connecting the defendant witli tlie title. ^ So a clause in a plea, averring that the property is in the succession of A, without naming tlie persons in succession, is good on demurrer, it being inducement to a traverse of the plaintiff's title.'-^ § 2G. It has been sometimes held, that a statute authorizing double pleading does not apply to replevin,^ In Virginia, it has been held that the defendant cannot plead several pleas. But the error is cured by the statute o^ jeofails ^ But, in general, several pleas are now allowed.^ Thus a defendant may plead non cepit, and property in himself or a stranger, and will not be compelled to elect by which plea he will abide.^ Where both non cepit and property are pleaded, a verdict upon the former plea only will be set aside." § 26 a. So, in Maryland, by'usage, the defendant may plead non cepit, property in himself, and property in a stranger ; and the plaintiff" may join issue on the first, and traverse the second and third by affirming property in himself; on which traverses issues may be joined.^ So, in Illinois, pro[)erty may be pleaded gener- ally, and also by a plea setting out the title, specially.^ § 27. The forms of pleading in case of seizure under legal process require special notice. (See Chap. V.) § 28. A party justifying under an execution must show the judgment, execution, and levy.'° And a plea, relying on the de- fendant's seizure of the goods as a constable, under an execution against a third person, should aver the property to be in such third person. ^^ (a) § 29. Where the first plea was of property in one A ; the sec- ond, that the defendant took the goods as constable by virtue of an execution against A, and that the goods belonged to A ; held, the second plea might be rejected, on motion of the plaintiff", it being substantially the same with the first. ^^ But where a sheriff ^ Loomis V. Youla, 1 IMin. 17G. 7 Sprague v. Knceland, 12 Wend. 161 ; 2 Anderson v. Dunn, 11) Ark. GoO. Boynton v. Page, 13 ih. 4'2.5. * People V. Supervisors, &c., 6 Wend. " Sniitli v. Morgan, 8 Gill, 133. 605. " O'Connor v. Union, &c., 31 HI. * Vaiden v. Bell, 3 Rand. 448. 230. 6 Martin v. Kav, 1 lilaokf. 2'.)1. '« Truitt v. Revill, 4 Harrint;. 71. e Shuter v. Page, 11 Johns. VM'> ; Dick- n Gentry v. Borgis, G Hlackf. 2(;i. son V. Mathers, 1 Hemp. 65; Simpson v. l- Mann v. Perkins, 4 Blackf. 271. M'Farland, 18 Pick. 427. ((/) In Oliio, under tlic plea of nnn of certain executions, without special plea detinel, the defendant may show that he or notice. Oaks v. Wyatt, 10 tJhio, 344. held the goods as a constable, by virtue 86 REPLEVIN. [book I. pleaded, that he had taken tlie property under an attachment which was in force at the time of the taking, and that the property belonged to tlie defendant in the process, and also, as a distinct plea, that the property belonged to the defendant in the process ; held, both pleas were good.^ § 30. The defendant avowed, that he took the goods by virtue of a writ of attachment, delivered to him as sheriff, &c. The plain- tiff replied, that he was not sheriff on the day of the issuing of the attachment, and at the time of the levy. Held, the plea was bad, in attempting to put in issue the fact, Avhether the defendant was sheriff on the day of the issuing of the attachment, which was wholly immaterial.^ § 31. The defendant avowed the taking, &c., by virtue of an attachment against certain non-resident debtors ; averred that said goods were the goods of said debtor, and not of the plain- tiff; and prayed a return. The plaintiff, by his plea, denied the introductory part of the avowry, such as the writ, the proceed- ings of the sheriff, the levy, &c. Held, the plea was bad; the denial of property in the plaintiff being the material allegation in the avowry.^ § 32. Under an issue upon a general plea of property in the defendant, the defendant may show any legal title ; as, that the property was sold by a proper oflScer, under a valid execu- tion, issued on a valid judgment, before commencement of the action, and tliat he has become the purchaser. So, although the defendant may have set up the same title, specially in another plea upon which there is also an issue.^ § 32 a. Where, in trespass, the defendant justifies as an oflScer under a writ of replevin, it is sufficient to allege in such plea, that the plaintiff in replevin gave bond, &c., before the chattels were delivered to him.^ The plea must allege that a bond was given pursuant to the statute ; and that the goods were not de- tained upon mesne process, &c., against the plaintiff in replevin.^ § 33. The defendant justified the taking, as a distress for rent in arrear, in the form of a p/ea in bar, concluding with a prayer of judgment and for a return; the plea differing from a cognizance 1 Scott V. Hughes, 9 B. Monr. 104. * O'Connor v. Union. 31 III. 230. 2 James v. Dunlap, 2 Scam. 481. ^ Cushman v. Clnircliill, 7 Mass. 97. 3 Brown v. Bissett, 1 N. J. 267. « Moors v. Parker, 3 Mass. 310. CH. VII.] PLEADINGS. 87 only in the commencement. The plaintiff treated the plea as a cog^nizance, and put in three pleas in answer thereto. The defendant moved to strike out the pleas of the plaintiff, on the ground that but one answer could be put in to such plea, and that by way of replication. The motion was denied, be- cause the defendant had committed the first fault. It was doubted, whether a justification thus pleaded would be bad on demurrer.! § 34. The subsequent recovery for rent due will not prejudice the defence of an avowant in replevin, if rent was due at the time of the distress made.^ § 35. In replevin for a horse (in Indiana), it is a good plea that the defendant took him up as an estray, pr sp evidence of the fact. Pierce V. Van Dyke, G Hill. CIS. In Mississippi, no demand is essential to an action of rejjlevin, by statute ; but if, after suit brought, the defendant, whose original possession was lawful, tenders the property to the plaintitl', and delivers it with a proper plea; the action 3 Lewis V. Masters, 8 Blackf. 214 ; ace. M'Neill V. Arnold, 17 Ark. 154. will be discharged. Dcering v. Ford, 13 S. & M. 2r)<). In Illinois, to maintain replevin for de- tention, a ijlaintifl'need not prove demand and refusal, if the goods were either ob- tained unlawfully, or purchased by one privy to his vendor's fraud, or held in violation of an agi'eement to sell them and deliver the proceeds to the true owner. Butters v. Ilaughwout, 42 111. 18. In Iowa, proof of demand is required in rei)levin, onlv where it is necessary to terminate the defendant's right of posses- sion, or confer on the plaintitl that right; not where both parties claim title, and the right of possession is incident thereto. Smith r. McLean, 24 Iowa, ^22. Where A and B both claimed a steer, and A, who had possession, refused to allow B to take away the animal, and B se])arated it from A's drove and took it away ; held, that no demand was necessary in order that A might maintain replevin. Delan- cey ('. Holcomb, 2() Iowa, •,)4. In Wisconsin, demand made of a per- son, who, under an e.xtrajudicial order of the coimty court, has taken charge of the eflects of a deceased intestate, by the owner of property lawfully in the intes- tate's possession at his death, is sufficient to sustain replevin against such ])erson, and against an administrator impleaded with him. Lills, &c., Co. v. IlusscU, 22 Wis. 178. Demand is unnecessary under the Ne- braska Code, §§ l'Jl-2. lloman v. Laboo, 1 Neb. 204. 92 REPLEVIN. [book I. before bringing replevin for a horse purchased by the defend- ant at an illegal sale by a poundmaster.i Nor where one holds under a trespasser.^ § 55. The necessity of a demand is often brought in question in connection with the taking of goods by virtue of a writ or execution. (See Chap. V.) § 56. No demand is necessary, to sustain replevin against a constable who levies on goods in possession of the debtor.^ Nor against a sheriff, to recover property illegally seized on execu- tion."* So wliere goods, obtained by fraudulent purchase, are seized under a warrant of insolvency, as the property of the buyer; the seller may maintain replevin therefor against the mes- senger, without demand. In cases of a writ of attachment and a warrant, alike, " the taking, in order to be rightful, must be con- fined to the property of the party against whom the precept is issued ; and the rights of third persons whom such party has deceived and defrauded cannot be impaired."^ § 57. Goods of a company were attached, and A and B gave a receipt therefor to the ojfficer ; the company then conveyed all its personal property to A, B, C, D, E, and others, to be held by them as their security and indemnity against all existing and future liabilities, as indorsers, sureties, receiptors, or promisors for said company. The property was delivered to A and B for themselves and the others, with an understanding that the com- pany should proceed in its business, and that, as the property should be wrought up and changed and new property acquired, the same should go into B's possession. The company proceeded as it had done before ; D and E and others became sureties for some of the goods purchased for the company ; and all the com- pany's property, subsequently acquired, went into B's possession. A and B paid the judgment in the suit. C attached the property in B's possession, to secure a sum which he had paid for the company; and A and B replevied it. Held, that, if the convey- ance to A and others was valid, yet A and B could not maintain replevin without a demand on the officer or creditor, and stating an account of the sum due to them pursuant to the (Mass.) Rev. Sts. c. 90, §§ 78, 79.6 1 Clark y. Lewis, 35 111. 417. 6 Bussing v. Rice, 2 Cush. 48; per 2 Ballow V. O'Brien, 20 Mich. 304. Metcalf, J., 49. 3 Bancroft v. Blizzard, 13 Ohio, 30. ^ Buck v. Ingersoll, 11 Met. 226. * Ledley v. Hays, 1 Cal. 160. CH. VII.] EVIDENCE. 93 § 58. The issuing of a writ of replevin to the sheriff is the commencement of the suit, and demand, if necessary, must be made before that time.^ But where a writ of replevin is de- livered to an officer, and he is directed before serving it to demajid the goods, which he does on the same day it is made ; the writ and service thereof are good. The court remark: "If the defendant had delivered the goods upon the demand, there would have been no necessity to serve the writ. It may be con- sidered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case."^ § 59. Where one claiming bales of cotton on board a ship, for which bills of lading have been signed, demands the bills of lading, it is a sufficient demand of the cotton.^ § 60. A defendant in replevin, who succeeds at the trial, under the plea of non detinet, on the sole ground that the property should have been demanded before suit brought, is not entitled to judgment for a return, or for the value of the property.'* § 60 a. Evidence should not be admitted as to the value of the property, if the answer does not deny the allegation of the com- plaint thereon.'^ So, where the affidavit for obtaining a writ of sequestration, and the defendant's bond for replevying, state the value of the property, but the plaintiff's petition for recovery of the property does not ; evidence of the value is not ad- missible.'' § 60 b. There should be proof of identily of the property re- plevied with the property of the plaintiff." Identity is a question for the jury to determine.^ § 60 c. Tlie plaintiff need not prove the averments in his affi- davit, that the property " had not been taken by virtue of any tax, &c., nor seized under any execution, &c."^ § GO d. In replevin against a person, claiming as administra- tor certain barrels of ale left among the effects of the intestate at his death, in January, 18GT; an account found among his papers, charging him with lots of ale delivered in September and October, 18G5, crediting him with " commission " on each, and 1 Underwood v. Tatham, 1 Cart. 226. 6 Gillies r. Woflbrd, 26 Tex. 76. 2 Badjier i\ Pliinney, 15 Mass. 35y ; "^ Stanclifield v. Talmer, 4 Greene per Putnam, J., 304. (Iowa), 23. See § 64. '^ Zachrisson v. Aliman, 2 Sandf. 68. ** Vennam v. Tiioinpson, 38 111. 143. * Pierce v. Van Dyke, 6 Hill, 613. 9 Carney v. Doyle, 14 Wis. 270. 5 TuUy V. Harloe, 35 Cal. 302. 94 REPLEVIN. [book I. acknowledging payment of balance in the plaintiff's name by A B, was iield admissible in evidence for the plaintiff, as having some tendency to show that the ale replevied was held on commission, although it did not appear whether A B was an agent of the plain tiff.i § GO e. Where a plaint in replevin describes the property in suit as two hay horses, and the proof shows that one of them was a sorrel horse, the variance is fatal.^ § 60/. The answer alleged, that the defendant took the prop- erty as the property of A, under " certain writs of attachment duly allowed, &c., in certain suits therein pending; wherein cer- tain persons (naming them), and other parties, creditors of said A were plaintiffs, and said A was defendant." Held, although the pendency of the actions should have been alleged more definitely, at least by designating the plaintiff in each action ; the variance between the allegation and proof was not material, in the absence of proof that the plaintiff was misled to his prejudice thereby. Also, that an objection to the evidence, because it showed that all the writs of attachment, except one, were issued after the taking, was untenable, as damages were claimed for detention.^ § 61. Where non cepit only is pleaded, the right of property is not put in issue ; it is only necessary that the plaintiff should prove that the defendant was in possession, at the place named, when the suit was commenced ; though without such proof the action cannot be maintained.^ But where property is set up in the answer, the burden of proof is on the plaintiff.^ § 62. Evidence of forcible taking may be given, though the issue be formed exclusively on a plea of property.^ § 63. The plaintiff, in proving property, may use an execution in which he is defendant, and under which the property was delivered to him on a forthcoming bond, without producing the judgment.'^ § 64. In replevin for negroes, the plaintiff introduced an agree- ment, under which he claimed title, derived from A, having first shown title in A. The defendant objected, that the plaintiff had 1 Lill's, &c., Co. V. Eussell, 22 Wis. * Sawyer v. Huff, 25 Maine, 464. 178. 5 Turner v. Cool, 23 Ind. 57. 2 Taylor v. Riddle. 35 111. 567. -^ Moore v. Shenk, 3 Barr, 13. 3 Blackman v. Wlieaton, 13 Minn. 326. ^ Lynch v. Welsh, ib. 294. CH. VII.] EVIDENCE VERDICT. 95 not shown the identity of tlie negroes. Held, tlie evidence was admissible, although tlie identity was to be afterwards shown. ^ § 65. In replevin I'ur a horse, the plaintiff may prove that the defendant gave a general order to his servants, before the com- mencement of the suit, not to deliver the horse to the plaintiff, as tending to prove an unlawful detention.^ § GQ. In replevin for six cases of prints, containing a specified number of pieces, and a property bond given, reciting the tenor of the writ ; the return was, " replevied, summoned, and claim, property bond given." Held, evidence was not admissible to show that a less number of i)ieces was replevied." § 67. In an action of replevin of goods attached by the defend- ant as an officer, on a writ against a stranger, such stranger is an incompetent witness, by reason of interest, to prove that the prop- erty was in himself.'* § 68. Goods sold were attached as the property of the vendor, and replevied from the officer by the vendee, and the subscribing witness to the bill of sale became a surety on the replevin bond. For this reason, at the trial of the action of replevin, the officer objected to the introduction of such witness to prove the execu- tion of the bill of sale, and the vendee thereupon offered to pro- cure a new surety, but the officer would not consent. Held, the execution of the bill of sale might be proved by other evidence; and the vendee was not bound to procure the vendor as a witness for this purpose.^ § 69. Where several actions of replevin are tried together be- fore the same jury, by order of the judge, a surety in one of the bonds is a competent witness in the cases in which he is not in- terested, though the party offering him does not substitute a new surety in his place.^ § 70. In replevin, the defendant justified as a deputy sheriff, alleging the property in the chattels to be in A B and C D, and that he had attached a moiety as the property of C D. The issue being on the property of the plaintiff, C D is a competent witness to prove the property in himself and A B.^ § 71. In reference to the form of the verdict, wliere there is an allegation of ownership, a general finding for the plaintiff settles 1 Brooke v. Berry, 1 Gill, 153. See * Tratt r. Steplienson, IG Pick. 325. § 60 b. 5 Ilaynos v. Uiitter, 24 Pick. 242. ■-'^Jolinson V. Howe, 2 Gilm. 342. 6 Kimball v. Tliompson, 4 Cuer cent, damages recovered, and redeliver to liim the goods. In the other case (that of an execution) the officer (as the case may be) is accoimtable to both the creditor and debtor: to the creditor, to the amount of his judgment; and to the debtor, for what 100 REPLEVIN. [book T. § 77. The jury may find one part of the property to belong to tlie plaintiff, and the other part to the defendant.^ And where 1 O'Keefe v. Kellogg, 15 111. 347 ; Philips v. Harriss, 3 J. J. Mar. 121. may remain in his (the officer's) hands after satisfying the creditor. Tlie officer is merely a trustee, and, after indemni- fying himself, is accountable over. The plaintiff in replevin, who fails to support his action, and is therefore proved to be a wrong-doer, has nothing to do with the merits of the claim of the attaching cred- itor. And the damage to the real owner of the goods is precisely the same in cases of attachment as in those of taking on execution." Pike v. Huckins, 1 Mass. 421. Where goods not held under legal process are replevied, and the plaintiff becomes nonsuit, and a return is awarded, the defendant recovers for damages inter- est at six per cent, on the value of the goods, from service of the writ to the entry of judgment, although the statute would seem to provide that measure of damages only in the two cases where the action is not entered, and where an issue is tried. Wood v. Braynard, 9 Pick. 322. In a subsequent case it was decided, that the statute of replevins (1789, c. 2fi) had prescribed six per cent, on the bond as the measure of damages, when the plaintiff shall fail to prosecute his suit, and when goods taken in execution are unlawfully replevied ; in all other cases his damages are left to be assessed according to the magnitude of the injury. The court re- marked : " It may be within the equity of this last case (that of an execution) if the plaintiff shall have unlawfully replevied goods duly attached, ... if execution has been thereby delaved." Bruce v. Learned, 4 Mass. 614; per" Parsons, C. J., ib. 616. After a debtor's goods were seized on a writ of attachment, and also on an execu- tion, he was discharged under the United States bankrupt law of 1841. Tlie goods were replevied, and the defendant in re- plevin obtained judgment for a return, and brought a suit on the bond. Held, he was entitled to recover, as damages, the full value of the goods, unless shown to be unnecessary to satisfy the execution. Parker v. Simonds, 8 Met. 205. In an- other case, turning upon the validity and effijct of a sale, it was held, that tlie defendant was entitled to recover as dam- ages the value of the property replevied, with interest from the service of the writ of replevin to the rendition of judgment, no special damage being shown ; and that the valuation of the oil in the writ was prima facie evidence of the true value. The court remark : " The case is not with- in the letter nor the equity of tlie statute which gives a per cent, on the ])enalty of the bond, and requires that such penalty be given for double the value of the goods ; that applies to cases where the process of law has been delayed by the replevin." Barnes v. Bartlett, 15 Pick. 71 ; per Sliaw, C. J., 78. In replevin of securities for payment of money, bearing interest, a verdict for the defendant will entitle him to nominal damages only, where it does not appear that he has sustained actual loss. Bartlett v. Brickett, 14 Allen, 62. In replevin against a claimant of the property under a purchase, the defendant may show, as damages, his expenditures in improving the property. Veazie v. Somerby, 5 Allen, 280. If, in replevying a sail-boat, the officer has also taken the furniture on board of her, which belonged to the defendant, and has re- moved it to another town ; evidence is incompetent to show that, at the appraisal, several days after the taking, he offered to return it to the defendant's agent, without the defendant's knowledge. Ib. In New Hampshire, the defendant plead- ed property in B, that B was indebted to A, and that lie attached the property. The plaintiff replied, 1, property in himself; 2, that B was not indebted to A ; 3, that the defendant did not attach the property on a writ in favor of A against B, and issues were joined. Held, 1, the only material issue was upon the plaintiff's property ; 2, that the allegations, that the goods were the property of B, that B owed A, and that the defendant attached the goods on A's writ, were merely inducement, and not traversable ; and that tlie issues joined on those matters were immaterial ; 3, that, on these pleadings, if the issues were found in his favor, the defendant was at common law entitled to judgment for a return, without an avowry or conusance, or any suggestion of that nature ; 4, that in this state he was entitled to a judgment for damages instead of a return ; and, 5, that those damages were not necessarily limited to the value of the property and interest. Dickinson r. Lovell, 35 N. H. 9. An omission of the jury to assess damages for the plaintiff, who prevails on the ques- tion of title, is no ground for setting aside the verdict. M'Kean v. Cutler, 48 N. H. 370. In Maine, in case of replevin of goods taken by a collector of taxes, if judgment is rendered for the defendant in replevin. CH. VII.] DAMAGES. 101 issue is joined upon the plaintiff's property, and the jury find the property of part in tlie plaintiff and of part not ; each party is he is entitled to six per cent, damages on tlie replevin bond. Dore r. Hijiiit, :i Sliep. 20. Wliere the value is slated in tlie writ, the plaintifl' cannot except that tlie jury sliouliS have found the value, if he did not recjuest instructions to that efi'ect. Heald r. Cushinan, MO Maine, lt>l. In an action of replevin, suhniitteil on (juestions of law, without any stipulation as to the allowance of damages; the court, at an- other term, after judgment of nonsuit and return, has no power to assess the defend- ant's damages, or send the question to a jury. Dillingham v. iSmitli, '62 Maine, 182. In New York, in an early case, it was held, that, where the defendant makes avowry, justification, or cognizance, if found for him, or if the plaintitf be non- suited, or otherwise barred, tlie defendant is entitled to damages under the act, sess. 36, c. Seld. 470. Where the iilaiiititls luive only a sjiecial property, and judgment has been entered for the amount of their interest ; it may be amended, by changing it into a judg- ment for the goods, or for their value, assesseil at this amount. Fitzhugh f. Wi- nian, ;j Seld. oo'J. in Delaware, jndgnient for the defend- ant on a plea of property is pro retoruo IkiIii'ikIo : but, if he cannot have a return, he may have judgment for damages to the value of the goods, &c. Clerk r. Adair, 3 Ilarring 113. In Arkansas, if the goods are not taken and delivered to the plaiutitf, a judgment for the plaintiff' should be not only for costs and ilamages, but also, as the statute provides, in the alternative, that the goods and chattels shall be rejilevied and deliv- ered to him, or that lie recover their assessed value. Kowark r. Lee, 14 Ark. 425. In Wisconsin, judgment nuiy be in the alternative for a return, or, in ilefault thereof, the assessed value. Heeron r. Beckwith, 1 Wis. 17. When the ])laintiff has obtained possession under the statute, if the jury find the defendant entitled to possession, he maj- waive a return, and take jiiilgmcnt for the value alone. The statute authorizes the jury to assess the value in all cases where they find the defendant entitled to a return, whether lie waives the return or not. Farmers' &c. I'. Commercial, 15 Wis. 424. Where the property, in an action for the recovery of personal property, had been redelivered to the defendant, his possession of it is not qualified by the undertaking he gave to procure its redelivery, and, on its dismissal by the common rule, no order for return is necessary ; the undertaking becomes fundus officio, and the possession of the defendant becomes a possession in his own right. Hackett r. Bonnell, 10 Wis. 471. A plaintiff in replevin, who has obtained possession under the statute, and against whom the defendant seeks jiulg- ment for a return, or the value in case a return cannot be had, may show that the value is less than that alleged in the complaint, although the answer does not deny such allegeil value. Jenkins v. Steanka, I'J Wis. 126. A person who had dejiosited gold coin with a bank, to be returned in like coin, brought an jiction to recover jiossession of it. Held, that a judgment for the return of the gold, or, in default thereof, for its )iar value with interest from the time of demand, was correct, although gold was worth a con- siderable premium in legal tender notes. Warner i'. Sauk Couiitv Bank, 20 Wis. 4'J2. In Missouri, where, under Practice Act, art. 7, the plaintiff" u))oii giving bonds obtains jiossession of the jtrojierty, and fails to ])rosecute his action with ellect, and the defendant, as against the plaintiff, has only a lien ; the juilgnient in favor of the defendant sluuild be only for the value of his interest, or for a return, until such value should be jiaid, at the defendant's election. But if the plaintiff has no inter- 116 REPLEVIN. [book I. of title, the plaintiff cannot, in order to prevent judgment for a return, allege and prove facts which were known to him at the trial, for the purpose of defeating the defendant's title.^ 1 McNeal v. Leonard, 3 Allen, 268. est, the judgment should be for the de- fendant for the full value of the property, and he will be answerable over to the owner for the balance due to him. Dil- worth )'. McKelvey, 30 Mis. 149. In Massachusetts, in case of judgment for a return, the plaintiff is bound by the bond prescribed by tlie Rev. Sts. c. 113, as well as that prescribed by Sts. 1789, c. 26, to restore the goods in like good order and condition as when taken. Parker v. Siraonds, 8 Met. 205. In Pennsylvania, if the plaintiff recovers the whole value in damages, the defend- ant has judgment de retorno hahendo, and a condition in a bond given by him, to return the property to the plaintiff if it should be so adjudged, is simply void. Moore v. Shenk, 3 Barr, 13. The short judgment in replevin, when in favor of the defendant, is a judgment for return. Heffner v. Reed, 3 Grant, 245. Where goods are not replevied, but are detained by the defendant, he cannot satisfy a judgment against him in replevin by giv- ing up the property and paying the dam- ages assessed for the taking and detention ; retorno hahendo has no existence, except in a case where the goods have been replev- ied and the verdict is for tiie defendant. Schofield V. Ferrers, 46 Penn. 438. A late case in Vermont settles some points in relation to return, as well as other collateral questions. Where an action of replevin is dismissed on motion, upon the ground that it was not brought in the county where tlie property was detained, though brought in the county where one of the parties resided ; the court still has jurisdiction and is bound to ren- der judgment for a return, without proof of any right to such return, or any formal plea or avowry ; and the plaintiff cannot set up title as ground for contesting such judgment. But he is not debarred from disputing the defendant's title in another action. After dismissal of the action for ground not affecting the merits ; the de- fendant cannot claim an award of damages for the taking, detainer, or misuse of tlie property. Collamer v. Page, 35 Vt. 387. The defendant in this case claimed dam- ages for the wool taken from the sheep which were the subject of the action. Mr. Chief Justice Poland remarks : " Tiiere would not seem to nie any good reason why tlie defendants miglit not have their remedy on tlie bond for not returning the wool which was apart of the sheep, when replevied. However this may be, if the defendants were legally entitled to hold the sheep and the wool, no doubt is ex- pressed by their counsel that they can maintain some action to recover it, and although it is said that they miglit fail to get satisfaction, by reason of the want of ability in the plaintiff to respond to the judgment, we think they should rather incur that risk, than that they should have a final judgment for it, while the question of ownership is unsettled." lb. 397. " The judgment for the return is a mere incident of the principal judgment, which makes a determination of the cause. Wlien that is upon trial, and upon the merits, so as to be conclusive, then the judgment for a return is of the same character. If the judgment for the defendant is merely in abatement, or of that character, it is only an end of that particular action, and no bar to the commencement of another for the same cause, and if such judgment be followed by a judgment for a return, it is of the same character." Per Poland, C. J., 395. In this case, Mr. Chief Justice Po- land goes into an elaborate review of the authorities on the subject of return. The word nonsuit, used in the statute, was held to be used in a liberal sense, and to include the termination of the suit in the manner above stated. Imprisonment on an execution in a re- plevin suit does not fall within the prohi- bition either of the constitution, art. 6, § 33, or of the non-imprisonment Act of 1839, 2 Comp. L. c. 166. Puller v. Bow- ker, 11 Mich. 204. A capias ad satisfacien- dum, not being issuable on a judgment in replevin, either at common law or by any other statute of Michigan, cannot be issued on such a judgment rendered in the State Circuit Court. lb. CH. VIII.] REPLEVIN BONDS. 117 CHAPTER VIII. REPLEVIN BONDS. 1. Necesoitv of a bond. 3. Forin ot' the bond; by what informali- ties avoided. 13. 'lime of commencing a suit upon the bonil ; judi,'ment in the replevin suit. 17. OaniiiKes. 30. Defence to an action on a replevin bond. 42. Pleadings and evidence. 46. Construction of replevin bonds; pros- ecution of the replevin suit; final judg- ment, (SL-c. 50. Etlect of the death of a party. 54. Appeal and review. § 1. As we have already explained, in other connections, a bond, for tlie restoration of the property replevied if the defendant shall prevail in the suit, is, unless otherwise provided by statute, an in- dispensable accompaniment to the writ of replevin, (a) The right to prosecute an action of replevin, and to take possession of goods upon a mere claim of title, before trial, is said to be purely a statu- tory right, and is only to be exercised upon a compliance with the terms of the statute.^ Thus, in New York, it was held that a re- plevin bond must be executed and delivered to the sheriff, or the proceedings will be irregular; it is no longer optional with the sheriff to dispense with a bond.^ And in justifying the taking of 1 Bennett v. Allen, 30 Vt. 684. 2 Wil.son I'. Williams, 18 Wend. 581 ; Pironi v. Borden, 6 Pike, 81 ; Pool v. {a) The execution of a replevin bond by the defendant in attacliment, before the return-day of the writ, is equivalent to personal service of process on him, and renders him personally amenable to the jurisdiction of the court. Richard v. Mooney, 39 Miss. 357. In Delaware, in cases of distress for rent, the condition of the replevin bond is to prosecute the suit and satisfy tlie judg- ment ; in other cases, it is to prosecute the suit and make return, if return be awarded. Clark v. Adair, 3 Ilarring. 113. As to the general nature and effect of a rejilevin bond, more particidarly upon the point of its being a snbsllhile for the goods replevied, see the remarks of V.v. Justice Wilde, in the case of Badlam v. Loomis, ib. 110; Baldwin v. Whittier, 4 Shep. 83. Tucker, 1 Pick. 284. That it is no sub- stitute, see Lovett v. Burkhardt, 44 Penn. 173. In Ohio, on the other hand, " the bond takes the place of the property to the ex- tent of tiie interest of the defendant in replevin." Per Wihlcr, J., Crittenden r. Lingle, 14 Ohio St. 185 ; Smith v. M'Ure- gor, 10 ib. 4G1. The obligation of a replevin bond is held to be like that of otiier bonds. Morehouse v. Bowen, 9 Min. 314. A ])lainlifr in rejdevin, who joins in the un- dertaking to prosecute the action and restore the property delivered to him, in case of a judgment to that effect, is liound to the same extent as any otiier obligor. Buck V. Lewis, 9 Min. 314. 118 REPLEVIN. [BOOK I. property by a sheriff, under a Avrit of replevin, it must be averred that a bond for a return of the property was delivered with the writ to the ofScer.i ^[^q officer may hold the property a reasonable time for the plaintiff lo prepare the bond. But if he neglects or refuses to do it, the officer should restore the property. And where the officer continued to hold the property, the writ was quashed, and judgment rendered of discontinuance and return, and for dam- ages. ^ § 2. But a writ of replevin will not be quashed for insufficiency of the bond, after a trial on the merits.-^ And it is sometimes held, that the omission to give bond and security, before the issu- ing of the writ, does not invalidate the writ, but only subjects the sheriff to an action by the defendant,* Also, that the statutory bond may be waived by agreement.^ § 2 a. In Missouri, the principal in a replevin bond may be a third party ; and, if the bond be forfeited, a judgment may be rendered against him as principal.^ § 2 6. Where the plaintiff, in an action for the claim and deliv- ery of personal property, died after the execution of an under- taking to him by the defendant for the purpose of regaining possession, and before the trial, and A was substituted as plaintiff; held, A was the party entitled to recover, and, as such, the un- dertaking took effect in his favor as the plaintiff entitled to a return.'' § 2 c. Where a bond is made payable to an administrator indi- vidually, and he sues on it in his own name, but alleges that the action is brought for the benefit of the estate, and in an amended petition sets forth his representative capacity ; judgment may be rendered in his name.^ § 2 cZ. A complaint in an action on a replevin bond, which alleges that the suit of replevin was commenced against A and B, that the property was in the possession of both of them, and that judg- ment was rendered in favor of the defendants ; shows a cause of action in favor of B, although it avers further that the property belonged to A.^ 1 Morris v. Van Voast, 19 Wend. 283; * Vaiden r. Bell, 3 Rand. 448. Smith V. McFall, 18 ib. 521. See Buel v. 5 Rabb v. Kilgore, 1 N. &. M'C. 331. Davenport, 1 Root, 261 ; Webster u. Price, « Frei v. Vogel, 40 Mis. 149. ib. 56 ; Smith v. Travel, ib. 165. ^ Emerson v. Booth, 51 Barb. 40. ^ Morris v. Baker, 5 Wis. 389. « Oliver v. Townsend, 16 Iowa, 430. 3 Johnson v. Richards, 2 Fairf. 49. » Story v. O'Dea, 23 Ind. 326. CH. VIIT.] REPLEVIN BONDS. 119 § 2 e. If one of two obligees is insolvent, and an assignee is clioson subsequently to the taking of the bond, an action upon the bond must be brought in the name of tlie other alone. ^ § 2/. Bonds given in an ordinary action in the initure of re- plevin cannot bo enforced against the secui-jty by motion.- § 2 gr. In New York, in a suit against sureties, on an undertaking given on commencing a suit to recover possession of personal property, they cannot avail themselves, in defence, of the fact that they were excepted to by the defendant in the action, and failed to justify.^ § 2 h. Pending a replevin suit, the sureties to the bond are treated as in court; and, not objecting, they are concluded by a judgment or order, to which the principal consents, on condition that execution be stayed for a time, although execution is so stayed.* So the sureties will not be discharged by an agreement to stay execution against their principal, given upon the under- standing that such sureties were represented and satisfied, and under such circumstances that equity would not enjoin an execu- tion taken out in violation of the agreement.''' But the reference of a replevin suit to arbitration, without the knowledge or consent of the surety, discharges him.*' § 2 i. A surety cannot in his own name prosecute an appeal, to retry the issues made and determined between his principal and a defendant against whom his principal had commenced, but failed to prosecute, the replevin. Otherwise, as to a question presented by him, raising a defence growing out of his relation merely." § 2y. Where, after payment of a portion of a debt, the whole was replevied, and a replevin bond given, and the surety's land was sold under an execution on the bond to the execution plain- tiff, for less than two-thirds of its value ; an application to the chancellor was the appropriate if not the only remedy left to the surety, and he shouhl be allowed thereon to redeem, although the year given by the statute, in which to redeem, had expired.^ § 3. Questions have often arisen as to the precise form of the bond ; and whether, if not exactly conformable to statutory re- quirement, it can be held valid at common law. (a) It is held ' Brown v. Bris^liam, 5 Allen, 582. 5 Tonsev v. Risliop, 22 Iowa, 178. - (iiiy V. Mortran, 4 Bnsli, tKHi. o Porkiiis r. Rmiolpli, 8f, HI. 306. •' Decker v. Amlcrson, ;'.'.) Barb. 346. "^ Crites >\ Littleton, 23 Iowa. 205. •* Ilershler r. Reynolds, 22 Iowa, 152. ^ Myers r. Williams, 1 l)uv. 35G. («) See Tuck v. Moses, 58 Maine, 401 ; Clarke v. Bell, 2 Lltt. 104 ; Meanx v. Rut- Cook V. Bank, &c., 5 J. J. Mar. 103; gers, Ky. Dec. 341 ; Whitteraore y. Jones, 120 REPLEVIN. [book I. tliat a statutory bond, in part conformable to the act, is good for that part ; ^ and that statutory bonds of replevin will, in general, be sustained as voluntary bonds good at common law, unless the statute has expressly declared them void, or they have been ob- tained by fraud, or by coercion or oppression colore officii? So a replevin bond may be good as a common-law bond, although, by reason of its non-conformity to some statutory requisitions, it cannot be enforced in the summary manner pointed out by the statute.^ Thus a firm in Boston brought replevin in Hillsborough county. New Hampshire, against a resident of Manchester. The sheriff of Sullivan county seized the goods then in his jurisdiction, delivered them to the plaintiffs in that action, and received their bond. Held, the bond, though not in strict conformity with the statute, might be binding as a common-law security.* So a bond, in less than double the value of the property replevied, is a good replevin bond at common law. If the plaintiff neglects to comply with a judgment for a return, upon abatement of the writ because of such defective bond, the defendant may sue upon the bond, even if the writ was abated upon his motion.^ So the validity of a bond, given to replevy a distress for rent, and proceedings thereunder, are not affected by the fact that too great an amount of rent was distrained for. The obligor of such bond does not show a right to have it annulled by a court of equity, by alleging that he executed it without understanding its tenor, and expect- ing to litigate the claim for rent.^ So where the attachment was for $192.74, and the description of the attachment in the bond was $192; held, an immaterial variance, and susceptible of explana- tion by parol proof.'^ So, in Massachusetts, the condition of a 1 Lamb(^en v. Conoway, 5 Harrinc. 1. * Claggett ?'. Richards, 45 N. H. 360. 2 Branch v. Branch, 6 Fla. 814 ; Morse ^ Tuck v. Moses, 54 Maine, 115. V. Hodsdon, 5 Mass. 314 ; Claggett v. 6 Dean v. Ball, 3 Bush, 502. Richards, 45 N. H. 360. 1 Mitchell v. Ingram, 38 Ala. 395. 3 Mitchell V. Ingram, 38 Ala. 395. 6 N. H. 362 ; Glassford v. Hackett, 3 Call, sheriff. De Reguine v. Lewis, 3 Rob. 193. 708. A complaint upon a statutory under- In Nevada, a bond given on return of taking, describing the undertaking only property replevied, though required to be by stating that it corresponds with the delivered to the sheriff, cannot be enforced provisions of the statute, is defective ; but by him as plaintiff. McBeth v. Van insufficient only on demurrer. Mills v. Sickle, 6 Nev. 134. Gleason, 21 Cal. 274. Replevin bonds not dated, date from Under the provisions of the (N. Y.) their delivery to the sheriff, and no exe- Code, in an action for the claim and de- cution can issue on such bonds until they livery of personal property, no other un- are due, reckoning from delivery. Bettis dertaking can be required from the plaintiff v. Bailey, 2 Bush, G08. than that taken and approved by the CH. VIII.] REPLEVIN BONDS. 121 replevin bond, to prosecute the action at the couniy court next to be holden at, Kersse v. Waterliouse, 30 Conn. 129. « Story V. O'Dea, 23 Ind. 326. 7 lb. 122 REPLEVIN. [book I. sufficient, without stipulating specifically for paying hire and re- turning the sUive, in event of the failure by the plaintiffs to estab- Hsh their right.^ So, in Delaware, a bond to indemnify the sheriff, instead of " to prosecute the suit," is good.^ So an undertaking given by the defendant, in an action for the possession of personal property, under § 221 of the New York Code, to procure a return of the property to himself, may be made to the plaintiff instead of the sheriff.'^ So, under the Statute of Florida (Thompson's Dig. 388), it is not necessary that a replevin bond should contain a description of the property ; this must be in the affidavit. Under the same statute, requiring that the bond must be for any amount, at least double the value of the property ; this value musf be as- certained before the declaration has been filed, and the plaintiff cannot be allowed, by putting a higher value on it in his declara- tion, to invalidate his own bond. So where a bond, approved by " R. B., clerk," and an affidavit, sworn before " R. B., clerk of the Circuit Court for Marion county," appeared to have been executed on the day the writ issued, in the teste of which the clerk de- scribed himself as " R. B., clerk of the Circuit Court for Marion county," and filed in the office of the clerk of that court on the same day, and there was no other action of replevin pending between the parties ; held, the word " clerk " in the bond was a sufficient designation, it not being denied that he was such clerk.'^ So a bond is sufficient, although bearing date the day after service of the writ, executed by only two of the plaintiffs, and conditioned for a return in like good order as token replevied instead of as when taken.^ So, if there is a sufficient correspond- ence between the judgment, execution, and bond to connect them, no motion to quash can be sustained for a variance.^ So it is no objection to a replevin bond, that, in reciting the judgment on which it is predicated, it omits a credit entered on the judgment.' So, although a plaintiff in Kentucky may quash a replevin bond, if all the defendants in the execution have not united in it, the obligors cannot complain on this ground.^ (ci) 1 Cooper V. Brown, 7 Dana, 333. ^ Chandler v. Smith, 14 Mass. 313. - Lambden v. Conaway, 5 Harring. 1. "^ 4 Monr. 132. 3 Slack V. Heath, 4 E. D. Smith, 95. 7 Doe v. Cminingham, 6 Blackf. 430. 4 Branch v. Branch, 6 Fla. 314. 8 Stevens v. Wallace, 5 Monr. 404. (n) A new replevin bond may be exe- defective bond to be amended, or a new cuted, in order to release a surety on the bond to be executed, pending a motion to first bond, whom it is desired to use as a dismiss the action for want of a sufficient witness. Patterson v. Fowler, '22 Ark. bond. Smith v. Howard, 23 Ark. 203. 396. So it is error to refuse to permit a CH. VIII.] REPLEVIN BONDS. 123 § 4. But, in a late case, it is held a fatal objection to a replevin bond, that tlie name of the defendant is not inserted.^ And a re- plevin bond, made to the replevying oflicer, instead of the defend- ant in replevin, is held void. It is given to one who had no lawful authority to take it, and the purpose and effect of it were to aid and abet him in a trespass. It does not belong to that class of instruments which, tliough deviating from the form prescribed, are held good at common law, where the parties are right, and the bond itself substantially correct.^ (a) § 5, In Delaware, — and this is doubtless the general rule, — the bond should be taken in an amount sufficient to secure the return of the goods attached, or an equivalent value.'' But it is no sufficient ground to quash a writ of replevin, that the officer has taken bond for a larger sum than the writ directed.^ § 6. In Massachusetts, no action lies on a bond, the penalty of which is " double the value of the property hereinafter mentioned to be replevied," to be fixed by appraisers, without stating the value ; especially if never appraised, and afterwards agreed between the parties.^ So (as also in Vermont), if the bond does not contain a penalty in a definite sum, but merely states it as " double the value of the goods, or the property hereinafter named to be replevied ; " the action will be dismissed, upon a motion made at the proper stage of the case.^ § 7. In South Carolina, the assignee of a replevin bond may sue upon it in his own name." In Delaware, the assignment of a replevin bond, authorized by § 2656 of the Code, relates to bonds taken in cases o^ distress for rent. It does not extend to replevin bonds generally. Suit cannot, therefore, be brought in such case 1 Artcr V. People, 54 111. 228. 5 Case v. Pettee, 5 Gray, 27. - Purjile >:. Puri)!e, 5 Pick. 226. 6 Clark v. Connecticut, &c., 6 Gray, 3 Plunkett V. Moore, 4 Har. 379. 363 ; Bennett v. Allen, 30 Vt. 684. 4 Clapp V. Guild, 8 Mass. 153. 1 City Council v. Price, 1 M'Cord, 299. (a) A statute, naming the sheriff as the executed an alias writ without taking a party to whom a replevin bond shall be new bond; held, an action could be main- given, means only that the bond shall be taiiicd on the bond, after failure to comply given to the ofticer serving the writ, and a with a judgment tor a return. Petrie v. bond given to the coroner may therefore Fisher, 4-3 III. 442. See Claggett v. Rich- be valid. Spoer c. Skinner, 35 III. 2S2. The ards, 45 N. H. 360. object of a replevin bond is not merely to Under (N. C.) Rev. Code, c. 7, § 5, indemnify the slieriff, but also to furnish requiring a "bail-bond" to the sheriff, an additional remedy to the defendant, in a defendant does not acquire a right to case the plaintiff fails to maintain his suit, replevy and plead, by executing a bond Hence, where a sheriff took a bond, and, payable to the jjlaintifi; coniiitioned on his term of office expiring, the writ was the defendant's appearance, &c. Barry v. returned unexecuted, and his successor Sinclair, Phill. (N. C.) L. 7. 12-4 REPLEVIN. [book I. by the assignee. But this matter is amendable under c. 112 of the Code.^ In New York, a replevin bond, duly executed by the coroner, may be assigned by him, pursuant to 2 R. S. 533, § 64 ; and the assignee may sue thereon in his own name.^ In California, under Stat. 1850, c. 121, § 2, a replevin bond may be assigned by the sheriff to the creditor."^ § 8. In Vermont, an officer, who serves a replevin writ in behalf of a defendant, to recover possession of property attached, is bound to take sureties on the bond who are at the time actually responsible for its amount. It is not enough that they are in good credit and apparently responsible. But, on the other hand, he is not liable, if, being actually responsible when taken, they cease to be so before the bond is put in suit. The fact, that the attorney of the plaintiff in the original suit acts also as the at- torney for the defendant in making the replevin writ, and draws up and consents to the bond, does not necessarily discharge the officer from such liability, unless the officer were aware of this fact, nor unless such attorney either act in behalf of the plaintiff in consenting to the bond, or give the officer good reason to believe that he consents to it in his behalf.'* § 9. Although a statute requires two sureties, the party for whose benefit the bond is taken may waive the objection that there is only one. And if he does, the obligors are bound. Such bond is not within the statute declaring void certain bonds, agree- ments, &c., taken by sherifis and other officers colore officii.^ § 10. Where there is but one surety, the defendant may move to set aside the proceedings, and is not bound to except. The plaintiff, however, on payment of costs, will be allowed to amend, by filing a new bond, with sureties, and the sureties justifying.^ § 11. Where one surety was sufficient when the bond was executed, and the other not, and the former is not proved to have become insufficient since ; the officer is not liable.' § 12. It is no ground for dismissing an action of replevin, that, in the bond, the sureties are described as partners, and sign and seal in their partnership names. A motion to dismiss is founded upon errors apparent on the face of the bond. The bond is to be construed in connection with the return of the officer, that it was 1 Waples V. Mcllvaine, 5 Har. 381. 5 ghaw v. Tobias, 3 Comst. 188. 2 Acker v. Finn, 5 Hill, 293. 6 Whaling v. Shales, 20 Wend. 673. 3 Wingate v. Brooks, 3 Cal. 112. ^ Lord v. Bicknell, 35 Maine, 53. 4 Bank, &c. i'. Rutland, 33 Vt. 414. See § 14. CH. VIII.] REPLEVIN BONDS. 125 duly executed. Any question, in I'elation to the bond, should be raised by plea in abatement.^ § 13. It is held in New York, that, in a suit upon a replevin bond, the plaintiff must prove the return of an execution unsat- isfied in whole or in part, though the plea of ?i07i est factum alone bo interposed.^ But in Massachusetts, after judgment for a re- turn, an action lies upon the bond, without a demand on a writ of return.^ And, in Rhode Island, a defendant in replevin may bring an action upon the bond immediately upon recovering judgment in the suit, without reference to the issue, return, or return-day of the execution. The recovery of damages and costs, for the pay- ment of which the bond provides, " refers to the judgment^ and not to the execution^ which is the means only of enforcing it. It is because these means may fail, that the statute requires, in addi- tion, a bond with sureties. The liability of the plaintiffs in re- plevin was immediately consequent upon the judgment against them, enforceable at any moment, under the execution. By the terms of the bond sued, their liability and that of their sureties was precisely the same, the bond giving an additional remedy and further security for it; and neither can set up any defence, except performance of the conditions. The peculiar rights and obligations of bail can shed no light upon the liabilities of either the principals or sureties of a replevin bond." * (a) § 14. The sureties are not discharged by delay in the prosecu- tion of the suit without their knowledge, although assented to by the defendant, unless it be unreasonble and improper. "Where the delay is unreasonable and improper, and is by consent of the defendant in the suit, he cannot have an action on the bond for want of prosecution merely. But mere delay, however long, and although assented to by the defendant without any special reason, is no defence in favor of the sureties, where the breach com- 1 Judson V. Adams, 8 Cush. 55G. * Potter v. James, 7 R. I. 312; per ^ Cuwdin V. Stanton, 12 Wend. 120. Ames, C. J. 31G, 317. 3 Wright V. Quirk, 106 Mass. 44. (a) A constable attached certain goods an action had accrued to him to recover in a suit for S80.82 and costs, and A re- tlie amount of the judgment in the original plevied the property, giving bond to ap- suit. Held, as the jilaintirt" in the suit pear on the return day, and prosecute his did not ask for a judgment ih- ntorno, and suit, &c. Tiie plaintif?', suing upon the have the damages assessed, lie did not bond, assigned a breach, in that A did not state facts entitling him to recover the prosecute his suit, hut allowed the same judguient required. Clark v. Xorton, G to be dismissed and judgment for costs Minn. 412. also to be taken against liim ; wherefore 126 REPLEVIN. [book I. plained of is non-payment of the sum of money recovered by the defendant in the replevin suit.^ § 15. In California, the proper judgment in replevin is, that the party redeliver, or pay the value as found by the jury, with damages and costs. The surety is responsible, only on failure of the plaintiff to respond to the judgment, and therefore, in an action on the bond, non-performance of both alternatives of the judgment must be averred.^ § 15 a. Sec. 177 of the (Cal.) Practice Act, and the decisions holding that a defendant in replevin, in order to render the sure- ties upon the undertaking liable for the value of the property, must demand a return in the answer and obtain a judgment directing it, do not apply to actions dismissed before trial for want of prosecution. In such cases, the defendant may, in his action on the undertaking, seek a return of the property and com- pensation in damages, and the pleadings in the replevin suit are immaterial to the defendant's rights in his suit on the undertaking.'^ § 15 h. In a suit against the sureties on a replevin bond, the complaint must aver that the value of the property was found by the jury, and that an alternative judgment was rendered as pro- vided in the Practice Act, § 200.^ § 16. In Missouri, as against sureties, § 9 of art. 8 of Act of 1849 provides the exclusive statutory remedy. The obligation of sureties under § 8 of the Practice Act of 1849 cannot be ex- tended to the payment of double damages for detention.'^ In Kentucky, the liability of a defendant, upon a bond executed to the plaintiff, according to the provisions of the Civil Code, § 215, " to perform the judgment of the court in the action," extends only to such judgment as the court may render on the claim for possession of the property sued for.^ § 17. The measure and amount of damages, to be recovered upon a replevin bond, are almost universally regulated in the different States by express statutes ; which are by no means uni- form, even in reference to the same facts, and the provisions of which vary with the varying circumstances of replevin suits." (a) 1 Daniells v. Patterson, 3 Comst. 47. 5 Collins v. Hough, 20 Mis. 149. See Clary v. RoUand, 24 Cal. 147 ; § 8. « McKee v. Pope, 18 B. ISIon. 548. - Nickerson v. Cliatterton, 7 Cal. 5G8. " See Tuck v. Moses, 58 Maine, 461 ; 3 Mills V. Gleason, 21 Cal. 274. Mattoon v. Pearce, 12 Mass. 406. * Clary v. Kolland, 24 Cal. 147. (a) A replevin bond is only given to which may be adjudged him in the par- indenmity the obligee for any damages ticular suit in which the bond has been CH. VIII.] REPLEVIN BONDS. 127 § 18. If, ill judgment for return, there is no assessment of dam- ages for detention, and if upon the restitution writ no return was obtained ; such damage may be assessed and allowed in an action upon the bond, and will be computed from the original taking.^ § 19. The plaintiff in replevin cannot, by discontinuance or nonsuit, prevent a judgment against him for damages or for the return of the property. A voluntary nonsuit is, however, a breach of the condition in the bond to prosecute with effect, and on such breach the obligee may recover full damages within the penalty, without first obtaining a judgment for return or for damages." But if the suit was dismissed by the i)laiiitiff for defect in the aiKdavit, and the title is shown to be in a third person, only nominal damages are recovered.*^ And though it is no defence to an action on the bond, that the defendant in replevin forcibly took the property from the plaintiff; it might perhaps bar a recovery of the value of the property.* § 20. In case of nonsuit, damages for failure to return, though not for the original taking and detention, may be assessed in an action on the bond.^ § 21. In Illinois, the defendant may, under the Act of March 1, 1847, '^ concerning })ractice " (Laws, 1847, 62), plead specially, that the plaintiff ought not to recover more than nominal dam- ages, for that the merits of the case were not tried ; and also the defendant's title. ^ § 21 a. In Indiana, in an action upon a replevin bond, where the title to the property was not determined in the replevin suit, and the title and right of possession are in a person other than the obligee, he is only entitled to nominal damages. A plea, as to all except nominal damages, of title in himself, is good.' § 22. Where the value of the property is witiiin the jurisdic- tion, the court may render judgment on the bond for more than the sum to which the jurisdiction is limited.^ § 2o. In Massachusetts, goods attached were replevied, and the 1 Sniitli r. Dilliimliam, 33 Maine, 384. * Ginaca v. Atwood, 8 Cal. 446. 2 Berute(l. The defendant sliowed that, after taking possession mider the deed, he had obtained a conveyance from the plaintiff's grantees under a deed prior to the trust-deed. Held, tlie evidence was admissible, and a nonsuit proper. Scott t'. Crego, 47 Harb. o.t.j. In ejectment, brought by tlie grantee in a quitclaim daad against his grantor, who was not shown to be the owner ; held, tlie grantor might show that subse- quently to the execution of his deed he was ])ut in charge of the premises, and continued in ]iossession as agent of the true owner. Eranklin v. Dorland, 28 Cal. 175. (b) See Neave v. Avery, 30 Eng. L. & Eq. 471. Where a party in his complaint relies solely upon his legal title to the whole premises, he cannot on trial rely on the equitable title. Seaton v. Son, 32 Cal. 481. Where the petition contained a count in ejectment, and also a count in the nature of a bill in equity, praying that a frauchilent conveyance might be annulled, and the plaintifl" have judgment for pos- session ; the court rejecteil the t'ount in ejectment as surplusage, and. disregarding the praj'er for possession as boyond the jurisiliction of a court of equity, decreed simjily that the fraudulent conveyance should be null and void. Pevton v. Hose, 41 Mis. 257. A party cannot avail himself of an equitable title unless it has been pleaded. Cadiz V. Majors, 33 Cal. 288. 150 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. § 18. It is also the general rule, that an equitable title consti- tutes no defence to the action of ejectment. ^ (See § 46.) § 19. And the rule has been applied, even where the general terms " title or interest " are used in a statute. The title must be leg-aU Thus it is no defence to a writ of entry, that the de- mandant holds, subject to a resulting trust in favor of the tenant.^ So one holding a naked legal title cannot set up, in defence to an action by one in possession, and claiming an equitable title, a countervailing equity in a third person, who is also a party de- fendant, and is defaulted.^ So a defendant with a legal title is not bound to show in the first instance a good equitable title : it is for the plaintiff to show a superior equitable title in himself.^ More especially, a defendant in ejectment cannot, on trial, rely on an equitable defence not stated in his answer, which sets up a legal defence.*^ And two inconsistent equitable defences cannot be brought forward for the court to choose between them.' § 20. This rule, however, as in case of the plaintiff, has been changed in many of the States. Thus, in New York, under the amended Code, the defendant may set up an equitable title in himself or another, and a claim for the conveyance of the legal estate.^ Ejectment cannot be maintained against one having an equitable title, which he might enforce by a bill for specific performance. And the plaintiff cannot object that the agreement to convey, being unwritten, is invalid under the statute of frauds, if he himself violated his obligation to execute a written agreement.^ Though, in order to defeat the action, the defendant must become an actor, and claim affirmative relief ; and his answer must con- tain all the elements of a bill for specific performance. ^'^ An equitable right to possession, in a defendant in ejectment, as against the plaintiff, entitles him to judgment. ^^ So an equitable mortgage, after condition broken, is a good defence, under the Code, to ejectment by an execution purchaser, claiming that the mortgagor had conveyed fraudulently. If such purchaser de- 1 3 Head, 325 ; Larriviere v. Madigan, ^ Kennedy v. Daniels, 20 Mis. 104. 1 Dill. 455 ; Stinebau^h v. Wisdom, 13 ^ Cox v. Cox, 26 Penn. 375. B. Men. 467 ; Page v. Cole, 6 Clarke, 153 ; 8 Safford v. Hynds, 39 Barb. 625 ; 15 Wales V. Bogue, 31 111. 464. Barb. 365. 2 Langford v. Love, 3 Sneed, 308. ^ Carpenter v. Ottley, 2 Lans. 451. 3 Crane v. Crane, 4 Gray, 323. l" Dewey v. Hoag, 15 Barb. 365 ; 2 4 McKenzie v. Perrill, 15 Ohio St. 162. Lans. 451. 5 Barnes v. Jamison, 24 Tex. 362. " Thurman v. Anderson, 30 Barb. 621. BOOK 11.] EQUITABLE TITLE. 151 sires the possession, he must file his bill to redeem.^ So, under the statute allowing equitable defences to an ejectment, the de- fendant may explain a sheriff's deed, by showing by parol that a part of the land it appears to convey was expressly excepted at the sale ; and may have the deed treated as reformed? And, under the Code, the defendant, in an action to recover possession, may rely upon any equitable defence. If he holds under an agreement to purchase, he may set up the same facts which in a court of equity would entitle him to a conveyance. Where there has been a full performance of a parol contract for sale ; the deed must be regarded as actually delivered, and the title vested in the defendant.^ So, in Wisconsin, a defendant may show a mistake in the description of his deed.* So, under the Missouri Practice Act of 1849, an equitable defence may be set up.^ And where a deed of trust is made to secure a debt, and the beneficiary conveys the land ; in a suit against the second grantee by the first grantor, the defendant is not estopped from setting up his equitable title, until the debt is paid.^ So, in Kentucky, in an action to recover possession of land, a defendant may set up and rely upon any equitable or legal defences, and either party may move to transfer an equitable issue, presented by the pleadings, to the equity docket ; but, if no such motion be made, the issue must be disposed of by the court, before judgment can be ren- dered for the plaintiff." Under the (Iowa) Revision of 1860, an equitable defence may be pleaded.^ The defendant may set up all his defence, legal or equitable. When the defence is equita- ble, it is to be viewed in the same manner, as to substance, as if made the basis of a petition in chancery for affirmative relief.^ § 21. An equitable defence in tlie answer presents a question for the court to decide. ^*^ In case of equitable defence, the answer must have the requisites of a bill in equity. The title must be such as the decree may make a legal one, available as an estop- pel.^^ Whether an answer states a case within the equity juris- diction of the court, must be determined by the answer. If an 1 Chase v. Peck, 21 N. Y. 58L 8 Rosierz v. Van Dam, 16 Iowa, 175; - Bartlett v. Judd, 21 N. Y. 200. Van Orman v. Spafford, ib. 1^6 ; Kramer * Trapliagen v. Trapliagen, 40 Barb. v. Conger, ib. 434 ; Trentiss v. Brewer, 17 537. Wis. 635. *■ Prentiss v. Brewer, 17 Wis. 635. ^ Penny v. Cook, 19 Iowa, 538. '=> Ilayden v. Stewart, 27 iMiss. 286. l" Downer ;•. Smith, 24 Cal. 124. 6 Johnson v. Houston, 47 iMis. 227. li Biun c. Uobertson, 24 Cal. 146 ; Dow- T Petty V. Malier, 15 B. Mou. 591. ner v. Smith, ib. 124 ; 19 Iowa, 538. 152 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. answer, where both parties claim under a common grantor, sets up a legal title in the defendant, and a parol contract by the . common grantor to convey to him, and an entry under it, and that the plaintiff subsequently purchased and entered upon the land, with notice : the defence is both legal and equitable ; and, if equitable relief is prayed for, the court may first try the equitable defence, and, refusing the plaintiff a jury trial, grant the equitable relief.^ § 22, The question of equitable title in plaintiff or defendant has often arisen, in case of a purchase of the land, not accom- panied or followed by an actual, executed conveyance. Upon this point it is held, that the defendant, in a writ of entry, cannot defend against the legal title of the plaintiff, by proving that he entered under a written agreement with the plaintiff for the pur- chase of the demanded premises, and since the entry had paid the stipulated price, and was entitled, by performance of the agreement, to a conveyance of the legal estate.^ So a sheriff's vendee cannot, where the execution defendant is the father who has paid the purchase-money and taken the title in his son's name, maintain ejectment against the son.'^ So a bond for title, the sale being under a mortgage, cannot defeat ejectment by the vendor, brought either against the obligee in the bond or a purchaser of his rights ; even although the purchase-money has been paid to the vendor.'* § 23. A different doctrine, however, is now adopted in many States, either by direct statutory provision, or by way of natural and necessary inference from statutes or usages relating to law and equity. Thus it is held that a parol sale, delivery of posses- sion, and payment of the whole or even most of the price, are a defence to an ejectment.^ And a vendee once fairly in possession of land under articles of purchase, but illegally ousted, may recover in an action of ejectment, without bringing into court the balance of purchase-money due.^ So a verbal contract partly performed, as where the party has entered and in good faith made valuable improvements, may be set up as a defence to ejectment by the vendor. And if the answer set out the contract as verbal, ' Bodley v. Ferguson, 30 Cal. 511. 5 Young v. Montgomery, 28 Mis. 604 ; 2 Elae;.'Pennock,38N. H. 154; Moody Traphagen u. Traphagen, 40 Barb. 537; V. Farr, 33 Miss. 192. Patterson v. Wilson, 19 Penn. 380 ; Tibeau 3 You V. Flinn, 34 Ala. 409. v. Tibeau, 19 Mis. 78. * Collins V. Robinson, 33 Ala. 91. *> D'Arras v. Keyser, 26 Penn. 249. BOOK II.] EQUITABLE TITLE. 153 but also set out tlie facts of part-performance, it is not demur- rable.' So ejectment cannot be maintained by one who lias sold the land by bond, taken a note for the price, and transferred the note. 2 And a purchaser, having tendered the balance due, and demanded a deed, may, upon tlie trial of an ejectment suit against him, pay the nioney into court, without interest after the ten- der.3 (a ) § 24. Even, however, where this more liberal practice is adopted, it is subjected to equitable conditions and restrictions in favor of the legal owner. Thus it is not by legal right, but by equitable defence, that one holding under another by title-bond can resist ejectment; and generally he must do that by showing full per- formance or readiness to perform; and, if he has failed to perform, it is incunibent upon him to show a waiver of his default, or an equitable excuse for it, and to make reparation, in some way or other, by compensation or damages.'^ So a party, who has an equity resulting from the payment of a part of the purchase- money, cannot recover in ejectment, without a tender of the bal- ance of the unpaid purchase-money ; at most, he can only have a conditional verdict.^ § 25. Ejectment is sometimes provided as the appropriate remedy, in case of purchase, to enforce pa^'ment of the price;*' or to compel specific performance^ And this without previous notice.^ § 2G. The condition annexed to a recovery, in an ejectment for purchase-money, is, that, upon performance of the condition, the recovery shall be released, and not the title to the land.'' In an ejectment to enforce payment of an instalment, where a condi- tional recovery is had, and the money paid in accordance with the finding; the title still remains in the plaintifi", as a security for the payment of the unpaid instalment.^'^ 1 Arsinollo v. Ivlinsjer, 10 Cal. 150. v. Lee, 42 ib. 165; Tavlor v. Abbott, 41 2 Tompkins r. Williams, lU Geo. 572. ib. 352 ; Hill r. Oliphaiit, ib. -M'A. 3 Thomi)son v. McKinley, 47 Peiin. ^ Corson i;. Muloaiiv, 4'.t I'cnn. 88. 353. 8 Dean v. Comstock. :'.2 111. 173. < IliU r. Still, 19 Tex. 76. » Ilamm v. Beaver, 1 Grant, 448. » CliaiUvick V. Felt, 35 Penn. 305. lo Ib. ^ Haniin v. Beaver, 31 Penn. 58 ; Laner (<;) But where the defendants alleged a defendants, witliin a reasonable time, one- parol jrift of land by the plaintiff's ances- tenth of the value of the improvements tor to their own, it was held error to in- made by their ancestor. Such an assess- struct the jury, that, if such contract was nieut of damajics, in an action of eject- proved, they niifjht fiiiil for the plaintitf, nient, is not only novel, but imjiracticable upon condition that he should pay to the and dangerous. Gill v. Gill, 37 Penn. 312. 154 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. § 27. Where the plaintiff brought ejectment on his legal title, and the defendant set up a contract for the purchase of the land, and tendered the balance unpaid of the purchase-money ; held, the plaintiff was entitled to judgment for nominal damages and costs. 1 § 28. A sold land to B for $1,500, a deed to be given when the whole purchase-money should be paid. B went into possession ; but, neglecting to pay the whole purchase-money when due, A brought ejectment. B confessed judgment, to be released on payment of the balance due, which was $322.04, on or before a certain day. The sum was not paid on the day, but was tendered a few weeks afterwards. Held, A was entitled to his writ of pos- session.2 § 29. In ejectment to enforce specific performance of a sale, an award of judgment, to be released on payment of a certain sum, is not an ordinary judgment at law, but contains also the sub- stance of a decree in equity. As the law of Pennsylvania stood in 1839, it was conclusive of the rights of the parties. Subsequent legislation has had no retrospective operation to divest rights thus vested.^ § 30. The plaintiff took out a writ of hah. fac. poss. on such judgment, which was returned executed, the tenant in possession having agreed to hold under the plaintiff, and having taken a lease from him. Held, that, when the writ was set aside by the court as improvidently granted, the tenant was thereby restored to his condition of subordination to his former landlord without a writ of restitution.^ § 31. An ejectment by cestui que trust to compel a trustee to execute a conveyance, on payment of the purchase-money by the plaintiff, is in the nature of a bill in equity, involving an account of the rents and profits, and no subsequent action of covenant for them can be entertained.^ § 32. In ejectment to enforce payment of unpaid purchase- money, the plaintiff recovered a judgment, to be released on payment of a stipulated sum on or before a day certain, when a good and sufficient deed was to be delivered to the defendant. 1 Cadwallader v. Berkheiser, 32 Penn. ^ Coughanour v. Bloodgood, 27 Penn. 43. 285. 2 Chew V. Phillippi, 32 Penn. 205. * lb. 6 Cox V. Henry, 32 Penn. 18. BOOK II.] EQUITABLE TITLE. 155 Before the appointed day, the defendant obtained an award of arbitrators against the plaintiff in a personal action, which award was a lien in favor of the defendant on the plaintiff's interest in the land. The arrears of purchase-money were not paid at the appointed day. The plaintiff filed a deed, caused it to be tendered to the defendant, sued out a writ of possession, and obtained posses- sion of the land. Held, that, by the failure of the defendant to pay, the plaintiff's title became absolute ; that the award was no excuse, though, had the defendant paid the sum due into court, he would have extinguished the plaintiff's lien.' (a) 1 Waters v. "Waters, 32 Penn. 307. (a) To an action of rip;ht, for possession of real estate, it is a good equitable defence, that tile defendant tool< possession under a contract of purcliase witli tlie plaintiff's grantor, of which the piaintiti" had notice wlien he bouglit, and which tlie del'cndant had been at all times ready to perform. Warren v. Crew, 22 Iowa, 315. Ejectment, as a means of compelling specific performance, is not taken away, in Pennsylvania, by the grant of equity powers to the courts of common pleas. Corson V. Mulvany, 4'.) Penn. 88. A jury may find the facts in relation to a parol contract for tiie sale of land, in an action of ejectment by tlie vendor to recover the propert}', notwithstanding tlie statute of frauds, and return a vcrilict for the plain- tiff, to be released on payment of the un- paid purchase-money. McGibbeny r. Bur- master, 53 Penn. 332. One of several heirs contracted to sell his share of an estate to another, who paid part of the purcliasc-nioiicy, went into possession of the wiiole, and continued in possession for about seven years. Held, this raised an equity, and, in an action of ejectment by the vendor, it was proper to direct a conditional verdict. Webster ?'. Webster, 63 Penn. 161. Where there has been a sale of land under articles of agreement, part comjiliancc therewitli, and, in an ejectment brought to enforce payment of balance due, judgment confessed in 1844 by the vendee to the vendor, to be released on payment of a stipulated sum witliin one year ; that judgment is not, under the Act of Ma3' 5, 1841, conclusive against the equitable title of the vendee. But, astliat Act is repealed by Act April 21, 184G, which gave the defendant two years after its date to pay the money, commence an action, and enforce the contract ; the failure to bring the action within that time concluded his rights mider the agreement. Waters v. Bates, 44 Penn. 473. A verdict and judgment, in an action of ejectment brought to compel specific execution of an agreement for the sale of land, is not conclusive, or a bar to any subsequent action ; unless it be shown distinctly that the equitable title was directly in issue and decided ujion. Meyers v. Hill, 46 Penn. 9. See Seit- zinger v. Eidgway, 9 Watts, 396. The fact, that the equity claimed was de- cided, may be shown by parol testi- mony, and need not appear by the record. Where, in a third action lietween the same parties or their privies (the first having been decided in 1825, in favor of the ])arty under whom the jjlaintiff now claimed, and the second, in 1843, in favor of the defendant), the plaintiff set up the first verdict and judgment as conclusive, because they were given upon tlie equita- ble title of the party then defendant, but did not show tliat his equitable title was the sole question in issue, and the sole ground of the verdict ; held, the first ver- dict and judgment were not conclusive. lb. In ejectment to enforce payment of i)ur- chase-money, the vendee having proved that tlie title to a part of the jiremises was detective, the plaintiff is not entitled to a verdict, to be released on payment of the whole purchase-money, or that portion remaining unpaid. But if the plaintiff can make title to one-half only, the defend- ant may elect to take it, and will lie entitled to a verdict, if he has paid one- half of the purchase-monej' with interest : if less, the plaintiff will be entitled to the verdict, to be released on payment of that portion which still remains unjiaid. If, liowever, the defendant elects to rescind 156 DISSEISIN, EJECTMENT, REAL ACTION. [book II. § 33. As lias been often suggested, in the action of ejectment, one party or both generally rely upon documentary evidence of title. Of course it is no part of the plan of the present work, to the contract, tlie verdict should be for the plaintiff, on condition tiiat he repays by a stipulated time wliatever purcliase- money has been jiaid to him, and makes com])ensation for tiie defendant's improve- ments, from wliicli the ])laintiff would be entitled to recoup the damages by waste. Erwin v. Myers, 46 Penn. 96. A con- sideration of a deed, which amounts to a covenant, cannot be enforced by eject- ment. Perry v. Scott, 51 Penn. 119. Ejectment may be brought by a vendor of land against liis vendee, in possession under a contract to purchase, witliout notice to quit, or demand of possession, in case of default in making any of the payments or in performing any of the con- ditions or covenants specified in the con- tract. Pierce v. Turtle, 53 Barb. 155. Tlie answer in a suit to recover the pos- session of land alleged, that the plaintiff received a title bond, but failed to make the stipulated payments, and left the State without leaving anj' property there ; that a decree was entered against him at the suit of A , the owner of the land, ordering a sale, unless he should pay the purcliase-monej' in thirty days, and that on his default t!ie land was sold to A , and by him to tlie defendant. Tlie reply admitted these facts, but alleged the sale to be invalid, because tliere was no ap- praisement and no deed to the purchaser ; that tlie defendant had notice of the plaintiff's title; and that the rents since the plaintiff liad been out of possession were more than equal to the balance of the purchase-money due from him and interest thereon. Held, the answer pre- sented a good defence, which the reply failed to meet. Stehman v. CruU, 26 Ind. 436. The possession of the vendee under contract for a sale becomes tortious, immediately upon his failure to comply with the contract, and the vendor has thereupon an immediate right of action. Non-compliance with a request to pay the purchase-money, on the ground that the vendee is not prepared to do so, and a return to the vendor, without promise to pay at a future time, and without further remark, of a deed offered, is a failure to comply with the terms of purchase. An ejectment lies at once, without demand or notice, even though the vendor may not have discharged merely formal i^arts of his duty — sucli want of formality liaving been waived by the vendee — and tliough the vendee may have made valuable im- provements. Gregg V. Von Pluil, 1 Wall. 274. To ejectment for lands in possession of tlie defendant under an executory sale, brought by a grantee of the vendor, for default in payment of an instalment at the time fixed ; the defendant may inter- pose an equitable defence with tlie same effect as if he had commenced a cross action and applied for an injunction. The decision of such a question consists of a single conclusion of law, and a general exception is sufficient. Cytlie v. La Fon- tain, 51 Barb. 186. A mere equitable title to land, if it is of such a ciiaracter as entitles the holder to the possession in equity, is a sufficient defence under the system of practice in California, to an action for the possession brought even by the holder of the legal title. In ejectment against a purchaser in possession, under a title-bond for a deed upon payment of the purchase- money ; non-payment does not affect the right of possession, in favor of a subse- quent purchaser with notice. Willis v. Wozencraft, 22 Cal. 607. A judgment in favor of the plaintiff in ejectment does not estop the defendant from bringing a bill in equity to compel specific perform- ance of a contract to convey, which was set up as an equitable defence to the ejectment, but withdrawn before judg- ment, and so not passed upon. Hough v. Waters, 30 Cal. 309. In Illinois, and under its statutes relat- ing to ejectment, when fraud in obtaining a title has been submitted, in ejectment, to a jury, and negatived ; the party cannot ask relief in equity, setting up essentially the same frauds, and sustaining them by the same evidence. Blanchard v. Brown, 3 Wall. 245. A stipulation in writing, by the attor- neys of tlie parties in ejectment, that the defendant consents to a reference, and that the plaintiff will within five days execute to him a deed of a part of the land, gives the defendant an equitable title, although judgment is rendered for the plaintiff". Such title, and actual posses- sion claiming title, is sufficient notice to put a purchaser from the plaintiff on inquiry. Killey v. Wilson, 33 Cal. 690. BOOK II.] TITLE — PATENT, DEED, : Znbler, 34 Penn. 38. 4 Menkiiis r.'Blunientlial, 19 Mis. 496. 8 Hand v. McKinney, 25 Geo. (348. (a) Where, under a deed, one makes the east side of S. creek, according to the the first entry, and j)art of the land is un- ancient reputed course tliercof," and the enclosed, he has a better title than one 8. creek had afterwards oftLMi i«() over- claiming by subsequent entry on the lui- flowed by freshets as to change its bed enclosed i)art, with mere color of title, and put the premises on its west side ; the Hicks ('. Coleman, 25 Cal. 130. parties' relative claims were held to be too (/;) When a boundary line is established obscure for a finding, and the decision between owners by long aciiuiescence, the was made wholly u])on a comjjarison of line attaches itself to the deeds of the re- tlieir claims arising from actual posses- spective ])arties. Each holds his whole es- sion. Mitchell v. Baratta, 17 Gratt. tatemuler liis deed, and not by an etpiitable 445. title of estop])el, which it would be neces- Equity will not interfere in reference to sary to plead in an action for possession, a disputed boundary, where the legal ac- Sneed v. Osborn, 2.') Cal. 019. tion of ejectment might be maintained. Where, in one of the title-deeds, the As in a claim for land, subject to an ease- premises were described as lying " on ment. Tillmes v. Marsii, G7 I'enn. 507. 164 DISSEISIN, EJECTMENT, EEAL ACTION. [BOOK 11. deed from A, and also one from B, who claimed under A, it is immaterial whether the deed from A to B be good or bad.^ § 41. Ejectment does not lie upon a grant by one disseised ; ^ nor without proof of title, or claim of title and possession, in the grantor. But possession under color of title for eight or ten years is sufficient.'^ § 42. The defendant in ejectment, as well as the plaintiff, may claim under a deed and conformable possession.^ A legal sub- sisting title, outstanding in another, defeats the plaintiff. As, for example, a deed to an illegitimate son of the father of the plain- tiff, delivered by putting it on record for his benefit, although the minor die before coming of age.^ And, on the other hand, the plaintiff may offer in evidence a deed to the defendant, to explain the latter's possession.^ Or prove that the defendant, at the time he executed a deed relied on by the plaintiff, stated that the land conveyed was the same as that on which the defendant lived, there being no variance between the deed and the declaration in the writ." § 43. Where the defendant is proved to be in possession, and the plaintiff produces registered deeds showing an apparent chain of title from the lessor's ancestor to the defendant ; it is primd facie evidence that the defendant is in possession, claiming under such title. ^ § 44. Where a person made a deed to A of a life-estate in unoccupied land, and A conveyed to B in fee : held, B was not precluded, by the rule of practice in ejectment, from denying the title of A, except as to the life-estate ; and that the heirs of A could only recover by showing, either that their ancestor had a deed purporting to convey a fee, or that he was in possession, claiming a fee.^ § 45. Fraud may be set up for the first time, in an action of ejectment, to impeach a deed. ^^ (a) 1 Prescott V. Jones, 29 Geo. 58. "^ Wilkerson v. Moulder, 15 Mis. 609. 2 Mosheru. Yost, 83 Barb. 277. ^ Register v. Rowell, 3 Jones, 312. 3 Dominy v. Miller, ib. 386. ^ Worsley v. Johnson, 5 Jones, 72. 4 Schuyler v. Marsh, 37 Barb. 350 ; lO Reynolds v. Vilas, 8 Wis. 471 (under Holbrook v. Brenner, 31 111. 501. the Code). See Judd v. Gibbs, 3 Gray, 5 Masterson v. Cheek, 23 111. 72. 539. 6 McMinn v. Mayes, 4 Cal. 209. (a) Possession by a grantor gives the dence of title. "Wells v. Jackson, 47 N. grantee such seisin, as will maintain a writ H. 235. of entry against one who shows no evi- A quitclaim deed maintains ejectment, BOOK II.] TITLE, EXECUTION. 165 § 46. Questions often arise, relating to adverse title, and the right of recovery in ejectment, where the parties stand in the relation of vendor and purchaser (See §§ 16, 18.) § 47. The distinction is made, that one in possession under an executory contract may hold adversely as against strangers. But his possession is not adverse to the vendor, until after perform- ance.^ Thus a vendee entering into possession, under a contract of purchase, with an unconditional bond for title to be given at a stipulated time, does not hold adversely to the vendor until the purchase-money is paid.^ § 48. Where the plaintiff was in possession several years, claim- ing title, and the defendant went into possession under a con- tract, whereby he agreed to purchase the improvements of the plaintiff and his title, as soon as it should be settled, should it prove to be good, the contract reciting that the title was then in dispute ; held, abundant evidence of title in the plaintiff to sus- tain an action of ejectment against the defendant, aside from the rights of the defendant under the contract.^ § 49. An execation, as well as a voluntary conveyance, may be the foundation of adverse title.'^ Thus, in ejectment brought by the execution defendant, to recover land levied on and sold by the 1 Vrooman v. Shepherd, 14 Barb. 441 ; McClanalian v. Barrow, 27 Miss. G64 ; Se- crest V. M'Kenna, 6 Rich. Eq. 72. 2 Stamper v. Griffin, 12 Geo. 450. 3 Spencer v. Tobey, 22 Barb. 260. * See Spaulding v. Goodspead, 39 if the grantor could have maintained it. Downer v. Smith, 24 Cal. 114. In Pennsylvania, in actions of eject- ment, it is often allowable to show the manner in which the defendant came into possession, without reference to the strict legal effect of the deed, — that he came in under color of title, &c. Thus the deed of an administrator is evidence, although void for want of power to exe- cute it. Moody v. Fulmer, 3 Grant, 17. A registered deed is ailmissible without other proof, unless an affidavit alleging forgery be filed as provided by the (Ga. ) Code. Doe v. Roe, 30 Ga. 4G3. A party, in order to prove title, must not simply produce a deed, but show pos- session in the grantor, or accompanying the deed. But when, as matter of law and fact, it is found or conceded that a party named has title ; his possession is presumed, and the occupation by any other person is presiuned to be in subor- Maine, 564 ; Wilson v. Palmer, 18 Tex. 592 ; Hill v. Oliphant, 41 Penn. 364 ; Gautt V. Cowan, 27 Ala. 582; Bank, &c. v. Eastman, 44 N. H. 431 ; Blain v. Cop- pedge, 16 Mis. 495. dination to the legal title, unless the premises have been heldadverseh' to such legal title for twenty years. Stevens v. Hauser, 39 N. Y. .302. Where a plaintiff in ejectment gave in evidence a warrant out of the common- wealth in 1793, and a survey in 17',i4 to A, and next offered a deeil dated in 1840 from one B ; held, the deed, to be admis- sible as evidence of a conveyance of A's title, must be supported by proof of pos- session in B, or pa\"ment of taxes, or control of it at some time by him. War- ner i». Henljy, 48 Penn. 187. The office copy of a deed, conve^'ing lamls in two counties, and recorded in one only, is evi- dence in ejectment for lands in the other. Wheeler v. Winn, 53 Penn, 122. The demandant may introduce in evi- dence a deed recorded since tiie tlate of his writ, if no intervening title is relied on by the tenant. Howland v. Crocker, 7 Allen, 153. 166 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. sheriff, against the purchaser at the sheriff's sale ; such purcliaser need only show, primd facie, a judgment, execution, sale, and sheriff's deed.^ (a) § 50. This form of title often involves questions relating to an alleged fraudulent conveyance. § 51. In Massachusetts, a writ of entry lies, under Stat. 1844, c. 107, § 4, to recover possession of real estate taken on execu- tion against a debtor, who has purchased it, and caused it to be conveyed to a third person in order to secure it from his cred- itors, only when the estate has been set off by appraisement to the judgment creditor; and not when the estate, being an equity of redeeming land mortgaged, has been sold on execution.^ Where there is a conveyance in fraud of creditors, a demandant, who has levied upon the land, must prove himself a creditor, as against the defendant, the grantee. The judgment of the de- mandant for his debt is conclusive.^ § 51 a. Land belonging to A was attached at the suit of Hollis B, which name was used, by mistake, for Horace B. While under attachment, A conveyed the land to C. In the suit, judgment and execution were recovered, and the land duly levied upon. Held, C could not recover the land, whether evidence was or was not admissible to show the mistake.* § 52. Under the law of Maryland, where the distinction between law and equity is accurately preserved, a plaintiff, who has both sold and bought the land in question on execution, cannot, in a subsequent ejectment, introduce parol evidence that the defend- ant's title, which, upon the face of his deed, was held in trust for his wife and children, was so held in fraud of creditors. ^ 1 Mercer v. Doe, 6 Ind. 80. * Emerson v. Collamore, 33 Maine, 581. 2 Foster v. Durant, 2 Gray, 538. 5 Smith v. McCann, 24 How. 398. 3 Inman v. Mead, 97 Mass. 310. (a) In England, tlie writ of elegit, with have relied in the previous suit against the inquisition and return thereupon, is him. Evans v. Robhins, 29 Iowa. 472. conclusive proof of title prior to the re- A plaintiff, claiming under an order of turn, as against the judgment debtor, seizure and sale by a slierifF, must prove Martin v. Smith, 3 H. & N. 959. A peti- the regularity of the proceedings. Sargi tion is demurrable, which sets out speciii- v. Colmer, 22 La. An. 20. cally the title, tracing it through a sheriff's If the demandants claim under an at- sale, if it appears on the face of the peti- tachment made by their grantor, suc- tion and from the exhibits made part of it, ceeded by a levy, the defendant, for the that the sale was not made on the day purpose of disproving a seisin within fixed by law, and there is no allegation twenty years, may show that the attach- that the defendant consented to the sale raent was void, and that, after the attach- as made. Wile v. Sweeny, 2 Duv. 161. ment and before the levy, the debtor was Where the plaintiff claims under a judi- decreed a bankrupt, and was not in pos- cial sale, the defendant cannot set up in session at the time. of the levy. Poor v. defence matters upon which he might Larrabee, 50 Maine. 543. BOOK II.] TITLE, EXECUTION. 167 § 52 a. An officer's deed, under an execution against a third party, is not admissible in favor of a defendant in ejectment, witli- out proof that he thereby acquired some title.^ § 53. Where a purchaser at sheriff's sale was guilty of actual fraud in making the purchase, the tenant in ejectment, claiming under him, is not entitled to a return of the purcliaso-money, either before suit or by a conditional judgment, from the assignee of the insolvent seeking to vacate the sale.- § 53 a. In Maine, the proceedings should be by bill in equity, and not by writ of entry, for the recovery of land by one, who claims title under a levy against a debtor having only an equitable interest.-'^ § 53 b. Where the defendant in a judgment is in possession at the time of levy and sale, he can make no defence in ejectment against the purchaser, who acquires a right at least to his posses- sion.'* If, after the sale, the defendant in execution abandons the land, and afterwards returns to it, and is sued in ejectment by the purchaser, he may show an outstanding title, if he has taken possession and holds under that title. ^ If such purchaser is a plaintijQT, he need not show that the defendant in execution had title, but only that he was in possession, at the time of the sale, in order to shift the burden of proofs § 53 c. Where the plaintiff's title depends upon a levy, he must prove a valid judgment, if the defendant is not a party or privy to it.'^ § 53 d. In ejectment by purchaser at sheriff's sale against the judgment debtor, he need only show a judgment, execution, and sheriff's deed.^'' § 53 e. The plaintiff in an action of ejectment may show that a judgment, under which the defendant claims by a sale under execution upon it, had been satisfied before such sale, although he has introduced such judgment as a part of his own case.^ § 53/. Where the plaintiff relies on a prior possession, he may introduce in evidence a judgment he recovered against a third 1 McGarrity i-.Bvintrton, 12Cal. 426. ^ Haves v. Bernard, 38 111. 2U7. 2 McCaskey v. Graff", 2;! Penn. 321. ^ Tehhetts c. Estes, 52 Maine, 566. ^ Eastman v. Fletcher, 45 Maine, 302. 8 Sinclair v. Wortliy, 1 AVins. (X. C.) ♦ Bunker v. Rand, 19 Wis. 253 ; 38 111. No. 1, 114. 297. s Weston v. Clark, 37 Mis. 668. * Hartley v. Ferrell, 9 Florida, 374. 168 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. party before the defendant's entry, and the acts of the officer thereunder, putting him in possession.^ § 53 g. As against a plaintiff who claims only by virtue of an execution and levy, the defendant, though in possession without title, and not a party to the judgment and levy, may object to the levy .2 § 53 h. The purchase of land at a sale on execution is no de- fence to an action of ejectment, if the time for redemption has not expired.^ § 53 i. The execution defendant cannot defeat the recovery of possession by the execution purchaser, by setting up a title in some third person.* § 53 j. When a levy is properly made, and seizure and posses- sion delivered to the creditor, and the execution and return are properly recorded, and the time for redemption has expired ; the creditor may bring his writ of entry without further entry .^ § 53 k. Where title is in dispute between two parties, one of whom claims under a sheriff's deed, and the other under a prior deed from the execution debtor; the former must show affirma- tively that the judgment lien attached to the land before its sale to the latter.^ § 53 /. The title of a mortgagee in possession after condition broken is not divested by a sale on a judgment against the mort- gagor, so as to allow a recovery in an action of ejectment by a purchaser at such sale. Otherwise, if the mortgagee never took possession." § 53 m. After the sale of an equity of redemption on execu- tion, the mortgage was foreclosed, and the mortgagee and A became purchasers at the sale on foreclosure. The premises were then conveyed to the mortgagor, in pursuance of a parol agree- ment between him and the mortgagee, that such conveyance should be made upon his payment of the mortgage debt. More than ten years after the sheriff's deed was executed, the exe- cution purchaser was sued by the mortgagor, to recover pos- session. Held, the mortgagor was prevented by the Statute of Limitations only from taking advantage of any irregularity in the sale under execution, but the agreement did not make the re- 1 Moon V. Eollins, 36 Cal. 333. 5 Ladd v. Dudley, 45 N. H. 61. 2 Perry v. Whipple, 38 Vt. 278. 6 Boatright v. Porter, 32 Ga. 130. * McMinn v. O'Connor, 27 Cal. 238. "> Doe d. Hall v. Tunnell, 1 Houst. 320. * McDonald v. Badger, 23 Cal. 393. BOOK II.] TITLE, EXECUTION. 169 transfer to liim inure to the benefit of the purchaser under exe- cution, and he could recover.^ § 53 n. Defendants in an action of ejectment claimed under a permission hy the mortgagors to take possession given subse- quently to a sheriff's deed upon foreclosure and sale to the plain- tiff Held, such permission conferred no right of entry.- § 53 0. Where the terms of an executory contract have been fulfilled by the vendee, and he has received a conveyance, eject- ment will not lie by the grantee of a sheriff who has sold the property on a judgment docketed against the devisee of such con- tract, subsequently to the making thereof, but prior to its per- formance.^ § 53^3. In ejectment to enforce payment of purchase-money by a vendor against the vendee in possession, the defendant may give in evidence a deed to former owners, who were then part- ners, and process against one of them, with the sheriff's sale of his interest, to show that the title of the plaintiff, who claimed under another sheriff's sale to him on an execution against both partners, was defective, and that the deed offered by him in pur- suance of the contract was not such as he was bound to give.^ § 53 q. Where tenants in common file a bill praying to have land sold, and the court orders a sale, and the Master makes a deed to a purchaser, and the purchaser sells to a third person; the tenants in common cannot maintain ejectment against the latter, and impeach the deed of the Master.^ § 53 r. A report of street commissioners declared that a cer- tain lot, including the premises in dispute, was required for the purpose of being closed, and of vesting the title in the city of New York, and certain lots adjoining were designated, as assessed for and benefited by the improvement. In the margin, and oppo- site the description of the several lots, was the name of A B, and a sum of money. The report also stated, that unknown owners were seised in fee of the premises required to be taken, subject to a right of way in owners of adjacent lands. A second re- port corrected the first, by altering the sums assessed on certain of the lots, and by allowing A B $1500 in lieu of assessments set forth in the first. Held, the sum allowed A B was the price 1 Wood V. Sanford, 23 Ind. 96. ■• Erwin v. Mvcrs, 46 Pcnn. 96. 2 Kie in possession, does not estop him from saying that he was not, though the plaintiff brought the action, 2 See Sheik v. M'Elroy, 20 Penn. 25. acting on this information. Pope v. Dal- ton, 31 Cal. 218. Prior possession will prevail over a subse- quent one acquired by mere entry, without right. Buckner v. Chambliss, 30 Ga. 652. The elder possession, though for a less term than twenty years, carries with it a presumption of title sufficient to put the defendant on his defence, and will over- come the later possession of a naked tres- passer. Leport V. Todd, 3 Vroom. 124. In the absence of other evidence of title, priority of entry, claiming title, shows the better right. Cram v. Ingalls, 18 N. H. 613. Possession, whether personal or through an agent, tenant, or licensee, is prima facie evidence of a title in fee-simple. A de- mandant, whose claim consists in posses- sion, under a claim to title, may trace that title back indefinitely, though even in the remotest party he is unable to establish seisin. Rand v. Dodge, 17 N. H. 343. The fact that a party has entered by fraud does not affect his right of posses- sion, if he had a right of entry. Depuy V. Williams, 26 Cal. 309. Prior possession, accompatiied by a claim of the fee, raises a presumption of title, as against the naked possession ; and the grantee of the person so liolding prior possession succeeds to his rights. Dale v. Faivre, 43 Mis. 556. A person in possession has a devisable interest; and the heir of his devisee can maintain ejectment against one who has entered, and cannot sliow title or posses- sion prior to the testator. Asher v. Whit- lock, Law Rep. 1 Q. B. 1. BOOK II.] TITLE, ADVERSE POSSESSION. 171 had at one time possession and title, or at least the latter, and tbat he has succeeded absolutely to all such right.^ On the other hand, the demandant who shows a possession of himself or those under whom he claims, prior in time, is entitled to recover against a tenant, who shows no title, but merely possession at the time of suit brought; although such demandant may be a wrong-doer as to the real owner.^ So a party in quiet possession cannot be legally dispossessed by force, although he cannot show a perfect title.^ And the person owning the title to land is constructively in possession, until some adverse claimant goes into the occu- pancy, with intent to claim the fee, as against the true owner ; manifested by declarations or by acts of ownership, which are open, notorious, and visible.* But ejectment cannot be main- tained for land of which the plaintiff is himself in possession.^ § 55. Substantially the same proposition is stated in the terms, that possession will sustain an action against an intruder ;^ that possession gives a primd facie title ; '' that possession with color of title is sufficient, unless a -better title is shown in defence.^ So it. is held, that mere possession is sufficient, though a title in fee is alleged.^ So a person evicted from possession can, Avithout showing any title in himself, maintain an action against the grantee of his disseisor, who is also without title. ^"^ So a defend- ant without valid title cannot put the plaintiff, who was in pos- session until dispossessed by the defendant, with a claim of right, to proof that he has not conveyed away his title.^^ In ejectment, a prior occupancy is a sufficient title against a wrong-doer ; though the evidence must show a continuous possession, or at least that it was not abandoned, in order to entitle the plaintiff to recover merely by virtue of such possession. ^2 § 56. Possession, to justify a claim of title in ejectment, must be adverse. The subject of adverse possession, therefore, lies at the foundation of the particular remedy which we are now con- sidering. Adverse possession is equivalent to, or commences with, disseisin, or ouster. " An ouster is a wrongful dispossession 1 Bartow v. Draper, 5 Duer, 130. "^ Hutchinson v. Perley, 4 Cal. 33 ; '^ Ilublianl V. Little, 'J Cusli. 475; Ilicks y. Davis, ib. G7 ; I'luine f. Seward, Nagle V. Macy, 'J Cal. 420. vSee Bird v. ib. 94. Lisbros, ib. 1 ; Perkins v. Blood, 3(j Verm. 8 Winans v. Christy, 4 Cal. 70. 273; Schultz v. Arnot, 33 Mis. 172. » Ib. 3 La Shuniway v, Phillips, 22 Penn. 151. 172 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. or exclusion of a party from real property who is entitled to the possession." ^ (a) Like other wrongful acts, it is held that ouster may be committed by an agent? § 57. It is the general rule, though in many States altered by statute, that land cannot be conveyed which is at the time (and continues to be) in the actual adverse possession of another.^ But the mere purchase of an outstanding invalid claim does not make an adverse possession less hostile to the true title, nor de- vest a title already complete under the Statute of Limitations.* § 58. An entry, to constitute an ouster, and give possession, must be with claim of title ; but such claim need not be under a deed or other writing. If under a deed, the possession may extend further than the precise boundaries described in it.^ (6) A hostile invasion of another's rights is one of the elements of title by adverse possession ; if there be consent on the part of the owner, the entry for the purpose of doing the act is not tortious. The possession must be actual, adverse, exclusive, and continu- ous, and under claim of title, to auihorize the presumption of a deed ; and these facts are questions for the jury.^ § 59. There are various exceptions to the rule of title by adverse possession. Tims, upon a universally recognized ground of public policy, there can be no adverse possession against the commonwealth.'' So, whether a possession is adverse, depends upon the intention with which it was taken and held. If taken in subordination to the title of another, it cannot be changed into an adverse possession by the party himself, except by a disclaimer, and an assertion of an adverse title, with notice thereof to the party under whom he entered. Thus an open, exclusive, and uninterrupted possession of land for more than twenty years, taken, held, and claimed under a parol gift from the plaintiff for a life not yet terminated, is not such an adverse possession as will * Per Butler, J., Newell v. Woodruff, ^ Kiucheloe v. Tracewells, 11 Gratt. 30 Conn. 497. 587. 2 Munson v. Munson, ib. 425. ** Armstrong v. Eisteau, 5 Md. 256. 3 Kiucheloe v. Tracewells, 11 Gratt. See Reformed v. Schoolcraft, 5 Lans. 206 ; 587. Church v. Meeker, 34 Conn. 421. * Owens V. Myers, 20 Penn. 134. 1 Koiner v. Rankin, 11 Gratt. 420. (a) In Vermont, an entry upon land by adverse possession, though he accepted a a stranger, under claim of right, is an ac- deed from the defendant's grantor, if such tual eviction of the owner, of which he is deed was made merely to correct the de- bound to take notice, at the peril of losing scription in the deed under which the an- his estate, after fifteen years. Whitney i^. cestor of the plaintiff entered. Wall v. French, 25 Vt. 663. Shindler, 47 Mis. 282. (6) A plaintiff may rely upon his title by BOOK 11.] TITLE, ADVERSE POSSESSION. 173 bar an action. Such entry and claim are a recognition of tlie continued existence of a subsistint; title in the legal owner, and an athnission of holding in subordination thereto.^ So where a party has taken possession by a lawful title, and holds over after his right has expired, this possession is not adverse to the rever- sioner.^ (a) So where a grantor enters and occupies for non- payment of ground-rent, under and by virtue of the deed ; such entry and occupation do not constitute an adverse possession, as against the grantee or those claiming under him; nor will the declaration of the grantor, made to a stranger, after he had been in possession seventeen years, that in four years more he should have title by lapse of time, affect the nature of the previous occupancy, even if it should that of the future.^ § 60. In reference to the general nature of the possession which may be claimed as adverse, it is held that there must be an actual bojid fide occupation or jjossessio pedis, a subjection to the will and control of the possessor; not mere assertion of title, and casual acts of ownership, such as recording deeds, paying taxes, .^ Denio, 308. Or to establish his title atrainst the owner of a perpetual right to use it for a 526 ; Scisson v. M'Lanes, 12 Geo. 166 ; Daniel v. Le Fevre, 19 Ark. 201 ; Cochran V. Whitesides, 34 Mis. 417. passage-way. Morgan v. Moore, 3 Gray, 819. Or against an individual who appro- priates to his own use a portion of the highway. Wright v. Carter, 3 Dutch. 76. In an action of ejectment (in Califor- nia), evidence is inadmissible to show that the fee of the land is in the govern- ment of the United States, or that the title is in a third party. Wiiians c. Christy, 4 Cal. 70. But, on the other hand, ejectment is held not to lie to try title to a road or way. Wood v. Truckee, 24 Cal. 487. Or, in general, against one claiming merely an easement. Child v. Chajipeli, 5 Seld. 246. As in the case of the projec- tion of eaves or gutters. Aikin r. Bene- dict, 89 Barb. 400. Or flowage. Wilklow V. Lane, 37 Barb. 244. The easement of drainage is held no defence. Commonwealth v. Roxbury, 9 Gray, 451. The owner in fee, of land taken by a railroad under the right of eminent domain, may recover the land, with damages or mesne profits, for an unauthorized use of it, from the corpora- tion, although i\\ey attempt to set up the misapjiropiiation as a forfeiture of their franchise. Proprs., &c. v. Nashua, i5tc. 104 .Mass. 1. " Road " is a term synonymous with " way," an incorporeal jiereditament, and ejectment will not lie to try title to it. An execution purchaser of a turnpike cannot maintain ejectment for possession. Wood r. Truckee, 24 Cal. 474. Ejectment may be niaintaiiu-d by tlie owner of laud used as a highway, when it 182 DISSEISIN, EJECTMENT, REAL ACTION. [book II. acquired a title.^ In order to render the possession of a defend- ant adverse, he must have entered in good faith, beHeving he had a title ; his possession must be undercolor and claim of title.^ (a) § 75. A party may claim by the adverse possession not only of 1 Van Home v. Everson, 13 Barb. 526. has been taken by a railroad. Lozier v. New York, 42 Barb. 465 ; Weisbrod v. Chicao-o, 21 Wis. 602. Ejectment by a city will lie for land dedicated as a public square, when the defendant has and claims exclusive pos- session. Winona v. Huif, 11 Minn. 119. Ejectment lies for land, a part of wliich is a passa<:ce-way of the defendant. Blake V. Ham, 50 Maine, 311 ; .53 Maine, 430. If one owning a right of way in com- mon with the owner of the fee stops up the way, and appropriates it exclusively to his own use, the latter may recover possession by an action of ejectment, but the recovery will not interfere with the defendant's right to use the way according to his title. Gordon v. Sizer, 39 Miss. 305. A right to take all the oil that may be found in a tract of land is not a corporeal right, for which ejectment will lie. l^ark V. Johnston, 55 Penn. St. 164. The lien given by the (Min.) Act of March 3, 1864, " to protect purchasers of real estate at executor's, administrator's, or guardian's sales," is no defence to an action of ejectment. The possession may be surrendered, and the lien remain. Mon- tour V. Purdy, 11 Minn. 384. A question of a different character, in reference to the nature of the propeiii/, arose in a late case in New York. It was there held tliat, upon the destruction of build- ings, of which demised premises are a part, the right of entry is gone, because the in- terest of the lessee is not tangible or vis- ible, and the delivery of possession by the sheriff, upon a writ o^ habere facias, woiild be impossible. The true test of the action of ejectment seems to be, that the thing claimed should be a corporeal heredita- ment, that a right of entry should exist at the commencement of the action, and that the interest be visible and tangible, so that the sheriff may deliver possession. Lease of a room on the first floor and south- wardly end of a building in Brooklyn, be- ing eighty feet on one street, and fifty on another, with the cellar, and also a lot in the rear, of like dimensions. The lessor covenanted to make all the necessary re- pairs, and reserved the right to reenter at all times for that purpose. The lessee used the premises as a stable. The build- 2 Moore v. Worley, 24 Ind. 81. ing having become dangerous, the lessor was compelled by the competent author- ity to repair it ; and in so doing took down and rebuilt the front and rear walls upon the same foundation. The size of tlie Iniilding was not altered, but its inte- rior arrangements were, and kitchens were finislied off in the basement. Ejectment having been brought by the lessee ; held, the demised premises could be identified, that they remained substantially tliesame, and what was done by the lessor must be regarded as done in execution and per- formance of the covenants. Also, that the lessee took an interest in the land in the rear, of which he could not be divested, against his will, by any thing done to the building itself; and had a riglit to recover to that extent. Rowan v. Kelsey, 18 Barb. 484. (n) AVhere the defendant has been in possession before and after suit brought, the plaintiff need not show his possession on that day. Doe v. Roe, 30 Geo. 553. Service of the writ is prima facie evi- dence of the defendant's possession. Kirk- land V. Thompson, 51 Penn. 216. Ejectment cannot be maintained against a mere trespasser, on the ground of pos- session alone, imless it has continued twenty years. Doe d. Jefferson v. Howell, 1 Houst. 178. On a motion to quash a summons, on the ground that the defendant at the com- mencement of suit was not and never had been in possession ; held, tlie plaintiff might take a judgment for possession, but without costs. Derrickson v. White, 3 Vroom, 137. In ejectment, when the bill of excep- tions purports to set out all the evidence ; if there is no proof that the defendant was in possession at the date of the writ, a general charge, that, " if the jury believe the evidence, they must find for the plain- tiff," is erroneous. Costly v. Tarver, 38 Ala. 107. On the trial of an action of ejectment, a judgment for the defendant, in an action of forcible entry and detainer, brought by a tenant of the plaintift'against the defend- ant, is not admissible to show actual pos- session in the defendant at tlint time, althougli that suit was conducted, and expenses paid, by tiie landlord. The pay- BOOK II.] TITLE, ADVERSE POSSESSION. 183 himself, but of others to whose title he succeeds. And a contin- uous successive occupation may be relied upon under deeds, altliongli the land have been omitted by mistake.^ But where different persons enter upon land in succession, without title or privity of estate with the preceding occupant, — as in case of heir, grantee, ctc.,^ — the last possessor cannot add the possession of his predecessors to his own, so as to make out continuity of pos- session sufficient to bar the entry of the owner. The possession of one cannot be tlie possession of tlie other. So possession of a part of the hmd, by a party entitled to the whole, is possession of the whole, and he cannot be barred by adding together the different possessions and acts of the defendant, at long intervals, so as to make out twenty years.^ And where one has such possession as is insufficient to give an adverse title, and another succeeds him, holding the land in the same manner ; the imperfect possession of the former, when united to that of the latter, cannot make it ad- verse, continuous, and exclusive, as against the real owner."* § 76. In determining whether a possession has been adverse, the point of Tio^ite often becomes material, (a) Thus, in an action 1 Smith V. Chapin, 31 Conn. 530. 2 M'Entire v. Brown, 28 Ind. 847. ment of taxes assessed on the premises, by the (lefeiidant, is not evidence of pos- session and claim of title on his part, or of abandonment or disclaimer on the part of the piaintitl". Davis r. Terley, 30 Cal. 630. (n) It is sometimes held, that, to main- tain ejectment, notice is not necessary, unless the defendant was a tenant of the jilamtifi'. Eaton v. (ieorge, 3 Jones, 3b5. Tiiere must have been a disseisin of the plaiiititf, as well as a wrongful possession Ijy the defendant. After the jjlaintitf has ' Armstrong v. Risteau, 5 Md. 2uG. * Hoye V. Swan, 5 Md. 237. the purchaser, without notice to quit. Dean v. Comstock, 32 111. 173 ; 47 Barb. 173. No demand of the amount due, or of the possession, or tender of a deed, is necessary. Hotaling v. Hotaling, 47 Barb. 103. Twenty-five days' notice to quit is a reasonable one to end the occujjancy of a vendee who has entered upon the land under a mere contract of jturchase, such vendee being only an occui)ant at will. The payment of the greater part of the acquiesced in the occupancy, to render it purchase-money does not impair the right wrongful and an ouster, there must be a demand of possession, or a re(iuest to quit in a reasonable time. Chamberlin v. Donahue, 41 Vt. 806. AVhere no rent had been paid for twenty years before the bringing of ejectment, it will bei)resumed that the relation of land- lord and tenant had ceased, and notice to quit need not be proved. Den v. Lloyd, 2 Vroom, 395. The (N. Y.) statute, dispensing with a demand of rent and formal re-entry before bringing ejectment, is aj)plicable to leases in fee. Hosford v. Ballard, 3',) N. Y. 147. When a vendor elects to treat the con- tractas rcscindcil, for non-compliance witli the terms, he may bring ejectment against of the vendor to maintain ejectment. Butner r. Chaffin, I'lnll. (N. C.) L. 4'J7. An owner of land may, without notice or demand, maintain ejectment against an oecujjant to whom a ])revious occui)ant has without authority transferred posses- sion. Young V Perry, rhill. (N. C.) L. 54'.). Ejectment will lie against tlie grantor with warranty by the grantee, without any demand of possession or notice to (juit. Dodge r. Walley. 22 Cal. 224. A defend- ant in ejectment cannot set up incon.-iistent defences ; that he is in by deed aiisolute, by a contract for a conveyance, and by license, requiring a notice to quit. Blum V. Robertson, 24 Cal. 127. 184 DISSEISIN, EJECTMENT, KEAL ACTION. [BOOK II. of ejectment, it was proved that tlie plaintiff and defendant, who were adjoining proprietors of land, each claiming to own the premises in controversy, had each occasionally occupied beyond his own line, and that the defendant had given the plaintiff a written notice not to trespass upon his land, claiming, in it, to own all the land north of a certain line mentioned therein. The plaintiff claimed to have proved an ouster by the defendant, and the court submitted such notice, in connection with evidence of the acts of the parties, to the jury, instructing them that an ouster was not constituted by mere words, but that the notice might serve to give a construction to such acts as the defendant had committed upon the land beyond his line ; and directing them to find whether said notice, in connection with the acts proved, was, or was not, sufficient evidence of such ouster. Held, such course was correct. 1 § 77. Where the defendant acquires and holds possession under the plaintiff, and, on suit brought after the expiration of six years, attempts to defeat the action by showing adverse possession ; the character of that possession must be brought home to the knowl- edge of the plaintiff, and the jury are not bound to infer such knowledge from the fact that the defendant claimed the property publicly and notoriously under an adverse title. ^ A note given for rent, reciting that the maker was the tenant of the payee, and had been for ten years, is evidence to qualify and explain the then possession, but it cannot run back and prove a tenancy for any length of time.^ So the admission of a certain party, in an action of ejectment, to defend as landlord, is no evidence that he who first sued held as his tenant.* And, under Mass. Rev. Sts. 0. 101, § 7, a writ of entry may be maintained against a tenant at will who refuses to surrender the premises on demand.^ § 78. There are some cases, where one party is estopped or pre- cluded, by his peculiar relation to the other, from setting up an adverse title against the latter.^ Thus the mere holding over of a tenant, after his term has expired, is not adverse to the landlord ; more especially in case of tenancy at will, without notice to quit.'^ 1 Dikeman v. Taylor, 24 Conn. 219. ^ geg Potter v. Baker, 19 N. H. 166 ; 2 Benje v. Creagh, 21 Ala. 151. Worsley v. Johnson, 5 Jones, 72; T ii 3 McKay v. Glover, 7 Jones, 41. v. Abbott, 41 Penn. 852. * Currv V. Raymond, 28 Penn. 144. 7 Volkenburgh f. Rahway, &c., SZabr. 5 Dolby V. Miller, 2 Gray, 135. 580 ; Floyd v. Mintsey, 7 Rich. 181. BOOK II.] ESTOPPEL, ABANDONMENT. 185 The holding is a tenancy by sufferance.^ So wliere the defendant in ejectment sets up an adverse possession, for a period sufTicient to bar the plaintiff's riglit of action ; such defence is inconsistent with a tenancy at will, and he cannot therefore claim that he was entitled to notice to quit before the suit was brought.'-^ So in an action of ejectment, where the defendants acquired possession from the tenant of the plaintiff, with a full knowledge of the tenancy, they cannot deny the plaintiff's title.^ So a defendant in ejectment, who became possessed under a contract to purchase, which has been rescinded and the jnir chase-money refunded, cannot object to his vendor's want of title, nor set up an outstanding one."* So a defendant in ejectment cannot show title out of the plaintiff, and in a third person, where the plaintiff claims by a genei"al war- ranty deed from the defendant.^ So if C, the highest bidder at an auction, is acting as agent for A, but, when the payment is to be made, A, B, and C agree that the deed shall be made to B, instead of A, and B pays for the same ; A cannot deny B's title in a subsequent action against him for the premises.'^ So a sale cannot be questioned by a cestui que trust, after receiving the proceeds of land sold by the trustee.'^ But where plaintiffs and defendant claim under the same lessor ; a deed from the defend- ant, conveying the premises to one of the plaintiffs, in trust for the payment of a debt to a third person, does not operate as an estop- pel against the plaintilT's recovery.^ So it is sometimes held, that a vendee may deny his vendor's title, and claim adversely.'-^ So the plaintiff was in possession, claiming under a tax-sale. A after- wards entered, claiming to have paid the tax, and to have a receipt therefor. They then agreed, that A should remain in possession through the season, and, if he did not produce the receipt, should quit, which he did in the fall, without producing the receipt. Held, A's possession was not under the plaintiff, but an interrup- tion of the plaintiff's possession. ^"^ (a) 1 Crei.sjh i\ Heiison, 10 Gratt. 234. « Bajrgott v. Flemins, 10 Ciisli. 451. - Williams v. Cash, 27 Geo. 507. "^ Joliiison v. Bennett, :J'.) Harb. 2;!7. •' Anderson v. Parker, 6 Cal. 197. ^ Seabury v. Stewart, 22 Ala. 207. •* Walker v. Williams, 30 Miss. 165. » Cutter v. Waddingham, 33 Mis. 209. 5 Mathews v. Lecompte, 24 Mis. 545. i" 37 Vt. 219. (rt) In 1830, A enclosed about si.x acres whereupon A consented to give up four of waste land, and built a cottage thereon, acres, on being allowed to retain the eot- and was allowed to remain in possession tage and the other (wo acres till his death, witliont acknowledgment or payment of A died in 18G1. Held, the ])roceedings in rent till 1845, when the owner served him 1845 amounted to an actual entry, ternii- with a declaration and notice in ejectment; nated the original tenancy at will, and 186 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. § 79. An adverse title may be lost by voluntary abandonment. Where one holding adversely abandons or quitclaims the prem- ises, before his adverse possession gives him a title, he is concluded to the same extent as if he had been evicted by process of law.^ Evidence of an outstanding title in bar of a recovery may be re- butted by proof of its relinquishment, or that it is not a subsist, ing operative title.^ But the act must indicate an intent to abandon. Thus removal of a fence, to replace it by a better one, is no abandonment. And an entry, with notice, during such re- moval, is not valid, as upon unenclosed land.'^ § 80. Where the plaintiff relies on his grantor's possession ; the defendant, in possession, may show an abandonment by the grantor prior to his grant.* § 81. Abandonment hy the defendant is sometimes relied upon. Thus no action lies against a party who has abandoned the land, whether accepted or not. As where a mechanic, having posses- sion of a school-house for repairs, offered the key to a trustee.^ But prior possession, voluntarily abandoned without purpose of return, is no defence to an action founded on possession.^ § 82. Where two parties both claim by possession, and the prior occupant surrenders to the other, his title is held to be lost." But a verbal surrender, after title acquired by adverse possession, is invalid.^ (a) § 83. Somewhat in analogy with the general doctrine of aban- donment, evidence is admissible, that since the commencement of suit the plaintiff has conveyed the land to the defendant ; and constitutes a good defence.^ So if the plaintiff convey all his interest in the demanded premises to a third person, after action brought, the defendant may by proper plea avail himself of 1 Poor V. Horton, 15 Barb. 485. See 4 Bird v. Lisbros, 9 Cal. 1. Wood V. M'Guire, 21 Geo. 576 ; Grant v. ^ Allen v. Dunlap, 42 Barb. 585. Allison, 43 Penn. 427 ; Altemose v. Huf- ^ Bequette v. Caiilfield, 4 Cal. 278. smith, 45 Penn. 121 ; Tayon v. Ladew, 33 7 Austin v. Bailey, 37 Verm. 219. Mis. 205. 8 lb. 2 Sharp V. Johnson, 22 Ark. 79. 9 Torrance v. Betsey, 30 Miss. 129. See 3 Sweetland v. Hill, 9 Cal. 556. Putnam, &c. v. Fisher, 88 Maine, 824. created a new one ; and the period of limi- (a) Where the strict letjal title is not in- tation began at that time. Locke v. Mat- volved, and the plaintiff relies upon a thews, 18 Com. B.N. S. (106 Eng. C. L.) naked possession, the defendant may, 753. under a simple denial of possession or the It is held, that in case of a right by ad- right of possession, prove abandonment verse use a license for further use does not before the defendant's entry. Willson y. defeat the title, but is evidence tliat the Clcaveland, 30 Cal. 192 ; Bell v. Brown, former use was by permission. Perrin v. 22 Cal. 671. Garfield, 37 Verm. 304. BOOK II.] PARTIES. 187 this fact against the plaintiff's right furthor to maintain the suit.^ (a) § 84. In reference to tlie parties to the action of ejectment, involving the riglits acquired by adverse possession ; it is the general rule, founded on obvious grounds of public policy, that no title can be gained by adverse possession against the State?- {IS) § 8-4 a. It is the general rule, that one cannot be a party, who purchases tlie land after suit commenced.^ And a title acquired by the defendant pending the suit must be set up by an amended answer.^ § 85. A plaintiff who has no title cannot recover, though he sue for the use of another who has the title.'' But a purchaser i Rowell V. Harden, 40 Maine, 582. - Carv V. Wliitncy, 48 Maine, 516. 3 Penn. v. Central, 7 Phil. GG2. (n) In ejectment by the devisee of the lessor atrainst the devisee of the lessee, where, alter its connnenconient and before trial, the plaintiff conveys to third per- sons all his interest ; the defendant cannot, under (X. Y.) 2 Kev. Sts. :]08, §§ 24, 31, maintain that the plaintiff's title had ex- pired. The words " riirht or title of a plaintiff," as used in § :!!, refer to the estate or interest which, for the time heinf^, is in the possession of the plaintiff; not merely to the person who is at the time the owner of the estate. Van Rensselaer V. Owen, 48 Barb. 01. Where the jilaintiff pleads prior posses- sion, and the defendant claims and offers evidence of an abandonment, the court errs in excluding that evidence from the jurj', and instructinij them that prior pos- session entitles the plaintiff to a verdict. A judj^ment, in an action of forcible entry and detainer, in favor of the plain- tiff, has no tendency to j)rove abandon- ment by the defendant, in ejectment broufiht against the ]>laintifY in the first action by the defendant's grantees, or to prove that tlie original plaintiff had taken possession under color of title. Roberts V. Uiiger, ;^>t) (^al. liTG. Whore the plain- tiff relies on ]irior jiossession, and the de- fendants attem])t to prove abandonment by the iilaintitf before his entry, he nuiy prove any facts or circumstances tending to rebut it. Willscm i'. Cleaveland, 30 Cal. 192. One in possession, accepting a deed from an adverse claimant, abandons his posses- sory title, and holds under the deed. Croan V. Joyce, 3 Bush, 454. 4 Reily v. Lancaster, 39 Cal. 354. * Brooking r. Dearmond, 27 Geo. 58. In ejectment against a tenant holding over, it is a good defence, that the land- lord's title has passeil out of his hands since the beginning of the term ; but not to set up a tax title thus acquired by a third party. Chase r. Dearborn, 21 Wis. 57. A conveyance by the demandant to A, after verdict, but before judgment, is no bar to a judntnent in review. Berry v. AVhitaker, -58 Maine, 422. [h) But, in New York, where a tenant is in possession, the fair presumption is, that the possession is legal, and. until the plaintiffs show that they have had some right to the possession within forty years, the tenant sliall have the benefit of that presum])tion, and shall not be dispossessed. Thus where, in an action by the people to recover real estate, the answer averred, that no title accrued to the people within forty years, and that the defendants ac- quired title in 178('i, and had had posses- sion ever since : held, the plaintiffs must show title in themselves, or a vacant ]ios- session ; that they could not maintain their action on the ground that they are pre- siunptive owners of all land until title in another is shown, and that in ejectment the jieopU' need not therefore show title in the first instance. People v. Trinity Church, 30 Barb. 537. As § I'.t, of (111.) Rev. Sts. " Ejectment," merely requires that the plaintiff have a right of possession "at tlie time of the commencement of the suit," the jilainliff may, pending suit, convey his title, and the recovery will inure to the benefit of the grantee. Mills r. Graves, 44 111. 50. 188 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. has sometimes a right to use the name of his bargainer in eject- ment.^ And although a deed is void, if made by one disseised, it is held that the grantee may recover the land in the grantor's name.^ (a) § 86. A petitioner in insolvency may maintain an action to re- cover a homestead.^ So an insolvent debtor, who has commenced a real action before his insolvency, and afterwards purchased the land from his assignee, and taken a deed thereof, may prosecute to final judgment in his own name, if no plea in abatement has been filed.* § 87. Succeeding trustees may be substituted in ejectment for those by whom the suit was brought, and the omission of one or more may be supplied by adding them at any time before trial. ^ § 88. Proof of title in the demandant's ancestors is sufficient to sustain a verdict in his favor in a writ of entry, if there has been no subsequent adverse possession.^ And if the ancestor die in adverse possession, and the heirs remain in possession, this is primd facie sufficient to entitle them to recover.''' So occupation under a disseisor is presumed to continue under his heirs.^ !Sut heirs of a patentee of land, forfeited for non-payment of taxes, and never redeemed, have no title on which they can maintain ejectment.^ § 89. A statement in ejectment, that upon the death of A B the title to the premises descended to C, as sole heir-at-law, is a substantial allegation that C is the sole heir-at-law of A B.io (b~) 1 Hassell w. Walker, 5 Jones, 270. ■? Hanna v. Kenfro, 32 Miss. 125. 2 Thompson v. Richards, 19 Geo. 594. § Currier v. Gale, 9 Allen, 522. See 8 Moore v. Morrow, 28 Cal. 551. Peele v. Chever, 8 Allen, 89. * Gerrish v. Gary, 1 Allen, 213. 9 Usher v. Pride, 15 Graft. 190. 5 Dillon V. Dougherty, 2 Grant, 99. l'^ St. John v. Northrup, 23 Barb. 25. 6 Osgood V. Coates, 1 Allen, 77. {a) See, as to the practice in England, made no conveyance, are necessary parties by which. a third party is allowed to de- to a proceeding, in which the administra- fend ; Thompson r. Tomkinson, 33 Eng. tor seeks by attachment to sell the land to L & Eq. 487 ; Croft v. Lumley, 29 lb. pay the purchase-money. Anderson v. 78 ; Whitworth v. Humphries, 5 H. & N. Sutton, 2 Duv. 480. 185. Where a lot of land was drawn by, AplaintifFinejectment, claiming as next and granted to H.'s orphans, and the grant of kin to the last owner, must prove the was put in evidence, and there was a de- death of all other relatives, who, if living, mise in the plaintiff's declaration from would inherit before him. Elwood v. them ; the plaintiff is entitled to a verdict, Lannon's, 27 Md. 200. there being no adverse title relied on. Where tliere were two counts in an Doe V. Roe, 30 Geo. 553. action of ejectment on the demises of (b) The heirs of the vendor, who has several heirs, and a general verdict for BOOK II.] PARTIES. 189 § 90. An action of ejectment was commenced in 1821, in the name of W. C. In 1844, the defendant pleaded tlie deatliof the plaintiff before impetration of the writ. In 1845, the death of the plaintiff was suggested, and '' W. C, executor," substituted. It appeared, that W. C. had title in 1817 ; that in that year he died, and his will was proved, whereby he devised to his son, of the same name. Held, upon the record, the suit must be pre- sumed to have been commenced in the name of the first W. C. ; and the plea of his death before impetration of the writ was good.i § 91. In ejectment, the death of the original plaintiflF was sug- gested, and the heirs substituted, except one ; but the jury brought in a verdict in favor of all the parties having title. Held, such omission was amendable, and, though an amendment by the jury was an irregularity, it was not such as would entitle the appellant to a reversal of judgment.^ § 92. If the lessor of the plaintiff in ejectment be dead at the time of trial, no recovery can be had on his demise ; if alive at the commencement of suit and dead before trial, costs only can be recovered ; if dead at the commencement of suit, no recovery can be had at all.^ § 93. Where the plaintiff dies after issue joined ; there being no voluntary appearance on the part of the defendant, and no scire facias served on him, according to §§ 16, 18, art. 5 (Mis- souri) Rev. Code, 1845, there can be no revival of the suit in the name of devisees.'* 1 Morford v. Cook, 24 Tenn. 92. Jones v. Tarver, 19 ib. 279 ; Doe v. '-J Lynch v. Cox, '2:} Pcnn. 2(55. Lewis, 29 ib. 45. 3 Watson V. Tindall, 24 Geo. 494 ; 4 ifj„e v. Gray, 19 Mis. 33. nominal (lama;j;es ; but, on a point of law an election between her inconsistent riglits, reserved, it was dcterinineil thai the lessor so that she or those clainunj;- nniler her in one of the counts was barred by would he estopjied from setting up her the Statute of Limitations : held, the title to the land ; hehl, the plaintifls were other lessor was still entitled to judiiment. entitled to recover. Davis v. Davis, 4(3 Childers v. Bunijrarner, 8 Jones, 297. Penn. 342. ^yhere a widow is in posses- A iiusband devised land held in trust sion, the remedy of the heir is under the for his wife to four of his children, bindin;.? (Penn.) partition Acts, not by ejectment, them to pay her an annuity bequeathed to Gourley r. Kinley, Gij Penn. 270. her, and made it a cliarge upon tiie land. Heirs may recover, upon proof that the In ejectnient by two of the sons and heirs ancestor died seised and ])ossessed, and of their mother, to whom none of the land that the widow entered under an assign- had been devised, there being no evidence ment of dower, and has died. Brownie, tliat slie had ever received the annuity, Colson, 41 Geo. 42. or that she inleniled any act of hers to be 190 DISSEISIN, EJECTMENT, REAL ACTION. [BOOK II. § 94. A testator devised land, subject to a right, which he gave to a trustee, to sell and convey any of the same at his discretion, for the payment of certain legacies and debts. The devisee brought a writ of entry to recover the land against one having no title. Held, a sale and conveyance, duly made by the trustee to the tenant, pending this action, was no bar to the demandant's recovery.! § 94 a. In ejectment by the grantee of land against a devisee of the grantor, evidence is inadmissible for the defence, that the services, which were the consideration of the conveyance, were not performed by the plaintiff.^ § 95. A died in possession of land, the title to which was in dispute between himself and B, and devised his interest to his widow, whom, with another person, he appointed as executor. Afterwards, with the consent of the Probate Court, the executors and B compromised their claims, and divided the lot between them, giving mutual releases, the release to the widow being to her in her own name, without any mention of her husband or of his estate. Subsequently the executors, by license of court, for payment of debts, sold to C, and the widow, as executrix, con- veyed to him all the right and interest which A had in the premises at the time of his death. After A's death, the widow remained in possession up to the time of the sale to C. In eject- ment by the widow, claiming under her deed from B ; held, the widow could not defeat the estate provided for the payment of debts by annexing her possession as devisee to the title acquired from B ; that the sale by the executors transferred to C the pos- session held by her under the will as devisee ; and that he, in defending against the suit brought by the widow, might connect his possession after the sale with the previous possession of the widow and of A before his death. ^ § 96. It is held that ejectment may be maintained by an exec- utor, empowered by will to sell real estate.'^ § 96 a. An executor as such, and the devisees, cannot join in ejectment.^ § 96 h. In ejectment by an administrator for lands of his in- testate, under the statutes of Arkansas ; proof of his intestate's 1 Tainter v. Hemenway, 7 Cush. 3 Shaw v. Nicholay, 30 Mis. 99. 573. 4 Chew's, &c. v. Chew, 28 Penn. 17. 2 Perry v. Scott, 51 Penn. 119. 5 Tarver v. Smith, 38 Ala. 135. BOOK II.] PARTIES. 191 having died in possession is primd facie evidence of seisin in fee of the intestate.^ § 97. In ejectment hy an administrator, where no seisin accrued to the ancestors, and the disseisin arose after the death of the intestate, and, in contemplation of Uiw, since the appointment of the administrator ; proof of the appointment becomes part of his title to recover, and must be made. ^ § 97 a. Where the defendant claims title under a decree author- izing the administrator of a former owner to sell ; the question of the validity of such decree does not arise, because, if invalid, the title would be in the heirs. Upon the same ground, he may show possession and payment of taxes by those under whom he claims for seven years, though the sale to him were void.^ § 97 6. A judgment in ejectment against the administrator of an administrator does not affect the right of the original intes- tate .^ § 98. Where the actual occupant, upon whom service was made in accordance with the law of Illinois, and who was the defendant in ejectment in the court below, died after judgment; and his attorney and landlord, who had conducted the suit in the name and with the consent of the deceased, sued out a writ of error in the name of the heirs, and gave a bond for the prosecution of the writ and for costs : it appearing that the attorney of the deceased was a bond fide claimant of the land, and prosecuting the writ of error in good faith, a motion to dismiss the writ was denied, although the heirs authorized the motion.^ § 99. If an action of ejectment be brought upon the joint and several demise of two, and one die before trial and judgment, and the action be not revived in favor of his heirs; the suit must be considered as discontinued or abated as to the demise of such lessor, the validity of whose title will not be affected by a final judgment against the plaintiff.*^ (a) 1 Carnall v. Wilson, 21 Ark. 62. ■» Perkins v. Blood, 36 Vt. 273. 2 Austin V. Downer, 25 Verm. 558. ^ Kelloirti; v. Forsvth, 24 How. 186. 8 Oetgen v. Ross, 54 111. 7'J. 6 pintard v. Griffing, 32 .Miss. 133. (o) Tiie death of a sole tenant abates Sect. 14 (Verm.) G. S.,p. 391, provides, the writ. The (N. II.) statutory exception that, when an administrator is apjiointed, api)lies only to mortgages. Pierce v. an heir .shall not bring ejectnicMit for his Jaquith, 48 N. H. 231. ancestor's lands until a decree ot tlic pro- The heirs of a decedent may maintain bate court assigns him the land, or until ejectment for land of which their ancestor the time allowed for paying debts has ex- died out of possession. Webster v. Web- pired, or until the administrator has volun- 6ter, 53 Peun. 161. tarily surrendered possession to him. Held, 192 DISSEISIN, EJECTMENT, REAL ACTION [book II. § 100. Grantees, and all who enter upon the land, pending the action of ejectment, are subject to be removed by the final pro- cess. ^ (a) And it is not necessary to make any other party than the occupant a defendant ; a judgment against him binds all per- sons who are in privity .^ (&) One claiming an interest, but not in 1 Watson V. Dowling, 26 Cal. 125; Wallen v. Huff; 3 Sneed, 82. an heir could maintain ejectment nine years after administration was granted, as it would be presumed that the time for payment of debts had expired, the probate court being permitted by statute to extend the time of paj'ment only for a period not exceeding three years and six montl'.s. Austin v. Bailey, 37 Vt. 219. Under the (Penn.) Act of February 24, 1834, which provides for sales by executors under a naked authority in a will, and also when a sale is directed without any des- ignation by whom or by what authority ; executors may maintain ejectment with- £)ut autliority from the orphans' court. Ivirk V. Carr, 54 Penn. 285. P>jectment does not lie against the administrator, to compel specitic performance of his de- cedent's contract. Ejectment must be brought by the )iolder of the legal title, in order to command a verdict against the equity of tlie purchaser, and must be against tlie purchaser himself or someone representing his title. The (Penn.) Act of April 9, 1849, applies only to the executor or administrator of the vendor, on the principle that the land by the sale is con- verted into personal property as to the vendor. Where A agreed to sell land to B, subject to a mortgage of A's ; and the land was sold by the slieriflT and came to B's hands ; held, A could not by eject- ment compel B specifically to perform the contract. Thompson v. Adams, 55 Penn. 479. The devisees of land, in which the ex- ecutors hold an estate for years, may maintain a writ of entry against a dis- seisor, notwithstanding a lease by the executors to a third person. Brewer v. Stevens, 13 Allen, 346. Where ejectment is brought against a tenant, without notice to the landlord, and judgment is rendered for the plaintiff, the possession is adversely and completely changed by the judgment, and the land- lord is so far bound by the judgment ; though not as to the title or future right of possession. Striddle v. Saroni, 21 Wis. 173. Wliere, in ejectment against one in pos- session as tenant of A, the defendant had given notice of the suit to A, as required - Hanson v. Armstrong, 22 111. 442. by statute; held, A would be deemed to have assumed the defence, and concluded by a recovery therein against the defend- ant ; also that an action would lie against A for the mesne profits. Van Alstine v. McCarty, 51 Barb. 326. Questions may arise, in connection with tlie death of a party interested, with reference to the defence as well as tlie main- taining of the action. In Texas, in an action by a stranger for the recovery of land against an administrator, proof of title in his intestate is a good defence, though the administration be void. Vic- tory V. Stroud, 15 Tex. 373. In Iowa, in an action of right com- menced against the ancestor, and to which the heirs are made parties after his death, they are not liable for the rents and profits while he was in possession ; but only for such time as they are shown to have been in possession. In such a case, if the plaintiff seeks to recover damages from the ancestor, his administrator should be made a party with the heirs, or a separate action should be instituted against hira. Caven- der V. Smitli, 8 Clarke, 360. In England, in ejectment for a vacant possession, it is sufficient to direct the writ to the assignees and personal representa- tives of A B, deceased, the last occupier. Harrington v. Bytiiam, 28 Eng. L. & Eq. 443. In Pennsylvania, in ejectment, where the plaintiffs claimed title by sale on a judg- ment against an administrator, to which the heirs were not parties ; held, the rec- ord of the judgment and proceedings was admissible in evidence, and the title of the deceased was conveyed by such sale, as against strangers to the suit. Riland v. Eckert, 23 Penn. 215. (fl) A writ of restitution in an action of ejectment against a tenant in common can- not be served upon the grantee of the co- tenant in a deed executed pending the litigation. Watson v. Dowling, 26 Cal. 124. (b) The rule of the New York Rev. Sts., that only the tenants in actual occu- l^ation can be made defendants in eject- ment, has not been altered by the Code. People V. Mayor, 28 Barb. 240. BOOK II.] PARTIES. 193 possession, is not a necessary party. ^ But wliere land is owned by A, B, and C, and A's share is levied on by D, under a judg- ment against A ; neither B and C nor their grantees can be dis- possessed by the execution.- § 101. If a female defendant marries, pending the case, the plaintiff is not bound to make the husband a party, unless he applies to be made such.-'^ (a) § 101 a. Ejectment may be maintained against an infant for disseisin, that being a tort. (6) But he must appear and plead by guardian, unless, pending the suit, he attains to full age and afterwards pleads.* § 101 6. And ejectment cannot be maintained against minors upon the possession of their guardian.^ § 102. Joint ownership, or ownership in common, gives rise to numerous questions.*^ (c) 118. 1 Van Buren v. Cockburn, 14 Barb. ■i Watson V. Dowling, 26 Cal. 125. 3 Evans v. Greene, 21 Mis. 170. * Marshall v. "Wing, 50 Maine, G2. 6 .Spitts V. Wells, 18 Mis. 4(;8. ^ See Tucker y. Phillips, 2 Met. Ky. 416 ; Fosgate v. Ilerk, &c. 2 Kern. 580. Tlie ])]aintiff cannot dismiss the action, as against one whom the defendant has made a codefendant. Hayden v. Stew- art, 27 Mis. 286. In ejectment, relief asked for in an answer is properly denied, when it requires an adjudication of the rights of one not be- fore the court. Call v. Chase, 21 Wis. 511. Within the meaning of the rule, that a judgment in ejectment binds the parties Tlie seisin is joint, and the fee is in lier. Stroebe v. Fehl, 22 Wis. 3-37. In a writ of entry alleging disseisin by a married woman, the demandant may put in evidence fraudulent conveyances to her sole and separate use. Blake v. Sawin, 10 Allen, 340. (b) More especially if emancipated. Lackman v. Wood, 25 Cal. 147. (c) In Nevada, tenants in common may and their privies, and estops them from join to recover the property ; and though, denying the plaintiff 's right, &c., " privies" are those who enter imder, or acquire an interest in the premises from or through the defendant, or enter without title, in collusion with him, subsequently to the commencement of the action. Tenants are not estopped as to their term by a judgment against their lessor, if tliey acquired their lease before commence- ment of suit. Satterlee v. Bliss, 36 Cal. 489. In ejectment under the (Penn.) Act of April 14, 1851, by a vendor, to enforce performance, mider a rule to ai)])ear and plea<], if there is no ilescription of the premises in the rule and publication, nor any mention that the pending action was ejectment ; judgment cannot be entered pending a joint suit, they make mutual deeds of certain portions, a joint judgment may be rendered for the whole. Alford V. Dewin, 1 Nev. 207. Several plainlirts cannot jointly recover judgment, if one has no title. Primm v. Walker, 38 Mis. 'J4. In ejectment by one heir, a contract with the ancestor is a de- fence ; but, if it jirevails, the defenart of the land. Lyford i^. Thm-ston, Hi N. II. o'.r.l. Where the defendant in a real action between tenants in common pleads the general issue alone, lie cannot give in evidence that he " had never ousted the plaintiff of his ])ortion of the premises, or in any way hindered his taking possession, but had only been in possession of the same as tenant in common with tlieplain- tUY." Billings v. Gibbs, 55 Maine, 238. Deeds vesting merely an undivided in- terest in land will not support a plea of the Statutes of Limitation of thri'e and live years against the title of the owner of the other undivided interest. Kelly v. Medhu, 2(1 Tex. 48. In ejectment by a tenant in common for an undivicU-d mterest in a mine, aver- ring that the defendant had entered into and withheld possession ; held, the plaintiff must not only prove title, but a demand to be let into the possession ami refusal, or an ouster. Ilebrard v. Jellerson, 33 Cal. 2'JO. In ejectment brought by a tenant in common against a cotenant, a finding of a demand to be let into possession and a refusal does not amount to a finding of an ouster. Adverse ])ossession of land loses its hostile character where the party in possession becomes a tenant in com- mon in the ownership of the property. In ejectment against one who took ))ossession wrongfully, and who afterwards became a tenant in common with the ])laintitt' in ownership, the ])laintifi' cannot recover damages which accrued jtrior to the de- fendant's being a teiumt in common, or while his possession as such tensint was not adverse, nor rents and mesne profits during the latter period, but he can recover damages accruing after the co- tenant's ])()ssession became adverse. Car- pentier V. Mendenhall, 28 Cal. 484. A, being a tenant in common, conve^'ed to B, his cotenant, who afterwards con- veyed to C. C, to recover possession, sued D, a disseisor, but failed, because B was disseised at the time of making the convey- ance. A and B thereupon sued!); but, as A had conveyed to B before D's dis- seisin commenced, the action was de- feated. B thereujjon sued alone. Held, the former judgments, and the grounds of them, were admissible against 1), to show that his disseisin commenced after the con- veyance from A to B, and betoie the con- veyance from 1? to C, and that the action might therefore be maintained. Also that evidence tluit B, after conveying to C, 202 DISSEISIN, EJECTMENT, REAL ACTION. [book II. ises with such substantial accuracy, that they can be identified by application of the evidence to the description.^ (a) 1 Munson v. Munson, 30 Conn. 425 ; man n. Brown, 50 INIaine, 139 ; Johnson Riley v. Smith, 9 Allen, 370. See Wy- v. Nevill, 65 N. C. 677. took back a conveyance from C, was im- material to affect B's title. Barry v. Adams, 14 Allen, 208. An entr}' upon common land, under a license from one of the cotenants, will be presumeil not to be unlawful or adverse to the others. Berthold v. Fox, 13 Minn. 501. A mortfjagor in possession cannot, in a suit against him by his mortgagee for pos- session, plead special non-tenure. Marsh V. Smith, 18 N. H. 366. The owner of tlie equity of redemption may maintain an action for possession against any one except the mortgagee, and those claiming under him. Sdnson V. Ross, 51 Maine, 556. If, after a grant upon condition subse- quent, the estate of the grantor is assigned under insolvent laws ; tlie grantor cannot maintain a writ of entry for breach of tlie condition. Stearns v. Harris, 8 Allen, 597. Ejectment for land in the possession of an em}>loye should be brouglit against the employer. Hawkins v. Reichert, 28 Cal. 534. Employe's of the person claiming title are not occupants, witliin the meaning of tlie ejectment law. Chiniquy v. Catholic, 41 111. 148. In ejectment, it is entirely discretionary with the court to allow a claimant to be made a formal party, or require him to detend in the name of his subtenants. Richardson v. Harvey, 37 Ga. 224. Tlie party claiming as owner, and de- fending the title of his tenant in posses- sion, is properly a party to the action ; and his declarations of title and acts in defending his tenant constitute him a tort- feasor with his tenant. He cannot after- wards insist that he is wrongly joined as a defendant. Abeel v. Van Gelder, 36 N. Y. 513. Under the (Va.) Code, c. 135, § 5, " if a lessee be made a defendant at tlie suit of a party claiming against the title of his landlord, such landlord may appear and be made a defendant with or in the place of his lessee ; " if a tenant is sued in eject- ment for the land, his landlord may be made a party defendant. Mitchell v. Ba- ratta, 17 Gratt. 445. One who comes in as landlord to de- fend an ejectment cannot object that no notice to quit has been given to the origi- nal defendant. Eoust v. Trice, 8 Jones, 490. Under the statutes of New York, dis- tress for rent being abolished, a condition in a grant, of re-entry for non-payment of a perpetual rent, is assignable ; and the assignee can maintain ejectment without a demand, where one half year's or more rent is in arrear. Van Rensselaer v. Slin- gerlaijd, 26 N. Y. 12 Smith, 580. When a landlord defends an action of ejectment in place of his tenant, he can only make such defence as his tenant could make. Sinclair v. Worthy, 1 Wins. No. 1, 114. When the lands are in possession of the tenant, he is the proper party defendant. If the landlord is made defendant, the court, on the hearing, will on motion order a nonsuit as to him. A and B, tenants, and C, landlord, were jointly sued. A and B were defaulted, and C answered. Held, the plaintiff, before trial, could dismiss the action as to C, and take judgment against A and B. Where a landlord, jointly sued, has answered, and had the action dis- missed as to himself, but judgment has been rendered by default against the tenant ; the court cannot, on motion of the landlord, order the proceedings to be stayed, under a writ of restitution. The landlord may in all cases, in which liis title is drawn in issue, assume the de- fence and defend the action in the name of his tenant, but not in his own name ; and, if the tenant has permitted a default, he may, upon proper showing and moving in the name of the tenant, have the de- fault set aside. Dimick v. Deringer, 32 Cal. 488. See Harkey v. Houston, 05 N. C. 137. (n) In California, a complaint, that the plaintiff was in possession, and lawfully entitled to the possession, at the time he was evicted by the defendant, is a declara- tion in ejectment. Ramirez r. Murray, 4 Cal. 293. The plaintiff need not aver title ; an averment of prior possession and an ouster is sufficient, for prior posses- sion is evidence of title, and cannot be made to yield to mere color of title. Norris v. Russell, 5 Cal. 249. But the declaration must allege title or at least actual possession, not merely occasional use, by the plaintiff, and a continued BOOK II.] PLEADING. 203 § 128. Where the description of the premises in the consent rule is " about five chains and twenty-five links in depth," and in fact the lot is a few links deeper, the description entitles the plaintiiF to recover the premises as desci-ibed in his deed.^ But ejectment cannot be maintained for an undesignated part of a lot.2 ArfH the description in the declaration will not be aided by reference to any other instrument.^ So where the writ was indescriptive except by adjoiners, and the verdict was general for the land described in the writ ; the judgment was reversed, on the ground that the finding was too vague to sustain it.* So where the purpose of an ejectment is to settle a disputed boun- dary ; a description of the plaintiff's land, as bounded on one side by the defendant's, is bad.^ So a declaration, after describing the tract owned by the plaintiff, and giving its boundaries, alleged that the defendant unlawfully withheld possession " of two hun- dred acres in and adjacent to the waters of Hughes' and Bun- nel's runs ; it being a portion of the above-mentioned tract of eleven hundred acres of land." Held defective for uncertainty ; and the verdict, following the declaration, was set aside.** § 129. The declaration must allege a seisin of the fee or free-hold (or for years), according to the facts.'^ (a) An action for fee-simple is not sustained by proof of an estate tail, under (Maine) Rev. Sts. c. 104, § 328.^ So an undivided interest cannot be recovered, where 1 Wliite V. Woodruff. 4 Zabr. 753. " Hitchcox ?•. Rawson, 14 Gratt. 526. 2 Miller V. Smith, 88 rerin. 386. ^ Flajjg v. Bean, 5 Fost. 49. See 34 3 Fiauj,^ n Bean, 5 Fost. 49. Maine, 566. ■* Hunt ?•. jNIcFarland, 38 Penn. 69. ** Hamilton v. "Wentworth, 58 Maine, 5 Davis V. Judge, 44 Verm. 500. 101. adverse holding by the defendant. Stein- In Wisconsin, an allegation of posses- back V. Fitzpatrick, 12 Cal. 295. And sion is unnecessary. Herrick v. Graves, the demandant must allege, and, if tra- 16 Wis. 157. versed, i)rove, a sei.sin, either in liimself In Minnesota, a right of possession is or his ancestors, tlirougli whom he claims ; alleged. Armstrong v. Hinds, 8 Min. and, also, in general, that he was seised by 254. taking tlie esplees or jirofits. Payne r. In an information, under ISIass. Rev. Treadwell, 5 Cal. 310. The complaint Sts. c. 108, to recover lands below low- need not allege ownership at the com- water mark, and more tlian a hundred rods niencement of the action. An allegation below high-water mark, an allegation of previous title and an ouster is sutti- that the Commonwealth is owner in fee cient. Salmon v. Symonds, 24 Cal. 266. of all said cliannels, lands, and Hats, The latest cases in California decide that is sufficient. Carr v. Koxbury, 9 Gray, no jiarticular form is necessar}- in the 451. complaint. Caperton v. Schmidt, 2(> Cal. (a) And a verdict must be equally spe- 490. But that it must not state evidence, cific, and follow the statute. Kawlings v. Depuy V. Williams, 26 Cal. 313. Bailey, 15 111. 178. 204 DISSEISIN, EJECTMENT, REAL ACTION. [bOOK II. the declaration claims title to the whole.i But a declaration, de- manding the whole of a tract in fee-simple, may be amended, so as to demand a life-estate in an undivided part only."^ An aver- ment of title in fee is sustained by proof of possession of the plaintiff, a mortgagee, under an agreement with the mortga- gor.3 And if the plaintiff shows title to any part of the land contained in the demise, which is in the defendant's possession, the jury may render a general verdict; or they may, under the direction of the court, find specially, so as to enable the parties to run their lines.'^ (a) § 130. To enable a plaintiff to recover on prior possession, he must allege and prove an actual ouster, notwithstanding a default through the mistake or inadvertence of counsel.^ Thus a decla- ration, " that the plaintiffs have laAvful title as owners in fee-simple of the premises, and that the defendant is in possession, and un- lawfully withholds the same," is insufficient. Although a statute have dispensed with the old form of pleading, and the allegation of a fictitious demise; still facts must be pleaded, sufficient to show the plaintiff's right to recover, and not mere conclusions of law.^ § 131. In New York, tlie complaint, in an action to recover pos- session of real estate, stated, that the legal title was in the plaintiff as owner in fee, and that the defendant was in possession, and unlawfully withheld possession from the plaintiff, and that the plaintiff demands that the defendant may be adjudged to render up possession to the plaintiff, and pay damages for the detention. Held, a sufficient declaration under the Code." So a complaint, that, on a day named, one A was in possession and seised in his own right in fee, and died so seised ; that the complainants are his only heirs-at-law, and as such are entitled to possession; and 1 Rupert V. Mark, 15 111. 540; Petty w. * Kay v. Glover, 7 Jones, 41. Malier, 14 B. Men. 246 ; Murphy v. Orr, ^ Watson v. Zimmerman, 6 Cal. 46. 32 111. 489. 6 Payne v. Treadwell, 5 Cal. 310. '•i Howe r. Wildes, 34 Maine, 566. 7 Walter v. Lockwood, 23 Barb. 228. 3 Chapman v. Delaware, 3 Lans. 261. (ff) Colorable title in the plaintiff's for the whole, see Hipp v. Forester, 7 grantor to the wliole tract being shown, Jones, 599. evidence of his possession and occupancy Where the plaintiff claimed three undi- by mining on any portion of it is admis- vided fourth parts of certain tracts, ajudg- sible. Turner v. Reynolds, 23 Penn. nient that he do recover his term aforesaid 199. in said tracts of land is correct. Carroll As to possession of a part, and ejectment v. Carroll, 16 How. 275. BOOK II.] PLEADING. 205 that the defendant unlawfully holds the premises, claims title, and refuses to give them up, though requested.^ § 131 a. The rule, that possession \?, j)rimd facie evidence of title, has no application to pleading ; and, where a title is necessary, it is not enough to allege possession.'^ It is sufficient to claim in fee-simple.'^ It is held unnecessary to allege that the defendant is in possession at the commencement of the action.'* § 131 h. A complaint in an action brought for possession, wjiich alleges that the defendant entered and took possession, althongh notified by the plaintiff not to enter, is not sufficient, the forcible entry and detainer not being alleged.^ § 131 c. A plaintiff's petition represented, that he was the owner of a certain square of ground in the town of Carrollton, with all the buildings and improvements thereon ; that he had always been in possession and enjoyment of the whole of said square, receiving rents from one A for a portion of said square on which the buildings existed, up to the first day of March, 1859; and praying that his title to the whole of said square might be recognized. Held, a petitory action, and that the plaintift' was bound to make out his title.^ § 131 d. The plaintiff may recover if he shows paramount title to any part of the premises described, but not without evidence of a sufficient interest to maintain the action, in the definite tract for which judgment is rendered." § 131 e. A plaintiff who declares for an estate in fee cannot re- cover a less interest or different estate.^ § 131/. The omission to state in the declaration the extent of the plaintiff's claim, whether the whole, or an undivided interest in the land, is not fatal on demurrer. And, after judgment, any defects or imperfections in matters of form, may be amended by the appellate court, or the court below, if substantial justice require it.^ § lol g. An allegation, that on a day named the plaintiff" was possessed of certain lands therein described, which said prem- ises the said plaintiff claims in fee-simple absolute," and that, he 1 Garner v. Manhattan, &c., G Duer, ^ Ferguson v. Carter, 40 Ala. 007. 539. See Bockee v. Crosby, 2 I'aine, " Millauilon y. lianney, 18 La. An. 196. 432; Fraser v. Weller, M'L. 11. ■< Benz v. Hinct^, 3 Kans. 3'.i0. •^ Meriden v. Wliedon, 31 Conn. 118. ^ j^y^^ ^,. Kain, 3G 111. 3(;2. 3 Parr v. Van Horn, 38 111. 226. 9 Royston v. Wear, 3 Ik-ad, 9. 4 Hcrrick i\ Graves, 10 Wis. 157. 206 DISSEISIN, EJECTMENT, REAL ACTION. [bOOK II. "being possessed thereof and being so the owner thereof as aforesaid," the defendant entered ; amounts to an averment of title in fee-simple.^ § 131 A. The description, in a writ of entry, of the demanded premises, as "a certain parcel of land, with the buildings thereon, situate in Boston, and bounded southerly by Eliot Street twenty feet; westerly on a passage-way six feet and nine inches in width, sixty-one feet eleven inches ; northerly on a passage-way three feet wide, nineteen feet nine inches ; and easterly by a line through the centre of the brick partition wall, sixty-one feet two inches ; with the appurtenances thereto belonging," is sufficiently certain.^ § 131 i. Under the statutes of Minnesota, a plaintiff, in an action to recover real property, may unite several causes of action, with or without damages, for the withholding such property, and the rents and profits. He must aver ownership or right of possession in himself at the time of the alleged wrong, or at the commence- ment of the action.'^ § 131 J. A declaration in ejectment and a petition for partition cannot properl}'' be united in the same count ; and one or the other will be rejected as surplusage.'* 131 k. In the federal courts for the California circuit (which have adopted the practice in the State courts under the State acts regulating proceedings in civil cases), not only may distinct par- cels of land, if covered by one title, be included in one complaint or declaration, but with a demand for these may be united a claim for their rents and profits, or for damages for withholding them. Under these acts, the provision as to the description by metes and bounds is directory only. When the pleadings do not state the value of the property, it may be shown at the trial.^ § 131 I. In a city, having a known system of notation regulated by municipal laws, recognized in the transactions of general busi- ness, and acted upon by every one ; a parcel of ground or the messuage thereon may be described by a number.^ § 131 m. A complaint, alleging that the premises, described accurately, were those leased to the plaintifi'by a lease, a copy of which is filed with the complaint, and which describes the land, 1 Marshall v. Shafter, 32 Cal. 176. 5 Beard v. Federy, 3 Wall. 478. 2 Ililey V. Smith, 9 Allen, 370. « Flanigen v. Philadelphia, 61 Penn. 3 Armstrong v. Hinds, 8 Minn. 254. 491. * Moreau v. Detchemendy, 41 Mis. 481. BOOK II.] PLEADING. 207 though not very definitely, is sufficient. But the land mentioned in the complaint must be identified witli that described in the lease. 1 § 131 n. In an ejectment for the " south twenty-eight feet" of a village lot, it appeared that the lot was rectangular, and two of its boundary lines ran east by thirty-eight degrees north, the other two running north by thirty-eight degrees west. Held, under this description, if the plaintiff should recover judgment, the sheriff could not put him in possession, and therefore he must be nonsuited.2 § 131 0. A complaint, which alleges the seisin in fee of the plaintiff at the time of ouster, need not aver his seisin at the commencement of the action."^ § 131 p. The court may strike out from a complaint matters of evidence and unnecessary description of the premises.** Such averments should be stricken out, even where they consist of a deraignment of title. ^ So there is no requirement in § 3570 of the (Iowa) Revision, that a plaintiff shall annex to his petition the evi- dence of his title.*^ Thus the plaintiff may prove fraud in the entry of the defendant, though not alleged." So a party claiming under a deed, which is subject to prior covenants of the grantor and grantee, need not set out such covenants.^ So plaintifls in eject- ment to recover a mining claim, need not set forth the rules and customs of mining on which their title partly depends.^ § 131 5'. A writ of entry need not allege that the land is in the county in which the action is brought, if it is described as being in a town which is within the county .^*^ § 131 r. In an action against a tenant at sufferance, the com- plaint need not state the tenancy, its termination, notice, So to a suit to recover possession of personal property, an answer, that the defendant is entitled to the possession, is bad; it should set out the grounds of his right.° And a plain- 1 Knowles v. Gee, 8 Barb. 300 ; Den- ^ Boyce v. Brown, 7 Barb. 80 ; How- nistown i\ Merchants', 2 Disn. (Ohio) 52; ard v. Tiffany, 3 Santlf. 6'.)5; Randall v. Hewett V. Harvey, 46 Mis. 368. Shropsliire, 4 Met. Ky. 327. - Stone V. l)e Puga, 4 Sandf. 681 ; * Hewison v. New Haven, 84 Conn. Bomberger r. Turner, 13 Oliio St. 263 ; 136. Corwin v. Corwin, 9 Barb. 219 ; ib. 158. & McTaggart v. Rose, 14 Ind. 230. Maine, 330 ; Parsley v. Nicholson, 65 N. C. 207 ; Fry v. Bennett, 5 Sandf. 54 ; Hartman r. Keystone, &c., 21 Penn. 466; Boyce i'. Brown, 7 Barb. 80. [a) The ultimate, or ii^snnblc fact is the only fact a pleader is called upon or ought to state, not probatire facts. Miles v. McDer- mott, 31 Cal. 271. Where, in an action upon a replevin bond, a transcript of the proceedings in the replevin suit is filed with the com- plaint, the court will strike it out on motion ; but it is not cause for demurrer. Sammons v. Newman, 27 Ind. 508. In determining the sufficiency of a petition, the averments contained in it can alone be considered ; and, where the cause of action is founded upon a written instrument, of which a copy is filed witli the ])etiti()n, the instrument filed as an exhibit constitutes no part of the petition. Bowling V. McFarland, 38 Mis. 465. When a pleading is founded on a writ- ten instrument, the original or a copy must be filed with it. Nill v. Brooks, 21 Ind. 178 ; Reveal v. Conner, 21 Ind. 289; Peoria, &c. Co. v. Walser, 22 Ind. 73. A declaration is demurrable under (Mass.) Gen. Sts c. 129, §!5 2, 11, 12, as containing superfluous, impertinent, and scandalous allegations, which, in setting forth that the defendant, while arguing as a counsellor-at-law a case to the jury in which the jilaintittwas a party, imputed insanity to tlie i)laintiff', states in detail numerous occupations of the plaintiff, with an advertisement annexed of his orations and discourses ; the occupation of the defendant ; the political creed of both parties ; and the fact that in several public orations the i)laintitt" lias denounced the creed of the political party to which the defendant belongs as traitorous, and thereby made that party enemies of the plaintifiT. "Joannes" v. Burt, 6 Allen, 236. The rule, that mere evidence is not to be inserted in the iileadings, is illustrated hy a late case in Pennsylvania : — Divorce. Exceptions to defendant's answer. Opinion by Peirce, J. This is a libel for divorce from the bonds of matrimony on the ground of de- sertion. The libellant, instead of setting forth the desertion in the brief form usual in our practice, has, after the manner of the answer in Butler v. Butler, 1 Parsons, 329, given a narrative of the matrimo- nial discords and grievances, including the innnediate facts connected with, the alleged desertion, and concludes in the usual form, averring tlie desertion. To this, the respondent put in an an- swer denying certain averments in the libel, and setting forth her story of the matrimonial difficulties, and wholly deny- ing the desertion. To this answer the libellant has filed exceptions, alleging tliat parts of the an- swer, which he specifies, are not respon- sive to the libel. It was wholly unneces- sary for either party to set forth the history of their difficulties. The question in controversy between them is the alleged desertion. This is sufficiently averred on the one side, and denied on the other. This makes tlie issue between them ; and the narrative of grievances outside of the main averment, which is denied, is, as was said in Butler v. Butler, where there was a similar attempt to spread upon the record a history of the matrimonial disconls, pure surplusage. — Moore v. Moore (Leg. Intell.). '234 PLEADING. [book III. tiff is not at liberty to make out his case, by giving in evidence facts which he has not stated in his complaint.^ (a) § 4. It is the general rule, that, where a right exists only hy 1 Bristol V. Rensselaer, &c., 9 Barb. 158. (it) Where the grounds of a defence may be clearly understood by the answer, and the parties try the question on which their rights depend, objections to the answer on account of a defective statement of facts will be disregarded on appeal. Cytlie V. La Fontain, 51 Barb. 186. The objection, that a complaint does not state facts sutRcient to constitute a cause of action is available at any stage of the proceedhigs, and on a trial before a referee a motion to dismiss the action for such cause is proper. Coffin v. Reynolds, 37 N. Y. 640. In an action to try title to a public office, it is sufficient if the complaint alleges that the relator, at the general election, held on, &e., in the several towns and election districts of a certain named county, " was duly elected and chosen by the legal and qualified voters of said county." The whole number of votes, with the number for each candidate, need not be stated. State v. Brunner, 20 Wis. 62. Matters of evidence will upon motion be stricken out as irrelevant. Bowen v. Au- brey, 22 Cal. 566. A plea, tendering no issue of fact, but asserting a legal proposition, is bad. Ed- wards V. State, 22 Ark. 303. Thus a denial that an action has ac- crued to the ]>laintiff. Schaetzel v. Ger- mantown, 22 Wis. 412. And, on tlie other hand, when pleadings contain a fair issue of fact, the mere fail- ure to deny legal conclusions should not prejudice the defendant. Hoopes v. Meyer, 1 Nev. 433. And a conclusion of law, not justified by the facts stated, is irrelevant and nu- gatory. Griggs V. St. Paul, 9 Min. 246. In an answer, setting up title or right of possession to land, under a sale for taxes, it is not enough to allege that the property was duly sold for non-payment of a tax, duly imposed, according to the statute. It is essential to state facts, showing that a tax was duly imposed on the property, for non-payment of which the authorities might lawfully sell it, and that the proof of non-payment, required by the statute to authorize a sale, liad been made. So notwithstanding § 161 of the (N. Y.) Code of Procedure, wliich au- thorizes pleading a judgment or other determination of a court or officer of special jurisdiction, by stating that it was duly given or made, without stating the facts conferring jurisdiction. If a tax were witliin this provision, the answer should designate by whom the tax was imposed. Carter v. Koezley, 9 Bosw. 583. In an action to establish title under a tax deed, an answer, averring that the lands are not liable to taxation, without stating any of the grounds of exemption, is bad, on demurrer. Johnston v. Osh- kosh, 21 Wis. 184. In an action to recover back illegal taxes, it is not sufficient to aver that the valuation of the property is "unjust, dis- proportioned, and unequal," without stat- ing specifically wherein it is so. Guy v. Washburn, 23 Cal. 111. In an action to recover goods obtained by duress, under an arrest on mesne proc- ess, alleged to have been invalid, the complaint must set forth the facts relied on to prove its invalidity. Taylor v. Blake, 11 Minn. 255. In an action to recover money paid under duress of person or goods, the com- plaint must state, not a mere conclusion of law, that the payment was compulsory, and not voluntary, but tiie facts showing that the payment was compelled by duress. Commercial v. Rochester, 41 Barb. 341. A petition, in a suit against a judge of an election for wrongfully refusing the plaintiff's vote, must aver the facts on which the right to vote depends. Curry V. Cabliss, 37 Mis. 330. An answer, which avers that the de- fendant is informed and believes, that the plaintiff has been, and now is, en- gaged in inciting, aiding, and assisting in the rebellion of the so-called Confed- erate States, against the United States, and the constitution and laws thereof, and has been, and now is, giving aid and comfort to the so-called Confederate States, is defective and demurrable, for not stating more specifically the particular acts of rebellion which the plaintiff has committed. Meni v. Rathbone, 21 Ind. 454. An answer, in an action to enforce a vendor's lien, wiiich sets up a liomestead exemption, must state facts, from Avhich the court can determine \vhether the homestead existed. Pratt v. Delavan, 17 Iowa, 307. CH. I.] GENERAL RULES OF PLEADING. 235 statute, all the facts necessary under the statute must be set out.^ In an action for breach of duty imposed by statute, it is necessary to allege tiie facts upon which the duty arises ; and a general allegation of duty is insufficient.^ (a) So where the defence to a 1 Oillis V. Black, G Clarke (Towa), 439; 'i Mctcalf y. Iletherington, 32 Eng. L. Honiiiker r. Contokonk, &c., U Fost. 146; & Eq. 599. Smith V. Woodman, 8 ib. b'lO. (a) The case here referred to (32 Eng. L. & lOq. 599) contains an elaborate state- ment of the law, and review of other cases, relating to the averment of fads as one of the requirements in pleading. The court remark : " The count is clearly bad for not stating the facts that they had funds which they were bound, at least priiiid Jiirif, so to apply. The words ' negligently and improperly, and con- trary to their duty,' . . . caimot put the plaintiff's case in a more favorable posi- tion than if the count had stated that it was . . . the duty of the trustees to have prevented coals and rubbish accumulating in the harbor. ... As that duty was not imposed by the statute, except in the event of their having funds which they were bound so to apply, the rules of special jjleading require that the fact should be stated. . . . An averment . . . that it was the defendant's duty to do cer- tain things, being mere matter of law, will not supply the want of these allegations of matter of fact, from which the court would infer the law to be as stated ; such allegation (of duty) is useless where the declaration is insutticient, and superliuous where it is sufficient." In reference to the cases which have departed from this rule, the learned judge adds : " These are all cases of a compendious statement of a right where the plaintiff's action is founded on the possession of that right, and is for the violation of it, and posses- sion of that right is jirimd fticie sufficient ; or they are compendious statements of a duty arising from prescription or custom. . . . Thus it is sufficient for the plaintiff to declare, on his possession of a right of way or a right of common or other ease- ment, by describing them and claiming them by reason of his possession of land. ... It is imnecessary ... to describe whether it arises from grant or prescrip- tion. . . . There is another class of cases in which an obligation is cast on the de- fendant, as to repair a way to a close of the plaintiff' over the defendant's land, to repair fences against the plaintiff"s land, or to repair a wall adjoining the ])laintiff"'s house. In those cases, it is enough to state, in a general way, the defendant's obligation l)y reason of the possession of his land or wall, or an equivalent aver- ment." Per I'arke, B., 32 Eng. L. & Eq. 600. vSee Brown v. Mallett, 5 Com. B. 599; Chadwick ?•. Trower, G Bing. N. 1 ; Priestly v. Fowler, 3 M. & W. 1 ; Sey- mour V. iMaddox, 19 Law J. Hep. (N. IS-.) Qu. B. 525 ; 2 Wms. Saun. 113 a. b. ; the Queen v. Bucknall, 2 Ld. Kay. 804. In another recent case, the subject of pleading in actions founded upon statute is thus spoken of: "It has always been customary, and was formerly deemed necessary, in an action founded upon a statute, to invoke it si)ecially, in the dec- laration. It is well settled, however, that the courts are bound to take notice of public statutes without their being sjyecified in the pleading ; and that it is only necessary to state facts which bring the case within the act. . . . The Code abol- ishes the pre-existing forms of pleading (§ 140), and, so far as relates to the com- plaint, requires only a plain and concise statement of the facts constituting a cause of action. The existence of a legal prin- ciple, whether of common law or founded upon a statute, cannot be deemed one of the essential facts which it is necessary to state. It was formerly held, too, that, in an action founded upon a recent statute, it was necessary to aver that the cause arose after the passage of the act. It seems to me that all that can be reciuisite ... is to state ... a time subsequent to the adoption of the statutory provision ... If it should apjiear . . . that the transaction occurred at too early a date, that would be a ground for a nonsuit." Per S. B. Strong, J., Brown v. Harmon, 21 Barb. 510. In a statutory suit by the representa- tive of one killed by the wrongful act or default of another, required to be com- menced within two years after such death ; a declaration which alleges the day of the death, although that was not within two years, if within two years, is sufficient after verdict. Hill i'. New Haven, 37 Vt. 501. A plea may follow the language of the statute. Gunter v. Dale, 44 Ala. 639. 236 PLEADING. [book III. note is, that it was made in consideration of money lent to be wagered upon tlie result of an election; the answer must allege, conformably to the statutory provision, that the money was lent at the time of such wager.' (a) § 5. This rule, however, is not always rigidly enforced. Thus, in an action against a bank for the statutory penalty for delaying payment of its bills, a demurrer to the declaration will not be sus- tained, because copies of the bills are not set forth ; the statute merely providing, that writings or their " legal effect " shall be set forth, and the demurrer not objecling except as above stated.^ So in an action upon Mass. Rev. Sts. c. 58, § 13, to recover double damages for an injury by a dog, judgment will not be ar- rested, because the declaration does not set forth that the acts were done co7itra fo7^mam statuti ; the act being remedial, not penal.^ So a declaration alleged, that the defendants erected a bridge across a canal, part of the bed of which belonged to the plaintiff, and also certain walls adjoining, and caused the bridge and walls to be so constructed as to project over parts of the said land of the plaintiff. Plea, that the several acts, &c., complained of were 1 Ensley v. Patterson, 19 Ind. 95. » Mitchell v. Clapp, 12 Cush. 278. - Suffolk, &c. V. Lowell, &c., 8 Allen, Com. v. Thompson, 2 Allen, 507. See 355. (a) A petition, under the statute of Mis- souri concerning railroads, for damages for stock killed by a railroad, which fails to show a cause of action under the stat- ute, is good, if it shows a cause of action at common law ; and irrelevant allega- tions may be stricken out. Garner v. Hannibal, 34 Mis. 235. Where a statute has changed a common-law form of action, a petition containing a statement of facts, which shows a right to recover, will be sufficient, without bringing it within any form of action of the common law. Ahern V. Collins, 39 Mis. 145. Public statutes need not be recited, or even referred to, in a pleading. It is sufficient if the case is brought within the statute. That a complaint, by an evident clerical error, refers to the wrong section of an act, is wholly immaterial. McHarg V. Eastman, 7 Rob. (N. Y.) 137. Where a duty is imposed by a public statute, a declaration need only allege the facts which bring the case within it. Logansport v. Wright, 25 Ind. 512. In an action against a railroad for forfeit- ure for charging more than the legal fare, the complaint need not set out the vari- ous enactments which show that the com- pany is restricted to a certain fare ; but only that the defendant had been duly or- ganized, was entitled to demand and receive a certain fare, and had demanded and received a higher rate. NelUs v. New York, 30 N. Y. 505. A complaint against a railroad is suffi- cient, " that said railroad was not, at the time and place aforesaid, fenced in by said defendant in manner and form as in the statute provided ; " and under such averment proof may be made that the road had not been duly fenced in at all, or, if it had, that the fence had not been properly maintained. Toledo v. Fowler, 22 Ind. 316. In general, in pleading under a statute, it is sufficient to use the language of the statute ; and though there are exceptions, requiring specific facts to be stated, where general language is used in the statute, yet it is not necessary, in a civil proceed- ing, to add to the language of the statute other general language, which does not make tlie pleading any more specific, be- cause such other language was technically required in a common-law indictment. Jarvis v. Hamilton, 16 Wis. 574. CH. I.] GENERAL RULES OF PLEADING. 237 lawfully done by the defendants under and by virtue of powers given to them by a certain act of parliament (setting out the year and title). Held good, without alleging the particular facts upon which the defendants relied as bringing them within the statute.^ And, in pleading, the language of the statute itself is held suffi- cient.^ § 6. A count in debt, for the penalty provided by statute for cutting trees, may be joined with debt for the value of the trees carried away. But trespass cannot be joined Avith debt for the penalty.'^ § 6 a. A plea, justifying flowage under an act which authorized the erection of a dam, must allege that compensation was made under the act.* § 7. In reference to statutory liabilities, the distinction is well established, that, where any qualification or exception is stated in the enacting clause, a declaration or plea, founded on it, must allege the facts necessary to bring the case within the qualifica- tion, or to exclude it from the exception.^ But an exception in a subsequent clause (a) is matter of defence, and the other party must show it to exempt himself from the penalty.*^ (&) Thus the 1 Beaver v. Manchester, 8 Ell. & B. 30 ; R. R. Co. v. Hendricks', 2(3 Ind. 228 ; 44. Toledo, &c. R. R. Co. v. Bevin, ib. 443; 2 Jarvis v. Hamilton, 16 Wis. 574. Great v. Hanks, 36 111. 281 ; Board of 8 Elder y. ililzheim, 3.5 Miss. 23L Education v. Grcenebaum, 39 111. 609; * Tliien v. Voegtlander, 3 Wis. 4G1. McGlone v. Prosser, 21 Wis. 273. 5 Clough r. Shepherd, 11' Fost. 4'JO; « Chicago, &c. v. Carter, 20 111. 390. 20 111. 390 ; Faribault v. Hulett, 10 Minn. (a) Whether a proviso or another sec- But with reference to a. general custom it tion. Lynch v. People, 16 Mich. 47li. is laid down, that, in an action aganist a (h) It is necessary, under the New York connnon carrier or innkeeper, for the loss code of i)ractice, that a complaint, founded of goods, &c., whicli is a liability founded wholly upon a statute, should contain a on the common law or custom of the positive allegation of all tlie acts, and also realm ; it is not only unnecessary, but of the (lualitications, if any, prescribed by improper, to recite such custom, because tiie statute ; and when the action is ui)on it tends to confound tlie distinction be- a statute, granting a remedy in damages tween special customs, whicli ought to be unknown to the common law, for deatli pleaded, and the general customs of the caused by wrongful act, neglect, or de- realm, of which the courts are bound to fault, a merely inferential cliarge of negli- take notice, without pleading. 1 Chit, gence on the part of defendants is not Pi. 220. sufficient. It is not necessary that the complaint should allude directly to the Questions of pleading, in connection statute, but it must state a time subse- witli express statutes, have often arisen, quent to the enactment of, and all the in actions against railroad corpor.ations, liicts which are requisite to bring the case or other parties, for causing the death of within, the statute. Brown v. Harmon, human beings, or injury duno to animals 21 Barb. 508. upon their roads. A declaration in case alleged, that a Somewhat analogous to a statute, is a railroad engine, by the negligence of the custom, variant from the common-law rule, servants of the defendants in managing 238 PLEADING. [book III. owner of animals killed or injured by a railroad, in order to recover against the company, must, by proper averments in his declaration, not only show that the company were required to fence their track, and had failed to do so, but must negative the various exceptions in the enacting clause of the statute, and aver that the animals were not injured at a point on the road within these exceptions ; and also that the road had been opened for use six months before the occurrence of the accident.^ § 8. It is a well-settled principle, that an action can be main- tained only for damages naturally, immediately, or directly re- sulting from the act or neglect complained of (See Hilliard on Torts, Chap. III.) And to this rule the pleadings are re- quired to conform. Thus a declaration alleged, that the plain- tiff, defendant, and C had entered into a joint speculation in railway shares ; that C had advanced £6000 ; £2000 on his own behalf, £2000 as a loan to the plaintiff, and £2000 on behalf of the defendant; that C was desirous of retiring from the ad- venture, and the defendant offered to take upon himself the whole of the adventure and debt of £6000, provided the plaintiff would abandon his share to the defendant, and C would accept the defendant as his debtor in the place of the plaintiff for the £2000 ; that the plaintiff did thus abandon his share, and the de- fendant agreed to take upon himself the whole and become debtor 1 Galena, &c. v. Sumner, 24 111. 631 ; Ohio, &c. v. Brown, 23 111. 94. the same, was run upon the intestate, injured the deceased, wliereby she shortly whereby he loas killed. Held, a sufficient afterwards died. No negligence was al- allegation of the injury. The decision leged, or that the death was the necessary rests upon the grounds, that the statutory result of the illegal act of the defendant, law has changed the common-law rule, by Held, bad. Roe v. Lalonette, 9 Ir. Com. which an action cannot be maintained for Law Kep. 9; C. P. an act causing deatli ; and that the In an action against a railroad corpora- declai'ation did not imply the party's tion under the Illinois statute, " for caus- instantaneous death, although, even in ing death by wrongful act, neglect, or that case, under the language of the default," a declaration, which does not statute, differing from that in Massachu- aver that the railroad was used in the setts, the action would lie. Murphy v. State and county in which the action was New York, &c., 30 Conn. 184. brought, would be defective on demurrer, In an action under the 9 & 10 Vict. c. but is good after verdict. Before recovery, 93, by the personal representative of one under this statute, it must be averred and who had been accidentally killed by the proved, that the deceased left a widow instrumentality of the defendant, the or next of kin, to whom tlie damages can declaration alleged that the defendant's be distributed. There may be persons horse, while being driven and trained by isolated or unknown, who do not and him, in a public place or thorouglifare in would not afford any support to their the city of Dublin, to the annoyance of relatives; in the case of the death of such, great numbers of passengers, and, among there would not be any next of kin sus- others, of the deceased, contrary to the taining a pecuniary loss. The damage is provisions of the Dublin Police Act (5 exclusively for a pecuniary loss, not as a Vict. sess. 2, c. 24, § 14), ran against and solace. C. & R. &c. v. Morris, 6 111. 400. CE. I.] GENERAL RULES OF PLEADING. 239 to C for the whole £6000, and C, on the faith and in the behef that such an arrangement was made, consented to accei)t the de- fendant as such debtor in the place of the plaintiff. Nevertheless, the defendant, knowing that he alone was capable of jjroving that the plaintiff had assented to the said arrangement, fraudulently, falsely, and maliciously, and before the Evidence Act, 14 and 15 Vict. c. 99, and in order to induce C to believe that the advent- ure had never been put an end to, and to induce C to sue the plaintiff for the £2000, and to deter the plaintiff from calling the defendant as a witness, and to destroy his credit as a witness, if so called, wrote and sent to C a letter, purporting to be addressed to the plaintiff, but directed to C, wherein he fraudulently and falsely pretended to expostulate with the plaintiff, and asserted that the plaintiff had positively refused to concur in the said arrangement. By means whereof C was induced to, and did believe, that the plaintiff had never agreed to retire from the said adventure, and acting on such belief, C brought an action against the plaintiff to recover the £2000; that the said action was referred to an arbitrator, upon the terms that neither the plain- tiff nor the defendant should be examined ; and C recovered against the plaintiff £2486, which he was compelled to pay. Held, the declaration disclosed no cause of action, since it did not appear that the damage to the plaintiff was a natural result of the wrongful act of the defendant.^ § 8 a. Conformably with the rule, that a party himself in fault cannot recover of another, though also in fault ; (a) it is held, that, in an action for injury to the person by negligence, the complaint must allege or show by facts that the plaintiff was not in fault.^ Thus a complaint for an injury suffered by a passenger from the negligence of a railroad company should allege tliat the plaintiff did not contribute to the injury .^ So a declaration in case stated that the defendant, knowing that a certain house was in such a ruinous and dangerous state as to be dangerous to enter, occupy, or dwell in, and knowing that the state of the house was unknown to the plaintiff, by agreement in writing demised the said house to the plaintiff, and the plaintiff agreed to take the same at a 1 Collins !'. Cave, 4 Hurl. & Nor. 225. 3 Jeffcrsonville v. Hendricks', 26 Ind. - Evansville, &c. v. Dexter, 24 Ind. 228; Toledo u. 13evin, ib. 443. 411. See Wright v. Indianapolis, &c., 18 Ind. 1G8. («) See Billiard on Torts, c. 4. 240 PLEADING. [book HI. certain rent, t!ie plaintiff having previously proposed to take the house for the purpose of immediately occupying and dwelling in the same ; that the plaintiff commenced dwelling in the house without notice of its state, and so continued to the knowledge of the defendant ; and that the defendant neglected his duty in not giving the plaintiff notice that the house was in the said state before entering into the said agreement, and before the plaintiff commenced occupying ; and that, shortly after the plaintiff com- mencing occupying, the house fell down ; alleging special dam- age. Held (on demurrer to the plea), that this declaration was bad, there being nothing to show that the plaintiff was not to put the house into repair before he commenced occupying, and it not being alleged that he was induced by his belief of the soundness of the house to enter into the agreement, or that any misrepresentation was made by the defendant to the plaintiff as to the condition of the house. ^ So, in case of death occurring upon a railroad, it is held not sufficient to allege that the plain- tiff '* was at the time lawfully on the track." ^ A declaration in case against a corporation, for injuries sustained, shouM allege that the defendant was guilty of negligence, and that the plain- tiff exercised proper care ; and the proof should support the allegations.^ But, in Illinois, a declaration against a railroad, for killing cattle, need not negative the possibility that the animals may have been killed at a farm-crossing. If the road is not prop- erly fenced at such crossing, the company will be liable ; and, if it were properly fenced, that is a matter of defence."* So the complaint, in an action against a railroad for injury to a passen- ger, need only allege that the injury happened through the neg- ligence of the defendant, not that the plaintiff was free from negligence.^ So in an action for injuries by being run over by the horse of the defendant, through his carelessness, an averment of ordinary care on the part of the plaintiff is unnecessary.*^ So a complaint alleged, that the plaintiff was the keeper of a livery stable, and as such it was his business to keep horses for hire, &c. ; that he kept in his stable two valuable horses of his own, 1 Keates v. Cadogan, 2 Eng. L. & Eq. * Great Western, &c. v. Helm, 27 111. 318. 198. 2 The Indianapolis, &c. v. Keely, 23 5 Potter v. Chicago, 20 Wis. 533. Ind. 133. 6 Cox v. Brackett, 41 111. 222. 3 C. B. & Q. K. R. Co. V. Hazzard, 6 lU. 373. —tm. I.] GENERAL RULES OP PLEADING. 241 &c. ; that the defendant, knowing these facts, brought to the plaintiff a horse which had the distemper, representing that the horse had recovered and could not communicate the disease ; that the plaintiff, being ignorant of the condition of the horse, received him into his stable, relying upon the representations ; that the defendant knew that the disease was then in the conta,- gious stage ; and that the plaintiff's two horses took the disease. Held, the complaint was not bad, for not alleging that the injury occurred without fault or negligence on the part of the plaintiff.^ And, in an action for negligence, a declaration, not averring that the plaintiff was without fault, or that he exercised proper care to avoid the injury, is cured by a verdict.^ So, in the analogous case of concurrent causes of damage, a petition alleged the flood, ing of a cellar by obstructing the street, and the answer was a denial. Evidence was offered, without objection, that the flood- ing was caused by the defendant's wrongful opening of the side- walk, making a channel through which the water was forced into the cellar by obstructions which others placed in the street. Held, under the provision of a statute, that a material variance must be one which actually misled the party to his prejudice, the court might give judgment upon this evidence for the plain- tiff; the injury being caused by the concurrent acts of the open- ing and obstructing, and the former being a proximate cause.-^ § 8 6, A late case in Massachusetts adopts a rule of pleading, in reference to the defence depending upon the fault of the plain- tiff, as favorable perhaps to the defendant as any one to be found in the books. § 8 c. In an action against a town for injury sustained by rea- son of a defective road, the defendants may rely upon the fact that the accident occurred on the Lord's day, without alleging it in the answer.* With regard to the allegations in the declara- tion and plea, respectively, the court remark as follows : " The case is at issue solely on a denial of the averments in the declara- tion. Of these, the only one which can be said to include the fact that the plaintiff was lawfully on the highway at the time of the accident is, that he was travelling thereon, ' using due care.' The term ' due care,' where the gist of the action is the negligence of 1 Fultz V. Wycoflf, 25 Ind. 32L < Jones v. Andover, 10 Allen, 18. See 2 Illinois V. Simmons, 38 111. 242. Hulet v. Stratton, 5 Cush. 53'J. 3 Hoffman v. Gordon, 15 Ohio St. 211. 16 242 PLEADING. [book III. the defendant, implies that he has been guilty of no violation of law in relation to the subject-matter. The averment in the dec- laration ol" the use of due care, and the denial of it in the answer, put in issue the legality of the conduct of the party. If the plain- tiff had not been engaged in the doing of an unlawful act, the ac- cident would not have happened, and the negligence of the defendants would not have contributed to produce an injury to the plaintiff. .... We have assumed that the allegation of the use of due care by the plaintiff comprehends the fact that the plaintiff was then lawfully on the highway. Such, we think, is the reason- able construction of the form of declaration prescribed in the forms annexed to the Practice Act, Gen. Sts. c. 129 ; otherwise, it would seem that a material fact, which it was the duty of the plaintiff to prove, was not included in the statute form of plead- ing. But, if it were not so,, it would not change the result. If it is not necessary to aver the fact in the declaration, it certainly cannot be required of the defendant to deny its existence, or make any averment respecting it."^ § 9. In order to sustain an action, the declaration and evidence must conform, (a) It is held, that there is no rule which has been so stringently enforced, as the rule that the allegata must be broad enough to let in the proof, and that no evidence, not supported by the allegata, can sustain a verdict.^ And, in a late case, it is re- marked : " Although the language of pleadings under the Ohio Code will be construed according to its ordinary and popular meaning, that meaning must conform substantially to the proof on the trial." ^ § 10. Thus, although pleadings are to be liberally construed under that Code, an allegation, that the defendant obstructed the road by erecting a stone fence across it, cannot admit proof that he erected a stone fence fifteen rods away from the road, whereby water flowed upon the road and obstructed it.* So, 1 Per Bigelow, C. J., 10 Allen, 20. » Per Swan, C. J., Hill o. The Super- 2 Denison v. League, 10 Tex. 399. visor, &c., 10 Ohio St. 621. See Dougherty v. Matthews, 35 Mis. 520 ; * lb. Boiling V. Doneghy, 1 Duv. 220 ; Hall v. People, 21 Mich. 456. (a) The (Mis.) Code of Practice has not the nature of the action — tort or contract changed the rule of law, that the allega- — cannot, after appearance, be taken ad- tions and proof must substantially corre- vantage of, if the complaint is served spond. Jones V. Loiiderman, 89 Mis. 287. either with the summons, or afterwards, A complaint should follow the sum- on the appearance. Fond du Lac v. Bone- mons. A variance between them as to steel, 22 Wis. 251. CH. I.] GENERAL RULES OF PLEADING. 243 under a declaration for damages to property by the wrongful and improper grading of a certain avenue, the plaintiff cannot claim compensation for loss by the grading and paving of other streets. ^ So where the charge was of adultery with divers persons, whose names were unknown, and the only proof was of adultery with one person, who was well known to the complainant, the variance was held fatal.^ So, if the declaration alleges injuries done by the defendant's children and servants, the plaintiff cannot prove injuries done by himself in person ; and threats are therefore inadmissible in evidence.^ So evidence of an injury caused by the unmanageableness of the defendant's horses, or his want of skill in managing them, does not sustain an action for wilful injury.'* So where the plaintiff alleged that the defendant, " intending to injure the plaintiff, carried and set fire to the brush in the defendant's close aforesaid, which, Iowa, 344. Every reasonaVde intendment and pre- sumption is to be made in favor of a pleading, and a complaint will not be held bad on demurrer, however defective, un- certain, or redundant may be the mode of the statement of tacts, if a cause of action maj- be gathered from it, and, taking all the facts to be admitted, the court cannot say tiiat tliey do not constitute any cause of action. iSlorse i'. Gilman, IG Wis. 504. But, in general, pleadings are construed in favor of the opposite party. Kequa v. Guggenheim, 3 Lans. 51. Pleadings should be so framed, as to fairly apprise the other party of the ground of claim or defence, and, if equiv- ocal, are to be construeil most stn)ngly against the pleader. Vaughan v. Everts, 40 Vt. 526. Where the complaint against an admin- istrator avers that he has taken possession of real estate of the decedent, it will be presumed that it was a legal possession. Butt V. Clark, 23 Ind. 548. An allegation, that defendants sold cer- tain stock, may be deemed, on demurrer, to imply delivery. Clark v. Meigs, 8 Bosw. tJ8y. When the law presumes a fact, — as, that a husband and wife who were alive two years ago are still living, — it need not be stated in pleading. Strccbe v. Eehl, 22 Wis. 337. An allegation, that a person was judi- cially found to be of unsound mind, and to have been of unsoimd miml for nearly two years, is not a statement of unsound- ness. The rule, that a fact which the law presumes need not be stated, does not applj% as the finding of unsound mind raised only a prima facie presumption of unsoundness, and the rule applies to con- clusive presumptions alone. Gregory v. McFarland, 1 Duv. 59. An objection to a plea on account of indefiniteness or uncertainty is waived by proceeding to trial. Meagher v. Morgan, 3 Kans. 372 ; Clark v. Eensky, ib. 389. Under § 45 of the (Cal.) Practice Act, objection to a complaint on the ground of ambiguity and uncertainty must be raised by demurrer ; otherwise it will be deemed to be waived. Brown v. Martin, 25 Cal. 82. A motion, to make more definite and certain matter alleged by the defendant in mitigation of damages, will not be enter- tained. Smith V. Trafton, 3 Ivob. (N. Y.) 709. Action to recover damages for money paid to A, by reason of false entries made in the books of the ])laintiff by the defendants. They moved for a bill of particulars of the false entries, and the nature, character, and pur])ose thereof. Held, the plaintiff could not be recpiired to show how the entries were connected with other transactions. Drake v. Thayer, 5 Bob. (N. Y.) 694. 256 PLEADING. [book III. Thus, wliere the time of a death, upon which the suit is founded, must be within two years before suit; the declaration is sufficient, if tiie time is named, and is actually within two years before ver- dict,^ So in case of a petition, that defendants received a bill of exchange for collection, but failed to present it for payment at the banking-house where it was payable; that the drawees had left funds there to meet it, which were subsequently withdrawn ; that defendants failed to give notice of non-payment ; and that the drawers were insolvent from the time of such withdrawal : held, an averment of the solvency of the drawees at the maturity of the bill was not necessary.^ So a plea may be good as to one of several injuries alleged in one count, though it does not answer the others.^ Or, though it professes to answer the whole, if other pleas which answer the other grounds of complaint also accom- pany it.^ So it was held sufficient to aver that the act com- plained of was wrongfully done, without specifying the mode or manner in which it was done.^ So when an injury is alleged, tlie law presumes want of consent ; it need not therefore be expressly alleged.^ And the reasonable distinction is made, that less cer- tainty is requisite with regard to facts which the opposite party is presumed to know. Thus, in an action for not repairing a pri- vate road through the defendant's ground, it is sufficient to allege that the defendant, by reason of his possession, ought to have repaired, &c., without adding by what right or obligation he was thus bound ; the plaintiff being presumed ignorant of the defend- ant's title, while the latter has the power of distinctly stating it." And an exception to strict certainty is found in the rule, that, '' in an action for words spoken in England, which are slanderous according to the phrase of the county in which they are uttered, i Hill V. Now Haven, 87 Verm. 501. * Babb v. Mackey, 10 Wis. 371. See Eramens v. Elderton, 26 Eng. L. & 5 21 jMd. 399. Eq. 1. « Fairhault v. Hulett. 10 Min. 30. 2 Laughlin v. Greene, 14 Iowa, 92. ^ 1 Chit. PL 238 ; 3 T. R. 767. 3 21 Md. 399. An aflBdavit of defence setting forth and possession thereof by the plaintiff." substantially a good defence is sufficient. Held, a sufficient allegation of title. Thompson v. Clark, 56 Penn. 33. Bryant v. Bryant, 2 Rob. (N. Y.) 612. An answer need not deny in express In an action by a bank, an answer, terms the allegations in a complaint, if it alleging that tlie plaintiff usuriously dis- fairly meets and traverses them. Hill v. counted the drafts sued on, contrary to the Smith, 27 Cal. 476. statute, &c., and specifying the amount of In an action for the wrongful taking of interest taken, although bad on demurrer, personal property, the answer alleged that is not so insufficient an averment of cor- the defendant had been the owner and rupt intent as to justify its rejection for possessor " ever since a long time prior to frivolousness. National v. Orcutt, 48 the alleged acquirement of ownership Barb. 256. CH. I.] GENERAL RULES OP PLEADING. 257 thougli the court may not in fact know wliat they signify, it is not necessary to aver their signification." ^ So, in general, " as it is an intendment of law, that a person is innocent of fraud, or any other imputation affecting his reputatit)n, the party insisting upon the contrary must state it in pleading. Thus, in an action for words, as, for saying a man is a thief, the plaintiff has no occa- sion to aver that he is not a thief; and in an action on the case for maliciously suing out a commission of bankrupt, it is not necessary to state, in the declaration, that the plaintiff was not indebted to the defendant, or that he never committed an act of bankruptcy."'-^ So it is held, that in the action for slander "falsely " is equivalent to "maliciously."*^ So the words, " con- triving and wrongfully and unjustly intending to injure the plain- tiff, so as to deprive him of the benefit of" a judgment on appeal, are a sufficient allegation, in an action against a clerk for approving an insufficient bond, that he acted wili'uily and maliciously.* § 14 a. The point of certainty, as necessary in pleading, often arises in connection with the allegation o^ fraud. (See Ch. IV.) It is held, that an allegation of fraud, either in the declaration or plea, must state the facts which constitute such fraud.^ Thus in an action to set aside a patent for land, on the ground that it was procured by false suggestions, fraudulent concealments, and mis- representations, the acts must be specified.^ So, in an action on a premium note given to an insurance company, an allegation in general terms, that it was a fraudulent corporation, and not able to pay its losses, is not sufficient. The court remark : " There is no averment of fraud, or trick, or concealment, to induce the insured to enter into the contract of insurance. Nor are there any facts disclosed to show in what it was fraudulent. It is quite possible for a party to be of opinion tliat an inability to pay losses constitutes the corporation a fraudulent one. To different minds, different acts might be considered fair or fraud- ulent; hence the necessity of the rule which requires that the affidavit of defence shall ' state specifically and at length ' the * nature and character ' of the defence, so that the court may be 1 1 Cliit. ri. 224. 5 Keller v. Johnson, 11 Iml. 387 ; Mur- 2 lb. 227. phy v. liyrd, 1 Hemp. 221 ; Castle v. B&- 3 1 Saun. 242 a, n. 3. tier, 23 Cal. 75. ■* BUlings i;. Lafferty, 31 111. 318. « Semple v. Hagar, 27 Cal. 163. 17 258 PLEADING. [book III. able to see that there is defence that calls for trial," ^ So the declaration, in an action to set aside a patent, must state facts.^ So a civil action, charging fraudulent embezzlement " as agent or attorney," is fatally defective in the alternative alle- gation, although the objection is not taken until after judgment by default.^ And, where fraud lies at the basis of the action, it must be distinctly alleged. Thus the complaint in an action by attaching creditors, alleging that the defendants have a large amount of personal property, consisting of money, bills, notes, &c., deposited with them by, and belonging to, the defendants in the attachment suit, but not fraud, collusion, or combination, obstructing the ordinary processes of the law, or that those pro- cesses have been exhausted or resorted to, or that the lien can- not be enforced without the aid of the court in the exercise of its equitable powers; does not sustain a suit for such interposition. The remedy is under § 238 of the (New York) Code.^ But, on the other hand, where the facts alleged constitute a fraud, it is held not necessary to aver that they were done with intent to defraud.^ So in a suit by heirs, to set aside the sale of lands, fraudulently made by one falsely assuming to act as administrator ; the plaintiffs offered in evidence a deed from the grantor, in which he assumed to act as administrator. Objection was made, that the petition did not allege any violation of duty as administrator, and that, to set aside a deed, on its face executed in a fiduciary capacity, the failure to discharge the trust should have been alleged. Held, the allegation of fraud in assuming to act as administrator was sufficient.*' § 14 h. So it cannot be objected, on demurrer to a declaration alleging fraudulent misrepresentations, that they were made as to a matter of opinion." § 14 c. So an answer to an action for fraud is good, when it states circumstances from which it can be reasonably inferred that the fraud charged could not have been practised.^ § 14 d. So where an attorney claims a sum of money paid for another to procure an act of the legislature, and alleges that the expenditure was made in good faith, was necessary, and was 1 Sterling v. Insurance Co., 32 Penn. 5 McMahan v. Rice, 16 Tex. 385. 75 ; per Thompson, J., ib. 77. 6 McGaffey v. Millard, 17 ib. 365. 2 Hill V. Miller, 36 Mis. 182. 7 Whitton v. Goddard, 36 Vt. 730. i Porter v. Hermann, 8 Cal. 619. 8 Burk v. Stewig, 21 Tex. 418. * Skinner v. Stuart, 3y Barb. 206. CH. I.] GENERAL RULES OF PLEADING. 259 authorized by his principal : a reply, that the expenditure was unlawful and corrupt, and was used and squandered to corrupt the legislature, and to exert upon it a secret, undue, and personal influence by lobbying; that it was not necessary; that the act was honestly passed, and was not secured by corrupt means ; is not demurrable. 1 § 14 e. So where the answer, in a suit on a bill of exchange, sets up payment, part in money and the residue in bills of ex- change, received by the plaintiff in payment: a replication, that at the time of delivery of said bills the defendant fraudulently misrepresented to the plaintiff, that the drawers and drawees were solvent and able to pay the same, and would pay them at maturity, and that the sums therein named were secured by mort- gage, and that, relying on these representations, the plaintiff re- ceived said bills to be applied when paid to the extinguishment of the balance due on the bill sued on ; is not a departure, but only an argumentative denial of the answer.^ § 14/. So a complaint is good on demurrer, which alleges that the plaintiff purchased of the defendant twenty-seven head of hogs for a price equal to the full value of sound hogs ; that the defendant represented them to be sound and healthy ; that the plaintiff relied upon said representations, having no opportunity by reasonable diligence to discover that the same were not true ; that in fact they were diseased and unhealthy, being then affected with hog cholera, and known to be so by the defendant ; and that afterwards twenty-five of them died of that disease, &c.^ § 14 g. So a complaint alleged, that, at the sale and transfer of a note and mortgage, "the defendant represented to the plaintiff that said mortgage was good, and a valid security for the pay- ment of said note, and the plaintiff supposed and verily believed, at the time he bought the same as aforesaid, the said mortgage to be good, and that it was a valid and sufficient security," &c. Held, a sufficient allegation that the plaintiff purchased on the faith of the defendant's representations.* § 14 h. So in an action for fraud in the sale of land, a declara- tion is sufficient, which states that the defendant induced the plaintiff to purchase by fraudulently misrepresenting, in the course of a conversation between them in regard to the sale, "that 1 Judiih V. Vincennes, 23 Ind. 273. 3 Baker v. McGinniss, 22 Iiid. 257. 2 Frisbee v. Lindley, 23 lud. 6n. « Uahn v. Doolittle, 18 Wis. 1U6. 260 PLEADING. [book III. " there were three thousand spruce logs on the premises (meaning that there were spruce trees growing thereon that would cut and make three thousand spruce logs of the usual and customary size and quality)." ^ § 15. The rule of directness and certainty precludes the state- ment of a mere legal inference or conclusion.^ Thus the allega- tion of a duty in a declaration is of no avail, unless the facts necessary to raise the duty are alleged. It is but the statement of a legal inference which is never traversable. And the defect is not cured by verdict, or by allegation that the acts of the defendants were done maliciously. The motive of a party, for doing that which is not in itself wrongful, is of no consequence. Thus, in a suit against a gas company for shutting off the gas from the plaintiff's rooms, the plaintiff alleged, that his rooms were furnished with gas-pipes and fixtures, which were connected with the main pipes of the defendants ; that the defendants had for some time, and until the injury alleged, supplied him with gas, for which he had paid them ; and that he Avas ready and willing to pay them for a continued supply upon which he was dependant for the lighting of his rooms, and which he desired them to furnish ', and that it became and was the duty of the defendants to continue to supply him with gas, but that they maliciously and wantonly shut off the gas, and refused to supply him ; by means of which, he was deprived of the means of light- ing his rooms with gas, and put to great expense in procuring other means of lighting them. After verdict for the plaintiff, judgment was arrested, on the ground of the insufficiency of the declaration. If the declaration had alleged a contract to supply the plaintiff's rooms with gas until reasonable notice, the facts alleged might have gone to the jury as evidence tending to prove such a contract.'^ On the other hand, the law sometimes implies the right, for violation of which the action is brought, thereby dispensing with an express allegation of such right. ** It is enough to state the facts from which a right or a duty arises." Thus a declaration, that the defendant wrongfully and improperly, and without leaving any proper or sufficient pillars or supports, worked coal-mines under and contiguous to the close of the plain- 1 Whitton y. Goddard, 36 Vt. 730. Branch, &c., 15 Ala. 722; Merrill v. 2 See ch. i., § 3 ; Judali v. The Trus- Tlainfiekl, 45 N. H. 126. tees, &c., 23 lud. 272; Hardy v. The ^ McCune v. Norwich, &c., 30 Conn. 521. CH. I.] GENERAL RULES OF PLEADING. 261 tiff, and dug for and got and moved the coals, minerals, earth, and soil of and in said mines, whereby the soil and surface of the close sank in, cracked, swagged, and gave way ; need not further allege, that the plaintiff was entitled to have his close supported by the subjacent strata. ''If the easement, which the plaintiff claims, exist, it does not arise from any special grant or reservation, but is of common right, created by the law, so that we are bound to take notice of its existence." ^ So it is a bad plea, that a party lawfully enjoyed the goods of felons.^ So in an action for the negligent performance of duty in respect to streets and sewers, an averment, that the defendant wrungfully refused to repair, and suffered, &c., states a legal conclusion, and is bad.^ So a replication of a conclusion or inference of law is bad on demurrer.'* So, under the Code of New York, the plead- ings should be confined to a simple statement of facts, without the legal conclusions to be derived from them. Thus an answer, that " the plaintiff was not the real party in interest,'* Mellors v. Shaw, 1 Best & Smith, * Hess v. Buffalo, &c., 20 Barb. 391. 437. s Page V. Parker, 40 N. H. 47. See p. - Per Strong, J., Klander v. M'Grath, 272, n. ( for the money found due on accounting, is not multifarious. Blake v. Van Tilhorg, 21 Wis. 672. Where counts in tort and contract are joined, it should appear clearly, from the statement of facts, that the causes of action arose out of the same tri]nsaction. A general allegation that such is the case is insufficient. Flynn /•. Bailey, 50 Barb. 73. In an action for the unsoundness of a horse sold, the complaint contained aver- ments of fraud and warranty, mingled togetlicr, but in such a way that they could be separateil. Held, that this was a defect which should have been taken advantage of by demurrer, and that the plaintiff was entitled to recover upon 4 Noble V. Laley, 50 Penn. 281. 5 Wilkinson v. Moseley, 30 Ala. 562. •^ The Indianapolis, &c. v. Ballard, 22 Ind. 448. proof of a warranty alone, tlie averments of fraud being stricken out as sur]>lu.) The rule against joining tort and which alleged tliat the defendants agreed contract is often changed by statute. In to deliver certain securities, but after Kentucky, tliat the cause of action set up demand refused to deliver them, and in an amended petition is in tort, while CH. IV.] TORT AND CONTRACT. — FRAUD. 285 § 5. QuestioDS of pleading often arise in cases of alleged yVawc/, which is the intermediate ground, or the connecting link, between tort and contract. § 6. A count in assumpsit cannot be joined with a count for a deceit; and where, under a declaration containing only the latter, after an award and an appeal therefrom, the former was added, it was properly struck off upon the trial. The court remark: "That tlie same evidence will often support different forms of ac- tion there is no doubt; but cases which prove this cannot be resorted to, to prove the rightful joinder of inconsistent actions. The same evidence will often support trespass or case, deceit or trover, trover or replevin, assumpsit or debt, but it does not fol- low that you can join these several actions." ^ § 7. A complaint contained two or more counts confessedly on contract, and well pleaded, and another, which set forth that the plaintiffs sold and delivered the defendant goods to a cerlain amount, on a credit of six months ; that the defendant was in- solvent at the time of said sales, and purchased the goods without any intent to pay for them and with the intent to defraud the plaintiffs of their value, and that by reason of said fraud the de- fendant became liable to pay for the goods immediately upon their delivery. The goods not having been paid for, the plaintiffs demanded judgment for the amount of the sales with interest. The action was brought before the expiration of the term of credit. The defendant demurred, for the joinder of improper causes of action in one complaint, and for want of any sufficient cause of action set forth in the last count. Held, a good com- plaint, and demurrer overruled.^ 1 The rennsylvania, &c. v. Zug, 47 - Roth v. Pahner, 27 Barb. 652. Penn. 480 ; per Agnew, J., ib. 484. tliat set out in the oritiinal petition was in A. E., Dr. To one cow killed by j'our contract, is not <;roinKl of (leniurrer. Iloril locomotive, within Clinton, &c., S50." V. Ciiandlcr, lo B. Mon. 403. On appeal, a ju(li,aiicnt for the plaintiff Uniler the Code, in I\Iissouri, a piaintitl" was reverj;ed, for the reasons, that tlie can only recover on the cause of action complaint was not sufHcient under the stated in his petition. Where tlie jietition statute, as it did not aver that tlie road is for goods sold and delivered, nnd tlie was not fenced ; nor as a charge of tort at evidence siiows a trespass tie Imn. asport., conunon law, because it did not allege lie cannot recover. J>ink y. Vaughn, 17 negligence; nor as a count in assumpsit, Mis. 585. on waiver of the tort, for not alleging tiiat The statutory modification of the law the comjjany used the dead animal, or upon the subject is strongly illustrated derived any benefit from killing her, or by a late case in Indiana, in wliieh the jiromised to pay. Toledo, &c. v. Lunch, declaration against a railroad corporation 23 Ind. 10. was as follows : " The Toledo, &c., to 286 PLEADING. [book III. § 8. Held, also, that the cause of action set forth in the last count was upon contract ; that fraud was sufficiently set forth to justify a rescission ; that no specific act on the part of the plain- tiffs, other than bringing this action, was necessary to manifest the plaintiffs' intent to rescind ; that the facts justified the plain- tiffs in making their election to sue in assumpsit rather than tort ; and that they did not thereby adopt the express contract, but relied on the implied contract to pay, arising from the delivery and the defendant's possession of the goods.^ § 8 a. The rules on the subject of pleading, stated in the first chapter, find frequent illustration in cases relating to fraud. § 9. It is held, in general, that the burden of charging, as well as proving fraud, is on the party who relies upon it; requiring facts and not conclusions ; although it is unnecessary to state the evi- dence? Thus, in an action for obtaining property under false pre- tences, a complaint, that the plaintiff was " satisfied " that the defendant procured certain property through fraud, &c., without any other allegations of fraud, is bad. So an action for obtaining property under false and fraudulent representations cannot be sustained, if it appears, on the face of the complaint, that the representations were made subsequent to the obtaining of the property .'"^ So, in an action for deceit in making fraudulent rep- resentations, a count which does not allege any fraudulent repre- sentation by the defendants, nor any scienter, nor that the representation was made to the plaintiffs, is clearly defective.* So a declaration alleged, that the defendants falsely and fraudu- lently deceived the plaintifi" in this, that "they, as brokers of the plaintiff, employed by him to purchase oil, falsely represented to him that they had purchased for him twenty-five tuns of palm oil, to arrive by the Celma, at the price of 30/. per tun ; " whereas, in fact, the defendants purchased the oil on the terms " that the said twenty-five tuns were sold, and would be delivered to the plaintifi" after and subject to the prior delivery of 800 tuns of palm oil from the said vessel; " that the vessel arrived with less than 800 tuns; and the consequent non-delivery to the plaintifi" of the 1 Roth V. Palmer, 27 Barb. 652. Abraham v. Gray, 14 Ark. 301. See 2 Buttery. Viele, 44 Barb. 166 ; Moore Union, &c. v. Mott, 27 N. Y. (13 Smith) V. Clucas, 24 Eng. L. & Eq. 70 ; Fank- 633. boner v. Fankboner, 20 Ind. 62 ; Goodrich ^ Snow v. Halstead, 1 Cal. 359. V. Reynolds, 31 111. 490 ; Jenkins v. Long, * Behn v. Kemble, 7 C. B. (N. S.) 260. 19 Ind. 28; Swope v. Fair, 18 Ind. 300; CH. IV.] TORT AND CONTRACT. — FRAUD. 287 twenty-five tuns, and loss thereby. The facts were proved as stated, but it was conceded that there was no fraudulent intention on the part of the defendants. Held, an action was not maintain- able.^ " If the words ' falsely and fraudulently,' in the declaration can be struck out and a good cause of action left, they may be rejected, as in the case of a declaration for the warranty of a horse, or as where . . . this court held, that a plea to a declaration on a policy of insurance, averring a fraudulent misrepresentation as to the time of sailing . . . was supported without any proof of fraud, the misrepresentation affording a good defence, though not fraudulent. . . . The averment that the defendants falsely and fraudulently deceived the plaintiff cannot be rejected without striking out the whole cause of action. All that follows is merely the explanation of the deceit." So, to a suit on a note for the price of land, the plea was, that the plaintiff falsely represented, that there was on the land sufficient material to build a barn, whereas it was so insufficient that it cost the defendant $600 to buy enough more. Held bad, on special demurrer. The plea should have set out the value of the lumber as represented, and as it in fact existed at the time of the sale, that being the measure of damage. It seems, also, that the representation should have been alleged with more certainty ; '' enough to build a barn," is too indefinite. It seems, also, that the representation should have been alleged to have been fraudulent, as well as false.^ So, if a county is induced to subscribe to the stock of a railway, in pay- ment for which it issues negotiable bonds, by fraud and misrepre- sentation ; fraud can be set up against an assignee of the bonds, only where it is alleged and proved that he is not a bond fide, holder. The plea must allege why or how he is not a hond fide holder. In order to throw upon the plaintiff the burden of show- ing that he obtained the instrument hond fide and for value, the defendant must allege and prove that he took it overdue, or had notice, or gave no value.^ So, in replevin for a mare, claimed to be exempt from execution, after the plaintiff had offered evidence of his residence in Iowa, the defendant offered to prove that the mare was sold by L. & L., of Chicago, Illinois, to N. & Co., of which firm the plaintiff was a member ; that the plaint! fT then resided in Illinois ; that, in consideration of the sale, N. & Co. made 1 Thorn V. BiKland, 20 Eng. L. & Eq. '^ Kinney v. Osborne, 14 Cal. 112. 467 ; per Parke, B., ib. 409. 3 ciapp v. Cedar, 5 Clarke (Iowa), 15. 288 PLEADING. [book III. their note to L. & L,, whicli note was executed and payable in Illinois ; that by the law of that State the mare was not exempt from execution ; that, soon after the making of the note, the plaintiff, without the knowledge of L. & L., absconded from the State with the property, and came to Dubuque, in Iowa, where he was pur- sued by L. & L., who, to collect the note, sued out a writ, of at- tachment against N. & Co. ; and that under that writ the mare was attached. Held, the pleadings did not present the issue of fraud. ^ So an answer to an action upon a note, that " the note was obtained from him bj fraud, covin, misrepresentations, and deceit," is bad for uncertainty .^ And a plea of fraud should allege a scienter, and the pleader's reliance on the false repre- sentations.2 Thus a complaint against a director, for falsely and fraudulently representing that the stock of a bank is worth par, by which the plaintiff was induced to purchase stock from the bank, when in truth the stock was worthless, &c. ; must aver that the defendant knew that the stock was not worth what he repre- sented it to be, and made the representations with intent to induce the purchase."* So, in an action upon a note given to a railroad, a plea that the note was given for a subscription to stock, and through misrepresentation of the company's agent as to the amount of stock taken and the time when the road would be fin- ished, must allege that the representations were made by authority, and known to be false.^ (a) 1 Newell V. Hayden, 8 Clarke (Iowa), 3 White v. Watkins, 23 111. 480. 140. * Maybey v. Adams, 3 Bosw. 346. ■-' Honeywell v. Helm, 19 Ind. 321. 5 Goodrich v. Eeynolds, 31 111. 490. (a) Common Pleas (Penn.). Motion to establish the matter to the satisfaction of quash attachments. the judge, and as each judge is to deter- Opinion by Pierce, J., February 18th, mine what is satisfactory to him, the 1871. — Wherever an intent or a fraud is affidavit may be sufficient, though it is charged against a party, the particular defective in stating the facts and circum- fact or fiicts which indicate the intent or stances, or the particular acts of fraud, fraud should be stated to the court to Yet in both these cases the affidavits were enable the court to act intelligently, and sufficient to justify any judge in issuing a to inform the adverse party of the par- warrant of arrest. But the Attachment ticular matters which he is challenged to Act of 1869 differs from the Act of 1842 meet. authorizing warrants of arrests, in this ; Thus, under the Act of 1842, authoriz- that whereas by the Act of 1842 no war- ing warrants of arrest, the plaintiff must rant of arrest can issue without the ap- set out in his affidavit the facts from which proval of the judge, by the Act of 1869 it the judge is to infer whether such a case is made the duty of the prothonotary to is made out as justifies a warrant : Dough- issue the attachment upon proof by affi- erty v. Dougherty, 6 P. L. J. 153. And davit that the party is indebted, and is though in (iosline v. Place, 8 Casey, 520, about to remove his goods with the intent and Berger v. Smull, 3 Wright, 302, there to defraud his creditors, or to do any of is language which indicates that, as in the other matters set forth in the act. It warrants of arrest, the affidavit is to does not even say that the proof is to be CH. IV.] TORT AND CONTRACT. — FRAUD. 289 § 10. But there is a class of cases, partly depending:, no doubt, upon statutory modifications of the common law, wliicli a(U)pt a less rigid rule, (a) Thus the allegation of an answer, that the writing sued on was obtained from the defendants by fraud, covin, and misrepresentation of the plaintills, is held good. It is not a mere conclusion of law, but the averment of a substantive and traversable fact.^ So, a release being pleaded, a replication, that the release was obtained by fraud and misrepresentation, without setting out particulars, is good.^ So, in an action to recover goods obtained by a fraudulent purchase^ the vendor may declare by a general claim of property, and give in evidence the facts showing the fraud.'^ So where the complaint, in an action for false repre- sentations, sets these forth as representations of fact made by the defendants of their own knowledge, and not as impressions of opinion or belief; alleges that they were false, and that the plain- tiff relied on them, and suffered damage thereby, though not in terms any fraudulent, wilful, or intentional misrepresentation : the plaintiff may recover upon proof of those fticts, unless the defendants can justify their representations. Upon these facts, the law adjudges fraud.^ So, in a declaration for a cheat in an exchange of horses, it is not necessary particularly to describe the unsoundness.^ So it is a good declaration, that the defendant, the indorsor of a note, with intent to deceive the indorsee, falsely represented that the maker was solvent, and, relying thereon, the plaintiff accepted the note.^ So where the declaration alleged a " representation that a mortgage was good, and a valid security for 1 Whitehead v. Root, 2 Met. (Ky.) admit of knowledge on the part of tiie 58-1. plaintiff as to its particulars.) - Iloitt V. Holconibe, 3 Fost. 535. (Con- -^ Bliss v. Cottle, 32 Barb. 822. taininjj; an elaborate opinion, in wliicli the * Sharp v. Mayor, &c., 40 Barb. 256. old cases on tlie subject are cited. In ^ Keeil v. Rogers, 3 Monr. 173. some of them, the ground of decision is, '^ Jamison v. Copher, 35 Mis. 483. that covin is in its nature too secret to made to the satisfaction of the prothono- wliicii he is called to answer, e.xcept in tar}', but the act seems to contemplate the most general terms, that the plaintiff shall put on record sucli These attachments are quaslied. — Born legal proof by affidavit as will justify the v. Zimmerman (I'enn.); Leg. Intell., Feb. issuing of tlie attachmout, and will intbrm 24, 1871. the defendant why his goods have been (Zl. per cent., pay- able in half-yearly dividends of IQl. 10s. per cent, each, and that the said guaranty should remain in force until the said 12s. Gc?. per share should be tiius repaid to the shareholder ; that the de- fendant, by means of the said false, fraudulent, and deceitful rep- resentation, fraudulently induced the plaintiff to become, and the plaintiff, by reason thereof, became, the purchaser and bearer of 2500 of the said 12,000 shares at 12s. Qd. per share, and by means of the premises the plaintiff was induced to pay, and did pay, 12s. Qd. for each of the said shares ; whereas, in truth and in fact, at the time of making the said statement, the same was false and fraudulent to the knowledge of the defendant, and the de- fendant had no ground whatever for offering such guaranty to the public, as the defendant well knew ; by means whereof the plain- tiff had lost the money so paid by him as aforesaid. Held, a sufficient allegation of a false representation by the defendant, and that the plaintiff was entitled to judgment, as there was no necessity for any privity between the parties. The court com- ment upon the argument, that the action could not be maintained, because it '' did not arise from any public wrong or the neglect of any public duty. ... The doctrine . . . cannot apply to an action founded, irrespective of a contract, upon a false representa- tion fraudulently made by the defendant to the plaintiff, for the purpose of inducing the plaintiff to act upon it, the plaintiff show- ing that by so acting upon it he had suffered damage. Under such circumstances, although the parties be entire strangers to each other, the action lies." ^ (a) 1 Gerlicard v. Bates, 20 En^. L. & Eq. (Upon another count founded on contract 129; per Lord Campbell, C. J., ib. 137. judgment was rendered for the defendant.) (a) The counsel for the defendant asked : were, with a view of inducing persons to " Suppose a person coming from a colony emigrate there, to publish a book giving a CH. IV.] TORT AND CONTRACT. — FRAUD. 293 § 15. Questions also arise in reference to the joinder of parties. Tims in an action against several, for fraudulently inducing the plaintiff to buy an interest in a patented machine, an averment that the defendants conspired together to defraud the plaintiff need not be proved. " The gist of the action was not the con- spiracy, but the damage." ^ But in an action against A & B, a partnership, for fraudulent representations made by A, one of its members ; a declaration alleging that he, acting in behalf of the firm, procured a writ of replevin to be brought in the name of a third person, and signed his own name to the replevin bond as surety; and that he declared to the plaintiff, who was a deputy- sheriff, that tlie firm was responsible, and that his signature to the bond bound the firm, and that he was authorized by the firm to bind it by his signature alone, and thus induced the plaintiff to accept the bond and to serve the writ, whereby the firm obtained and disposed of the goods replevied for its own benefit; and that 1 Ilayward v. Draper, 3 Allen, 551 ; per Hoar, J., ib. 552. false account of the colony, could any one who eniion V. Pye, 1 Sid. 258. the courts to authorize a jjlea and demur- {h) The court remarked : "Itwotddbe rer of tlie same matter, — that the party a discredit to the defendant to admit on shall swear to the truth in substance and 298 PLEADING. [book III. § 23. In reference to the defence, of fraud on the part of the plaintiff; it is held that, unless a party who sets up fraud, as a defence to an action on a contract, aver, in his answer, that he has done all in his power to restore the plaintiff to his former condi- tion, he cannot show it at the trial. ^ But a plea which sets up, as a defence to an action for purchase-money, that the sale was illegal, need not offer to return the property .^ So, in an action on a draft given for a horse, the defendant pleaded, that the plain- tiff, intending, &c., did not perform his promise, but deceived and defrauded the defendant, in this, to wit : that the said horse, at the time of making said promise, and at the time of said sale and delivery, was not sound, but on the contrary was unsound, whereby said horse became and was of no use or value to this defendant. Held, a sufficient averment of breach of warranty of soundness on general demurrer, though the plea contained no offer to return the horse.^ And in a suit by a vendor to set aside a sale induced by the vendee's fraud, and for an account, the plain- tiff being a partner of the defendant, and his interest being the property sold ; an averment, that the defendant owes the plaintiff more than the sum paid for the interest, amounts to an offer to credit the defendant with that amount, and therefore sufficiently offers, upon rescission of the sale, to place the defendant in statu quoA § 23 a. Where the defendant answered, to a suit upon a judg- ment, that such judgment had been secured by fraud in his absence, and that, as soon as he was aware of the judgment, and within the time allowed by law, he was about to commence pro- ceedings to set it aside, but the plaintiff, in consideration that he would not, and of the release of the claim which he then held against the plaintiff, promised to satisfy and release such judg- ment, (fee. ; held, a good answer.^ § 23 b. An answer to an action upon a note is sufficient, which alleges that the note was given in payment for the last instalment on goods purchased of the plaintiff, represented, at the date of purchase, to be worth $3500, and that it would invoice that 1 Devendorf z'.Beardsley, 23 Barb. 656. * Watts v. "White. 13 Cal. 321. 2 Barker v. Justice, 41 Miss. 240. 5 Stone v. Lewman, 28 Ind. 97. 8 Palmer v. Wilks, 17 Tex. 105. in fact of the matters proposed to be sion and avoidance, not, as in tliis case, of pleaded ; applies only to pleas in confes- denial. CH. IV.] TORT AND CONTRACT. — FRAUD. 299 amount or more ; that the defendants were ignorant of the amount and value of the stock, and requested an invoice before purchas- ing ; but the plaintiff said he had no time to make it, but assured them that he knew the goods would amount to more than $3500 ; that the defendants purchased on this representation ; but that it was false, and known to be so by the plaintiff when he made it ; and that the goods invoiced and amounted to but $1500.1 § 23 c. In an action by the assignee of a contract to deliver to A certain watches, the answer alleged, that A imported the watches without paying the duties, and afterwards sold them to W ; that the defendant, after such sale, to settle two suits, one in favor of A and both against W, executed the contract in igno- rance of the smuggling, and that, after its execution, but before the time for delivery of the property, it was seized by the gov- ernment on account of A's smuggling it, and subsequently con- demned and sold ; that the plaintiff, before taking the assignment, knew all these facts, and that it was made without consideration and to defraud the defendant. Held, the answer was insuffi- cient, as it did not show but that the defendant executed the contract as principal (and not merely as surety for W), and on a new consideration not connected with the sale of the goods to W, and as it did not connect the defendant with the title from A to W.2 § 23 d. Where one who claimed by an assignment for the benefit of creditors, executed in the State of Maryland, alleged in his answer '' that the assignment was valid, according to the laws of Maryland," and a reply in denial of the answer was filed ; held, under the issue joined, evidence that the assignment was void by reason of actual fraud was properly admitted.-^ § 23 e. In assumpsit, for money had and received, the defend- ant pleaded a discharge in bankruptcy. The plaintiff replied that in the proceedings of the defendant, in obtaining his discharge, he was guilty of fraud, and of wilful concealment of property and rights of property. The defendant rejoined, traversing the fraud and wilful concealment, and concluding to the country. Held, on demurrer, the rejoinder was bad ; 1 Davis V. Jackson. 22 Ind. 233. 3 Whitney v. Lehmer, 26 Ind. 503. 2 Webber v. Koddis, 22 Wis. 61. 300 PLEADING. [book III. that the reph'cation was bad also, in attempting to put in issue several distinct matters; and that the plea was good, though it contained no specific averments that the debt was provable, or that the defendant had received a certificate, or that notice of a hearing was given to the creditors, before the discharge was granted.^ » Weld V. Locke, 18 N. H. 14L CH. v.] PLEADING IN TRESPASS. 301 CHAPTER Y. PLEADING IN TRESPASS. statutory law; action of property, 1. General remark; of trespass. 3. Declaration; description &c. 8. Statutory trespass. 9. Time ; conliniinndo. Sec. ; number. 16. Pleas in trespass; general issue; justi- fication. 17. Statutory moditications. 27. Pleading of title before justices of the peace. 34. Miscellaneous pleas. 37. Joinder of action; trover; different trespasses; several counts. 4.5. Replication. 50. New assignment. 58. Joinder of trespass and other forms of action; statutory changes. 68. Trespass to the person; assault and batterj*. § 1, Having considered the subject of pleading in actions for torts, generally, we proceed to a view of pleading in the particular actions which have been appropriated to particular wrongs. The remark already made in another connection may be here properly repeated ; that the statutory law, which has so extensively oblit- erated the technical distinctions or boundaries between diflerent remedies, has still left untouched many of the principles upon which those distinctions depended. § 2. In no form of action are the rules of pleading more numerous, various, and precise, than that of trespass ;. which is a common remedy for immediate and forcible injuries to personal and real property, and to the person or body, (a) This action will make the subject of the present chapter. {n) Under the (N.Y.) Code of Procedure, the plaintiff may unite in the same com- plaint a claim to recover real property, with (lamatres for the withholding. Van- devoort v. (iould, 315 N. Y. G3',t. A declaration may join a count in tres- pass, for Ijrcaking and enterinjj; the ptain- tiff's house, with a count for maliciously and without probable cause procuring a searcli-warrant, and entering the house, and thereby disturbing his possession, both counts being for the same breaking and entering. Winnie v. Pond, 34 Conn. 391. Where only single damages are recov- erable for eacii sort of trespass com- plained of, under the same statute ; there is no misjoinder. Graham v. Roark, •_'3 Ark. 19! Since tiie Common-law Procedure Act of 18.')2, § 40, a count for breaking and entering the ])remiscs of the husband may be joined with a count by the husband and wife for assaulting and imprisoning the wife. Morris v. Moore, 19 C B. (N. S.) 369. 302 PLEADING. [book III. § 3. Trespass laid with a quod cum or whereas is held bad on general demurrer, and cannot be amended after joinder.^ § 4. In trespass for taking goods, the declaration must specify the goods.2 Thus a declaration for taking fish, &c., or divers goods and chattels, is bad.^ § 5. In trespass for taking " two cows at A., and also a load of wheat, the goods of the plaintiff there found : " the words *' the goods of the plaintiff " refer only to the wheat; and therefore the trespass for taking the two cows is ill laid.* § 6. In actions for trespass to land, the locus in quo should be designated by abuttals, or other description, as it was at the time of the trespass, and not at the time of the declaration, (a) There- fore, where, in an action by a reversioner, the declaration described the locus ill quo as " abutting on the south and east on a close in the occupation and possession of the defendants ; " and the defend- ants (a railwa}'- company) pleaded that they took possession of part of the said close abutting on the south on the fence of their rail- way, under the provisions of the 8 & 9 Vict. c. 20, §§ 32, 33 which was the trespass complained of; and it appeared at the trial, that, at the time of the trespass, the close in question abutted on the fence of the railway, but that afterwards the defendants took pos- session of and purchased, under the provisions of the above act, a small part of it adjoining the railway, so that the plaintiff's description was correct at the time of declaration, but not at the time of the trespass : held, the plaintiff could not recover for want of a new assignment.^ § 6 «. A declaration, that the defendant broke and entered " cer- tain lands of the plaintiff covered with water, being the bed and channel of the river T., and under the same, in the several parishes of L. and L., in the county of G. ; " is good, on special demurrer.^ § 7. The court cannot restrict the plaintiff in his proof to any less number of lots than he has described in his declaration." 1 Holbrook v. Pratt, 1 Mass. 96. ^ Humphrey v. The London, &e., 12 2 Bertie r. Pickering, 4 Burr. 24-55. Eng. L. & Eq. 554. 3 Com. Dig. Pleader, C. 2L '' Duke of Beaufort v. Vivian, 12 Eng. 4 Jose V. Mills, 6 Mod. 15. L. & Eq. 564. ■J Gardner v. Gooch, 48 Maine, 487. (a) In New York, where a complaint trespass and ejectment, cannot be given, shows no facts constituting a cause of ac- where the complaint omits to describe any tion, tlie defendant may either demur or premises ; the proper course in such case avail himself of the defect at the trial ; is to dismiss the complaint, w^ith leave to and a bill of particulars under § 158 of amend on terms. Budd v. Bingham, 18 the Code, or under § 160, in an action of Barb. 494. CH. V,] PLEADING IN TRESPASS. 303 § 8. A count in trespass for cutting down and carrying away a tree from the plaintiff's land, which commences like a count in trespass quare clausum, but concludes with an allegation that the trespass is " contrary to the statute in such case made and pro- vided, whereby the plaintiff is entitled to recover of the defendant treble the aforesaid value of said tree, &c.," is a count for the statute penalty (Yerm. Comp. Stat. § 32, p. 550), and not a count in trespass at common law. The county court cannot allow an additional count in trover, either at common law, or by virtue of the statute (Acts of 185fi, p. 13), which allows the joinder of counts in trespass and trover, if for the same cause of action. And it is doubted whether, if the original count were simply for trespass quare clausum, the new count in trover could be added. In this case the following important distinction is taken with reference to the pleading of a statute : " the commencement of the count is in the appropriate form of a declaration in trespass upon the freehold, yet this is well enough, especially upon the general issue, although the pleader intends to go upon the statute and claim treble damages. To give a right of action founded upon the statute, the trees . . . must be standing, lying, or grow- ing on the land ol the plaintiff, and the entry . . . for such unlaw- ful purpose necessarily constitutes a breaking of the plaintiff's close. . . . The statute in this declaration is counted upon by the pleader in the usual way, by an express reference to it, not only by declaring the transaction to be against the form of the statute, but" (as above stated) "showing clearly that the pleader goes for the penalt}'. If the facts are stated which bring a case within a statute, this is what is called pleading a statute, although no mention or notice is taken of the statute ; but counting upon a statute ... is by way of an express reference to it." ^ § 9. With reference to time, trespass for taking four loads of wheat, with a continuando of the trespass for a month, is good.^ So trespass for breaking the plaintiff's close, treading down his grass, and hunting and killing his rabbits, on divers days and times from such a time to such a time, with a continuando of the said trespass as to all the particulars, is good ; for, although one act cannot be continued from one day to another, yet an act may be daily continued.^ ' Keves i-. Prescott, 32 Vt. 86; per 2 Wilson v. Howard, 5 Mod. 178. Bennett', J., ib. 87. 3 Monkton i-. Ashley, G Mod. 38. 804 PLEADING. [book III. § 10. The allegation of trespasses on a certain day, and on divers other days between that and another day, makes time a descriptive part of" the trespass, and opens the door for proof as to any trespass committed within that time, and closes it as to all others. 1 § 11. In an action for trespass qiiare clausum, and with teams, carriages, and men, treading down and destroying the plaintiff's grass upon a certain day ; evidence may be properly admitted of several separate and distinct acts or entries, each of which might alone technically constitute a breaking, when made upon the same close upon the same day, and in pursuance of the same gen- eral purpose. The court very justly remark : " The defendant cannot complain that, instead of two suits, or ten suits, if there had been as many loads of hay drawn, he has been charged with the whole in one suit. . . . No one probably ever knew a trespass charged with a continuando, from one hour or period in a day to some other hour or period of the same day ; nor does the law favor the bringing of a multiplicity of suits, especially small ones of trifling amount, where one would as well settle all the questions of right, and the plaintiff could as well recover all his actual dam- age in one suit as in two or ten. And certainly the defendant cannot complain of this, though, perhaps, he might have done so with some reason, had the opposite course . . . been pursued."^ § 12. In a second action for a continued trespass, the former verdict and judgment are evidence, but not conclusive, of title.^ § 13. Under the Massachusetts Practice Act, time need not be stated in trespass quare clausum.'^ § 14. Trespass for taking and carrying away '' mahogany tables and chairs," without specifying the number, was held well enough, after verdict ; the court remarking: "The jury must have had evidence of the number of the several articles taken ; at least tiiey would have found damages only for so many as were proved." ^ So, in New York, where a declaration in trespass de hon. asport. omits to allege that the goods taken were the property of the plaintiff, and the defendant does not appear, and the plaintiff proves the trespass and his title ; the declaration will uphold a judgment, although bad on demurrer.^ 1 Tayne v. Green, 10 S. & M. 507. ■* Knapp v. Slocomb, 9 Gray, 74. 2 Clieswell V. Chapman, 42 N. H. 47 ; ^ Kichardson v. Eastman, 12 Mass. per Sargent, J., ib. 51. 505. 3 Nivin V. Stevens, 5 Har. 272. s Copley v. Rose, 2 Comst. 115. CH. v.] PLEADING IN TRESPASS. 305 § 15. But, in general, a declaration in trespass de hon. asport. is ill, even after verdict, and on motion in arrest of judgment, if it does not aver the plaintiff's title. The court make a distinction between this case and a title defectively stated, which may be cured by a verdict. But the plaintiff was allowed to amend, upon paying the costs accrued since the case went to the jury.^ § 16. With reference to the p/e^/s in trespass, whether the gen- eral issue, or a special justification, the general rule is laid down as follows . («) "In trespass quarx clausum /regit, the defendant may give in evidence under the general issue any matter that contradicts the allegations which the plaintiff is bound to prove, or shows that the act complained of is not in its own nature a trespass. Thus he may give in evidence soil and freehold in him- self, or in another by whose authority he entered, or that he has any other right to the possession. For he cannot be a trespasser in exercising a right which the law gives him, nor be bound to justif}'' wiien he does wot pr^imd facie appear to be a trespasser." ^ The defendant may, under the general issue, give in evidence any matter which directly controverts the truth of any allegation which the plaintiff, on such general issue, will be bound to prove; and no person is bound to justif)' who is not prijnd facie a tres- passer : but, when the act would at common law primd facie appear to be a trespass, any justification or excuse, or act done by virtue of a warrant or authority, must in general be specially pleaded.^ Accordingly he may give in evidence, under the gen- eral issue, that he is tenant in common with the plaintiff, or that he entered by license of such tenant."* In general, a license must be pleaded.^ But the distinction is made, that the defence of license requires a special plea, only when such license was given by the plaintiff himself, and not by one claiming title as against the plaintiff.*^ (6) So, in trespass de hon. asport., a defence, con- 1 Carlisle v. Weston, 1 Met. 26. * Hawson v. Morse, 4 Pick. 127. 2 Per Morton, J., 4 Pick. 127. 5 Haijrht v. Badfreley. 15 Harb. 499. * Bruch V. Carter, 3 Vrooni, 554. ^ Child v. Alien, o3 Verm. 476. (a) The pica of not guilty is a waiver of (6) An answer, in an action for cutting all dilatory defences. Hill v. Morey, 26 and carrying away timber, that the de- Verm. 178. fcndant purchased the timber from the Every pica in bar must be pleaded to i)iaintifl"s vendor, under a parol license to the action, not to the damages merely, cut and take it away, and that the plain- In trespass de hon. nsporl., facts in mitiga- titl' had knowledge of the liccn.«e and tion cannot be specially pleadeil, but acquiesced therein, is good, on ilcmurrer, must be given in evidence umlcr the as a plea of license. Sclch v. Jones, 28 general issue. Hopple v- lligbee, 3 Zabr. Ind. 255. 342. 20 306 PLEADING. [book III. stituting a direct denial of, and inconsistent with, the allegations in the declaration, which are essential to be proved in order to maintain the action, may and ought to be given in evidence under the general issue. But if consistent with such a state of facts as would constitute a primd facie case of trespass, and amounting only to an excuse or justiJBcation, the facts cannot be given in evidence under the general issue, but must be specially pleaded, or a brief statement filed under the statute.^ And it is held in an old case, that, in trespass, the right cannot be given in evi- dence by the defendant, on the plea of not guilty, not even in mitigation of damages.^ In other words, matters of defence which admit the original wrong must in general be specially pleaded.^ Thus the defendant cannot justify, under the general issue, the cutting the posts and rails of the plaintiff, though erected upon the defendant's own land ; there being no question raised as to the property remaining in the plaintiff.* So a military order as a defence must be pleaded specially.^ So evidence of a former recovery is not admissible under the general issue.*^ So, as we have seen, a license to enter the house of another should be pleaded.'^ So it cannot be shown under the general issue that a trespass was committed on a public or private way.^ So matters in discharge of the action must be specially pleaded, even though given in evidence by the plaintiff.^ § 17. The common-law rules on this subject have been variously modified in the different States. But in Texas, where, to a peti- tion for entering on the plaintiff's close and tearing down and carrying away his fence, the defendant pleaded the general issue; held, under the common system of pleading, the plea of not guilty to an action of trespass quare clausum or de bonis asportatis did not put the plaintiff's title in issue, but the fact of the trespass; and that a fortiori, under the Texan form of pleading, a general denial of the petition did not put the petitioner's title in issue, but that the facts should be specially stated in the answer.^*^ So, in Illinois, a plea of not guilty, in trespass de bonis asportatis, puts 1 Fuller V. Bounceville, 9 Fost. 554. « Young v. Rumraell, 2 Hill, 478 ; Hahn 2 Dove V. Smith, 6 Mod. 153. v. Ritter, 12 111. 80. 3 2 Hill, 478. 7 Haight v. Badgeley, 15 Barb. 499. 4 Welch V. Nash, 8 East, 394. 8 Aiken v. Stewart, 63 Penn. 30. 5 Merritt v. Nashville, 5 Cold. 95. 9 Walker v. Hitchcock, 19 Verm. 634. 1" Carter v. Wallace, 2 Tex. 206. CH. v.] PLEADING IN TRESPASS. 307 in issue only tlie wrongful taking; and the verdict, " not guilty," determines nothing as to the right of property.^ § 17 a. And, in trespass, whatever admissions as to his own or the plaintiff's title, the defendant may make in his special pleas, have no effect as estoppels in pais, and do not estop him from put- ting the plaintiff to full proof of his title under the general issue. " It is always competent for a defendant, in trespass, to put the plaintiff on proof of his title under the general issue, however many special defences he may set forth on the record ; and the special pleas have no effect by way of estoppel . , . unless the issues upon such special pleas shall become subjects of litigation ; and then tliey estop only as admissions that operate to preclude proof in contradiction of the averment, or to dispense with proof of what is admitted by the pleadings." ^ § 17 6. On the other hand, in Vermont, if the defendant, in an action of trespass, give a special notice of his matter of justifica- tion under the general issue, in pursuance of the statute, the plain- tiff, on trial, may avail himself of every matter, which he might have successfully new-assigned, if the defendant had pleaded his defence specially.^ § 18. In trespass to try title, in Texas, a general denial puts in issue the plaintiff's right to recover.* The defendant under a plea of not guilty may give in evidence any special matter of defence to the action, whether legal or equitable.^ § 19. In Massachusetts, an answer to an action of tort in the nature of trespass qu. claus., which denies that the defendant en- tered the plaintiff's close, as described in the plaintiff's writ, puts the plaintiff's title in issue.^ § 20. A license must be specially set up in the answer, ^ § 21. In South Carolina, in trespass for taking goods, the de- fendant may under the general issue prove that the goods were taken as a distress for rent.^ § 22. In an action of tort in the nature of trespass to real estate, the defendant, under an answer denying that the plaintiff is seised of the premises, may put in evidence a deed thereof to himself from a former owner, under whom the plaintiff also 1 Harris v. Miner, 28 111. 135. 5 Mann's Ex'r v. Falcon, 25 Tex. 271. 2 Child V. Allen, 33 Verm. 476. Per •> Bennett i'. Clemence, Allen, 10. Barrett, J., ib. 483. ^ Iloilenbeck v. Rowley. 8 Allen, 473. 2 Keyes v. Howe, 18 Verm. 411. 8 Reed v. Stouey, 2 liich. 401. * Harlan v. Haynie, 9 Tex. 459. 308 PLEADING. [book III. claims, which is prior in date to the title relied on by the plain- till", i § 23. Under an answer in trespass qu. claus., justifying under A, as owner, the defendant may show an estate in common in § 24. In trespass for taking away goods, under a plea of prop- erty in a third person, evidence of such ownership at the time of the taking is admissible.^ § 25. Where one alleges a particular title in excuse or justifica- tion for an act which would otherwise be a trespass, he is bound to prove the title precisely as he has alleged it.* Thus where, in an action for trespass on lands, the defendants in their answer set up a title to the premises in a third person, and justify their entry under a license from him; they cannot change their ground upon the trial, and show title in one of the defendants. Or that the plaintiff's grantor was estopped from denying the defendant's title.5 § 26. Where the defendant pleads only soil and freehold in himself, and issue is joined thereon, he has the right of opening and closing. He thereby admits the act complained of, and un- dertakes to prove the property of the soil in himself. He has the affirmative, and, if he fails to make it out, the verdict must be against him.*" § 26 a. In an action for breaking and entering a close and tak- ing and carrying away stone, a plea which defends only the latter is insufficient. The defendant should plead that he entered for the purpose of exercising his other right, and that, in so doing, he did no unnecessary damage.''' § 26 h. In trespass qu. c^., if a portion of the declaration set forth injuries which admit of being construed as matter of aggravation merely, the defendant may adopt this construction, and make such a plea as will be a good defence to the gist of the action only ; and, if the plaintiff would make such injuries part of the gist of his action, he must newly assign.^ § 26 c. To a count in trespass for cutting down and carrying aAvay timber, the defendant pleaded, for defence on equitable grounds, that the former owner, whose devisee the plaintiff was, 1 Walker v. Swasey, 2 Allen, 812. ^ Ooan v. Osgood, 15 Barb. 583. 'i Jevvett V. Foster, 1-1 Gray, 495. « Davis v. Mason, 4 Pick. 156. 3 Anthony v. Gilbert, 4 Blaokf. 348. '' Goodrich v. Judevine, 40 Vt. 190. 4 Great, &c. v. Worster, 15 N. H. 412. 8 Grout v. Knapp, 40 Vt. 163. CH. v.] PLEADING IN TRESPASS. 309 had b}'' agreement bargained and sold certain timber growing on the hind to the defendant, upon the terms that in a certain event tlie defendant might from time to time enter, cut down, and carry it away at an agreed price; that, after the happening of the event and in the testator's lifetime, tiie defendant entered, cut down, and carried away, and paid for part of the timber sold, and that his entering, cutting down, and carrying away other part thereof, in pursuance of the agreement, after the testator's death, and within a reasonable time, constituted the alleged trespass. Held, the plea was bad, upon the ground that equity would not grant an unconditional injunction to restrain the action, and that a common-law judgment for the defendant would not do final jus- tice between the parties.^ § 27. It is very generally provided by express statute, that the question of title to real estate shall not be tried hy Justices of the peace, (a) § 28. In Massachusetts, in an action of trespass brought before a justice of the peace, the filing of a plea of title to re^l estate takes away his jurisdiction, and it cannot be restored by plead- ing over, and joining an issue not involving the question of titie.2 § 29. In an action of trespass, brought before a justice of the peace, for taking and carrying away the plaintiff's cow, the de- fendant pleaded that he was the owner of a close, and that the cow broke into the close, and that he thereupon impounded her. The plaintiff replied, that the defendant injured the cow. Issue was taken on the injury, and, after a trial upon that issue, the action was carried by appeal to the Court of Common Pleas, and there an amendment was allowed, putting in issue the title to the close. Held, the allowance of the amendment was errone- ous.-'^ § 30. Where, in trespass qu. claus. before a justice of the peace, the defendant pleads in bar that he entered into his adjoin- ing close, and there erected a fence, Crensliaw i\ Moore, 10 Geo. 384. < I'er Brown, J., Budd v. Bingham, 18 "^ Carter v. Wallace, 2 Tex. 206. Barb. 4%. 320 PLEADING. [book III. this motion. 1 So a declaration contained counts in trover and trespass for the same goods, the causes of action being alleged to be liie same. The latter count further averred, that the plaintiff was at the time in the peaceable possession of the goods in a store kept by her for tlieir manufacture and sale, and that the defend- ant, by forcibly entering and taking possession of the store, and seizing the goods, stopped her business for a long time, and caused her great expense in procuring other goods. Held, this was merely matter of aggravation, and the cause of action alleged in the latter count was not, by reason thereof, different from that alleged in the first count, so as to cause a misjoinder of the counts.^ § 65. Trespass is the common-law form for recovery of mesne profits in case of disseisin; but the statutory law has often changed the mode of proceeding. (See Book II.) § 66. In Delaware, in an action on the case for mesne profits, with a count in trespass for injury to the premises, evidence may be given of such injury.^ § 67. The Code of Ohio has substituted for the action of tres- pass for mesne profits an action for " damages for withholding real property and for rents and profits." Such cause of action may be united with an action for the recovery of real property. But they are separate causes of action, and should be separately num- bered and stated in the petition.^ § 68. While forcible injuries to property are redressed by the actions of trespass qit. claus. and trespass de bon. asjyor., trespass is also the remedy for violence to the person, or assault and bat- tery ; (oL) the pleadings in which may therefore be most properly considered in the present connection, (b) § 69. In an action for an assault, the day is immaterial ; proof of an assault on any day before action is sufiicient.^ 1 Williams v. Bramble, 2 Md. 313. * McKinney v. McKinney, 8 Ohio (N. 2 Belden v. Grannis, 27 Conn. 511. S.), 423. 3 Gooch V. Geery, 3 Har. 423. ^ Palmer v. Skillengjer, 5 Har. 234 ; Sellars v. Zimmerman, 18 Md. 255. (a) The (N.Y.) Code does not authorize whether such an action could be main- the joinder of counts for assault and for tained here ; because . . . it must be laid slander. Anderson r. Hill, 53 Barb. 238. to be against the peace of the king." Per [b) "If two persons fight in France, Ld. Mansfield, Fabrigas ". Mostyn, Cowp. and both happening casually to be here, 176. In general, however, this action is one should bring an action of a.s.sault not local. against the other, it might be a doubt CH. v.] PLEADING IN TRESPASS. 321 § 70. The allegation of alia enormia is not necessary.^ § 71. Legal and natural consequences need not be specially alleged. Otherwise, with damages of a different description, such as loss of health, or destruction of clothing.^ § 72. In a civil action for rape, an allegation is sufficient, that " the defendant made an indecent assault upon the plaintiff, and then and there debauched and carnally knew her,"^ § 73. Where there is but one count, the plaintiff cannot waive one assault, of which he has offered evidence, and prove another.* And evidence is admissible only of the number of assaults alleged in the declaration.^ § 74. Matters in justification, or which might be pleaded, can- not be given in evidence under the general issue in mitigation of damages ; ^ as, that the beating was inflicted by way of punish- ment for misbehavior.'^ But, under the general issue, the defend- ant, in mitigation of damages, may rely on any part of the res gestce, even though a justification, if properly pleaded ; as the plaintiff cannot be surprised by evidence of what passed at the time.^ (a) § 75. The plea of son assault demesne is a sufficient answer to a declaration for assault and battery, though the latter aver per- sonal injuries to the plaintiff, showing the assault to have been of a very aggravated character. The question, whether the defend- ant used an excess of force in his own defence, is in general to be 1 1 Chit. PI. 348. 6 Lair v. Abrams, 5 Blackf. 191. 2 lb. 346. ^ Watson v. Christie, 2 B. & P. 224 ; 8 Koenig v. Nott, 2 Hill, 323. Corning v. Corning, 2 Selil. 97. * Stante v. Pric-ket, 1 Camp. 473. 8 Bingham v. Garnault, Bull. N. P. 17 ; 5 Gilion V. Wilson, 3 Monr. 217. 2 Greenl. Ev. 71, § 93. (rt) Tiie answer to an action for assault facts were inadmissible even in mitigation alleged, that the plaintiff was a niece and of damages. The court make a distinc- adopted daugliter of tiie defendant, and tion between this case and that cited, in liad been eilucated and supported by him ; •which it was held, that, where material that, immediately before the assault, lie matter is informally alleged, or material unexpectedly met her in a ]>ublic street, matter is omitteil in a ])leading otherwise where his relations to her were well formal, if the party does not demur, but known, riding witii a man of bad ciiar- goes to trial, he is concluded by the ver- acter, by whom slie had been enticed diet. from his house about a 3'ear before, and " The defendant does not set up that he taken to a house of ill fame, kept by him, was provoked, by any act of the plaintiff, and where she had since lived and was or of any other person, at any time, to still living ; and, in the sudden impidse commit tiie alleged violence uiton her. It of the moment, he struck with his whip was virtually disclaimed by his answer, at the man in question, with the intention . . . that she was the oi)jert to wliich the of hitting liim, and the blow accidentally blows . . . were aimed, or that she had fell on her. llelil, the answer was iinma- in any manner provoked him to violence." terial, except so far as it showed the Corning v. Corning, 2 Seld. 97 ; per Jew- injury to be an accident; and the other ett, J., ib. 102. 21 322 PLEADING. [book III. determined only upon the evidence, and this issue is raised by the reph'cation of de injurid.^ But this answer must show that the first assault justified or excused the otlier.^ § 76. In trespass, for a siniple assault and battery, a plea is sufficient, that the defendant molliter manus imposuit, &c., in his reasonable efforts to prevent the plaintiff from breaking the peace by an assault upon a third person. Otherwise, when the declara- tion alleges extraordinary or aggravated force.^ § 77. Trespass, for that the defendant '* assaulted the plaintifi", and beat, bruised, pushed, dragged, and pulled about, kicked, wounded, and ill-treated him, and then knocked down and pros- trated him on the deck of a certain vessel, and then hit and struck him numerous blows." Plea, " as to the assaulting, beating, and ill-treating" the plaintiff, a justification by the defendant as cap- tain of a vessel on board of which the plaintiff and others were passengers, and alleging that the plaintiff made a great noise, dis- turbance, and affray on board the said vessel, and was then fight- ing with another person, " then also being a passenger in and on board of the said vessel, and whose name was to the defendant unknown," and was striving to beat and wound the said person ; wherefore the defendant, as such captain, to preserve peace and order, and prevent the beating and wounding of such person, gently laid his hands upon the plaintiff, which was the trespass complained of. Held, the plea would have been good, without the statement that the person with whom the plaintiff was fighting was a passenger, &c. ; that such statement did not necessarily contain matter of description, and consequently require proof; and that the knocking down and prostrating of the plaintiff was alleged as a distinct trespass, and was not covered by the plea.^ § 78. To a declaration in trespass for forcibly ejecting the plain- tiff from a railroad train, the defendant pleaded specially, in justi- fication, that he was the conductor of the train ; that the plaintiff had no ticket, and refused to pay his fare ; that he required the plaintiff to leave the train, and thereupon the plaintiff did leave the train accordingly, which was the same ejecting complained of. Held, this was no admission of the alleged trespass, and the 1 Mellen v. Thompson, 32 Verm. 407. * Noden v. Johnson, 2 Eng. L. & Eq. '-' Sclilosser v. Fox, 14 Ind. 365. 201. " Mellen v. Thompson, 32 Verm. 407. CH. v.] PLEADING IN TRESPASS. 323 pleas were therefore bad, as amounting only to the general issue. 1 § 79. If the declaration contain two counts, alleging different assaults and batteries, and the plea justify only one, the plaintiff, by replying de injuria, waives the benefit of one of the counts, and cannot give evidence of an assault and battery different from the one justified.^ § 80. If, to a declaration for an assault containing but one count, a justification be pleaded, and the plaintiff reply dc injuria, he cannot introduce testimony relating to any other assault than the one specified in the pica. He should new-assign.-'^ § 81. W S071 assault demesne be pleaded, the plaintiff may, under the replication de injurid, &c., prove that the defendant's battery was excessive, without specially replying the excess.* § 82. The declaration averred an assault on the plaintiff" while sitting in his gig." The replication represented the defendant in the gig, " and the plaintiff gently laid hands on him and put him out," and then the assault. Held, this was not a departure ; for both allegations, though apparently discrepant, might be true, as they did not necessarily refer to the same exact point of time.^ § 83. The plea to assault and battery was son assault demesne, which the replication confessed and avoided. The rejoinder sub- stantially reitei'ated the plea. Held, it was bad for not traversing the replication.*^ § 83 a. Under the plea of S07i assault, &c., and the replication de injuria, &c., the burden of proof is on the defendant.'^ § 84. The replication puts in issue only the allegations of the plea. Hence the plaintiff cannot, under it, prove new facts show- ing that the plea, though true, is not a justification. As that the defendant, being in his house, abused his family and refused to leave; and, upon the plaintiff's gently laying hands on him to put him out, furiously assaulted and beat him.*^ So under this repli- cation to a plea, that the acts were done in defence of the master of the defendant, the plaintiff cannot justify his own assault upon the master.^ 1 Blond V. Adams, 33 Verm. 52. v. Simp.son, 1 Cr., M. & R. 757 ; Guy v. 2 Berry i: Borden. 7 Blaekf. 384. Kitcliiner, 2 Str. 127. 2 Car|ienler r. Crane, 5 ib. 119. ^ King v. riiipjiard, Carth. 280. •* Fisher r. Bridjies, 4 ib. 148. ^ Webber ;■. Liversnch, I'eake's Add. 5 McFarland v. Deane, 1 Cheves, 64. Cas. 51 ; ace. Sayre v. Kockt'ord, 2 W. Bl. « Ib. 1165. ■J Crogate's Case, 8 Co. 66 ; Timotliy 324 PLEADING. [book III. § 85. If a party justified a trespass upon a slave upon the ground tliat he was a patrol, and the plaintiff replied that the punishment was excessive ; the replication admitted the justification as alleged, and precluded the plaintiff from offering any evidence to dis- prove it.^ § 86. In trespass for ejecting the plaintiff from a railroad sta- tion, where the defence is that it was rightfully done, the replica- tion, setting up the purchase of a ticket, and that the plaintiff was waiting in the station to take a train, must allege that the train was expected soon to leave. But not, necessarily, that the plaintiff went into the station-house for the purpose of travelling upon the cars, if it appear that such purpose was formed after his entry and before the assault.^ § 87. In trespass for assault and battery, the declaration con- tained only one count, and the pleas were, 1. Not guilty; 2. Son assault demesne. The plaintiff new-assigned, and the defendant pleaded not guilty to the new assignment. Held, the plaintiff was not obliged to prove two trespasses ; but only a trespass differing from that justified, and agreeing with the new assign- ment.^ 1 Tomlinson v. Darnall, 2 Head, 538. 3 "West v. Rousseau, 7 Blackf. 450. 2 Harris v. Stevens, 31 Verm. 79. CH. VI.] ACTION ON THE CASE, INCLUDING TROVER. 325 CHAPTER VI. PLEADING IN THE ACTION ON THE CASE, INCLUDING TROVER. 1. General rule; nature of the action. 10. Negligence; declaration. 2. Nuisance, negligence, and conversion. 13. Subsefjueiit pleadings. 2 a. Nuisance; di-tinction from trespass; 19 o. Conversion; trover and case. declaration. 20. Declination. 7. Subsequent pleadings. 25. Subsequent pleadings. § 1. Analogous to the action of trespass is that of trespass on the case, or, as it is more commonly termed, the action on the case. § 1 a. Although an action be described in the writ as trespass on the case, yet, if the declaration show a cause of action of tres- pass de bon., the plaintiff may require the action to be so consid- ered, ^ " The declaration ought not in general to state the injury to have been committed vi et armis, nor should it conclude contra pacem, in which respects it principally differs from the declaration in trespass. In other points, the form of the declaration depends on the particular circumstances . . . and consequently there is greater variety in this than in any other form of action." ^ § 1 6. In an action on the case against a surgeon for unskil- fully performing an operation, a count may be joined, averring that he maliciously pretended that he would improve the appear- ance of, and restore, the eye of the plaintiff, with the intent to defraud her of her money .^ § 1 c. The rules of pleading in this action are comparatively few and simple, " An action upon the case is founded upon the mere justice and conscience of the plaintiff's case, and is in the nature of a bill in equity, and, in effect, is so. Whatever will, in equity and conscience, according to the circumstances of the case, bar the plaintiff's recovery, may, in this action, be given in evi- dence, because the plaintiff must recover upon the justice and conscience of his case." * " The plea. ... is usually the general issue, not guilty ; and under it (except in an action for slander 1 Tlie Wliite, &c. v. Dow, 1 Cart. 141. * Per Lord Mansfield, Bird v. Randall, 2 1 Cliit. PI. 147. 3 Burr. 1353. 3 CadweU v. Farrell, 28 111. 438. 326 PLEADING. [book III. and a few other instances) any matter may be given in evidence, but the Statute of Limitations." ^ § 2, We shall hereafter consider the specific injuries for which this action is the prescribed remedy. In the present connection it may be stated, that, in general, it is brought either for nuisance, negligence, or conversion. § 2 a. As we have already seen (Chap. IV.), the points of dis- tinction between case and trespass are often very nice. They are illustrated by a recent decision in Massachusetts, relating to an action for nuisance. § 3. Declaration, that the plaintiff was lawfully possessed of a certain close, and the defendant, " well knowing the premises, wrongfully and injuriously kept and continued a building project- ing and overhanging the plaintiff's said close, and before then wrongfully erected and built, projecting as aforesaid, for a long space of time." Held, an action of tort for a nuisance, and, the plaintiff having prevailed, that the defendant could not except to an order of court entering judgment that it be abated. The court remark in reference to this declaration : *' It has not the peculiar characteristics of an action of trespass. . . . There is no allegation that the wrong or injury was committed ' with force and arms ' or * forcibly.' It may be that an action of trespass might have been brought for the erection and continuance of the structure . . . and that, on proof of the plaintiff's title, and of the facts and circumstances, . . . such action would be the only appropriate and proper remedy. But that is not the question before us on this record. We are not called on to decide a ques- tion of variance, . . . but only to determine the nature of the action." ^ («) § 3 a. In another recent case, where a declaration in case al- leged tliat a railroad engine, by the negligence of the defendants' servants, was run upon the intestate, whereby he was killed, the court remark : " The defendants . . . urge that, as the action is case, consequential damages are necessary as the gist of the action, while there are none here alleged, inasmuch as the plaintiff's in- 1 1 Chit. PI. 147. 2 Codman v. Evans, 7 Allen, 431 ; per Bigelow, C. J., ib. 433. (a) An action for creating a private tion of the petition is necessary. Ray ?;. nuisance is an action for an injury to tlie Sellers, 1 Duv. 254. person, and, under the Code, no verifica- CH. VI.] ACTION ON THE CASE, INCLUDING TROVER. 327 testate was killed instantly. . . . Althongli the form of action is case, as it must be, of course, if the defendants are liable at all, . . . the injury is none the less direct and positive than if tres- pass was the form." ^ § 3 6. The declaration need not show that the plaintiff has a freehold estate in the premises affected by the nuisance ; but it is enough that he is in possession.^ § 4. It is not necessary to give a local description to the nui- sance, in an action on the case for diverting the water of a naviga- tion ; and therefore if it be doubtful, whether the place where such navigation is stated to be is laid in the declaration as a venue or as local description, it will be referred merely to venue, and need not be proved to be at such a place ; but it is sufficient if it be at any other place within the county.-^ § 5. Where the count, in an action of nuisance, alleged that the nuisance was beloiv the plaintiff's land, and the proof was that it was adjoining and on the plaintiff's land ; held, the variance was fatal. 4 § 6, In case for the disturbance of a ferry, a count, alleging that the plaintiffs were entitled to a certain ferry across the Thames, and that the defendant conveyed passengers and goods across the river near to the plaintiffs' ferry, and that, by reason thereof, the plaintiffs lost profits, and were prejudiced and disturbed in the possession and profit of their ferry ; was held, after verdict for the plaintiffs, to disclose a sufficient cause of action.^ § 7. To a declaration in case for an injury arising from smoke issuing out of the defendant's factory chimneys, the defendant justified under a prescriptive right. This plea was traversed, and the plaintiff new-assigned. It was proved that one of the chimneys had been erected for more than twenty years. Held, upon the issue raised by the traverse, the defendant was en- titled to the verdict.^ The remarks of the judges will show the particular grounds of the decision : " If this were an action of trespass and this a plea of justification, it would not be sufficient to entitle the plaintiff to recover, because a justification being pleaded, the defendant would have a right to apply that justifica- tion to the trespass proved ; and then, if there were any excess, 1 Per Ellsworth, J., Murphy v. N. Y. * Brown v. Woodworth, 5 Barh. 550. &c., 30 Conn. 187. 6 Eiacketer r. fJillott, 9 Com. B. 20. 2 Comes V. Harris, 1 Comst. 223. 6 Bennett i-. Thompson, 37 Eng. L. & 3 Mersey, &c. v. Douglas, 2 East, 497. Eq. 51. 328 ' PLEADING. [book III. the plaintiff ought to have new-assigned. . . . But it is said, that there is a distinction between an action of trespass and an action like this upon the case ; and that, as the action upon the case stood formerly, the plaintiff was not bound to prove the wliole of the declaration. But since the new rules, a party relying upon an easement must plead that specially, which makes it the same as trespass, . . . We must consider this as an action of trespass to which a plea of justification is pleaded and proved . . . other- wise the plaintiff might recover for the whole . . . whereas . . . as to part the defendant was justified." ^ " The defendants plead that they had an easement for the smoke, and this easement is traversed and found for the defendant [sj. . . . The replication traverses the easement ... as to some part of the subject-matter ; and if it had said that they had a right to an easement for the smoke from the four chimneys, that would have been divisible ; but they only claim an easement as to one, and that being trav- ersed is found for the defendants." ^ § 8. In an action for a nuisance originally brought on the 1st of April, but the declaration in which had been amended under a judge's order by making it the 19th of April, the defendant pleaded, except as to alleged grievances committed by him before April 15, not guilty, and paid money into court in respect of the grievances before that date. A rule to show cause why these pleas should not be struck out or amended was refused.^ § 9. In trespass on the case for destroying the plaintiff's com- mon in six acres, a justification in three acres only is ill."^ § 9 a, A statute provided as follows : " The plaintiff may unite injuries with or without force to the person ; injuries with or without force to the property, &c. But the causes of action . . . must belong to one only of these classes." Under this statute, injuries both to person and property, from an act of negligence, may be joined in the same complaint. '* The plaintiff has not united several causes of action. . . . He has stated only one. . , . The legislature . . . must have had reference to the causes of action as they were then bounded, limited, and defined by the common law. . . . This 167th section, instead of severing causes of action . . . was intended to lessen suits, by allowing the 1 Per Coleridge, J., 37 Eng. L. & Eq. 3 Fountain v. Chamberlain, 37 Eng. L. 53. & Eq. 260. 2 Per Crompton, J., ib. * Mosse v. Bennett, 8 Mod. 120, 121. CH. VI.] ACTION ON THE CASE, INCLUDING TROVER. 329 plaintiff to bring into tlie same suit any number of assaults com- mitted upon distinct and independent occasions. And so he may join, in the same action with assault and battery, any other injury to the person. . . . The Code does not abolisii. . . . the causes of action . . . nor . . . define what shall constitute a cause of ac- tion , . . The 69th section has abolished the forms of the action, but it leaves . . . the causes as they were." ' § 10. Negligence is a question of fact, or mixed law and fact.^ Hence a declaration for negligence, generally, is held good.^ So it is not necessary to aver gross negligence. When the right of recovery depends on the degree of negligence, it is a matter of proof, and not of pleading.^ In actions for per- sonal injuries, resulting from negligence, it is sufficient to al- lege, in general terms, that the injury was occasioned by the carelessness of the defendant, without setting forth the cir- cumstances to show it. An allegation of the extent of the in- jury, and of the manner in which it was inflicted, is sufficient. Thus a petition by an administratrix, alleging that the defendant, by means of his wilful neglect, shot and killed her said husband, to her great damage, &c.^ § 10 a. It is held that a declaration in case, alleging both neg- ligence and malice, is sustained by proof of the former alone.^ So an allegation, that an act was wilfully and maliciously done, is sustained by proof that it was done carelessly, and resulted inju- riously to the plaintiff.'^ So in an action for negligence, where three counts aver gross negligence, while another count avers negligence only ; a plea to the whole declaration is held bad on demurrer.^ So in a suit for a fall into an area in a public side- walk, a declaration, that the defendant " dug, opened, and made " the area, is sustained by evidence that it was caused by him, whether by excavation, or by raising the sidewalk, or by both.^ So the declaration for neglect to sue on a bond charged that the neglect was wilful. Held, the charge not being material or tra- versable, a plea, merely denying it, was bad.^*^ So a complaint, 1 Howe i'. Peckliam, 10 Barb. 65G ; per » Chiles v. Drake, 2 Met. (Ky.) 146; Mason, J., ib. 658. Strain v. Strain, 14 111. 368. - McCauley v. Davidson, 10 Minn. « Panton v. lloilaiHl, 17 Johns. 92. 418. •? McCord v. IIIkIi, 24 Iowa, 386. 8 Indianapolis, &c. v. Keeley, 23 Ind. 8 Illinois, &c. K. R. Co. v. Head, 37 133. 111. 484. * Chicago, &c. V. Carter, 20 Dl. 390. » K()bl)ins v. Chicago, 4 Wall. 657. 10 Marshall!;. Hamilton, 41 Miss. 229. 330 PLEADING. [book III. that the defendants' reservoir, by reason of some fault in its con- struction, or some carelessness and mismanagement on the part of the defendants, broke away, &c., is good under tiie practice of California. Negligence in the construction and in the manage- ment need not be set out as distinct causes of action, in distinct counts.^ § 10 b. In an action for injury caused by the careless driving of a servant, the court refused an order for particulars of the injury .2 § 11. In declaring, under the Code of Alabama, for neglecting to use due diligence in the collection of a judgment, out of the proceeds of which, when collected, the defendant had promised in writing to pay a specified amount; it is not necessary to aver in what respect he had failed to use due diligence; an allegation, that " he has failed and omitted to do so from mere neglect," is sufficient.^ § 11 a. Declaration, that the defendant had received money and given his receipt therefor to the plaintiff, specifying that certain land was to be entered therewith ; that, relying on the assurance of the defendant, the plaintiff had conveyed the same to B, for whose use the action was brought, and that since that time one G- had entered the land. The defendant demurred, for the reason that it did not appear that the plaintiff had been dispossessed, nor that the original receipt had been assigned to B, nor whether he had given a warranty deed to B. Held, these facts need not appear ; that the gravamen of the action was, that by the defend- ant's neglect to enter the land the plaintiff had never had any title or possession ; and that, though suing for the use of B, B's claims need not appear, as the nature of them could not affect the right of the plaintiff to maintain the action.* § 11 h. The second count of a declaration stated that a mes- suage and land, the reversion whereof belonged to the plaintiff, were supported by the land adjoining; yet the defendant wrong- fully and negligently dug and made excavations in the land ad- joining, without suflSciently shoring the messuage and land, and thereby deprived them of their support, whereby they sank and were injured. The third count stated, that the plaintiff, by reason 1 Hoffman v. Tuolumne, &c., 10 Cal. 3 Gliddon v. McKinstry. 25 Ala. 246. 413. * Scott V. Granger, 3 Clarke (Iowa), 2 AVicks V. Macnamara, 3 Hurl. & N. 447. 5G8. CH. VI.] ACTION OS THE CASE, INCLUDING TROVER. 331 of her said interest in the messuage and land, was entitled to have the messuage supported laterally by certain land adjoining ; yet the defendant wrongfully and negligently dug and made divers excavations in the land adjoining, without sufficiently shoring the said messuage and land, and thereby deprived the messuage of the support to which the plaintiff was so entitled, whereby the messuage and land sank and were injured. Held, the second count was good, although it did not allege any right to support; for, as it did not appear that the defendant was the owner of the adjoining land, he must be taken to be a stranger and a wrong- doer. Also, that the third count was good.^ § 12. More especially, in a count for negligence, the particulars in which such negligence consisted are not required, Avhere they lie more properly in the knowledge of the adverse party .^ And any defect in this respect will be cured by verdict. Thus in an action against an attorne}', for negligence, it was alleged that " the defendant did obtain judgment for the plaintiff, on said notes and accounts, and did, without the consent of the plaintiff, and contrary to his express directions, undertake to settle and adjust such claims with said P., and did not follow the instructions of the plaintiff; but so carelessly and negligently conducted the said trust, that the said debt has never been paid or collected, and the plaintiff has wholly lost the attachment," Tilson v. Clark, 45 Barb. 178 ; per Miller, J., ib. 181. (a) In Indiana, circumstances of mitiga- And the rule is held applicable to no tion maybe set forth in the answer, though other action, except for libel and slander, not required to be. Swinney v. Nane, 22 Smith v. Lisher, 23 Ind. 500. lud. 178. CH. VIII.] LIBEL, SLANDER, ETC. 357 it. And the same construction is to be given to the section of the Code, which allows at the same time a justification and ciicum- stances in mitigation. And the plaintiff may object to the intro- duction of evidence under an answer thus defective, though he might also have compelled an amendment by motion.^ § 42 a. Wliere the only plea justifies the words as true, the affirmative of the issue being on the defendant, he has the right to open and reply in evidence and argument.- § 43. Not guilty and a justification may be jcjintly pleaded.^ In Massachusetts, a denial of having spoken the words cliarged, and an averment of their truth, are consistent defences, and may be separately stated in the same answer.* But to a declaration containing three counts for three distinct libels, the court re- fused to allow the defendant to plead one general plea of justi- fication.^ § 44. The plaintiff alleged that, he having advertised his goods for sale by auction, the defendant published a libel, whereby, after reciting the advertising and that the plaintiff unlawfully- detained goods of the defendant, and which, as the defendant was informed, the plaintiff intended to dispose of, the defendant gave notice that the goods were his absolute property, and did forbid the purchase of them ; by means whereof the sale failed alto- gether. Plea, that the plaintiff did unlawfully detain, &c., that the defendant w^as informed and believed, &c., and therefore the defendant published the said words for the purpose of warning all persons from purchasing the goods so unlawfully detained. Held good, on demurrer, as amounting to the general issue. Also, by one Justice, as showing the truth of the statements.^ § 45. Declaration, that the plaintiff was cashier to A, and the defendant, in a letter to A, falsely, &c., the words, '• I conceive there is nothing too base for him to be guilty of." Justification, that the plaintiff signed and delivered to the defendant an I. 0. U., and afterwards, on having sight thereof, falsely and fraudulently asserted that the signature was not his, and that the libel was written and published solely in reference to this transaction. Held, the libel must be interpreted by the subject-matter, and the justification was sufficient." 1 Wacliter v. Quenzer, 29 N. Y. (2 * Payson v. Macnmber. 3 Allen, 69. Tiffa.) 547 ; Sorrell v. Crai}r, 15 Ala. 789. ^ Honess v. Stubl)S, 7 C. IJ. (N. tS.) 555. 'i Mosos V. Gatewood, 5 Rich. 234. « Carr i-. Diickett, 5 Hurl. & Nor. 783. 3 Smith V. Smith, 39 Penn. 441. 1 Tighe v. Cooper, 7 EU. & B. 639. 358 PLEADING. [book III. § 46. The defendant is bound to make out the defence which he lias chosen. Thus where, in an action for charging false swearing, the defendant by his plea has based his defence on the fact that the plaintiff was guilty of perjury ; he will be required to prove the perjury. ^ (a) So a justification must be an answer to the exact charge. Thus words charging the plaintiff with having begotten a bastard child, and thereby having committed adultery with the child's mother, are not answered by a pie alleging adulterous intercourse with the mother.^ So where a plea justified words which charged the sale of intoxicating liquor contrary to law, bj' setting forth several distinct sales; held not sufficient, on general demurrer, because it did not allege that such sales were contrary to the laws of the State.'^ § 47. In an action for libel ; that the publication is not a libel, is a good plea.^ So it is a good defence, under the plea of not guilty, that the publication consists of a fair, correct, and impar- tial report of a trial in a court of justice.^ § 48. Where the charge is not matter indictable, a plea of justification may be allowed, in a general form, the defendant ren- dering particulars of the charges intended to be justified.^ § 49. If a plea may justify a part only of distinct charges, it will at all events be bad on general demurrer, if, where the libel- lous matter is all charged in one count, it do not deny or justify the whole or all the charges which it professes to cover." And where, in an action for libel, the defendant had charged the plain- tiff with having on a certain occasion acted from motives of spite and lucre, and pleaded a justification, which failed as to the latter feature of the charge ; held, the libel being entire, the defendant was not entitled to a verdict on the plea as it stood, or as to any part of it.^ § 50. The court refused leave to plead, to a declaration contain- ing three counts for separate libels, a general plea of justification, that the libels in the several counts were true.^ 1 Hicks V. Eesing, 24 III. 566. 6 Behrens v. Allen, 8 Jur. (N. S.) 118. 2 Holton V. Muzzey, 30 Verm. 365. ' Ames v. Hazard, 6 R. I. 335. 3 lb. 8 Cory v. Bond, 2 F. & F. 241. * Nixon V. Harvey, 8 Ir. Com. Law, 9 Honesst-. Stubbs, 7 C. B. (N. S.) 555, 446, Exch. 6 Jur. (N. S.) 682 ; 29 L. J., C. P. 2-2.0. ^ Lewis V. Levy, 4 Jur. (N. S.) 970; 27 L. J. Qu. B. 282. (a) Underaplea of justification wherein only necessary to aver and prove that the the defendant avers that the plaintiff plaintiff had sworn falsely to establish the wilfully committed perjury in a certain justification. Harbison v. Shook, 41 111. Case, he must prove the plea, though it be 142. CH. VIII. MALICIOUS PROSECUTION. 3o9 § 51. A plea, justif>M"ng the repetition of a slander, because the plaintiii' had first said the same of himself, will not let in evidence tending to prove the charge. Under such plea, the defendant is confined to declarations of the plaintiff prior to the slander.^ § 52. If there be evidence of express maUce, the jury may give exemphuy damages. The plea of justification on the truth, wholly unsupported, is evidence of express malice. But this plea is held not necessarily evidence of express malice. As where the defendant, having good grounds and reasonable cause to believe the plaintiff guilty, on evidence creating a strong presumption of guilt, pleads a justification for the purpose of getting tlie circum- stances in evidence, and not for the purpose of repeating the slander.^ § 53. With reference to the action for malicious prosecution^ a wrong usually classed with libel and slander, as done to character or reputation ; little needs to be added, in the present connection, to wiiat was said in treating of the injury itself. (See Hilliard on Torts, Ch. XVI.) The remedy is an action on the case, the pleadings in which, as already explained, are less technical than in other actions, and give rise to comparatively few questions and decisions. § 54. It is held that a variance, between the day alleged in the declaration as that of the plaintiff's acquittal, and the day of trial mentioned in the record which is offered in evidence, is not fatal, unless the day is alleged by way of description of the record. Otherwise with a misdescription in this respect, or of the teste or return of process.^ § 55. Under a declaration which avers the wrongful and vexa- tious suing out of an attachment, and the seizure of the goods of the plaintiffs, whereby they have lost the advantage and benefit of their business as merchants, been forced to abandon the same, and been " wiiolly ruined in their circumstances," Thompson v. Moore, 2 Allen, 350. SG-i PLEADING. [BOOK III. kept, maintained, and continued the drain so deepened. Held, a sufficient allegation of positive wrongful acts of the defendants, by which the drain had been kept open.^ § 7 6. A complained, in a mandamus against the trustees of a navigation, that there were sluices near his land under their management ; that, owing to heavy rains, the water had risen ; that the sluices were not raised to such a height to let off the water as they ought to have been, and, but for possible damage to works of the trustees in another place, would have been; whereby he suffered damage ; but not that the sluices raised the water higher than it would have risen had they not existed. The issue on the return and pleadings was, whether the damage was occasioned on account of the navigation. Held, the allegations, though they might have been insufficient on demurrer, were, after verdict, sufficient to warrant judgment for A.^ § 7 c. In an action brought by a town to recover damages to a highway, occasioned by a freshet, the question, whether the injury was caused by negligence and want of skill in the defendants in managing their dam-gate and the culvert-gate ffashboards after the freshet commenced, is not open, under the allegations in the declaration, that the injury was caused by the unskilful and negli- gent construction of the dam, and its not being kept in proper repair.^ § 8. Under the California practice, words which are technical, but not important, may be rejected as surplusage, if they do not lead to misapprehension as to the material facts of the case, which are otherwise clearly stated. Thus, in a suit for damages oc- casioned by the overflow of water from the defendant's land, bringing with it gravel, stones, &c., the averment of "with force and arms broke and entered " is immaterial, and need not be proved.^ So where the complaint alleges that the defendant wrongfully and injuriously diverted water, while the testimony shows the injury to be the result of the act of another, preventing its return to its channel, as designed by the defendant, after its use; this is no variance.^ So, A and B being owners of lands and mills on opposite sides of a river, which mills were operated 1 Smith V. Modus, 33 Conn. 460. * Darst v. Rush, 14 Cal. 81. See Pick- ^ Lord Delamere v. The Queen, Law ett v. Condon, 18 Md. 412. Eep. 2 H. L. 419. 5 Stein v. Burden, 29 Ala. 127. 3 WendeU v. Pratt, 12 AUen, 464. en. IX.] INJURIES TO PROPERTY. 365 by the waters raised by a dam across it^ A brought an action on the case against B, fur unlawfully raising the dam on his side of the river, in such a manner as to inundate A's wheel and mill ; alleging that he was entitled to the free course of the waters, and to the use of them for his mill, by means of the dam, free and undisturbed. In support of this allegation, A gave in evidence an indenture, from which both parties derived their titles, provid- ing, that, when there should be water enough in the pond, all the mills might be improved, without let or hindrance; l)ut, when there should be want of water, the party undei- wlioui J3 claimed should have the solo ])Ower of drawing the water out of the pond, for his mills, three whole days in four, and the party under whom A claimed should have the like power one day in four. Held, there was no fatal variance ; for the indenture proved the right alleged, either for the whole time, or for one day in four; and, in either case, A was entitled to recover to the extent of the injury proved.^ But where, in an action for diverting water, the declara- tion alleged, that the plaintiff was entitled to all the water in a dam which should rise above a certain mark, and the evidence showed that he was entitled only to such part as should remain after a prior use by the defendant ; held, on error, a i'atal variance.^ So, under a complaint for obstructing a stream, and causing the water to flow back upon and over land of the plaintiff, the plain- tiff cannot show that raising the stream interfered with the nat- ural drainage of the land, so that the rain-water did not soak away, but remained until it dried away.-^ So a declaration, for the ob- struction of "a small stream of water" running through the plaintiff's land, is not sustained by evidence, that the flow, through a ditch of water which has accumulated from rains or the melting of snow, or the undermining of the land, has been obstructed.'^ So a declaration, for the diversion of a watercourse running through the plaintiff's cedar swam]>, by digging a ditch from the channel thereof, above the swamp, on land not belonging to the plaintiff, and diverting the water into it, and thereby injur- ing the swamp ; is not sustained by proof, that the defendant dug a ditch which diverted the water from flowing in an ancient stream into a large swamp, of which the jilaintiff 's land was a portion, if no watercourse of the plaintiff is thereby disturbed; 1 Bunlick V. Glasko, 18 Conn. 494. 3 Pixley v. Clark, 32 Barb. 268. '' Wilbur V. Brown, 3 Denio, 356. * Dickinson v. Worcester, 7 Allen, 19. 366 PLEADING. [book III. altliougli it does not appear that the defendant had authority for his acts.i § 9. To an action for wrongfully keeping and maintaining a weir at a height beyond its ordinary level, whereby the plaintiff 's lands were flooded, the defendant pleaded, that " he did not wrong- fully keep and maintain the weir at a height greater than its ordinary level.*' The issue followed the words of the plea. Held, the plea only put in issue the maintenance of the weir; and evi- dence on behalf of the defendant, that such maintenance was rightful, was inadmissible.^ § 9 a. In an action for sedimentary flowage, an answer, denying the allegations that the plaintiff owns the land overflowed, and that the defendant " wrongfully '' caused the overflow, but not that he caused it, does not admit that he caused the sediment to flow upon the plaintiff's land; it puts the ownership in issue.^ § 10. Under an answer to a complaint for flowing land, which claims the right to maintain the dam at its present height, without compensation, the burden of proof is on the respondent."* § 11. In an action for diverting a stream, by cutting ditches on the defendant's lot above that of the plaintiff; the defendant can- not set up, by way of equitable defence, a parol agreement be- tween them relative to the deepening of the channel on their respective premises, made several years before, and having no connection with, the diversion. Nor could such an agreement have been set up as a counter-claim under the New York Code of 1852. Nor by way of recoupment of damages. Nor could the defendant claim damages for breach of the agreement, as a set-off, under the Revised Statutes, or the Code prior to 1852.^ § 12. Under a canal act, mill-owners, within a specified distance of the canal, were entitled to use the water for the purpose of condensing the steam used for working their engines. In an action against such a mill-owner, the declaration charged, that he abstracted more water than was sufficient to supply the engine with cold water for the purpose of condensing the steam, and that he applied the water to other and different purposes than con- densing steam. The plea alleged an user by the defendant, as occupier of the mill, of the water, as of right and without inter- 1 Griffith V. Jenkins, 2 Allen, 589. » Wood v. Richardson, 35 Cal. 149. 2 Blood V. Keller, 11 Ir. Com. Law Rep. * Jackson v. HarrinEjton, 2 Allen, 242. 132 Exch. 5 Pattison v. Richards, 22 Barb. 143. CH. IX.] INJURIES TO PROPERTY. 367 ruption for twenty years, for other purposes than condensing steam, to wit, for supplying the boiler of the engine, and of gen- erating steam for working the engine, and of supplying a certain cistern, to wit, a cistern on the roof of a certain engine-house. The replication traversed such user. The evidence was, that the defendant was the occupier of two mills, adjoining to each other and occupied together, each having a separate steam-engine. The '* old mill " was erected in 1823, since which time the defend- ant had used the water from the canal for twenty years, for the purposes mentioned in the plea, in respect of the '* old mill." The *' new mill" was built in 1829, and the water had been used, as alleged in the plea, for less than twenty years in respect of that mill. There was no cistern on the roof of any engine-house, but there were various cisterns in and about the engine-house in the old mill, through which the water passed. The jury found that the two buildings formed one mill, and that there had been a twenty years' user as of right by the defendant. Held, the issue was divisible, and the defendant was entitled to the verdict, ex- cept as to the supplying a cistern on the roof of the engine-house, as to which the plaintiff was entitled to a verdict, with nominal damages. Held, also (upon motion for judgment non obstante veredicto^, that the plea was bad, as the canal company had no right to grant the water for other purposes than for condensing steam, and that no such right could consequently be inferred from a twenty years' user. ''This is a claim by the defendant to im- pose a servitude on the canal, by the effect of a twenty years' adverse user. . . . Twenty years' adverse user will not establish such aright unless the owner of the servient tenement is capable of giving such a right by express grant. Now, if there had been such a grant here, . . . the plaintiffs, who are trustees for public purposes, would, nevertheless, have a right to the flow of the water." ^ § 13. The plaintiff was entitled, for the purposes of his mill, to a supply of water, by means of a stream running through and over the lands of the defendant. The defendant, in working the minerals lying under the bed of the stream, had caused a subsi- dence of the bed, to the extent of four feet, for some distance. In order to maintain the original level of the stream, the defendant 1 The Eoclidale, &c. v. Radcliffe, 12 Eng. L. & Eq. 40'J ; per Erie, J., ib. 418. 368 PLEADING. [book III. had constructed embankments on either side, and there was no actual diminution in the supply of water to the mill. Upon a bill for an injunction, the court refused to make a hostile decree against the defendant. But, by reason of the subsidence, he was required to give an undertaking, not to work the mineral in such a way as to obstruct or interfere with the flow and passage of the water to the mill ; staying further proceedings ; giving no costs ; but reserving liberty to the plaintiff to apply, if occasion should require.^ § 14. With reference to the subject of lights and other ease- ments ; in an action for injury to the reversion by obstructing ancient lights, it is sufficient for the declaration to show an ob- struction which may cause such injury, especially if it is alleged that by means thereof the plaintiff's reversionary estate was injured. § 15, And such declaration is not bad, on demurrer, because the obstruction is one which is capable of being shown, at the trial, to be only temporary, and not injurious to the reversion.^ § 16. An averment, that the plaintiff owned a dwelling-house, in which there were and still of right ought to be four ancient windows, through which the light and air ought to have entered, and still ought to enter of right, allows proof of a prescriptive right, of one founded on grant, or on adverse user."^ § 17. Where a bill stated, that the erection of a proposed build- ing would materially affect the comfort and enjoyment, in respect of light and air, of the inhabitants of an adjoining house, of which there had been uninterrupted enjoyment for twenty years and upwards ; the court granted an injunction to restrain the erection of such building, the plaintiff undertaking to bring an action within one month.^ § 18. To an action for obstructing the plaintiff's lights, and depriving him of support to his buildings, the defendant pleaded an equitable plea ; that the grievances complained of were occa- sioned by his pulling down a house and erecting another in its place, which he did with the acquiescence and consent of the plaintiff, and on the faith of such acquiescence and consent he incurred expenses. Replication, that the plaintiff acquiesced and consented on the faith of false representations of the defendant; 1 Elwell V. Crovvther, 8 Jur. (N. S.) » Ward v. Neal, 35 Ala. 602. 1004; 6 L. T. (N. S.) 596. * Arcedeckne v. Kelk, 5 Jur. (N. S.) -' Metropolitan, &c. v. Fetch, 27 L. J. 114 ; 7 W. R. 194 ; 32 L. T. 331. C. P. 330; 5 C. B. (N. S.) 504. CH. IX.] INJURIES TO PROPERTY. 369 that is, tliat the grievances complained of would ikiI rosnlt from his works. Held, the plea and the replication were respectively good.^ § 19. Declaration, that the defendants wrongfully raised, made, and formed, and caused to be raised, made, and formed, a certain embankment of earth near the plaintiff's house, and wrongfully continued the same, Stevens v. Soinerimlvke, 4 E. D. 3 Billings V. La. Where the gravamen is loss by fire, occasioned by negli- gence in allowing sparks to escape from an engine, the plaintifi"is not confined in his proof to the precise place where he alleged the fire originated.^ § 3 c. Where, in an action against a railroad for causing the death of the plaintiff's husband, one count alleges it as done directly by the defendants, the other through the negligence of their servants ; there is but one cause of action.^ § 4. A declaration against a railroad for killing stock may con- tain one count describing the stock as common, and another as of the full blood; and the plaintiff cannot be required to elect between thera.^ § 5. In Indiana, the declaration must allege that cattle killed upon a railroad were killed in the county.^ § 6. In Illinois, in an action for injury done to animals by a railroad, the plaintiff should aver, that, when injured, they were not within the limits of a town, village, &c.'^ § 7. In actions to recover damages for the killing of stock by the cars of a railroad company, the complaint must show either carelessness, or that the road was not properly fenced.^ And a complaint against a railroad, for killing animals by its rolling-stock, is bad, even after verdict, unless it allege negligence, or that the road was not fenced.^ § 8. The first count of the declaration stated, that the defend- ants were the owners and occupiers of a railway, and of a station thereon for the loading, &c., of cattle carried thereby, and of a 1 Shaw V. Boston, &c., 8 Grav, 45. *» Indianapolis, &.c. v. Wilsey, 20 Ind. •i Illinois V. McKee, 48 111. IlVt. 22'J. ^ Illinois V. McClellanil, 42 III. 355. ' Chicago, &c. v. Carter, 20 111. 390. i BrowncU v. Pacific, 47 Mis. 230. » Indianapolis, &c. v. Sparr, 15 Ind. 5 Tiie Toledo, &c. v. Daniels. 21 Ind. 440; Same r. Willinnis, ib. 4S(1. 256. See Presdt. &c. i-. Smith, lUib. 42 ; » Indianapolis, &c. r. Brucey, 21 ib. Story V. O'Dea, 23 ib. 326. 215. 382 PLEADING. [book III. yard adjoining the station, through which yard the cattle were accustomed to pass in going from the station to a certain common highway near thereto ; and that the defendants, by reason of the premises, ought to have maintained sufficient fences between the said yard and the railway, so as to prevent cattle lawfully being in the yard from straying thereout into and upon the railway : but that they omitted to maintain such fences, whereby a bull of the plaintiff, lawfully being in the yard, on his way to the high- way, without default or negligence on his part, strayed from the yard on to the railway, and was killed by a passing train. Held, there was no liability upon the company, either by the common law or by the Sts. 8 & 9 Vict. c. 20, § 68, to fence their yard from the railway, and consequently the count disclosed no cause of action. The second count alleged, that a certain bull of the plaintiff was lawfully in a close, adjoining a railway, of which the defendants were owners and occupiers, and along which railway they had not made any fences for preventing cattle being in the close from straying thereout upon the railway, and that, whilst the bull was lawfully in the close, the defendants and their ser- vants negligently and wrongfully chased and frightened the bull, and so caused it to run upon the railway, where it was killed. The bull, with other cattle which had been brought by the rail- way, being in the station-yard, a place unlighted and not fenced from the railway, a porter came out of the office with a lantern, such as were ordinarily used by porters, in his hand, and the light startled some of the beasts, and caused the plaintiff's bull to run upon the line, where it was knocked down and killed by a passing train. Held, no. evidence for the jury, that the company's ser- vants had been guilty of negligence.^ § 9. The distinction, however, is made, that, in an action on the case at common law against a railroad company for killing cattle, negligence should be averred and proved ; but it is other- wise, if the action is brought under the statute.^ So a declara- tion alleged, that the defendants neglected to keep a suitable fence along their track, and that '' for want of such fence the plaintiff's horse escaped from his pasture and went at large, and by means of going at large, as aforesaid, the horse was greatly 1 Eoberts v. Great, &c. 4 C B. (N. S.) - Terre Haute v. Augustus, 21 111. 506. 186. CH. XI.] PLEADING IN ACTIONS AGAINST RAILROADS, TOWNS, ETC. 383 injured ; whereby an action, . Waterhonse, 4 Greenl. 226. 10 E. 211. 3 Williams v. East, &e., 3 E. 192; per 5 Clark v. Lyman, 10 Pick. 47 ; Boyn- Ld. Ellenborougli, C. J., ib. 200. ton v. Willard, ib. 169. 4 Rodwell V. Hedge, 1 C. & P. 220 ; « Smith v. Downing, 6 Ind. 374. 20; overruling Emmons t;. Haywood, 11 positive and negative testimony. In a late Cusli. 48, so far as that case decides that case, in an action for damages occasioned the burden of proving a defence under by collision with cars at a crossing, posi- the Statute of Limitations is upon the de- tive evidence that the bell was rung and fendant. whistle sounded, was held entitled to more weight than the negative evidence of In this connection, we may allude to the those who testified that they did not hear question which frequently arises, with the bell or whistle. Chicago, &c. v. Still, reference to the comparative weight of 19 111. 499. See p. 391, n. (a). CH. I.] GENERAL RULES OP EVIDENCE. 393 in its original place by tlie defendant, and that tlie plaintiff should keep it in repair. Pleld, the plaintiff was not bound to prove that he had kept it in repair, but the defendant must prove the contrary.^ § 2 a. And where the plaintiff has established a primd facie case, the defendant is bound to meet it, though by proof of a negative. Thus, in an action for the infringement of a patent, the burden of proof is upon the defendant, to show that the pat- entee was not the inventor of what he patented.- § 3. In general, an allegation of wrong or illegality must be affirmatively proved, (a) Thus, in an action for injury arising from an accident, evidence of tlie mere happening of the accident is not enough, without affirmative evidence of negligence, to pre- vent a nonsuit. 3 Even in an action against a railroad company for negligence, thougli the rule of liability is perhaps more strict than in ordinary cases, the occurrence of an injury, not necessar rily importing negligence, if it be prima facie, is not conclusive proof of such negligence.* (b) Thus a railroad is only liable for such injuries as result from its mismanagement, neglect, or want of due care and attention ; and the burden of proof is on the plaintiff, a passenger, though run over.^ So, in an action against a railroad company for killing cattle, the plaintiff should negative by proof that there was a public crossing whore the kihing oc- curred ; and should show that the company was bound to fence at that point. ^ So, in an action against a railroad for injury to goods through its negligence, the plaintiff must prove, either directly 1 Erb V. Erb., 50 Penn. 388. Nor. 842; Robinson v. Fitchburg, &c., 7 2 Pitts V. Hall, 2 Blatch. Ct. 229. Grav, 92. 3 Haramack v. White, 8 Jur. (N. S.) 5 Mitdiell v. Western, 30 Oa. 22. 796. « Oiiio, &c. V. Taylor, 27 111. 207 ; IIU- * Bird V. Great N. R. Co. 4 Hurl. & nois, &c. v. Williams, ib. 48. (a) In a suit for tithes in tlie spiritual the burden of proof nnd the tvfiqht of evi- court, the defendant pleaded, that the deuce. The former remains on the party plaintiff hail not read the .\XXIX. Arti- affirming a fact in support of his case, and cles ; and the court put tlie defendant to does not chaiifxe ; the hitter chancres from prove it, tlioutih a neixative. Whereupon one side to the other during the trial, ac- he moved the court for a proliihition, cordinj; to the nature and strength of the which was denied ; for in this case the law proofs offisred for or against the main fact will presume that a person lias reail the to be established. Articles, for otherwise he is to lose his ben- (6) In an action against a railroad, efice ; ami wlien the law presumes the where there is a conflict of testimony, a affirmative, then the negative is to be jury is justified in giving more weight to proved. Monke r. Butler, 1 Rol. Rep. testimony of the negligcnci' of the engi- 83 ; cited in 3 K. 199. neer. tiian to that of the engineer himself In the case of Central, &c. r. Butler, 2 and the servantsofthecompany generally. Gray, 132, a distinction is made between Chicago v. Triplelt, 38 111. 482. 394: EVIDENCE. [book IV. or by circumstances, that they were in good condition when delivered to the defendants, not merely that they were injured when delivered by them. Though, in a case of connecting rail- roads, proof of condition of the goods on delivery to the first road is sufficient.^ (a) § 4. The same rule is applied in cases of alleged fraud. (5) Thus, where an actual purchase, payment, and possession are shown on the part of a vendee, the burden of proof is on the party who seeks to impeach his title on the ground of fraud.- So wliere a defendant, seeking to avoid a deed of trust, avers in his answer, that it was made to hinder, delay, and defraud creditors, and therefore void, the burden of proof rests on him.^ So the fact, that a man with his family resides upon land claimed by his father- in-law, and cultivates, uses, and occupies it, paying taxes in his own name, is not evidence that he is the owner, and that the title is kept out of him to defraud his creditors.^ So the burden of proof is upon the party seeking to avoid a contract upon the ground that it was induced by fraudulent representations : ^ as iu case of an action upon a life-insurance policy, and a defence of false representations as to the habits of the insured.^ Though the burden lies on a defendant, who admits the false representa- tions which form the basis of the suit, but sets up other facts in 1 Smith )). N. Y. &c., 43 Barb. 225. * Cameron v. Savage, 37 III. 172. 2 Salmon I'. Orser, 5 Duer, 511 ; Martin ^ Oaks v. Harrison, 2-4 Iowa, 179; V. Driimm, 12 La. An. 494; Lesseps v. Grimmell r. Warner, 21 Iowa, 11 ; Strong "Weeks, ib. 739. v. Place, 4 Rob. (N. Y.) 385. 3 Hempstead v. Johnston, 18 Ark. 123 ; '' New York v. Traham, 2 Duv. 506. Sutter V. Lackman, 39 Mis. 91. (a) When a collision occurs between a tice, and neglect were not proved. Held, steamer and a sailing vessel, which is beat- the allegation of the cause of action was ing to windward in a narrow channel, the " unproven " in its " entire scope and burden of proof is on the steamer to show meaning," as required by §§ 170, 173, of some fault in the management of the sail- the (N. Y.) Code. Rosebrooks v. Dins- ing vessel. The Empire State, 1 Bene- more, 4 Rob. 672. diet, D. C. 57. (b) But see Smit v. People, 15 Mich. 497. In an action for goods shipped for the See also Jordan v. Dobson, 3 Abb. (U. S.) plaintiff by the defendants and alleged to 398 ; Thompson v. Wharton, 7 Bush, 563. be lost by their negligence, the complaint Where a person, after having received alleged, that, before tlieir arrival at their the whole benefit and advantage of a con- place of destination (Harper's Ferry), the tract, conies into court and alleges his consignee having left that place, the de- own turpitude, and invokes the law of fendants were directed to forward them morality to relieve himself of the e.xecu- to the same consignee at another place tion of his part of the contract, and by (Washington). It was proved, that, on that means to enrich himself at tlie ex- arrival of a portion of tlie goods at a point pense of the other part}' ; he must adduce about a mile from the first destination, the evidence so complete that it carries with consignee demanded the goods of an it -conviction with all the power of de- agent of the defendants, who refused to monstration. Weaver v. Aufour, 30 La. deliver them. The alleged direction, no- An. 1. CH. I.] GENERAL RULES OF EVIDENCE. 395 justification.^ And tlie testimony of a single witness called to \ prove fraud, who testified as to a conversation in which he did not participate, when his attention was not requested or particularly- attracted to it, should be received with caution, and subjected to y severe scrutiny .^ So where, by the terms of a building contract, if the contractor failed to comply therewith, the engineer might declare it forfeited ; and, on the engineer's making such declara- tion, the contractor brought suit, alleging that it was wrongfully made: held, the proof of the allegation devolved upon him.'^ So, in an action to recover the price of intoxicating liquors, the bur- den of proof is upon the defendant to show that they were unlaw- fully sold. The court remark : " There is no legal presumption that the sale is unlawful, and there should hardly be, in favor of a defendant who has himself joined in the contract. As against the Commonwealth, the legislature have required that the defend- ant in a criminal prosecution shall prove the authority under which he acts, when charged with a violation of the statutes ; but they have imposed no such obligation upon parties who seek the enforcement of contracts." ^ So, where goods are seized for an alleged forfeiture under the revenue laws, the seizure is pre- sumed unlawful until proved lawful.^ So where certain liquors, seized by an officer of the law and held by him, a portion having been condemned as forfeited, were all illegally seized by another officer under a second warrant; held, in a suit against the latter, the burden was upon the former to show the actual extent of his damages, taking into consideration the forfeiture of a part of the property.^ So a party, complaining of a breach of official duty in the clerk of a court, must show every fact necessary to constitute such breach. Damages will not be presumed.' So every presumption is in favor of the regularity of the proceed- ings of probate courts, they being placed on the footing of supe- rior courts; and, nothing appearing in the record to the contrary, an order of sale and conveyance of a slave belonging to minors will be presumed to have been authorized, on a sufficient show- ing, and for the benefit of the minors.^ So, in Massachusetts, if the use of steam-engines and furnaces has been regulated by an 1 Winans i;. Winans, 4 Green (N. J.), * Aitclieson v. Maildock, Peake, 162. 220. 6 Jones v. Fletcher, 41 Maine, 254. 2 Hall v.Layton, IG Tex. 202. 7 Crai^ v. Adair. 22 Geo. ;{73. 3 State V. MeCiinley, 4 Ind. 7. ^ Kedmoiid v. Anderson, 18 Ark. 449. * Wilson V. Melvin, 13 Gray, 73. 396 EVIDENCE. [book IV. order of the municipal authorities, duly made and recorded, under St. 1845, c. 197, the burden is on a party, who complains of the works as a nuisance, to prove non-compliance with the terms of the order, or an unlawful or improper use of the works. ^ § 5. Upon a similar principle, the burden of proof is on the party claiming title by adverse possession against one showing a clear documentary title, and he must prove such possession be- yond a reasonable doubt.^ (a) Whenever the possession of one person is shown to have once been in subordination to the title of another, it will not be adjudged afterwards adverse to such title, without clear and positive proof of its having distinctly become S0.3 (b) 1 Call V. Allen, 1 Allen, 137. 2 Rowland v. Updike, 4 Dutch. 101 ; Baldwin v. Buffalo, 35 N. Y. 375. (a) Generally, a person who takes prop- erty from a mere temporary bailee must give it up to the owner, upon such proof as would suffice against the bailee. Pugh V. Calloway, 10 Ohio (N. S.), 488. Possession is prima facie evidence of title to personal property. Vining v. Baker, 53 Maine, 544. Subject, however, to some exceptions. New York v. Lent, 51 Barb. 19. The possession of letters, addressed to the given name of the possessor, is prima facie evidence of his title and ownership, especially wliere they contain strong in- ternal evidence that they were addressed to and intended for him. Tefft v. Marsh, 1 West Va. 38. (b) The possession of land will be pre- sumed to be with the legal title. Miller V. Fraley, 23 Ark. 735. Where the plaintiff has established his ownership up to a particular date, the burden is on the defendant, or those through whom he holds, to show a legal divesture. Sullivan v. Goldman, 19 La. An. 12. Where tracts lying within the bounds of a grant under which the plaintiff claims are excepted by it, the burden of proving their locality, and that the defendant's possession is within the bounds of the excepted tracts, is upon the latter. Bow- man V. Bowman, 8 Head, 47. An owner in possession is presumed to hold under his fee, until it is shown that he holds under an adverse estate. Tinney V. Wolston, 41 III. 215. So the law presumes, that a tenant who occupies under a disseisor continues after his landlord's death to occupy under his heirs. Currier v. Gale, 9 Allen, 522. 3 Hood V. Hood, 2 Grant's Cas. 229. When a claim is based upon an aban- donment or forfeiture by the defendant, such forfeiture or abamlonnient must be established by the plaintiff. Oreamuno V. Uncle Sam. &c., 1 Nev. 215. Possession will not be presumed wrong- ful. Where the rights of two hostile parties stand upon mere possession, not yet ripened into a perfect title, he who has the prior possession has the best right, unless he abandon and surrender it to the adverse party. Austin v. Bailey, 37 Vt.219. B made an unsealed instrument, pur- porting to convey to A for life, with remainder over, certain lands and person- alty, and reciting that the lands had been conveyed by A to B. A accepted the conveyance, had it recorded, and for twenty years treated the personalty as held under it. A had been the owner of the lands, had always had them in his possession, and continued in possession until his death. Held, A's title should be referred to the unsealed instrument under which he had acquired it by adverse pos- session, and that his heirs could not dispute the right of the remainder-men. Anderson v. Rhodus, 12 Rich. 104. A father sent a slave to a son by the son's child, " a little boy." There were no witnesses to the gift. The son used and controlled the slave as his own, and paid taxes on her. Twenty-two years afterward, the father, then eighty-five years old, testified, in a suit for the slave by a purchaser at a sale under an execu- tion against the son, that be " sent the slave as a gift to his son's wife and children." Held, the evidence was not sufficient to defeat the plaintiff's title. Lemon v. Wright, 31 Ga. 317. CH. I.] GENERAL RULES OF EVIDENCE. 397 § 6. It is a somewhat analogous rule, that he who avers a fact, in excuse of his own misfeasance, must prove it.^ § 7. A party having the burden of proof is bound to prove each essential circumstance, in the same manner as if the wliole issue had rested on it.^ And the jury cannot find for the plaintiff on the ground of preponderance of evidence, unless tlie evidence is sufficient to prove, to tlieir satisfaction, the truth of all the facts upon which the right to recover depends.'^ § 8. As we have seen (§ 1), "the general rule is, that things once proved to have existed in a particular state, are to be pre- sumed to have continued in that state until tiie contrary is estab- lished by evidence either direct or presumptive."'* But, if the plaintiff establishes a primd facie case, the burden of proof is thereby shifted, and he is entitled to recover, unless his primd facie case is destroyed by proof from the defendant.^ Thus, in an action f(jr slander, where the speaking of the words is admitted, the burden of proof is on the party offering evidence in justifica- tion or mitigation of damages, and he is entitled to open and close.^ So where a machine sold is found not to work well, the burden of proof is upon the vendor, to rebut the primd facie presumption that the fault is in the machine, and not in the buyer and user." So, where a railroad agent offered to pay for certain cattle killed, but the owner thought the offer too small, and brought a suit ; held, the onus of disproving negligence was thereby put upon the railroad.^ So the burden of showing probable cause or belief in a trespasser, that the land on which a trespass was committed be- longed to him, is on the defendant, though it need not be set up in his plea or answer.^ So, in a case often cited, memorable for its decisive promptness, and perhaps as striking an application of the maxim *' omnia presumuntur contra spoliatorem,'^ as can be found in the books ; the plaintiff, a chimney-sweeper's boy, found a jewel and carried it to the defendant's shop (who was a goldsmith) to know what it was, and delivered it into the hands of the ap- prentice, who, under pretence of weighing it, took out the stones, and calling the master to let him know it came to three half-pence, 1 Finn v. Wharf. Co., 7 Cal. 253. « Gaul v. Fleminf,'. 10 Ind. 253. 2 Hendcnson v. State, 14 Tex. 503. "^ Parker i;. llemlrie, 3 Clarke (Iowa), 3 Duncan v. Watson, 28 Miss. 187. 263. * Per Johnson, J., Smith v. N. Y. &c., » Georgia, &c. Co. v. Willis, 28 Geo. 43 Barb. 228. 317. * Ogletree v. State, 28 Ala. 693. 9 Walther v. Warner, 20 Mis. 143. 398 EVIDENCE. [book IV. tho master offered the boy the money, who refused to take it, and insisted to have the thing again ; whereupon the apprentice deliv- ered him back the socket without the stones. In trover against the master, as to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth ; and the Chief Justice (Lord Parker) directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should pre- sume the strongest against him, and make the value of the best jewels the measure of their damages ; which they accordingly did.^ So every imprisonment of a man is primd facie a trespass ; and, in an action to recover damages therefor, if the imprison- ment is proved or admitted, the burden of justifying it is on the defendant.^ So, in trespass brought by the owner of land against a railroad corporation, the plaintiff having proved his title, the entry of the defendants, and construction of the road upon the land ; they are bound to prove that the land is covered by their authorized location of the road.^ So, in the case of common carriers by water, when the damage is established, the burden lies upon them to show, that it was occasioned by one of the perils from which they are exempted in the contract of shipment or bill of lading.^ So, in a suit against an administrator for a sum of money deposited with his intestate, proof that, at the time of his death, the deceased had in his house a bag in which was a purse containing the exact sum claimed, both labelled in the hand- writing of the deceased with the name of the plaintiff, and that it was delivered to the administrator, makes a primd facie case for the plaintiff.^ So where a statute provides that no person shall recover damages from a town for destruction of his property by a mob, if it shall appear that the destruction was caused by his illegal or improper conduct ; if the evidence of circumstances indicating such conduct is conllicting, the burden of proof is on a plaintiff, to exculpate himself by a preponderance of evidence.^ So in an action against an assessor for imprisonment, for non- payment of a school-district tax, claimed to be illegal for want of legal districts ; the arrest being admitted or proved, the burden is on the defendant, to prove a legal districting of the whole town 1 Armory v. Delamirie, 1 Str. 505. * Steamer Niagarai;. Cordes, 21 How. 7. 2 Per Metcalf, J., Bassett i'. Porter, 10 ^ Grimes v. Booth, 19 Ark. '224. Cush. 429. ^ Palmer v. Concord, 48 N. H. 211. 3 Hazen v. Boston, &c., 2 Gray, 574. CH. I.] GENERAL RULES OP EVIDENCE. 399 by territorial limits ; and this, although de facto districts had existed more than forty years, and a lost town-record book con- tained a record of such districting ; it not appearing that such record was made after the statute which required territorial dis- tricts.^ So, in a suit by a creditor, to follow the assets of an estate, against one standing in a confidential relation to an intem- perate executor ; the defendant must prove a fair purchase and payment of the price.^ So in an action for the projection of the eaves of a house over the plaintiff' 's land, and the consequent flow of water upon such land ; the burden is upon the de- fendant, of showing a prescriptive right to maintain his eaves as they are.^ So, in an action against a surveyor of highways for trespassing on a close bounded "westerly by the road;" although the plaintiflF proves that he owned and occupied a close, in other respects corresponding to the declaration, the defendant is not bound to prove that the locus of the trespass was part of the highway. The burden of proof throughout is on the plain- tiff. A highway duly located being shown along the same general line, the word road, as a generic term, is to be construed hig-hivay.^ So the provision of §§ 1166, 1169, of the (Tenn.) Code, that, when it is established that stock has been killed or injured by a railroad company, the onus is upon the company, of showing that the injury was the result of unavoidable accident, is said to be simpl3'the an- nouncement of a common-law principle.^ So under a declaration, alleging that the defendants are a corporation owning a railroad, and the plaintiff was a passenger thereon, and the defendants, by their agents, assaulted him and expelled him from their cars; if the as- sault is proved, the burden of justifying it rests upon the defendants, as in ordinary cases. " The case set forth ... is notliing more than an action for an assault and battery upon the person of the plaintiff while he was a passenger, or occupying a place in the cars. It does not present the question as it would have arisen, if the declaration had alleged that the plaintiff was a passenger . . . having a legal right to be carried therein from, : Crct-n, 58 reiin. 302. a Conully f.' Riley, 25 Md. 402. 4 Niantic Bank v. Dennis, 37 111. 381. 5 Anderson v. Sutton, 2 Puv. 480. 6 I'liclps V. Katflifte, 3 Bush, 334. ^ Case V. Col^iton, 1 Met. (Ky.) 145. 8 Vincent v. Eaves, ib. 247. claiming to be owners of a vessel is in all cases presumptive eviilence of their ownership ; and it is only when the title is rendered doubtful by contrailictory proof, that production of the ro^nster is neces- sary. Eisli V. Skut, 21 Harb. 333 ; Stacy V. Graham, 3 Duer, 444; Bailey v. New- World, 2 Cal. 370. And a [irior possession, which has not been le'^^ally divested, is sufficient i»lmu farir evidence of title, against a defendant who has ])roved no title. Clifton v. Lilley, 12 Tex. 130. 'I'iie firimn facie evidence of ownership, arising from possession, is not overcome by the bare assertion of the ])ossessor that the thing belonged to another. Roberts V. Haskell, 20 111. 50. Twentj' years' possession of land, under adeeil from an administrator, raises a con- clusive presumption that all the legal formalities of the sale were observed. Winkley v. Kaime, 32 N. H. 2()8. In favor of long ]iossessi()n, almost every variety of written evidence will be pre- sumeil. the defective liiderty was wilfully burned by the plaintiff" himself, the crinu' ni list l)e as fully and satisfactorily proved to the jur}* as would warrant them in finchnghim guilty on an indictment. . . . The same i^ule has been held to be the law in this State. . . . Butman v. Ilobbs & Tr., 35 Maine, 227. 3 Wells 1-. Head, 17 111. 204. * Mills V. Gilbreth, 47 Maine, 320. But in Schmidt v. New York M. F. I. Co., 1 Gray, 52'J, which was an action on a policy . . . and where one of the grounds of defence was, ' that the fire was set by the plaintiff, and was his own fraudulent and wilful act,' the judge was requested to instruct the jury, that the defen Latch v. Ruraner, &e., 3 Hurl. & Nor. » Howe V. Farrar, 44 Maine, 233. 930. * lilack V. Foster, 28 Barb. 387. 7 Watry r. Ferber, 18 Wis. 500. 408 EVIDENCE. [book IV. clerk of the owner, by mistake, supposing he was receipting for other articles; the company proved, by one of their agents, the custom of their drivers, never to deliver packages without getting a receipt, and that they always took the package to the consignee when they called for the receipt. Held, the plaintiff, on cross- examination, might prove that it was the custom of the particular driver who had this package, to steal money parcels, and that some time after this occurrence the company arrested him, made him sur- render $850 in money, and some valuable jewelry ; and that the driver escaped from the officer.^ So where, in proceedings to assess damages for a bridge taken for a highway, the petitioners, a corporation, have offered and used their records ; the respon- dents may give in evidence votes from those records.^ So in an action for board of the defendant's wife, the answer alleged that the wife had deserted him, and had committed adultery with A. The defendant called a witness to prove the adultery, and that the witness informed him at tlie time. Held, the plaintiff might show, that after that time the defendant filed a libel for divorce on the ground of adultery with certain persons named, but omitted any charge against A. by name.^ So where the question was, whether one J. was making a reasonable and proper use of his land within the limits of a highway, in piling lumber there, and the plaintiff had introduced evidence that J. claimed a piece of land near by, not in the highway, on which he might have piled it ; it was competent for the defendant to show that a part of such land was claimed by another person, or that he claimed a right of way over it to a building of his own, as tending to rebut the plaintiff's evidence.^ So, in an action for infringement of a patent, the defendant contended that the plaintiff had abandoned his dis- covery, and urged, as proof of abandonment, the lapse of time between the granting of the patent and the commencement of the suit. Held, the plaintiff might show acts prosecuting or asserting his discovery ; as the filing of drawings in the patent-office.^ So although a plaintiff in replevin cannot adduce, in rebuttal of evi- dence that he had acknowledged having sold the property in dis- pute to A., his own declarations, not made in the presence of A., nor at the time, nor pertaining to the acknowledgment; he may 1 American v. Ha'.». of personal observation, an Low v. Connecticut, 45 N. H. 870. 380. CH. II.] EVIDENCE OF OPINION, REPUTATION, CUSTOM, ETC. 425 of the town; that he was something of a judge of real estate in that vicinity ; that he had no special knowledge of the value of mills on that stream ; and that he had never bought, sold, owned, or operated a mill.^ So where, in an action for killing a horse, a witness stated that he was acquainted with the value of horses, but had never seen the horse in controversy ; he cannot be asked, " What, on the 10th day of May (the day of the killing), was the average price of a horse fifteen or sixteen hands high, three or three and one-half years old, and sound, except the ring-bone on the hind foot, which had been killed ?"2 So a shoemaker, who has hired a brick building for five years, occupying it with his family, and also underletting a part of it, and who has lived in this country seventeen years, and during that time has hired and occupied difierent houses in difiVsrent parts of the city, is not com- petent to testify as to the value of lands and buildings. ^ Nor is a witness competent to testify as an expert to the effect of dampness in the cellar of a store in lessening the value of the yearly rent of the building, whose experience consists merely in hiring stores, and being acquainted with their value."* So in an action for damages resulting from a collision, mere opinion as to the probable employ- ment of the vessel, and the amount of earnings if so employed, is too speculative and contingent to be the foundation of any rule of damages.^ So the mere abstract opinions of witnesses, concerning the diminution of value of an estate, by the intro- duction of estimates founded on a conjectural basis, are inadmis- sible.^ § 29. Upon the question of reason to believe a debtor insolvent, a witness, though well acquainted with his business, cannot be asked, whether from his knowledge of the debtor the business was or was not profitable.'^ But where a witness, in answer to the question, whether at a certain time A w^as able to pay his debts, answered, " No, so far as I know, I know he was not ; " and went on to state facts in regard to A's property and liabilities, showing an intimate acquaintance with A's condition, and his utter insolvency : held, as the question did not call for a mere 1 Clark V. Rockland, 52 Maine, 68. 5 The R. L. Maybey, 4 Blatchf. C. C. 2 Toledo I'. Smith, 25 Ind. 288. 439. 3 Wlutney v. Boston, U8 Mass. 312. « Wesson v. Washburn, 13 Allen, 95. 4 Bonkard v. Babcock, 2 Rob. (N. Y.) 7 Bartlett t;. Decreet, 4 Gray, 111. 175. 426 EVIDENCE. [book IV. opinion, but, in form, for a fact, the witness was justified in stat- ing such fact, and the evidence was competent.^ § 30. A stock-raiser may testify to the extent of an injury received by cattle from falling through a wharf.^ § 30 a. Individuals, who by their personal observation had acquired a knowledge of the character of a stream and of the dam erected thereon, were permitted to testify, whether in their opin- ion the dam was suiSciently strong to withstand the stream ; not on the ground that they were technically experts, acquainted pro- fessionally with the force of water in streams, and the strength of dam required to resist it, but on the ground that, as practical and observing men, having knowledge of facts which such men would observe and understand, their judgment and opinion in connec- tion with tlie facts so observed were admissible. The court re- marked, that to preclude them from giving their opinion would close an ordinary and important avenue to the truth.^ § 31. A witness, though not an expert, may testify what Jiarcl pan is, and whether any was found in excavating ; the questions not relating to a matter of science, art, or skill.^ § 32. In an action against common carriers for delay in carry- ing a quantity of potatoes, whereby they were frozen; the opinion of a witness maybe given in evidence, upon the question whether it was cold enough to freeze them in the cars or storehouse.^ § 33. But a witness cannot estimate the injury inflicted by fiowage, unless he be an expert.*" So a witness, who had on two occasions examined cotton that had been under water, he did not know how long, is not an expert as to the injury which twelve to twenty-four hours' submersion would probably cause.'^ § 34. In an action for the burning of a dry-house and personal property, the plaintiff cannot offer the evidence of experts, to prove whether the placing of wet staves upon the outside of an arch, in which a fire is kindled, is a safe and prudent mode of drying them. It is a question depending on the degree of heat produced by the fire, — a point of conflicting evidence; and a question which the common experience of the jury would enable them to determine.^ 1 Thompson v. Hall, 45 Barb. 214. 5 Curtis v. Chicago, &c., 18 Wis. 312. 2 Polk V. Coffin, 9 Cal. 56. 6 Sinclair v. Roush, 14 Ind. 450. 3 Porter v. The Pequonnoc, &c., 17 7 Weaver v. Alabama, &c., 33 Ala. Conn, 24'J. 176. 4 Currier r. Boston, &c., 34 N. II. 498. « White v. Ballou, 8 Allen, 408. CH. II.] EVIDENCE OF OriNION, Rr:PUTATION, CUSTOM, ETC. 427 § 35. A witness cannot state his opinion as to tlie amount of injury caused 1)V an attachment, though he also state tlie facts within his own knowledge on which his opinion rests. ^ § 36. The opinions of innkeepers and others, that it is negli- gence to keep money in a locked trunk or portmanteau, are not admissible in evidence.^ § 37. Upon a question as to the sufficiency of the number of officers and hands on a steamboat, at a particular time, to run her on a particular river, the judgment of ordinary persons, having an opportunity of personal observation, and of forming a correct opinion, and testifying to the facts derived from that observation, is admissible.^ So in an action brought by the owner of a ship, for damages arising from a collision, after the witness has testified concerning the position of the vessels and the character of the night, he ma}' be asked, whether a vessel, on such a night and in such a place, could be seen at a considerable distance from a ves- sel approaching the shore; and, if so, how far?* § 38. A pilot who knows the place of a disaster, and one in charge of the boat at the time, may testify whether it was proper to suffer the latter to pilot the boat at the time and place of the accident.^ § 30. Evidence of opinion as to the location of a railroad, founded on a line run and stakes set up, is inadmissible to show fraud in a release of a right of way, on the ground that the loca- tion was changed.*^ § 40. In an action against a railroad corporation for injuries occasioned by their locomotive engine to a traveller in the high- way, at a place where the county commissioners had authorized the corporation, upon certain conditions, to cross upon a level; the record of the county commissioners, stating that in their opinion no flagman at the crossing was necessary, is not compe- tent evidence of due care on the part of the corporation.' § 41. The report of a State fair committee upon agriculture, as to the value of a patented drill, is mere hearsay, and inadmis- sible.^ 1 Clanly ;;. rallicontc, 24 Tex. 170. ^ Hill i'. Sturponn. 28 INFis. 323. 2 Tilvlor V. Monnot, 4 Ducr, 116. 6 ()i,io, &o. r. Hath, 11 Iiul. 538. 3 McCreary v. Turk, 29 Ala. 244. 7 siiaw ;-. Boston, &c.. 8 Gray, 45. * Iniiis V. Steamboat, 4 Cal. 5. ^ Gatling v. Xewell, 9 Ind. 572. 428 EVIDENCE. [book IV. § 42. The official valuation of assessors is incompetent evidence of the value of land in controversy.^ § 43. In an action by a town against the owners of a dam, alleged to have broken away from insufficiency, the examination and report of persons, found by the jury to have been competent, made to the defendants before the breaking away of the dam, as to its condition and safety, is competent evidence for the defend- ants, as tending to show their care and prudence.^ § 43 a. Somewhat analogous to evidence of opinion, as distin- guished from facts, is that relating to intention. Evidence, which may not seem to bear directly upon the contested matters of fact, may illustrate the conduct of a party, by throwing light on his motives ; and, if this is a material inquiry, such evidence should not be rejected, although not entitled to great weight.^ Thus, in an action against an overseer of highways, for " wilfully and wrongfully " maintaining obstructions across a highway, whereby the plaintiff was injured; evidence is admissible, tending to show an absence of any wrong intention, or any malice or ill-will towards the plaintiff.^ («) A striking application of the relaxed rule, in regard to the competency of parties to testify in their own favor, is found in a very late decision; that a plaintiff, charged with an intent to defraud his creditors, may himself tes- tify to his own intention. " It was a matter concerning which he would have the means of positive knowledge, and the only question would be as to his veracity." ^ So, on the question of a party's intention of leaving the State, at the time an attachment was sued out against him, all his contemporaneous acts and con- duct are admissible in evidence.'' (If) So, in an action to recover damages for a horse killed by overdriving, the plaintiff may prove that the defendant made an assignment of all his property, on the day after the animal was killed, as showing a consciousness of 1 Flint V. Flint, 6 Allen, 34. 5 Graves v. Graves, 45 N. H. 323 ; per 2 Shrewsbury v. Smith, 12 Gush. 177. Sargent, J., ib. 324 ; Hale v. Taylor, ib. 3 Parsons v. Harper, 16 Gratt. 64. 405. •* Sherman v. Kortright, 52 Barb. 267. 6 Baker v. Kelly, 41 Miss. 696. (a) Likewise, evidence that the defend- (h) But not his acts after an attach- ant had consulted with others in regard ment has been sued out. Baker v. Kelly, to the obstructions ; to show that he had 41 Miss. 696. acted prudently and in good faith. Sher- man V. Kortright, 62 Barb. 267. CH. II.] EVIDENCE OF OPINION, REPUTATION, CUSTOM, ETC. 429 liability and endeavor to escape from it.^ And it is ])eld, in gen- eral, that on the question of intention the declarations of a party are admissible in evidence in his favor ;2 more especially the acts and declarations of a party ante litem motam, when he had no reason to mistake the facts."^ § 44. Frequent questions arise as to the competency of evi- dence concerning reijutation and character, (a) § 45. It is said that generally, in actions of tort, whenever the defendant is charged with fraud from mere circumstances, evi- dence of his general good character is admissible to repel it.^ (&) § 4G. Evidence of bad character is also under some circum- stances admissible. Thus evidence of the general bad character and unfitness of a servant of a corporation, if material to the issue, cannot be objected to, by reason of its tendency to prejudice the jury against the corporation, and to increase the damages against them.^ So reputation as a negro-trader was held to be evidence, on a question of selling a slave to be exported.*^ § 47. But it is held, in general, that evidence of character can be offered only when it is in issue, and with special reference to the nature of the question raised.'^ In civil suits, evidence of good character is not admissible to rebut imputations of fraud or misconduct.® Thus, in trover, evidence of the defendant's good character for honesty and integrity is inadmissible, although the plaintiff's testimony virtually charged him with embezzlement.^ And character cannot be set up as a defence, unless directly in issue, and material to the question of damages — as in slander (c) and seduction ; even though the case is virtually one of alleged embezzlement.^^ And numerous cases are found in which such 1 Banficld v. Whipple, 10 Allen, 27. ^ Taylor r. Horsey, 5 Harrins- 131. ■^ Young V. Power, 41 IMiss. 197. " Church r. Drummond, 7 Ind. 17. ' Baker v. Kelly, 41 Miss. 6'J6. 8 Boardman v. Woodman, 47 N. H. * 1 Greenl. Ev. 123. 120 ; IMorris v. Ilazlewood, 1 Bush, 208. 5 Vicksburg, &c. v. Patten, 31 Miss, •' Wright v. McKee, 37 Vt. IGl. 156. i" lb. (a) Testimony touching reputation, that the law presumed that liis character founded on opinions expressed post lit< ui was good in the absence of evidence to motam, is inadmissible, lieid v. Reid, 2 the contrary. Goggans v. Monroe, 31 Green (N. J.), 101. Ga. 331. (b) Upon the trial of an action for ma- (c) In an action for slander, the plain- licious prosecution, the defendant's conn- tifi' may introduce evidence of good sel having argued that the plaintiff's character, though unassailed except by character was bad, it was held to be error the charge sued upon, fcjhroyer v. Miller, for the court to refuse to instruct the jury 3 W. Va. 158. 430 EVIDENCE. [book IV. evidencG has been rejected. Thus, in an action against the owner of a horse and cart, for tlie negligence of his servant, re- sulting in injuries to a horse belonging to the plaintiff; evidence of the general reputation of the servant as a reckless driver, or that he has been careless on other occasions, is inadmissible.^ (a) So in an action against a railroad corporation, to recover damages sustained by a person in a carriage on a highway, by means of collision with a locomotive engine of the defendants ; the care- lessness of the driver of the carriage cannot be proved by common reputation.^ So evidence is inadmissible of the professional repu- tation of the physician, who was employed by the plaintiff to dress his wounds and effect a cure ; though it would be compe- tent to prove that the plaintiff's injuries were wholly or partially the result of improper treatment on the part of the physician.^ So evidence, that the general reputation of the plaintiff among his neighbors was that he was a tricky man, and would take lib- erties with paper in his hands, thereby altering its character, is not sufficient to prove that he had perpetrated a fraud on the defendant ; nor is it, when followed by testimony showing that the note given in evidence had been altered, sufficient or admis- sible to prove forgery or alteration of the note by the plaintiff.* So, in a suit against an officer to recover goods attached, and which are claimed by the plaintiff to have been purchased from him by fraud, evidence of the good reputation for honesty and moral worth of the purchaser, who has testified in the case, is inadmissible.^ So in an action by the assignee of an insolvent debtor, for property alleged to have been fraudulently conveyed, evidence is not admissible of the defendant's general reputation for honesty and integrity.*^ § 48. In an action against a railroad, the plaintiff having at- tempted to prove that a flagman employed by the company was a careless and intemperate person, the defendants may show, by persons who have seen his conduct, though not experts, that he was careful, attentive, and temperate." And similar evidence is 1 Jacobs V. Duke, 1 E. D. Smith, 271. * Martin v Good, 14 Md. 398. 2 Baldwin v. Western, &c., 4 Gray, ^ Atwood v. Dearborn, 1 Allen, 483. 333. 6 Heywood v. Eeed, 4 Gray, 574. 3 Thorne v. California, &c., 6 Cal. 232. ^ Gahagan i-. Boston, &c., 1 Allen, 187. (a) In an action to recover damages were safe and prudent men in driving done by cattle which the defendant by and conducting cattle through the city, his servants was driving, evidence is ad- Ficken v. Jones, 28 Cal. 618. missible in his favor, that such servants CH. II.] EVIDENCE OF OPINION, REPUTATION, CUSTOM, ETC. 431 sometimes admitted, as responsive to the averments of the decla- ration. Thus, in a suit against an officer for " carelessly, negli- gently, wilfully, and corruptly " taking insufficient sureties in a replevin bond, evidence that he acted honestly and in good faith, believing the security taken to be sufficient.' But in an action against a steamboat for the loss of a horse by explosion of the boiler, alleged to be caused by racing ; the good condition of the boiler, and good management of the boat, cannot be shown.- § 49. In an action to recover damages for an assault and bat- tery, committed by the son of the owner of a house, upon one who had wrongfully intruded into the house, but, in compliance with orders given to him, had left and was going away ; evi- dence is incompetent, in mitigation of damages, that the plain- tiff was of bad repute in the community, and was accompanied by his paramour, who was also of bad repute in the community ; although the plaintiff's counsel, in opening his case, and thruugh- out the trial, has claimed damages, on the ground that the assault and battery were an indignity calculated to injure the plaintiff's standing and reputation in the community. Upon the points in- volved the court remarked as follows: " The fact that a man bears a bad character, or keeps company with persons of evil repute, furnishes no just provocation or palliation for doing violence to his person. He may forfeit the good opinion of his fellow-men, and become an object of pity and contempt, . . . but we know of no principle of law or ethics on which for such a cause impunity is to be granted to those who inflict injury upon another, or full indemnity is to be denied to a party for a violation of the sanctity of his person. The facts which took place in the house . . . had no such connection with the assault as to form part of the res gestce. . . . The plaintiff had left the house. . . . The motive which led the defendant to order the plaintiff to leave the house was wholly immaterial. He had a right to give such an order, and the plaintiff was bound to obey it. . . . Counsel often make exaggerated and unfounded claims in behalf of their clients. These are to be corrected by countervailing statements, . . . and by proper instructions."^ (a) • 1 Howe V. Mason, 12 Iowa, 202. » Bruce f. Priest, 5 Allen, 100 ; per 2 Agnew V. Steamer, &c., 27 Cal. 428. Bigelow, C. J., ib. 102. (a) To prove the bad character of a bad conduct and vicious acts is admissible, horse, evidence of particular instances of Whitticr v. ITranklin, 4(3 N. H. 23. 432 EVIDENCE. [book IV. § 50. Somewhat analogous to character or reputation, is public rumor or report. § 51. In an action for killing a slave, after proof that the de- fendant shot some one in the night-time, near a particular spot, at a stated hour, and that the slave was found about that time, near the place, badly wounded with gunshot ; it is competent to show, that there was no rumor or report in the neighborhood, that any other person had been shot about that time and near that place.i But, on a question whether a defendant had intro- duced slaves into the State for sale contrary to the statute, it is not admissible to show a general ignorance, among the public and the bar, of the existence of the statute, in order to prove that the defendant, a slave-trader, was ignorant of it, so as to show that his declarations were made in good faith, and not with intent to evade the statute.^ And common report of a party's intention in purchasing goods is not competent to charge the vendor with knowledge of such intention.^ 1 Newby v. Jackson, 7 Jones, 351. 2 Holman v. Murdock, 34 Miss. 275. In an action against a husband for his wife's board, he set up her adultery and desertion. Held, the fact that she, while separated from him, received at her boarding-house visits from two or more men, will not warrant evidence of their bad reputation for chastity. Clement v. KirabaU, 98 Mass. 535. In an action for fraud in the sale of the business of a practising physician, alleging, that the plaintiflF falsely repre- sented that the business was the regular allopathic practice ; the plaintiff, for the purpose of proving that the defendant's practice was irregular and disreputable, cannot offer evidence of the general repu- tation of the business at the time of the sale. Bradbury v. Bardin, 34 Conn. 452. In an action for falsely representing that A, a tradesman, was trustworthy, the defendant may inquire of tradesmen of the same town as to the general repu- tation of A for trustworthiness. Sheen V. Bumpstead, 2 Hurl. & Colt. 193. The words "doubtful credit" are very comprehensive, and are understood to relate to reputation or standing in the community, as distinguished from the estimate of particular individuals. In that sense, the doubtful credit of a party is a matter of fact, of which persons in the community may be presumed to have knowledge. Merchants' v. Bank, 24 Md. 12. 3 Hedges v. Wallace, 2 Bush, 442. Tradition, reputation, and hearsay are admissible, in a suit for land, to show whether one of the lines was formerly bounded on a public highway. St. Louis V. Risley, 40 Mis. 356. The declarations, not under oath, of disinterested men having means of knowl- edge and since deceased, on questions of monuments and boundaries, are compe- tent as evidence of reputation ; but not in relation to acts of ownership or posses- sion, because such facts cannot be proved by reputation. Wendell v. Abbott, 45 N. H. 349. Such declarations of deceased persons, who have actual knowledge as to the boundaries, or who from their connection with the property itself have peculiar means of knowledge, made when they had no interest to misrepresent, and when upon or in the immediate vicinity of the boundary, and pointing it out, may be received as to the boundary, when from lapse of time there can be no reasonable probability that evidence can be obtained from those who have actual knowledge on the subject. Wood v. Willard, 37 Vt. 377. Title to real estate cannot be attacked, by showing the bad character of one of the parties through whose hands the title has passed. Boatright v. Porter, 32 Ga. 130. CH. II.] EVIDENCE OP OPINION, REPUTATION, CUSTOM, ETC. 433 § 52. To prove that a mortgage was taken witliout reasonable cause to believe tlie mortgagor insolvent, the moi-tgagoe may show inquiries made of competent |)ersons, and their replies thereto.^ So a preferred creditor may prove, that he had no reasonable cause to believe the debtor insolvent, by his pecuniary standing among his neighboi's, creditors, and all others having business with him.'^ § 53. Questions also arise as to evidence of custom and usage, (^ci) Of course a party cannot, in general, set up his own habitual wrong or negligence as a justification of any particular act for which a suit is brought. ]3ut, in a late case, and in justification of the decision arrived at, the following important distinctions were laid down by the court: " It was not allowed, for the purpose of sliowing that the com])any exerted the same degree of diligence in this as tliey did in other like instances ; nor was it ruled that they would be exonerated from responsibility on the occasion complained of, if they acted up to the standard which they had themselves established. If this had been the object of the evi- dence, it ought to have been rejected. But, upon the more broad and general ground of exhibiting their system and plan of action, the means provided for conducting the great enterprise confided to their management, the evidence proposed seems to be pecu- liarly fit and appropriate, if, indeed, it is not to be regarded as absolutely indis[)ensable. Without it, it is difficult to see how . . . the jui-y could determine . . . whether the defendants were supine and negligent, or acted with the vigor and efficiency demanded by the rule requiring the exercise of ordinary care and prudence."^ Accordingly, in defence of an action against a gas company for injury occasioned by their neglect in repairing a leak in their pipes, evidence of their system and course of business in regard to complaints of such leaks was held admissible.^ § o-i. But evidence of a custom, that shipping-masters act merely 1 Boarrlman v. Kibliee, 10 Cush. 545. ^ Per Merrick, J., Holly v. Boston, &c., 2 Bartlett v. Decreet, 4 Gray, 111; 8 Gray, 134. Heywood v. Heed, ib. 574. < lb. 123. {a) As bearing upon the question custom to weigh and mark goods as they whetlier a railroad had received cotton were taken for transportation, the goods for trans]K)rtati(>n as a common carrier, in question not having been weighed and and as cuntirniatory of the statement of marked. Vaughan v. Kaleigh, 03 N. C. an agent tiiat it had not ; the company 11. may ask the agent whether it was not the 2^ 434 EVIDENCE. [book IV. as owners' agents, and are not themselves responsible, is inadmis- sible, in an action against a shipping-master for neglect in notify- ing the plaintiff, who had shipped for a voyage, of the time of sailing, so that he lost his employment.^ So where, in a suit against a railroad company for an injury received while passing along a highway, an issue is made upon the unreasonable or neg- ligent conduct of the company in the use of the highway at the time complained of: its usage at other times has no legitimate bearing upon this issue ; and evidence respecting such usage is incompetent. 2 So, in an action against a master for the excessive punishment of a scholar, evidence is not admissible in defence, that the defendant's ordinary management is mild and moderate.^ Though it may be otherwise in regard to the question, whether the punishment was wanton and malicious. And upon this ques- tion it is competent to show that the same instrument of punish- ment was used in other schools in the vicinity.* So, in an action for shooting a colt, evidence that the colt was in the habit of tres- passing on neighboring cornfields, when unsupported by further evidence, is not admissible, as showing that the colt was shot by some person so trespassed on.^ § 55. Character must be proved by evidence of general repu- tation, or general bad conduct, not by particular facts.^ Thus character for care, skill, truth, &c., though growing out of the special acts of a party, cannot be established by proof of such acts, but only by evidence of general reputation. It is truly remarked : " Character grows out of special acts, but is not proved by them. Indeed, special acts do very often indicate frailties or vices that are altogether contrary to the character actually established, and sometimes the very frailties that may be proved against a man may have been regarded by him in so serious a light as to have produced great improvement. . . . Ordinary care implies occa- sional acts of carelessness ; for all men are fallible in this respect, and the law demands only the ordinary."^ § 56. In a suit in equity, to recover damages for a nuisance to buildings, arising from the unlawful erection and maintenance of steam-engines and furnaces, as well as for an injunction, evidence 1 Maguire v. Woodside, 2 Hilt. 59. 5 Dean v. Blackwell, 18 111. 336. '^ Gahagan t'. Boston, &c., 1 Allen, 187. ^ Swift v. Dickerman, 31 Conn. 285. ' Lander u. Seaver, 32 Verm. 114. "^ Frazieri'. Pennsylvania, &c., 38 Penn. * lb. 104 ; per Lowrie, C. J., ib. 110. CH. II.] EVIDENCE OP OPINION, REPUTATION, CUSTOM, ETC. 435 of the general character of the neighborhood, of the various kinds of business carried on there, and of the class of tenants by whom dwelling-houses in that vicinity are usually occupied, is competent upon the question of damages; but not that a particular insurance compan}' had increased the rate of insurance on the houses.^ § 57. A right of way, claimed by prescription in a particular line, cannot be disproved by evidence that strangers were accus- tomed to cross the land in different courses.^ 1 Call V. Allen, 1 Allen, 137. 2 Smith v. Lee, 14 Gray, 473. 436 EVIDENCE. [book IV. CHAPTER III. ADMISSIONS AND DECLARATIONS. 1. Admissiions of a party against him- self. 2. Effect of admissions; how controlled and construed; implied admissions. 6. .\dmissions made in attempts to com- promise. 8. Admissions of agents, officers, &c.; admissions connected or unconnected with acts; questions of time. 10 a. Declarations, of parties not against their interest, and of third persons; ?'es c/estce. 11. In case of Ijodily injury or disease. 15. Boundary and title- IB. In case of legal process. 17. IMiscellaneous examples. 18. Limitations of the general rule; must be simply explanatory, rot narrative ; ques- tions of time, )>lace, motive, and purpose. 24. Declarations, &c., of a joint party. 26. Declarations in a party's own favor, accom|ianying acts; res gcsta. 28. Estoppel bv admission. 30. Acts and declarations of third persons. 31. As to possession. 35. Declarations of persons connected with a party. 39. Declarations in case of alleged fraud. 44 rt. In reference to title. 47. Evidence of the acts of a party or his agerit. 49. Declarations in writing. 63. Irrelevant declarations. § 1. The admissions of a party to the suit against himself are competent evidence for the other party, (a) In general, the relation of the former to the subject of admission, at the time of making it, is held to determine the question of competency. Thus the plaintiff sued the defendant for entering and digging a ditch upon his land. The defendant justhBed, on the ground that he only cleared out an ancient ditch, as he had a right to do, to drain his own land above the plaintiff's. The plaintiff formerly owned the defendant's land, and sold it to him; and A formerly owned the plaintiff's land. Held, declarations of the plaintiff to the defendant, while owner of the defendant's land, and while (n) But in an action of trespass, by a minor, through his fatlier as next friend, the father's declarations were excluded from the evidence, having been offered by the defendant. Hanuner v. Pierce, 5 Har. 304. In an action brought by a father for the death of his minor son, caused by the negligence of a railroad, the defendants cannot introduce tlie declarations of the sou, made the day following tiie injury, as to the cause of the accident. Ohio v. Hammersley, '28 Ind. 371. Declarations of a father in respect to injuries received by his infant son are not, witliout other evidence than the father's declarations that he was then the son's agent, admissible in favor of the defend- ant in an action brought by the father as the son's next friend. Nor evidence of who was present at such conversation, if the son was not. Haney v. Donnelly, 12 Gray, 361. CH. III.] ADMISSIONS AND DECLARATIONS. 437 negotiating- the sale of it to the defendant, and made apparently as an inducement to purchase, that he had a rigiit t(^ tirain it over A's land, were admissible in evidence. It was properly left to the jury, whether he intended something which would pass by the conveyance^ So declarations of a party, as to his title to prop- erty in controversy, made in the pleadings in a prior suit between him and another party, are admissible against him, not as an estoppel, but as evidence in favor of a person not a party to that 8uit.2 § 1 a. Admissions may be implied. Thus declarations or state- ments made in the presence of a party are received in evidence, not as evidence in themselves, but to understand what reply he should make. If he is silent when he ought to have denied, the presumption of acquiescence arises.'^ («) § 2. The effect of an admission, though in its terms direct and unqualified, may be controlled by pioof of the circumstances under which it was made. (See § 4.) Thus, in an action for in- jury to a passenger on a railroad car, testimony, that at the time of the accident and shortly afterwards the [ilaintiif said the acci- dent was attributable to his own fault ; tiiat if he had been in his seat it would not have occurred ; is admissible, but not conclusive, the plaintiff at the time suffering severe bodily injuries, and not knowing the state of the road.'* So in an action for assault and battery, there being no direct evidence that the injury was caused by tlie defendant, two witnesses testified, that shortly after the injury they heard the plaintiff charge the defendant with causing it, and did not hear the defendant deny it. Two other witnesses testified, that about an hour before this they heard the same charge made by the plaintiff, and the defendant denied it. Held a correct instruction, that, if the plaintiff charged the defendant with having committed the assault, and he at the same time denied it, this iurnished no evidence against him ; but, if he 1 Stetson V. Howland, 2 Allen, 501. < Zemp v. Wilmington, &c., 9 Rich. '■J Warfield v. Lindell, 30 Mis. 272. 84. 3 Gibney ;;. Marchay, 34 N. Y. 301. (fl) In an action of detinue, the defend- vided one-third under a deed from A, the ant may show by the county assessor's plaintiff's "rantor, and allesicd possession books, that, for many years last preucdinji for twenty years under a deed. Held, he the trial, the plaintiff's intestate had never mijiht offer in evidence a deed executed given in tlu' jiropcrty as his own. Whit- jointly by himself and A for a part of the field ". Wliittii'iti, 10 Miss. 352. jirojierty, as teiidiiiti to show his claim of The defendant in an action to quiet title, and a recojinition of it hy A. Du- title answered, claiming title to an undi- mont v. Dufore, 27 Ind. 263. 438 EVIDENCE. [book IV. remained silent, the jury miglit regard it as an admission, or give it such weight as tiiey miglit think it entitled to; that the jury would not probably conclude that the defendant, after he had once emphatically denied the accusation, would be called upon to deny it again, if the accusation were repeated; but that it was left to the jury, under the rules which had been stated as. to remaining silent, to give such weight to the defendant's silence, when the charge was repeated, as they thought it entitled to.^ § 3. But, on the other hand, a mere implied admission may control the effect of direct testimony. Thus, to prove delivery of a lost trunk, the defendants adduced the deposition of the clerk of a steamer, running from Montgomery to New Orleans, where the trunk was directed, who stated that it was delivered, and a receipt taken, which was subsequently lost. The address of the trunk received was different from that alleged to have been delivered ; and in reply to numerous inquiries the defendants said, '' We have written all along the line, and will get it to you as soon as possible." Held, that delivery was not proved. ^ Admissions by an innkeeper, of the loss of the goods of a guest, are sufficient evidence thereof to authorize proof of their value, though the innkeeper, called by the plaintiff, testifies that he made the admissions relying solely on the guest's statements.-^ § 3 a. Where the plaintiff has made an equivocal admission as to the identity of a prior invention with his own; the question of identity is for the jury, not for the court.* § 4. Implied admissions are liberally construed, with reference to their relevancy or pertinency to the point in question. (See § 2.) In trespass against a schoolmaster, for excessive punishment of a scholar on account of misconduct out of school : it is compe- tent to show, that at a former trial no such claim was made, but only that the master had no right to punish for such misconduct ; as tending to prove that such claim on the then pending trial w^as unfounded.^ So in an action of trespass against the officers of a school district, for the taking and sale of personal property in payment of a school-house tax, the defendants may offer in evi- dence a bond for the delivery of the property, executed by the 1 Jewett V. Banning, 23 Barb. 13 ; 21 4 Turrill v. The Michigan, &c., 1 Wall. N. y. (7 Smith) 27. 491. 2 Stadlauker v. Combs, 9 Rich. 193. 5 Lander v. Seaver, 32 Verm. 114. 3 Ivitchens v. Robbins, 29 Geo. 713. CH. III.] ADMISSIONS AND DECLARATIONS. 439 plaintiff.^ So a lease of a mill to A, containing stipulations as to the amount of water-power to be furnished to the lessee, and as to tlie height to which B, the defendant, shall have the right to raise another dam lower on the same stream, is admissible in evi- dence against the lessor, on the trial of a complaint for flowing occasioned by raising the dam too high.^ But, that one threatened with a suit for slander gave money to another, to indemnify him against loss by such a suit, and took from him a bond to save him harmless, is not competent as an admission of guilt.^ So evidence that the defendant, sued for instigating his slave to fire a building, some time pieviously, when purchasing a negro, had said, " I like these smart negroes ; one or two more would steal me rich in a short time ; " is inadmissible.* So a letter addressed to a railroad corporation, claiming damages of them, and read at the meeting of their stockholders, who thereupon vote to lay it on the table, is inadmissible in evidence against the corporation.^ So in an action against a carrier for the loss of a sealed package, alleged to con- tain money ; a receipt, *' said to contain " so much money, is not even prima facie evidence.^ § 4 a. If a witness testifies to an admission, but says,'' he heard only a part of the conversation ; " the court will not infer that there was a further conversation relating to the subject of suit, but will allow the statement of the witness to go to the jury.' § 4 6. In an action to recover money stolen from the plaintiff, and claimed to have been received by the defendant from two slaves ; there was evidence, that the defendant had been searched in the presence of A, one of the slaves, who said that the defend- ant got him to steal the money ; that the defendant denied this ; that A also stated that the defendant talked to him " in the field ; " that the defendant denied this ; but, upon A's mentioning some circumstances, admitted that " he was in the field," but denied that he was talking about the money. Held, the admission of the defendant that " he was in the field," was competent evi- dence.^ § 4 c. A plaintiff testified, that he had made a demand of the defendant for a chair which belonged to him, and that the defend- 1 Higgins I'. Reed, 8 Clarke (Iowa), ^ Robinson t'. Fitchburg, &c., 7 Gray, 298. 92. 'i Nutting V. Page, 4 Gray, 581. c Fitzgerald v. Adams, &c., 24 Ind. 447. * Lucas V. Nicliols, 7 Jones, 32. ^ Williams ;;. Keyser, 11 Florida, 234. < Bell V. Troy, 35 Ala. 184. 8 Qneener v. Morrow, 1 Cold. 123. 440 EVIDENCE. [book IV. ant had admitted that the chair was in his possession, but refused to deliver it up, claiming that he had a lien upon it for a demand against the person of wiiom lie borrowed it. The defendant de- nied this, and the plaintiff then offered the testimony of A, his attorney, and also a letter which was received by A in reply to one which he had sent to the defendant, and bearing u|)on the alleged lien. Held, the letter was material, and the testimony of A and the letter must be taken in connection, and treated as a single proposition.^ § 4 c?. Where, in an action against a town for injuries occa- sioned by obstructions in a highway, the defendant offered evi- dence that the plaintiff and his wife at the time of the accident stated the circumstances attending it, without mentioning the obstructions ; held, the plaintiff could not show that at various other times he had mentioned the obstructions. ^ § 5. Admissions are held competent evidence, though relating to facts which a])pear by a written instrument. Thus, in replevin of goods distrained, held, the plaintiff's admissions as to the terms upon which he occupied were competent evidence, though he held under a written agreement, which was not produced.^ § 5 a. Previous legal proceedings relating to the same subject- matter may be offered as an admission. Thus, in a proceeding to assess damages for taking a bridge as a public waj-, by a city, an answer, signed by the mayor and city solicitor, to a bill in equity of the petitioner against the city.^ So admissions in an answer, though stricken out on motion of the defendant. ^ So, in a writ of entry for flats, the record of a previous action brought by the tenant against the demandant, in which tiie tenant alleged that he owned the wharves on each side of the premises demanded, and described the intervening dock as not belonging to him, is admissible against him, to show that he had not the title in the dock which he claimed.'' § 6. Admissions are often objected to, as made in the course of an attempt at compromise. It is said, in a late case : " Peace is of such worth that a reasonable man may well be presumed to seek after it even at the cost of his strict right, and by an abate- ment from his just claim. The offer which a man makes to pur- 1 Weeks v. Barron, 38 Vt. 420. 5 Bloomingdale v. Dn Kell, 1 Idaho '■2 Jiidd V. Brentwood, 46 N. H. 4'.0. Terr. 21. 3 Howard v. Smith, 3 Scott, N. 574. « Boston v. Richardson, 13 Allen, 146. * Central v. Lowell, 15 Gray, 106. See § 7. CH. III.] ADMISSIONS AND DECLARATIONS. 441 chase it is to be taken, not as his judgment of what he sliould receive at the end of litigation, but what he is wilh'ng to receive and avoid it." ^ But tlie distinction is well establislied, between an offer of settlement itself", and an admission of independent facts, made in connection with such offer. Thus the selectmen of a town, in the course of conversation with a person claiming dam- ages for an injury occasioned by a defect in a highway, with a view to compromise, offered to pay for his loss of time and actual expenses, and asked him what they would amount to. Held, his statements in repl}', of the amount of those items, if not made as offers upon which he was willing to settle, were admissible in evidence against him. But not an admission to a third person of the amount for which he had offered to compro- mise the action.^ So, in an action by a father for the seduction of his daughter, an agreement in writing between the defendant and the daughter, in which he admitted the seduction, and agreed to pay her a sum of money, and she released and discharged him from all actions of dan)ages, and all claims, is admissible, not as showing the amount of damages or extent of injury, but as an admission of the facts necessary to make out the right of action.^ § 7. A party's admission of record in a former proceeding is evidence against him. Thus the plea of guilty in a prosecution for the same assault."* § 8. It is laid down, that, " where the acts of the agent will bind the principal, his representations, declarations, and admissions, respecting the subject-matter, will also bind him, if made at the same time, and constituting part of the res gestce.^^ '" (cC) § 9. The question whether mere admissions, independent of 1 Per Thomas, J., 4 Gray. 567. * Story on Airency, § 134 et srq. ; 1 ■■' Harrington I'. Lincoln, ib. 563. Greenl. Kv. 191,§llo; llvnds v. Iliiys, 3 Travis r. Barker, 21 liarb. 614. 25 Ind. 31. See Fleming v. Smith, 44 * Bircliard v. Bootli, 4 Wis. 67. See Barb. 554. §6 a. («) Declarations f)f an agent, when not tion may be properly submitted to the engaged in the business of liis agency, jury, with instructions to find, first, whether are inailniissible as against his principal; the agent was acting witliin his authority but, it' all tliat is siiown by tliem is other- in making the admission, and, if so, to ■wise proved by competent evidence, no weigh the admission ; otherwise, to lay it exception lies to their admission. Keeler out of the case. Wendell v. Abbott, 45 V. Salisbury, :53 N. Y. 648; Lowry v. N. II. 34'J. Harris, 12 Min. 255. In an action against the keeper of a Where there is evidence tending to hotel for the loss of a shawl ; after the 8how an admission by an agent, and a agent of the plaintiff has testified, the de- question is raised as to his authority to fendant may offer evidence of the agent's make the admission, if there is any evi- statements at the time of demanding tlie dence of such authority, the whole ques- shawl, although tending to impeach his 442 EVIDENCE. [book IV. facts, are competent, sometimes arises in reference to corporations. In an action against a city, for partial destruction of a vessel, occasioned by the action of health officers while they were officially in charge of the vessel; the declarations of an alder- man, relative to the detention of the vessel in quarantine, are not admissible in evidence against the city, where the alderman was not a member of, and did not represent, the board of health, nor the city government.^ So the report of a committee, that a town way is unsafe, though duly accepted, is not evidence against the town in an action for injuries arising from a defect in the way.^ § 10. In an action against a carrier for failing to deliver goods, evidence is competent, that his servant requested the person from whom he received them to make out a bill of the goods "said to have been lost."^ So the statements of a general freight agent of a railway, in regard to goods delivered to him for transporta- tion, made when the duty of the railroad to deliver the goods still existed, although eight months after the delivery of the goods to him, are admissible against the company.'* So, in an action against a carrier, the answer of his coachman or driver, to an inquiry for the goods.'^ So, in an action against a railroad corpo- ration by a passenger for the loss of his trunk, the admissions of the conductor, baggage-master, or station-master, as to the manner of the loss, made in answer to inquiries on behalf of the passen- ger the next morning after the loss. " It was part of the duty of those agents to deliver the baggage of passengers, and to account for the same, if missing, provided inquiries for it were made within a reasonable time."^ So, for the purpose of showing the negli- gence of a railroad in allowing a passenger platform to be improp- erly placed, in consequence of which an accident took place upon it; after evidence of its situation and its removal, evidence is 1 Mitchell V. Rockland, 41 Maine, 363. * Burnside v. Grand, 47 N. H. 554. 2 Wheeler v. Framingham, 12 Gush. 5 Mayhew v. Nelson, 6 C. & P. 58. 287. Ace. Collins v. Dorchester, 6 Gush. ^ Morse r. Gonnecticut, &c., 6 Gray, 396. 450 ; per Bigelow, J., ib. 451 ; Gurtis v. 8 Ingledew v. Northern, &c., 7 Gray, 86. Avon, 49 Barb. 148. testimony, without a previous foundation charged are not evidence for the plaintiff. for such impeachment. Smith v. Wal- Pollard v. Louisville, 7 Bush, 5'.)7. lace, 25 Wis. 55. In a suit against a railroad for an One authorized to sell, but not in act- injury causing death, prosecuted by the ual possession, being a mere broker; his administrator after the death of the orig- declarations are not evidence against the inal plaintiff; the admissions of her father principal. Pier v. Duff, 03 Penn. 59. are not evidence, unless he is shown to In an action against a surety for an have some interest in the result. Taylor agent, his admissions after being dis- v. Grand, 48 N. H. 304. CH. III.] ADMISSIONS AND DECLARATIONS. 443 admissible, that the company's agent, immediately after the acci- dent, tele^-raphed to the superintendent the situation of the plat- form, and that it ought to be removed; and that it was removed tlie next day. ^ So in an action against a railway for injui-ies received by the plaintiff's wagon and horses from collision with the cars; statements made at the time by the servant wdio was driving the wagon, as to the cause of the accident, are a part of the res gestae, and admissible against the plaintiff.'^ So A testified, without objection, that, a few days prior to the demand of a chair by the plaintiff, he, at the plaintiff's request, went to the defend- ant's hotel for this chair, and while there, but in the absence of the defendant, he. A, asked the clerk, who had the general supervision and charge, if the chair was there, and the clerk replied that it was. Held, a declaration in respect to a matter of wdiich the clerk had full means of knowledge, and which tended to show that the chair was at the hotel when A called for it.^ So declarations by the captain of a steamer, as to damage to crops on shore by fire from the steamer, made while she was running under his command and the fire was being communi- cated, are admissible against the owners.* (a) But the declaration of an agent while acting within the scope of his authority is admissible against his principal as part of the res gestce ; not if made at any other time. And this rule applies to the officers of a corporation.^ Thus in an action against a railroad corporation for damages sustained by the negligence of their engineer, his statements as to the accident, made a few days afterwards, are inadmissible against the corporation. So also statements of their president to the plaintiff, that he thought the defendants Would give him something, or pay him something.^ So in an action against a railroad for running over and killing cattle, where carelessness of the engineer is alleged, his declarations with regard to the accident, made long after, are not evidence for the plaintiff." So, owing to the defective fastening of a door in a 1 Pennsylvania t;. Henderson, 51 Penn. ^ 57 Penn. 339. 315. ^ Kobinson v. Fitchburg, &c., 7 Gray, '-' Toledo V. Goddard, 25 Ind. 185. 92. 3 Weeks v. Barron, 38 Vt. 420. ^ Price v. New Jersey, 2 Vroom, 229. * Gerke v. California, &c., 9 Cal. 251. (a) Where suit is brought against a vessels (R. C. 1845, p. 180), depositions steamboat, and the master and liis seen- and admissions ol' tiie master will be rities liave been substituted as del'endants treated in the same way as it the suit had in place of the boat, under the 9tii section been originally instituted against hiui. of the Missouri Act concerning boats and Withers v. Steamboat, &c., 24 Mis. 204. 444 EVIDENCE. [book IV. stock car, part of the stock jumped out and were injured. In an action for the h)ss ; hehi, a letter from the assistant superintend- ent of the raih'oad to the station-agent of the place where the cattle were shipped, dismissing him for allowing tiie car to start so insecurely fastened, was not competent evidence.' So in an action against a railroad for injuries received through a collision of its trains, statements by a flag-man, as to how far he had gone back to flag the " fast-line " coming train, are hearsay and inad- missible.- § 10 a. Declarations, other than admissions by a party against his own interest, are in general incompetent evidence, being mere hearsay, and wanting the sanction of an oath and the test of cross- examination. § 10 b. The declaration of a third person, made to, and in the presence of, parties engaged in a controversy, at the time of the doing of an act by one of them, which becomes the subject of an action, is admissible in evidence in such action as a part of the res gestce.^ § 10 c. In trespass for cutting wood, evidence, that military offi- cers of high rank stated that it was a military necessity to cut the wood, &c., is mere hearsay.* So in an action against a railroad, for an injury occurring at a station, witnesses cannot testify what was said by bystanders, immediately after the accident, about the bell not having been rung when the train approached the station.^ So, in trover for slaves, their declarations were held not admissible, in behalf of the defendant, unless shown to be part of the res gestce connected with the conversion.^ So in trover for a note against a sheriff, who claims to hold it as collateral security for an execu- tion, letters from the attorney of the execution creditor to the defendant after the note came into his hands, and his replies, re- lating to the manner in which the note should be held, are inadmis- sible for the defendant.'^ So, in general, no one can avail himself of his own letters as evidence, unless called for by the opposite party to establish some fact against him.^ So, in an action for mali- cious prosecution, declarations of the defendant, to show that he was not actuated by malice, are inadmissible.'-' So evidence that a 1 Betts V. Farmers', 21 Wis. 80. « Ginion v. Baldwin, 88 Ala. 60. 2 Penn. v. Books, 57 Penn. 339. "i Fisher v. Meek, 38 111. 92. 3 Gillam v. Signian, 29 Cal. 637. 8 iMerritt v. Wright, 19 La. An. 91. * Merritt v. Mayor, 5 Cold. 95. 9 Moore v. Sanborin, 42 Mis. 490. ^ Detroit y. Van Steinburg, 17. Mich. 99. CH. III.] ADMISSIONS AND DECLARATIONS. 445 tenant in possession, upon receiving a notice to quit, told the person who was merely employed to hand the notice to him, that he claimed to own the property, is inadmissible in his own iavor.^ So, in an action for the sinking ofafiatboat while being towed by the defendants' steamboat, evidence of the statements of one of the defendants to a stranger in regard to the liability of the steamboat in such cases.^ So, in detinue for slaves, the plaintiff proved that the defendant was present when a tax schedule, including the slaves as the property of the plaintiff, was handed to the assessor, and that the defendant made no return of them. Held, the defendant could not show that afterwards, on the same day, he cor- rected his list so as to include them, althougii he remarked at the time that he had intended to give in the slaves, but the plaintiff relieved him of that, and he asked permission to correct any mis- take, and spoke of getting advice.^ § 10 d. Dying declarations, as to the facts attending the fatal injury, are held not evidence against the defendant in a civil suit.'* But, in a late case, such declarations of one almost instantly killed by a railroad accident were admitted.^ And, in ejectment, the declarations of deceased persons, as to the location of a cor- ner or boundary line, made previously to the commencement of the litigation, are competent evidence.^ So under the (C(jnn.) Act of 1850, which provides, that, " in suits by or against the repre- sentatives of deceased persons, the entries and written memoranda of the deceased, relative to the matter in issue, may be received as evidence," the letters of a woman, who claimed to have been defrauded of her property, stating the facts, are memoranda, and admissible in evidence in a bill in equity brought by her devisees to compel a reconveyance.' § 10 e. As already suggested, the general rule of excluding declarations does not apply to declarations accompanying acts, or making part of tlie res gestce.^ These are regarded as verbal acts, indicating a present purpose and intention, and are admissible, like any other material fact, for what they are worth. '-^ § 11. Perhaps the most frequent application of the general rule 1 Hogsettr. Ellis, 17 Mich. 351. 1 Bissell v. Beckwith, 32 Conn. oOQ. ■- Is'eal f. Scott, 25 Ind, 440. 8 gg^ Woodwell v. IJrown, 44 I'enn. 3 Mcdclieo V. iMalioiio, 37 Ala. 258. 121 ; JNIcLeinore v. Tinkston, 31 Ala. 20(3 ; * Daily r. New York, 32 Conn. 356; Hall v. Yonnu', 37 N. H. 174; Krlort v. Friedman r Hailroad, 7 Phil. 203. Corsalus, 47 Mis. 208. s Brownell v. Pacific, 4i) Miss. 39. 9 Beckwith v. Mollohan, 2 W. Va. 477. 6 McCloud V. Mynatt, 2 Cold. 163. 446 EVIDENCE. [book IV. referred to is found in the case of declarations, by persons suffer- ing under bodily injury or disease, made either to their physicians or others, with reference to their bodily or mental condition, (a) It is remarked in a late case : " This species of evidence was undoubtedly admitted originally and mainly because parties could not testify, but it is equally admissible now, though the necessity is less." ^ And, in another State, " If made to a physician, sur- geon, or other medical attendant, they are of greater weight ; but if made to any other person, they are not on that account rejected. They are received as indications or concomitants of the disease, malady, or injury, in some sort as going to elucidate and explain the condition of the person making them, and so part of the disease, malady, or injury itself."^ Accordingly, the representations of a sick or injured person, as to the nature, symptoms, and effects of the disease or injury under which he is suffering at the time, are competent evidence of his condi- tion.^ Whenever the bodily or mental feelings of an individual, at a particular time, are material, the usual expressions of such feelings, made at the time, are admissible as evidence of such feelings. They are classed with natural evidence, as distinguished from personal evidence, and whether they were real or feigned, is for the jury to determine.* Thus one who has brought an action for personal injuries may prove, as tending to show their nature and extent, his own statements made, while suffering under such injuries, to an examining physician, in regard to his inability to move certain portions of his frame, and the pain produced by other motions ; notwithstanding such examination was made after commencement of suit, and with a view to this testimony.^ So, 1 Per Poland, J., Kent v. Lincoln, 32 3 ib. 135. Verm. 598. ^4 phiUips v. Kelly, 29 Ala. 628. - Per Fowler, J., Howe v. Plainfield, ^ Kent v. Lincoln, 32 Verm. 591. 41 N. H. 136. (a) In questions of insanity, it is held admissible to show the effects of a blow that the acts and f/ec/ara//o/is of the party, upon his head, though in general he the condition of whose mind is the subject would not be a competent witness against of investigation, may be given in evidence, a white man. Biles t-. Holmes, 11 Ired. A case of tiiis nature is somewhat remark- 16. able for the disagreementof eminent judges In an action against a carrier for in- in seven successive hearings. Wright v. juries to cattle, remonstrances to his Tatiiam, 5 Clark & Fin. 670; 7 Ad. & employe's, because the cattle were im- EU. 313. properly stowed, are admissible, to show A striking application of the general that the attention of those in charge was rule is found in a case, where, from neces- called to the difficulty. Black v. Cam- sity, the declarations of a slave were held den, 45 Barb. 40. CH. III.] ADMISSIONS AND DECLARATIONS. 447 in an action for assault and battery, tlie plaintiff may prove that, about two years after the assault, in which he was wounded in the breast, side, head, and neck, he lay down and complained that his head, neck, and back hurt him.^ So in an action against a town, by husband and wife, for damages sustained by the wife in consequence of a defect in the highway ; her representations as to the nature, symptoms, and effects of the injury, made to her physician, are admissible and competent evidence tending to show her actual condition.^ So, in an action for personal injuries, a physician may testify to the statements of the ])laintifT, made to him for the purpose of advice, as to the character and seat of her injuries and sensations, though after the cominencemcnt of the action, they being a part of the facts, on which his opinion as an expert in regard to her condition is founded.^ § 12. As already suggested, declarations of a sick person are corapetent, though not made to a physician.* Thus the declara- tion of a slave, made while laboring under a disease, to his master, that he ^' was sick, and had a pain in his chest," was held admis- sible in a suit by the master against the vendor of the slave for a false warranty of soundness.^ (a) § 13. The declarations of a physician, on leaving home and taking medicines with him, as to the person whom he is going to visit, are admissible as part of the res gestce.^ § 14. But declarations of this nature are confined to somewhat narrow limits. They are sometimes excluded upon the ground that " they tended to qualify no act done." " It is said to be well 1 29 Ala. G28. < Wilkinson v. Moselev, 30 Ala. 562. 'i Howe V. Plainfiekl, 41 N. H. 135; 5 Fondren ?;. Durfee, 8'J Miss. Sl'l. Matteson v. New York, 35 N. Y. 487 ; 42 ^ Autaujra, &c. r. Davis, 32 Ala. 703. 111. 438. ■? Per Shaw, C. J., 5 Gray, 459. See 3 Barber v. Merriam, 11 Allen, 322. Ford v. Haskell, 32 Conn. 489. See 42 111. 438 ; 2u Iowa, 279. (a) Testimony, as to the manner of the Exclamations of pain uttered by the pauper's showing iiis distress and need o patient are original evidence of suflering, relief, and as to Ins physical condition, is and are admissible to show a physician's admissible in an action by one town against malpractice; but not for the purjjose another for supplies furnished. New Port- of aggravating the damages. Hyatt v. land V. Kingfield, 55 Maine, 172. Adams, 16 Mich. 180. In a late case, the limitation of the In an action by a husband for fatal general rule is staled, that tlic c.x()ort may injuries received by the wife, her declara- state wliat his patient said in describing tions, while sutiijring from the injuries, as his bodily condition, if said under circum- to the nature ami character of lier sufier- stances which free it from all suspicion of ings and sickness, are admissible. But being spoken witli reference to future liti- not her declarations as to the cause other gation, and give it the character of res sutfering, not sliown to have been made gestie ; otherwise as to the patient's state- at a time which woulil entitle them to ments upon tlie specific cause of his be regarded as part of the )vs (/es^cE. Gray malady. Illinois v. Sutton, 42 111. 438. v. McLaughlin, 26 Iowa, 279. 448 EVIDENCE. [book IV. settled, tliat the declarations of a person, injured when no one else who can be a witness is present, are not evidence to show the manner in which the injury occurred, however nearly contempo- raneous they may be with the injury itself.^ Although a party's declarations as to his health are admissible evidence to some pur- poses in his own behalf, they must be restricted to his health at the time of speaking, and cannot be taken with relation to past matters.'-^ Thus representations of a slave, made to a physician or other person, were confined to the malady under which she was laboring. A representation, without any question, that she had become diseased after the plaintiff purchased her, and in consequence of ill-treatment, was not admissible.^ So in an action by an administrator, to recover property on the ground that a transfer made by A, the deceased, in his last sickness, was fraudu- lent, and that he was insane when he executed it ; the plaintiff cannot give in evidence the declarations of A's wife, made to a creditor who called to see him in his last sickness, that his mind was affected by his disease.* Nor, where insanity is relied upon to avoid a sale, can a physician, who a short time before the sale had visited the party in consultation with his attending physician, testify to the declarations made to him at that time by either the wife, physician, or other attendant, as to previous symptoms or condition.^ In the same case, with reference to the offer of the physician's opinion in evidence, founded upon the excluded declarations, Mr. Justice Kice remarks as follows: "While it excludes declarations ... it receives ... an opinion, based upon that incompetent testimony ; thus attempting to elevate the stream above the fountain, to make a corrupt tree bring forth good fruit. The declarations of the nurse and wife may have been only mere inferences on their part, and on those inferences the doctor is desired to draw an inference; and this last inference, being called the opinion of an expert, is made to assume the char- acter of competent and substantial evidence. . . . The opinion of medical men is evidence as to the state of a patient whom they have seen. ... So where . . . they have heard the symptoms and particulars of his condition detailed by other witnesses. . . . "We permit experts to testify as to the genuineness of hand- 1 Per Redfield, C. J., State v. David- 3 Nored v. Adams, 2 Head, 449. son, 30 Verm. 377. * Kimball v. Currier, 5 Gray, 458. ^ Hunt V. People, 3 Parker, 569. « Heald v. Thing, 45 Maine, 392. CH. III.] ADMISSIONS AND DECLARATIONS. 449 writing by comparison, but ... it must be admitted or proved that the specimen with which the comparison is made is gen- uine."^ § 15. Declarations are often introduced, as part of the res gestce, upon questions of title to land. Tlius they are held ad- missible upon a question of boundary.^ So the declaration of a public surveyor, when running a line, that he was running a division line.^ Or, upon the question of title, the declarations of the purchaser at the time of purchase.* But evidence that the owner of a dam, when rebuilding it, gave instructions to mark the height of the old dam, and make the new one of the same height, is not admissible in his favor to show that it was so built. Such instructions had no tendency to explain the act done, which was a fact susceptible of direct proof. Moreover, the acts were disconnected from the instructions, and in point of time subsequent.^ So declarations of the owner of land, since deceased, while standing on his land, are not competent evidence, in favor of a person claiming under him, to prove a right of way over adjoining land.'^ Mr. Justice Thomas thus enumerates the supposable cases in which such evidence might be competent; at the same time questioning the broad proposition on the subject laid down in 1 Greenl. on Evidence, § 109 : " It is not evidence of the party under whom the defendant claims, tending to show an admission of the right of way in disparagement of his own title. It is not evidence of the plaintiff's grantor in disparage- ment of his title. It is not the declaration of one in possession of land or in the use of an easement, qualifying that possession or use. It is not the declaration of a party against his interest. It is not a declaration made by an owner of land now deceased, while on the land, and pointing to its boundaries, in relation to such boundaries. The declaration was accompanied by no act, which it qualified and gave character to ; it was not of the res gestce. It is not evidence of reputation. It is, on the other hand, but the naked declaration of the owner of land, standing on his own land, and in favor of himself and his estate, claiming an ease- ment over land in the possession of another." ^ 1 HeaUl V. Thing, 45 Maine, 392. s Nutting v. Page, 4 Gray, 581. '■2 George v. Thomas, 16 Tex. 74. •> Ware v. Brooiihouse, 7 Gray, 454. 3 lb. ^ lb. 455. * Brush V. Blanchard, 19 111. 31. 29 450 EVIDENCE. [book IV. § 16. The rule of res gestce is not unfrequently applied in con- nection with the execution of legal process. Thus an admission by a husband, while holding a slave, that it was a loan to the wife from her father, was held evidence against a purchaser at an execu- tion sale, under a judgment subsequently rendered against the hus- band.i So in an action by A against B, for taking his property in satisfaction of an execution against C, evidence of declarations of C, while acquiring the property as the agent of A, that he was purchasing it for himself, is admissible.^ So what was said by a constable at the time of a levy, as to the fact of the levy, as corroborative of his return,^ So, in an action against a constable, for selling hogs of the plaintiff, as the property of A, the person in possession, the declaration of A, that the hogs belonged to the plaintiff, made before the levy; — as showing the charac- ter of the possession, and as against the defendant claiming under A.^ § 17. As miscellaneous examples of the rule in question, it was held that the plaintiff, for the purpose of showing that the offen- sive smells from a privy and pig-sty were an annoyance to his family, might introduce evidence of complaints made by his wife, since dead, while suffering (^upon •which word, as used technically, particular stress was laid) from the offensive smells, and at a time when the smells were perceived by others.^ So, in an action against a sheriff for the escape of one J. Gr. W., it was proved that J. G. W. was captain of the ship H., which was towed out to sea on a certain day; and that a person on board, who was addressed as " Captain W.," replied thereto and acted as captain. This was held to be primd facie evidence that W. left the country as captain of the H., upon which the case should have been left to the jury.^ So, in an action against an insurance company for the loss of a ship, burned by the orders of military authorities ; proof of what the persons who destroyed the vessel said, at the time, relative to their orders, is admissible as part of the res gestce J So, that a carrier by water, whose boat had stranded, telegraphed up the river to ascertain the stage of the water, may be proper evidence of diligence, and therefore its admission is not necessa- 1 Cole V. Varner, 31 Ala. 244. 5 Kearney v. Farrell, 28 Conn. 317. 2 McNeely v. Hunton, 24 Mis. 281. 6 Jackson v. Orser, 2 Hilt. 99. 3 Grandy v. McPherson, 7 Jones, 347. 7 Marcy i;. Merchants', 19 La. An. 388. ♦ Sharp V. Miller, 3 Sneed, 42. CH. III.] ADMISSIONS AND DECLARATIONS. 451 rily error. 1 So in an action by bailor against bailee for loss by negligence, the declarations of the latter, contemjioraneous with the loss, are admissible in his favor, to show the nature of the loss.2 So, in an action for enticing away a servant, his declara- tions made at the time of leaving the master are admissible, as part of the res gestce, to show the motive of his departure.-^ So, upon the question of A's solvency at a given time, evidence of what was said by the parties, at the time of a settlement of ac- counts between A and B, in regard to the amount due, is admis- sible, to show how much was received on such settlement by A, and in what way."* So, in trover for slaves, the plaintiff claimed under a deed of gift, and the defendant under a subsequent sale on an execution against the donor. Held, that evidence was admissible, on the question of the purchaser's notice of the gift, of a conversation between the purchaser, the donor, and the father, the natural guardian of the donees, who were minors, which occurred when the former went to seek information imme- diately befoie the sale, he having heard that there was an out- standing title to the slaves.'^ So declarations of the defendant in an action on an attachment bond, made to his attorney at the time of suing out process, are admissible in evidence as part of the res gestce.^ So the admissions of a defaulting teller to the presi- dent of the bank, upon discovery of the default, in an action against him and his sureties." § 18. The admission or rejection of such evidence is not, how- ever, discretionary in the particular case, but is governed by fixed principles of law.^ The declarations of a third person, explanatory of contemporaneous acts, are not admissible, unless the acts are themselves relevant and material,^ independently of what was said ; nor unless the declaration relates to those acts, and is explanatory of them.^° And an offer of evidence of what was said by a party, accompanying his act, must be limited to what was said relative to or connected with the act, or it may be pi'operly rejected. 1^ § 19. In a late case it is remarked : " Two things must concur. 1 Jolinson V. Ligbtsey, 34 Ala. 169. ^ Union v. Edwards, 47 Mis. 445. 2 1 Greenl. Ev. 185, n. ; Story, Biiilm. s pgr Fletclier, J., Lund v. Tyngs- § 339. boroimh, 9 Cusli. 00. 3 Hadley v. Carter, 8 N. H. 40. 9 Fail v. MeArtliur, 31 Ala. 2f.. 4 Buttram v. Jack.<;ori. 32 Ga. 409. •" Morrill i-. Foster, 32 X. H. 358 ; S. C. 6 Black I'. Tliornton, 31 Ga. 641. 33 ib. 379. 6 Wood V. Barker, 37 Ala. 00. n Wiggin v. Blumer, 11 Fost. 251. 452 EVIDENCE, [book IV. 1. The facts themselves must be relevant and material, independ- ently of what was said ; and, 2. The declaration must relate to those facts, and must be explanatory of them. So that if the dec- laration is material, but the act is important only as it furnished the occasion for making the statement; or if the act is not material without the declaration, and the only connection of the act with the case grows out of the declaration ; or if the statement relates to a matter in no way connected with the act, except that it occurred at the same time, the evidence is not admissible."^ And these rules were applied to the somewhat peculiar facts of the case. In order to show that A and B, two of the heirs of C, a former owner of the land in question, under whom all parties claimed, conveyed their interest in the estate of their father to D, under whom the defendant claimed ; the defendant offered the following evidence. A witness, sixty-three years old, testified, that about the year 1804 or 1805 E, who married B, came to the house of F, where the witness lived, in the winter, with a lumber-box and two horses, and also went to the house of D, from which place he returned with his lumber-box filled with sugar, tea, and other necessaries for a family. In the evening he said to F, that he had been to all the heirs, and they had signed an acquittance of the land, desiring it might be sold, and the price applied to the support of their mother, and that he had got all his pay, a part in the articles, and the rest in money. In commenting upon this somewhat remarkable attempt to apply the doctrine of res gestce, Mr. Justice Bell remarks : " Taking the whole statement of the witness, exclusive of the story told by Kimball, there is no act of any person, no fact of any kind, in the slightest degree material in the case. It was absolutely immaterial and irrelevant, that Moses Kimball came to Thompson's with a sleigh and horses, and went to Wheeler's, and came back with his sleigh filled with sugar, tea, and other necessaries for a family. However explan- atory of those facts, and whatever elucidation or character might be given to them by the statements made by Kimball, those facts were inadmissible, because they had of themselves no bearing on the case." 2 § 20. And in a late case such declaration is held competent, " only when the thing done is equivocal, and it is necessary to 1 Per Bell, J., Morrill v. Foster, 32 N. H. 360. 2 lb. CH. III.] ADMISSIONS AND DECLARATIONS. 453 render its meaning clear, and expressive of a motive or object." ^ And the general rule was held not to render admissible the rea- son given by a pauper for not paying a tax.^ So in a suit brought by A against the administrators of B, in which the question in issue is, whetlier B held possession of personal property as the bailee or as the vendee of A ; tiie declaration of B that he was the owner is not admissible infavor of the administrator, although made while B was in possession, and accompanied by an offer to sell.^ So several joint defendants, in an action for a riotous as- sault, cannot introduce evidence of the declarations of some of them in the crowd while proceeding to the plaintiff's house, where the assault was committed, indicating a peaceable intent ; or of a conversation had by one of them with the plaintiff two hours before the assault, and reported to the crowd before they pro- ceeded to the house.* So reasons given by guests of an inn for leaving it are incompetent evidence to show an injury done to the inn by an alleged nuisance.^ § 21. As may be inferred from what has already been said, declarations, to be admissible as explanatory of acts or transac- tions, must generally be made at or about the same time at which the acts were done or the transactions occurred. They must accompany an act, or be so nearly connected therewith in time as to be free from all suspicion of device or afterthought.*^ They are not required to be precisely concurrent in time with the prin- cipal transaction ; if they spring from it, tend to explain it, are voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design.'^ They are not competent if merely narrative, as in the familiar case, referred to by Mr. Justice Fletcher (in Lund v. Tyngsboroiigh, 9 Cush. 36), where the holder of a check went into a bank, and when he came out said he had demanded payment. So declarations of a defendant in execution, while in possession of the chattels in controversy, and explanatory of this possession, are admissible evidence against the claimant; but not his declarations respecting the source of his title, as that he claimed them as a distributee of his fatlier's 1 Per Bipolow, J., Nutting v. Page, 4 3 Cheeseman v. Kyle, 15 Ohio St. 15. Gray, 584; Worden v. Powers, 37 Verm. •* Stone v. Segur, 11 Alien, 5(38. 619. See Jacobs v. Whitcomb, 10 Cash. ^ Wesson v. Washburn Iron Co., 13 255. Allen, 95. 'i North, &c. V. Stonington, 31 Conn. « Kutland v. Ilathom. 30 Ga. 380. 412. ' People i-. Vernon, 35 Cal. 49. 454 EVIDENCE. [book IV. estate.^ So in trover by A for a negro, carried by his wife to his son-in-law B's liouse, her declarations, while carrying, were inadmissible to rebut the presumption of a gift from three years' subsequent possession by B. So her declarations made several months after his possession commenced.^ So where the question is the good faith of the sale of goods, whatever is said in the prog- ress of the negotiations, and contemporaneous with the sale, and having a tendency to give a character to it, and which derives credit from it, is admissible. But not a recital of past transac- tions ; as where the sale had been completed, and one of the par- ties, during the afternoon of the day of the sale, at another place, stated what had been done.^ So, in a suit in which the validity of a sale is in issue, declarations of the plaintiff made a few days after the sale, are not admissible.^ Nor the statement of a claimant, while engaged in renting a store-room, that he had bought some goods of the defendant.^ Nor a card, signed by passengers the day after a railroad accident, exonerating the oflScers of the train from all blame, in a suit against the corporation by the widow of a person killed.^ So, in trespass for wounding the plaintiff's intestate and driving him from home, and thereby causing his death ; his declarations made at the time of the injury are compe- tent evidence, but not those made during his compulsory absence from home.'^ So an agreement cannot be proved by declarations accompanying an act, although they may be competent as to the subject or result of the agreement. Thus declarations of a wife, contemporaneous with the delivery of money to another person, that it was her separate property, are admissible evidence as a part of i\\Q res gestce ; but not her declarations that the money was the proceeds of her own labor, under an agreement with her husband that she might retain it.^ So the declarations of a ticket- agent, made after the transaction of selling the ticket was closed, are not admissible.'^ Nor statements of a conductor, made after the malfeasance of the railroad complained of, and unauthorized by his principal.!*' So the declaration of a third person, not made 1 Brice v. Lyde, 30 Ala. 647. 8 Raisler v. Springer, 38 Ala. 703 ; 2 Raitbrd v. French, 11 Rich. 367. McLemore v. Pinkston, 31 Ala. 266. 3 Banfield v. Parker, 36 N. H. 353. 9 Milwaukee, &c. v. Finney, 10 Wis. * Webb V. Kelly, 37 Ala. 333. 388. 6 Devries v. Phillips, 63 N. C. 207. ^0 Griffin v. Montgomery, &c., 26 Geo. 6 Macon v. Jolinson, 38 Ga. 409. 111. ■? Parkey v. Yeary, 1 Ileisk. 157. CH. III.] ADMISSIONS AND DECLARATIONS. 455 at the time, is not admissible evidence of the motive for an act.i § 22. One party, in order to rebut the effect of his declarations and admissions, cannot show contrary declarations made at a dif- ferent time, and in the absence of the other ; although connected with certain acts and circumstances, which, of themselves, would not tend to prove the issue. Thus where it is sought to charge the defendant as a partner: after evidence of his admissions, it is not competent for him to prove by the same witness, that at another time he denied the partnership, though in connection with the act of refusing to execute a lease of the store; nor a conversation concerning the parties to a writ made in the name of the firm, or the insolvency of the firm.- § 23. Declarations of a plaintiff in an action for an assault and battery, made at a distance of two or three hundred yards from the place of the assault, the interval of time not being fixed, are not admissible.^ § 24. Questions often arise, as to the competency and effect of admissions or declarations made by one of several parties who are jointly interested in the subject-matter of suit, (a) Upon this point it is the general rule, that, where several persons are proved to have combined together for the same illegal and fraudulent pur- 412. 1 North, &c. V. Stonington, 31 Conn. 2 Hunt V. Rovlance, 11 Cush. 117. 3 Clierry v. McCall, 23 Geo. 193. (a) See Moriarty v. London, 5 Law Rep. (Eng.) Q. B. 1870, p. 314. In trover by a wife, where the defend- ant sets up that the ])roperty heh)nfied to another; declarations of the liusband in relation to the ownership are inadmis- sible. Hanson o. Millet, 55 Maine, 184. In an action by a husband for injury to his wife by negligence, her declaration, made at the time of the accident, that the conductor was not negligent, will not be received as an admission by the husband ; but, if other witnesses have tostitieil that no such declaration was made by her, it is admissible as affecting their credibility. Stillwell V. New York, 34 N. Y. 29. See 32 N. Y. 597. Declarations of the husband, tending to disclaim ownersliip of furniture in the house occupied by him, arc admissible to estai)lish ownershij) in the wife as against his creditors, after liis death. Caswell v. Hill, 47 N. II. 407. In an action for injury to a wife, from the upsetting of a wagon, by reason of an alleged defect of the town highway, the admission of the husband that, "if she had not struck the oW horse and made him jump against the near one and jiusli him oti', the accident would not have occurred," is comjietent evidence, being stated as a fact and not as hearsay. But not an admission by him that he knew, before the accident, that the road was not safe, there being no evidence that he sent or knew the team was going on that road. Shaddock v. Clifton, 22 Wis. 114. Where tliere is a combination or con- spiracy between the jilaintitls and A to prosecute the suit for the benefit of A, a defendant does not entitle himself to the use of secondary evidence, nu'reiy by the charge of such combination, A having, as alleged, control of the priniary evidence U])on which he rests his defence. Baily V. Tranmiell, 27 Tex. 317. 456 EVIDENCE. [book IV, pose, any act, done by one, in pursuance of the original concerted plan, and with reference to the common object, is in contemplation of law the act of all ; and any writings or verbal expressions, being acts in themselves, or accompanying and explaining other acts, in furtherance of the common design, and sopartof the res^este, which are brought home to one, are evidence against the others, if made and used in furtherance of the common purposes ; ^ more espec- ially if made at the time of doing the act. But the joint con- spiracy and common design must be proved.^ So, in an action for conspiracy, proof of a division of the profits is sufficient evidence of combination, in the first instance, to render admissible the decla- rations of one conspirator against the rest.^ So, in case of fraud, to render such declarations admissible, it is not necessary that the person making them should have been a party at the original concoction of the fraud, if he attempt subsequently to reap the benefit of it.* So, after proof of collusion between a debtor and one to whom he has conveyed property, conversations of the grantee with a third party, in the presence of the debtor, are admissible against the debtor to show fraudulent intent in the conveyance.^ So, where a vendor remains in possession, this is evidence of a conspiracy as to creditors, and the court will admit the vendor's declarations as co-conspirator.^ So where a sheriff, at a sale on execution, acts under the direction of two creditors, holding different executions, the instructions given to him by either, in presence of the other, are properly received in evidence, in a suit between them growing out of the sale.^ § 25. But a fraudulent combination or conspiracy must be established, before the declarations of one conspirator can be given in evidence against another for any purpose.^ Where no common object or motive is imputed, as in actions for negli- gence, the declaration or admission of one joint defendant is not evidence against the others.^ " It is only acts and declarations of a conspirator in furtherance of the common design, or during the prosecution of it, that can affect his confederates." i'^ Nor 1 Page V. Parker, 40 N. H. 47 ; Lee v. 6 Blake v. Graves, 18 Iowa, 312. Lamprey, 43 ib. 13 ; 37 Penn. 330. 7 Smith v. Hill, 22 Barb. 656. - Ellis V. Dempsey, 4 W. Va. 126. » 47 Barb. 131. 3 Kimmell v. Geeting, 2 Grant, 125. 9 Daniels v. Potter, 1 M. & M. 501. 4 Peterson v. Speer, 29 Penn. 479. 10 Per Strong, J., Thomas v. Maddan, 5 O'Neil V. Glover, 5 Gray, 144; Lin- 50 Penn. 265. coin V. Clatiin, 7 Wall. 132 ; Jeune v. Jos- lyn, 41 Verm. 478. CH. III.] ADMISSIONS AND DECLARATIONS. 457 are the declarations admissible, of one against others not present, made after the offence was committed, and merely a narration of a past transaction, and not made to further the illegal or criminal design.^ So where two are sued, the admissions of one are evidence against himself; but, unless like admissions by the other can be proved, they must be withdrawn from the jury.^ So declarations of defendants, who did not answer, and were not served with a summons, made when the one who defends was not present, are not admissible against him, when such declarations tend to establish the allegations in the complaint.^ So in an action of trespass against a sheriff for selling the property of A, a non- resident, under an execution against B (which property was found in the possession of B, who claimed to hold it as the agent of A), the declarations of B are not admissible as evidence of fraud and collusion between him and A, without some evidence of a common purpose or design between them.^ So the admissions of one defendant, as to his own illegal and improper conduct, should not be received in evidence, after his death, in an action for con- spiracy, which is tried against his surviving co-defendants only.^ And admissions of one tort-feasor are evidence against himself, but not against others joined in the same action, where the cause of action is the negligence of only one of the parties.^ So the admissions of one of several cestuis que trust of real estate are inadmissible to defeat the title of their trustee.'^ So declarations of one of two defendants in an action of trover, made while in pos- session of the property, that the plaintiff formerly owned it, though admissible against himself, are not admissible against the other, to prove title in the plaintiff.^ § 25 a. In an action by a passenger against a steamboat com- pany for injury from the discharge of a gun by a soldier in the boat, a conversation, just previous to the discharge, between offi- cers of the insubordinate detachment to which the soldier belonged, is competent evidence.^ Otherwise, in a suit against members of a military organization for depredations during the war, with a con- versation between other persons engaged in enlisting men for the 1 30 Verm. 100. 6 De Benedetti v. Mauchin, 1 Hilt. 2 Thompson v. Richards, 14 Mich. 172. 213. 3 Peck V. Yorks, 47 Barb. 131. ■? Pope v. Devereux, 5 Gray, 409. * McDowell r. Bis.-^eli, 37_Penn. 164. » Edjrerton i-. Wolf, Gray, 453. 5 Gaunce c. Backhouse, 3/ Peun. 350; ^ Flint v. Norwich, 7 Blatch. 536. Jacobs V. Shorey, 48 N. II. 100. 458 EVIDENCE. [book IV. organization, as to its purposes and designs, and declarations as to the alleged acts.i § 26. A party's own acts, declarations, or omissions, are not in general admissible in his favor. Thus a party sued for an alleged loan cannot show that he made no entry in his books of the receipt of the money ; or his own declai'ations, about the time of the alleged loan, as to the condition of his pecuniary obligations.^ But the effect of an implied admission by acts may be qualified by accompanying declarations. Thus, where a steamer ran into a flat-boat, sunk it, picked up and carried forward a portion of the cargo, claimed salvage, and received a large sum of money ; in an action against the steamer for the collision, the shipper may show that he paid the money, protesting that no salvage was due, and in order to get possession of the goods, and under a special agreement that the claim for salvage, damages, &c., was to be left to legal decision.^ § 27. The declarations of parties are sometimes received in their own favor, when they accompany acts, or make part of the res gestoi.^ Thus, where two drovers, A and B, came to an inn together, and A told the hostler not to tie the horses, but he did tie them, and B's horse was strangled ; held, in an action against the innkeeper, such direction was admissible in evidence.^ So in an action by a town against the owners of a dam, alleged to have broken away from insufficiency, the declarations of the defendants, when leaving home in a direction towards the dam, that they were going to the dam to take care of it, are competent as part of the res gestce.^ § 27 a. Upon this point the following distinctions are made : " The declarations of a party, giving character to and qualifying his acts, and deriving a credit from them, are admissible in favor of the party making them, as part of the res gestcc, when the acts themselves are material to the issue. . . . The fact was mate- rial, as being the foundation of the plaintiff's claim, constituting the service for which he seeks to recover compensation. . . . But it is not material in the sense that as evidence it would tend to establish the point in controversy in favor of one party or the 1 Lyons v. Wattenberger, 1 Heisk, 193. Cal. 219 ; Wadsworth v. Harrison, 14 2 Douglass V. Mitchell, 35 Penn. 440. Iowa, 272. 3 Weaver v. Alabama, &c., 35 Ala. 176. & Jones v. Hill, 26 Geo. 194. * See Antoine, &c. v. Eidge, &c., 23 ^ Shrewsbury v. Smith, 12 Gush. 177. CH. III.] ADMISSIONS AND DECLARATIONS. 459 other. The question at issue was, whether there had been a change in the location of the line of the road. The act of the plaintiff, in doing the work at the sand-hill, was equally consistent with the conflicting positions taken by the parties . . . whether in doing that work he was grading the original line or a new one." 1 § 28. Admissions sometimes operate by way of estoppel, rather precluding the party from setting up facts in his own favor, than constituting evidence of facts against him. Thus, where one assumes to act in an official character, this is an admission of his appointment or title to the office, so far as to render him liable for official misconduct or neglect.^ So in an action for charging an attorney with swindling, and threatening to have him struck off the roll of attorneys ; held, the threat imported an admission that he was an attorney.^ So one, who has officiously meddled with the goods of a person recently deceased, is estopped to deny his own executorship, as against creditors.^ So where the proprietors of a coach took up more passengers than were allowed by statute ; in an action for an injury alleged to be thereby caused, held, this excess was conclusive proof of such allegation.^ So where the plaintiff signed a railroad receipt for the carriage of goods con- taining certain provisions, under the head of " conditions," which he did not read, nor know their terms ; he was presumed to have known the effect of the paper, and was held bound by its con- ditions.^ So where goods in possession of a debtor were attached as his property, though belonging to one who received them from the sheriff for safe-keeping as the debtor's property, without notice of his own title, the debtor having at the time other attachable goods; held, in an action by the sheriff, the bailee was estopped to claim the goods as his own." So the defendants, brokers, instructed to effect insurance, falsely wrote in reply, that they had effected two policies. In trover against them for the poli- cies, held, they were estopped to deny their own statement, and should be treated as themselves insurers.^ So it is held that a 1 Per Sawyer, J., 34 N. H. 505. * Israel v. Clark, 4 Esp. 259. 2 1 Greenl. Ev. 2<.)8, 299. « Lewis v. Great, &c., 5 Hurl. & Nor. 3 Cummin v. Smith, 2 S. & R. 440. 867. But see Smith v. Taylor, 1 N. R. 196. 1 Davey t'. Field, 4 Met. 881. See also Wilsou v. Carnegie, 1 Ad. & Ell. ^ Harding v. Carter, 1 Greenl. Ev. 316 ; 695. Park on Ins. 4. * Reade's case, 6 Co. 33. 460 EVIDENCE. [book IV. sheriflFis estopped from denying his own return that he had taken bail.i § 29. But, in general, there can be no admission by way of estoppel, unless other parties have acted upon the strength of such admission. Thus, in an action by a tenant for selling grain in the ground upon executions against the landlord ; the defend- ant cannot rely, as an estoppel, upon declarations of the plaintiff as to the tenancy, made to third persons, there being no proof that the defendant acted upon, or was misled by, such declara- tions.2 In the action of crim. con., an admission by the defend- ant that the woman was the wife of the plaintiff is not conclusive against him.^ § 30. The acts and declarations of third persons, not in the party's presence, are not admissible against him.^ Thus, the dec- larations of a physician with respect to the health of a slave.^ So (in Iowa), in an action of trespass for killing a bull, it appeared that the defendant committed the act. The defendant then offered to prove, that A and B had told the witness, that the defendant had nothing to do with killing the bull ; that they themselves had done the act ; that A and B, at the time of the conversation, were leaving the State, in consequence thereof; that this conversation took place about the time the bull was killed ; that B left the State previously to the trial before the justice, and A some two months after the trial ; that B was then dead, and A resided in the State of Illinois. Held, the evidence was incompetent.^ But, if the law prescribes a penalty for the failure of a certain class of persons to perform a duty ; the fact of its omission by an indi- vidual, and that it was not complained of by the community where he resided, is admissible on the question whether he belonged to that class or not." § 31. The declarations of third persons as to possession are often offered in evidence. § 32. The declaration of a person, while in possession of a slave, to the effect that her father gave it to her, was held not explanatory of possession, but to relate to title.^ 1 Simmons v. Bradford, 15 Mass. 82; 5 Blackman v. Johnson, 35 Ala. 2-52. Eaton V. Ogier, 2 Greenl. 46. 6 Ibbitson v. BroMu, 5 Clarke (Iowa), -' Keam v. Harnish, 45 Penn. 376. 532. 3 Morris v. Miller, 4 Burr. 2057. 7 Bryan v. "Walton, 20 Geo. 480. * Barker v. Coleman, 35 Ala. 221. 8 AUen v. Prater, 30 Ala. 458. CH. III.] ADMISSIONS AND DECLARATIONS. 461 § 33. The statements of one in possession of land are admis- sible evidence of the manner of possession.^ § 34. In trover against the bailee of a sheriff, the declarations of his bailor, tending to show a conversion made after suit brought, are not admissible evidence against him.^ § 35. Questions often arise, as to the declarations of persons in some way connected with a party, in reference to the subject- matter of the suit, (a) § 36. In an action by a minor, througli his father as next friend, the father's declarations were excluded.^ § 37. The declarations and admissions of a slave, made at the time of his arrest as a runaway, were not competent evidence for the party making the arrest, in an action against the owner to recover the statutory penalty;'' nor could confessions of a slave, that he had committed wrongful acts, be heard as evidence against the master." But declarations of a mother and guardian, as to the right to certain property claimed by her minor children, made when she was a feme sole, are competent evidence against her hus- band after her death.*^" So the declarations of an intestate, that certain slaves were held by him as trustee for his wife, and not as her husband, were admissible in evidence against his administra- tor, in a suit brought by him against the wife for the slaves.'' § 38. Where the defendant, in an action of trover, relies on paramount title outstanding in A, the admissions and declarations of A, disclaiming title, are admissible in behalf of the plaintiff.^ § 38 a. Acts and declarations contemporaneous with an alleged gift are admissible as part of the resgestce to prove delivery. Also, the subsequent acts of the donor and donee, showing the claim of title of the latter, and a recognition of such title by the former.^ So the declaration of a vendor before the sale, and while in pos- session of the property. ^"^ But not statements made after the sale by a vendor in possession, in pursuance of the contract ; as against 1 Young V. Adams, 14 B. Mon. 127. « Brush v. Blancbard, 19 III. 31. ^ Spencer v. Godwin, 80 Ala. 355. " Liile v. Lide, '•^^l Ala. 44',). » Hammer v. Pierce, 5 Harring. 304. « White r. Dinkins, 11) Geo. 285. ^ Tiiorpe V. Burroughs, 31 Ala. 15'J. » Bragg v. JMassie's Adm'r, 38 Ala. 89. 5 Doty V. Moore, 16 Tex. 591. lo Veunum v. Thompson, 38 111. 143. {n) Tlie declarations of a defendant in of his title, u-hen he. is a comprtrnt wit- attaclimont are not admissible against ness. Langsdorf ;•. Field, 3G Mis. 440; claimants of the property ; or, in general, Howell v. Howell, 37 Mis. 124. declarations of a person in disparagement 462 EVIDENCE. [book IV. a bond fide purchaser^when they were not made in bis presence. ^ Nor the declarations or acts of" a vendor of property, which he has previously sold and delivered.^ Thus evidence of acts or declara- tions of A, a vendor of goods, after he has parted with his property, is not admissible against the vendee, in an action against him by B, the original owner of the goods, who claims that the purchase from B by A was fraudulent.^ § 38 Z>. A sheriff, who was also an executor, deposited money in a bank, noting on the bank-book that the sum belonged to the estate of his testator. In an action by an administrator de bonis non against the bank to recover the deposit ; held, evidence that the sheriff (since deceased) pointed to the entry in the book, and said it was the estate's money, was admissible, not to charge the bank with a trust, but to prove the true ownership of the fund.4 § 38 c. In trover, where the plaintiff claims under a deed of gift, and the defendant under a subsequent sale by the donor to the defendant's father ; evidence of what was said and done at the sale is competent, upon the question whether the father had notice of the prior gift.^ § 38 d. Declarations of a party in possession of slaves, explana- tory of such possession and in disparagement of title, were held admissible in evidence, although he claimed to hold them under a will which was not produced.*^ § 38 e. In a suit for slaves, evidence Avas held admissible of the declarations of a person under whom the defendant held, that the slaves were loaned to him by A, under whom the plain- tiff claimed, and were to be returned, and that there was a dispute about the title, and that he would only sell such a title as he got from the sheriff, as he was informed that the heirs of A would claim them.''' § 38 /. In trover, by the mortgagee of a chattel, against one claiming under the mortgagor, conversations or acts of the mort- gagor, treating the mortgage as subsisting, are not admissible in evidence against the defendant, unless brought home to him, even if he has not pleaded title in himself.^ 1 McClellan v. Cornwell, 2 Cold. 298. * Stair v. York, 55 Penn. 364. 2 Hessing v. McCloskey, 37 111. 341; 5 Black v. Thornton, 30 Ga. 361. Webb V. Kelly, 37 Ala. 833. « Patterson v. Flanagan, 37 Ala. 513. 3 Hall r. Hinks, 21 Md. 406 ; Holmark ^ Jemison v. Smith, 37 Ala. 185. V. Molin, 5 Cold. 482. 8 ciark v. Houghton, 12 Gray, 38. CH. III.] ADMISSIONS AND DECLARATIONS. 468 § 38 g. In replevin for a colt, brought by an executor, the plain- tiff cannot prove the declarations of his testator, made while the colt remained on his premises, with his other stock, ten'ding to show that he claimed to own the colt, to rebut testimony offered by the defendant, tending to show a previous gift by the testator to his son, who lived with him, and of whom the defendant had purchased the colt.^ § 38 h. Declarations of a husband, that he sold a note belonging to the separate estate of his wife, are not admissible in evidence, after his death, against the wife, in an action brought by her against the holder of the note for its conversion.^ § 38 i. In replevin, to warrant the admission of the declara- tions of the vendor under whom the plaintiff claims, it should be clearly shown that he was in possession when the declaration was made ; except on cross-examination, to contradict his testimony on direct examination.^ § 39. Declarations are often offered in evidence to prove or dis- prove alleged fraud. § 40. Statements by a vendor, made after a sale and conveyance to a creditor, concerning his indebtedness to the vendee before the sale, and in the absence of the vendee, are not competent, in a suit by other creditors, to prove the conveyance fraudulent.^ (a) A grantee is not to be bound, as to the fraudulent nature of the transaction, by the declarations of the grantor, until shown aliunde to be cognizant of, or implicated in, the fraud.^ But to prove an assignment for the benefit of creditors fraudulent, it is com- petent to show the declarations of the assignor, made after the assignment was delivered, but before the schedules were made out and attached, and while the assignor was engaged in preparing them.^ § 41. To show that the sale of a stock was made in the regular course of legitimate business, bond fide, and not in fraud of credi- 1 Holmes v. Sawtelle, 53 Maine, 179. Pliillips, 42 111. 423 ; Gill v. Strozier, 32 2 Miirphrce v. Singleton, 37 Ala. 412. Geo. 688; Cooke v. Cooke, 21) Md. 538; 3 Sel. Malione v. Williams, 3'J Ala. 202. 4 Wood V. Uicks,' 3G Mis. 326. .'' Bell v. Woodward, 47 N. H. ASO. 8 Hatch V. Bates, 54 Maine, 136. 468 EVIDENCE. [book IV. all persons claiming under him.^ Or, as is elsewhere held, the declarations of a person in possession, as to his title, and as to a fact which it is competent to establish by parol evidence, are admissible against and in favor of persons, claiming under him, who subsequently came into possession.^ Thus the declara- tion of an ancestor, that he held as tenant of A, is admissible in an action brought by A against the heir.^ So where the question is, whether a frame building placed by A upon land, without being fixed on the soil, became a part of the realty, the statements of A, being at the time in possession claim- ing title, as to his intention in so placing it, are admissible in evidence, although he is not a party to the suit.'^ So declarations made by a tenant when he first took possession, in disparagement of his title, are admissible in support of the title of his landlord, in trespass to try title brought against them.^ So where an entry was made, in an alcalde's book of grants, on the margin of a grant, of the words ''not taken," and lines of cancellation were drawn across the grant ; held, in an action by the heirs of the grantee, that the alcalde might testify as to what was said and done as to the cancellation, although the grantee was not present.^ So, upon a writ of entry, the declarations of a former tenant in possession, limiting or qualifying his right arising from possession, are admis- sible, notwithstanding he may have contracted for a conveyance to the disseisor in fee, where he acted as the agent of the disseisee, with the knowledge of the disseisor.'^ So on the issue of fraud in the conveyance of an unfinished mill by A, the mill being held by A and B, and B having sold to A, but remained in posses- sion ; declarations by B, after such sale, that he held it as part- owner with A, are admissible in evidence.^ So declarations of a vendor, previous to the sale, that he intended to negotiate a colorable sale, for the purpose of obtaining time to meet his lia- bilties, are admissible to show fraud in the sale.^ So the declara- tions of an occupant under a bond for a deed are evidence of the boundaries of the land against a stranger, in favor of one who 1 Bell V. Woodward, 46 N. H. 315 ; 4 Kelley v. Kelley, 20 Wis. 443. BoUo V. Navarro, 33 Cal. 459. 5 Wallace v. Wilcox, 27 Tex. 60. - Kcator v. Dimniick, 46 Barb. 158 ; '^ Rice v. Cunningham, 29 Cal. 492. Thomas v. Wheeler, 47 Mis. 363. Contra, ^ Peabody v. Ilewett, 52 Maine, 33. Osgood V. Coates, 1 Allen, 77 (as to decla- ^ Gregory v. Frothingham, 1 Nev. rations in favor). 253. a Gibney r. Marchay, 34 N. Y. 301 ; » lb. Arthur v. Gayle, 38 Ala. 259 ; Baker v. Haskell, 47 N. H. 479. CH. HI.] ADMISSIONS AND DECLARATIONS. 469 afterwards takes an assignment of the bond and a deed from the obh'o'or.^ So, where an adverse possession of twenty years is claimed by the tenant, it is competent to show, by contemporane- ous declarations of those whose possession is relied upon, and by their payment of rent to the demandant's predecessor, and, if the possession relied upon is traced through executors who held for the benefit of heirs, by the admissions of the heirs, tliat the possession was not adverse.''^ But such declarations must be ante litem motam.^ So declarations of a former owner of land, made during his ownership, and tending to prove a right of way over it, are competent evidence against the present owner; though those tending to disprove the right of way are incompetent in his favor.^ So declarations of a grantor before the grant, to the effect that he had previously sold the land to another, are admis- sible against the grantee and all who claim under him.^ So declarations of an owner of land while in possession, concerning a boundary line, and in disparagement of his own title, are admis- sible in a trial of title where a subsequent grantee is a party .^ So the declarations of a person in relation to the boundary of land he once owned are held competent evidence." (a) § 46 a. Declarations made by an intestate in his own favor, to establish title in himself, are not admissible for his administratrix in an action brought for its recovery.^ § 46 b. In a suit to enforce a trust of lands purchased with the plaintiffs' money by their father, evidence is admissible, after bis death, of declarations made by him, at the time he purchased and afterward, that he held it in trust for them,^ 1 Niles V. Patch, 13 Gray, 254. 6 Bower v. Earl, 18 Mich. ,367. 2 Hale V. Silloway, 1 Allen, -21. 7 Dawson v. Mills, 32 Penn. 302. 3 Lefier v. Doyle, 11 Kich. 109. » Wiiitfield i:. Whitfield, 40 Miss. 352. * Blake v. Everett, 1 Allen, 248. '-' Robinson v. Robinson, 22 Iowa, 427. 5 Dickerson v. Crisman, 28 Mis. 134. (a) One boundary in a deed was de- In trespass to try title, where the scribed as rnnninji from a nionnnient, boundaries of the Ford leiic/iic came in " tlience in said wall as it now stands," to controversy ; held, the declarations and another moiuunent. The wall e.xtendoil admissions of Ford, before his sale from each inoninncnt straiuri)iise of diiries of the sale as made. — not for tiie showiufi that a wooden fence, built circuit- i)iiri)ose of clianj^injif the survey. Bird v. ously across the interval, so as to include Pace, '20 Tex. 487. less land than a straight continuation of Declarations of a plaintiff in eject- the wall would have included, was the nient, that he had never felt satisfied true boundary, declarations as to the with a boundaiy line in dispute, are corn- fence, maile by the grantee upon the land petent only to rebut evidence of acquies- soon after the delivery of tlie deed, and cence. Murphy v. Griggs, 41 Geo. 464. even nine years alter, were admissible. Davis V. Sherman, 7 Gray, 291. 470 EVIDENCE. [book IV. § 47. As we have already intimated, an act may generally be proved as an admission against the party doing such act.^ Thus in an action brought for an assault, by one woman against another, the two living in different parts of the same house ; the defence being set up, of an accidental collision, evidence is competent for the plaintiff', that, although she was several days confined to her bed from the effects of the injury, and under the care of a physician, the defendant did not visit her, or show her any atten- tion or sympathy .2 And the acts of an agent will bind the prin- cipal. Thus a ship-owner may be held liable for all acts of the alleged master, done in the ordinary scope of his employment, by evidence of his having actual command of the ship.^ So the acts of an agent, in perpetrating a fraud under instructions from his principal, are admissible against the principal.* § 48. The acts of a party are sometimes received in his own favor. Thus, in an action against a sheriff" for carrying away the plaintiff" 's property as another's, it is competent for the plaintiff" to show acts of ownership, and tending to prove possession.^ So in an action by a consignee of goods against a carrier for failing to deliver them, the fact that the plaintiff", after the goods should have been delivered, made inquiries for them of the carrier, is admissible in evidence of the loss.^ But, in an action for money lost at play by a clerk of the plaintiff", he cannot prove, that the clerk omitted to enter money collected for him in the clerk's collection-book, by such book.'* So, where the plaintiff" claims that he had acquired an interest in certain company mining claims by purchase ; evidence that he had acted as a member of the company, paid assessments on his interest, and been received as a member, was held incompetent and irrelevant to prove title.8 § 49. In general, written documents, as mere declarations, are regarded as only hearsay, and on that ground inadmissible in evidence. § 50. In an action of trespass for placing rocks and rubbish on the plaintiff"'s land, the boundaries being in dispute ; a photo- 1 Warner v. Scott, 41 Penn. 274. See 5 Fitch v. Brockman, 3 Cal. 348. Bradlev v. Pike, 34 Verm. 215. ^ Ingledew v. Northern, &c., 7 Gray, 2 State V. Alford, 31 Conn. 40. 86. 3 Story on As;encv, §§ 116-123 ; 2 ^ Comer v. Pendleton, 8 Md. 337. Greenl. Ev. 48, f 64. ' 8 Khig v. Raudlett, 33 Cal. 318. * Lunday v. Thomas, 26 Geo. 537. CH. III.] ADMISSIONS AND DECLARATIONS. 471 graph of the land, ofTe red merely as a "chalk representation," and not verified by the oath of the artist, thou Bartlett v. Decreet, -1 (iray, 111. 3 Glascock V. Nave, 15 Ind. 457. 1 lleywood v. Reed, ib. 574. * Plummer v. Harbiit, 5 Clarke (Iowa), 808. 472 EVIDENCE. [book IV. ministration are competent evidence of the due appointment of the administrator, where a title to real estate is set np under an administrator's deed.^ So, for the purpose of proving that the defendant has fraudulently conveyed his real estate to third persons, copies of the deeds thereof from the registry are admis- sible, as the originals are not presumed to be in the possession of either party to the suit.^ So where, in an action for real estate, the defendants claim title, in support thereof they may offer a record of proceedings, under a petition by the administrator of the plaintiff's father, against the widow and heirs, to sell lands; and it appearing, by the record, that it was shown " to the court, that due notice had been given to the defendants," the plaintiff, an heir, cannot oppose the record, by evidence that he had never been served with process in such proceeding, nor appeared, and that the court had therefore no jurisdiction as to him.^ So, in ejectment, the plaintiff, claiming under execution sale, may offer in evidence, to prove the judgment, the journal entry, the execution issued for the debt, with the indorsement thereon, and the files in the case, showing a declaration, plea, &c., the writ of error by the defendant, and return thereto, being a transcript of the judgment-record and proceedings in the Supreme Court, where judgment was aflSrmed. And where the journal entry is defective, the former record, signed by the clerk and judge of the Circuit Court, and sent up to the Supreme Court in return to the writ of error, is evidence both of the judgment and record of the Circuit Court.* So in an action for injuries sustained from a defect in a highway ; to prove the existence of the highway, the plaintiff introduced a book of records, kept by the town-clerk, showing a record of the original application to the selectmen for the laying out, the order of notice thereon, and the return of the laying out, signed by two of the selectmen, which record had been duly entered in the book by the town-clerk for the year when the highway was laid out, but was not certified or attested by him, in his official capacity, as a true copy of the original record. It appearing, that the original record was burned by acci- dent; that the highway was laid out within twenty years; and that the town-clerk was dead at the time of trial : held, that there i Remick v. Butterfield, 11 Fnst. 70. 3 Richards v. Skiff, 8 Ohio (N. S.), 'i Bhinchard v. Young, 11 Cush. 341. 586. * Emery v. Whit well, 6 Mich. 474. CH. III.] ADMISSIONS AND DECLARATIONS. 473 was com])Gtent secondary evidence, upon wliich a jury might properly find a legal laying out of the highway.^ § 53. Declarations are sometimes objected to on the ground of irrelevancy. Thus, that two persons, not agents of, nor authorized by, the plaintiff, in a suit to recover land upon which the defend- ants erected their wall, said to the defendant's agents, when dig- ging, that they were on the plaintiff's land, is irrelevant, and not admissible in evidence for the plaintiff.^ So, in an action under New York Sts. 1847 and 1849, for negligence resulting in death, the negotiations of the plaintiff with the defendant, with refer- ence to a settlement, are not admissible, for the purpose of showing the harsh and oppressive conduct of the defendant in resisting the claim; his liability to pay some damages not having been denied.^ But in some cases evidence is competent, though not directly relevant ; its weight and effect being for the jury. Thus, in an action against one for instigating his slave to burn the plaintiff's house, evidence that a few weeks after the burning his brother- in-law's house was burned by an incendiary, taken in connection with the fact, that a week after the defendant was heard to say to the slave, " That's right, damn 'em, burn 'em up ; " was held proper for the jury; they were to consider, but with great cau- tion, what the defendant meant and referred to.'* 1 Hall V. Manchester, 40 N. H. 410. 3 Green v. Hudson, «Scc., 32 Barb. 25. See Bebee i-. Sclieidt, 13 Ohio St. 40G. 4 Bell v. Troy, 35 Ala. 184. 2 Carroll v. Granite, &c., 11 Md. 399. 474 EVIDENCE. [book IV. CHAPTER lY. " RES INTER ALIOS ACTA." 1. General rule. 2. Exceptions — fraud, neglect, illeo^alitj'. 12. Actions itgainst towns, railroads, &c. 17. Injuries caused by gas. 22. Questions of time. 24. Evidence of reputatiim. 25. Evidence as to value and amount. 34. Motive, intent, malice. § 1. In general, evidence must strictly relate to the matter in controversy, and to the acts and declarations of the parties to the suit. " Neither the declarations, nor any other acts of those who are mere strangers, or, as it is usually termed, any ' res inter alios acta,' is admissible in evidence against any one, as afford- ing a presumption against him in the way of admission, or other- wise ... It would be contrary to the first and most obvious principles of justice, that any one should be bound by -. Plielps, 2 Wnis. 258. < Schuitz V. Lindell, 80 Mis. 310. ^ Patcii v. Keeler, ib. 332. » Emery v. Webster, 42 Maine, 204. ii» lb. 1' Spears v. Burton, 31 Miss. 547. 492 EVIDENCE. [book IV. ■was also access tlirongh a door in the partition. A, with the consent of C, removed the partition, agreeing to restore it when requested. Afterwards A sold out to S, with whom C agreed in writing, that " the present lessee and occupant of the first floor of the house may continue to use and occupy the said premises as long as I hold the lease thereof." In an action by S against C, for putting up the partition, held, parol evidence was competent that S took the agreement from C with knowledge of the rights and obligations of A.^ § 6. The same principles are applied to written contracts. Thus, if a bill of lading does not require the master to take a cer- tain route, such obligation cannot be established by proof of any preliminary conversation.^ But, in an action for procuring the arrest and imprisonment of the plaintiff, on an execution against him and a former partner, in favor of A, but assigned to the defendant, in which there is evidence that the plaintiff had sold out his interest in the firm to B, and that, as part of the consider- ation, B agreed to indemnify him against all the outstanding debts, and that the new firm had accordingly paid the execution ; it is competent to prove by parol, that the defendant authorized B to make the contracts of purchase and indemnity, as his agent, before the assignment and arrest, for the purpose of showing knowledge on his part that the execution was paid. '' This was not the purpose " (to vary the contract) " for which it was offered, nor could it, if received, have had any such effect. It was offered because the fact . . . would have some tendency to show that the defendant must have known of the payment . . . if it had been made."^ And a bill of lading or railroad receipt, stating that the goods were received in apparent good order, does not exclude parol proof of their real condition.'^ § 7. Upon petition to vacate the levy of an execution for want of notice to the debtor to choose an appraiser, the fact may be shown by parol, though the officer states in his return of the levy that notice was given.^ § 8. Questions as to parol evidence arise from the alleged loss of the written instrument. § 9. The issuing of a warrant, and arrest thereupon, cannot be 1 Steffens v. Collins, 6 Bosw.223. * Blade v. Chicago, &c., 10 Wis. 4. 2 White V. Van Kirk, 2o Barb. 16. ^ Briggs v. Green, 33 Verm. 565. 3 Paget V. Cook, 1 Allen, 522 ; per Merrick, J., ib. 525. CH. v.] PAROL EVIDENCE. 493 proved by parol evidence, without proving that neither the warrant nor a copy can be produced. So lield, in a late case for conversion, where the warrant in question was not returned into court, and not produced, though the plaintiff had notified the defendant to produce it. Tlie defendant claimed the property for whicli the suit was brought under a release or bill of sale from the plaintiff; to which the plaintiff replied that the release was obtained from him througii duress and fraud. The plaintiff tes- tified, that he was arrested upon a charge of larceny from the defendant, upon a warrant which was never returned. ^ § 10. Action to recover the amount of a note alleged to have been left with the defendant for collection. Tiie defendant offered to prove, that the plaintiff had written him instructions not to attempt to collect the note of the maker, but to exchange it for the note of another person named, if he could, which he had done. This proof he offered to make, by proving the contents of the letters of instruction, having first clearly shown that he had deposited the letters with another, to be kept during his absence from home, and that, while so on deposit, they had been acciden- tally destroyed. The proof was objected to, not as being irrele- vant, but for want of sufficient proof of loss. Held admissible.^ § 11. In an action of trespass for levying a tax, to establish the assessment, the defendants offered to prove the loss and contents of the district records. The witnesses, in speaking of the records, described them as being kept on half sheets and quarto sheets of paper, not bound in book form. To all this testimony the plain- tiff objected, for the reason that the evidence did not show such a record as a school district was required to keep, and that the existence and contents of a public record could not be proved by parol. Held, that, after proof of the loss of a record, its contents may be proved, like any other document, by secondary evidence ; that, if a copy can be produced, its production should be required ; but, if the existence of better evidence is not disclosed, then the contents may be proved by parol.^ (a) 1 Ilackett V. Kinir, 6 Allen, 68. 3 Higgins v. Reed, 8 Clarke (Iowa), '-' Littler v. Franklin, 9 Ind. "ilG. 298. (a) Thedcfeiiilants oflTered in evidi-nce a citizens of tlie district, cdntaininfj the paper, in tlie liand\vritin;4 of tlie secretary names of tlic plaintitl's ami others, with of the district (hut wiietlicr in that of one memorandums as to wlio liad j)aid, which of tiie defendants did not ajjpear), siiowing paper was tlie onlj' written evidence re- the amount of tax due from the several maining of the tax-list of Iboo. Held, if 494 EVIDENCE. [book IV. § 12. In Georgia, it being the duty of the sheriff, after levying under a tax execution, to return it to the office of the solicitor- general ; it is to be presumed that he did so, and inquiry for it must be made at such office, before secondary evidence of its con- tents can be admissible.^ § 13. In an action against selectmen for refusing to receive a vote, parol evidence that the plaintiff's name was on the list is inadmissible, without notice to produce the list, or a subpcena duces teciimP' § 14. In an action on the case, by a town (in Connecticut), for illegally transporting A, a pauper, into the town ; where the ques- tion was, whether A had formerly gained a settlement in Vermont, under the statute which provides, that every person who shall inhabit in any town or place within said State, and have been charged with and paid his share of the public rates or taxes for two years, shall acquire a settlement ; and it appeared that such taxes were assessed and collected in much the same manner as in Connecticut, but there was no record evidence before the court, that a tax claimed to have been paid by A had been legally assessed, and no foundation had been laid for dispensing with such evidence : held, secondary evidence was not admissible.^ § 15. The question of parol evidence often arises in determin- ing the application of a writing. Thus, in case of a former judg- ment, the precise object and effect of which become material, as bearing upon the pending action. § 16. Parol evidence is admissible, that an obstruction, for which damages were recovered in a former action against another defendant, is the same for which damages were claimed in a sub- sequent suit ; but not that there was a claim for false imprison- ment in the former suit, and that, on appeal from a justice, in the Superior Court, upon a suggestion that the false imprisonment was the plaintiff's only cause of action, he thereupon, desiring to amend, was told by the court that it was unnecessary, that the trial might go on as if the amendment were made, and that the amendment was disallowed ; and therefore it cannot thus be 1 Davenport v. Harris, 27 Geo. 68. ^ Marlborough v. Sisson, 23 Conn. 44. 2 Harris v. Whitcomb, 4 Gray, 433. the paper was a copy of tlie assessment- provided for in that section, it was admis- roU provided for in § 1130 of the Iowa sible. 8 Clarke, 298. Code, or one of the lists posted up, as CH. v.] PAROL EVIDENCE. 495 shown that the judgment of the Superior Court, affirming that of the justice, sliould not be a bar to the present action for tlie obstruction, against another defendant.^ § 17. In case of sale of a certain amount of standing timber, by a contract partly reduced to writing; parol evidence is admis- sible to show, what did not appear by the writing, from what tract the timber was to be cut.^ 1 Federal, &c. v. Mariner, 15 Md. 224. - Pinney v. Thompson, 3 Clarke (Iowa), 74. 496 EVIDENCE. [book IV. CHAPTER VI. MISCELLANEOUS POINTS OF EVIDENCE. — VARIANCE ; TESTIMONY OF PARTIES. 1. Varinnce. 9. Testimony of parties. § 1. It has already been explained, under the head oi Pleading, that the facts proved must conform to the facts alleged. (See p. 242.) Otherwise there is a variance which is fatal to the action or defence. A few leading cases upon this subject are here sub- joined. § 2. In trespass, the locus in quo must be proved to be within the hundred laid.^ § 3. Voluntary waste cannot be proved, upon the issue of per- mitting the premises to be out of repair.^ § 4. An action for malicious prosecution before Baron Water- park, of Waterfook, is not sustained by proof of such prosecution before Baron Waterpark, of Waterparhfi So, in trespass for breaking and entering, the defendant pleaded a justification under a search-warrant granted by a justice of the county of Stafford^ diXiA gave in evidence a search-warrant granted by a jus- tice of the borough of Wolverhampton, acting as such, but who was also a justice of the county of Staiford. Held, the evidence did not support the plea."^ § 5. An immaterial averment need not be proved. Thus an action for removing earth from the defendant's land, thereby injuring the foundation of the plaintiff's house, does not de. pend on intention, which, therefore, though alleged, need not be proved.^ § 6. Whether an allegation is mere surplusage, not requiring to be proved, is often a point of much nicety. § 7. An action for deceit in a sale against two is not sustained 1 Emory v. Collings, 1 Har. 325. •« Webb v. Ross, 4 Hurl. & Nor. 111. 2 Edire V. Pemberton, 12 M. & W. 187. ^ Panton v. Holland, 17 John. 92; ace. 3 AValters v. Mace, 2 B. & Aid. 756. Twiss v. Baldwin, 9 Conn. 291. CH. VI.] TESTIMONY OF PARTIES. 497 by proof of a sale b}' one of tbem.^ So in trespass for breaking and entering a several fishery, if the replication j)iescribe lor a sole right of fishing in four places, upon which issue is taken, proof in only three places is a fatal variance. So a plea in tres- pass, justifying under a prescriptive right of common on five hundred acres, is not sustained by evidence, showing that the ancestor of the defendant had released five of them. So, in replevin of cattle, and avowry of taking damage feasant, a plea by the |)laintifi" of a prescriptive right of common for all the cattle is not sustained by proof of a right for a part.^ So an allegation, in an action by landlord against tenant for negligently keeping his fire, of a demise for seven years, is not sustained by proof of a lease at will ; though an allegation of a tenancy, gen- erality, would liave been sufficient.^ § 8. But in trespass, for driving against the cart of the plain- tiff, an allegation that he was in the cart need not be proved.* So, in an action for an injury to a reversionary interest in land, an allegation that the close "continually from thence hitherto hath been, and still is," in the possession of A. B., is surplusage, and need not be proved.^ So, in an action for disturbance of a right of common by opening stone quarries, the declaration alleged a common by reason of a messuage and land, in posses- sion of the plaintiff". The general issue was pleaded, and a com- mon proved by reason of the land only. Held, the proof was not of a different allegation, but of the same allegation in part; and the declaration was sustained, and damages might be given accordingly.^ So if a declaration discloses a state of facts, upon which an action is maintainable without either malice or fraud, the plaintiff is not bound to prove either, although both are alleged, and may recover though both fraud and malice are dis- proved." § 9 "The general rule of the common law is, that a party to the record in a civil suit cannothe a ivUness either for himself, or a co-suitor." *' § 10. Exceptions to this rule, however, are adopted in some > Weall V. Kinp, 12 E. 452; Lopes v. ^ Vowles v. Miller, 3 Taiin. 137. De Tastet, 1 H. & B. 538. 6 liifkets v. Sal.rov, 2 B. & A. 360. 2 1 Greenl. Ev. 144, § 71 ; Bull. N. P. See Busliwood ;•. I'oiKi, Cro. Eliz. 722. 299. ^ Swiiilen r. Clielmsford, 5 II. & N. 3 Cudlip V. Riindle, Carth. 202. 890. * Howard v. Peete, 2 Chit. K. 315. 8 i Qreenl. Ev. 475, § 329. 32 498 EVIDENCE. [book IV. cases ; more especially in courts proceeding according to the Roman law ; " first, where it has been already proved that the party against whom (such evidence) has been offered has been guilty of some fraud, or other tortious and unwarrantable act of intermeddling with the complainant's goods, and no other evi- dence can be had of the amount of damages ; and, secondly, where, on general grounds of public policy, it is deemed essential to the purposes of justice." ^ In reference to cases of the latter description it is remarked : '^ This rule is repudiated in some of the States, and it can only be defended on the alleged necessity of the case. We have always endeavored to restrain the rule within the narrowest possible limits, and to caution juries when they receive such testimony."^ § 11. In an action against a railroad company, for the value of a trunk and its contents lost on the railroad, the party may prove by himself or his wife the contents, but not their value,^ The jurors, when the property is described, may have a proper meas- ure of damages in their knowledge of values.* § 12. This rule has been sometimes affirmed by statute. § 13. The provision of Mass. St. 1851, c. 47, § 5, that, in any action " brought by a passenger against any railroad corporation, steamboat proprietor, or other common carrier," the plaintiff, after proof of the bailment of his trunk to the defendants, and of its loss " by the fault of such carrier, or of the agents of such carrier," shall be allowed to put in evidence a descriptive list of its contents, sworn to by himself; applies to the case of the loss of a trunk left by the passenger with the baggage-master of a railroad corporation, after arriving at his place of destination. The court remark : " The statute makes no distinction, if there be one, between the larger liability of carriers whilst the baggage is in transitu . . . and that more limited duty which devolves on them as bailees for hire alter it is received at the depot. . . . Whatever may be the nature and extent of the duties of carriers, whether they be liable for all losses, or only for such as proceed from negligence and carelessness, ... or from failure in the performance of all duties incumbent on all bailees for hire, the 1 1 Greenl. Ev. 492, § 348. * Illinois, &c. v. Copeland, ib. 332. See ^ Per Breese, J., 24 III. 336. Stadhecker u. Combs, 9 Rich. 193. 3 Illinois, &o. V. Taylor, 24 III. 323. CH. VI.] TESTIMONY OF PARTIES. 499 relation of passenger and carrier, in regard to baggage, continues until the carriers have performed their whole duty." ^ § 13 a. In tlie United States, by express statute, the common law rule has been still further relaxed, and parties are very generally allowed to testify, in most cases, in their own favor. Some questions have arisen in the application of these statutory- provisions. § 14. In an action against selectmen for refusing to put a name upon the voting-list and rejecting a vote, the plaintiff may prove his own statements concerning his residence, made to the defend- ants under oath, for the purpose of furnishing evidence of bia qualifications. So he may testify to his own intention in pre- viously leaving the town for a prolonged absence.^ So the plain, tiff, in an action of tort in the nature of trespass qu. claus., may testify how long his use and occupation of the premises have continued.^ So, in an action for false imprisonment, the plain- tiff, who was arrested on a charge of stealing from the defend- ant's house, may testify as to the statement made to the policeman by the defendant's sister, who was the owner of the stolen prop- erty, that the defendant ordered the arrest to be made.* So in an action against an officer, for the conversion of property, attached by him on a writ against one under whom the plaintiff claims title by a prior purchase : the plaintiff, while testifying in his own behalf, may be asked by his counsel if he took pos- session of the property ; and a notice given by him to the defend- ant, in which he claimed ownership thereof, and demanded its return, is also admissible.^ § 15. It is no ground for a new trial, that, the plaintiff having been asked, while under cross-examination, whether he was the author of a pamphlet, which contained expressions of opinion on religious subjects altogether at variance with those generally received among Christians, and having declined to answer, on the ground that his answer in the affirmative might subject him to a criminal prosecution; the counsel for the defendant was per- mitted for a considerable time (obviously with a view to preju- dice the plaintiff with the jury) to read various passages of a similar tendency from other printed documents, each time repeat- 1 Harlow v. Fitchburp, &c., 8 Gray, * Harris v. Dignum, 5 Iliirl. & Nor. 237; per Sliaw, C. .1. ib. 240. 943. ^ Lombanl v. Oliver, 7 Allen, 155. 5 Rand v. Freeman, 1 Allen, 517. * Bennett v. Clemence, 6 Allen, 10. 500 EVIDENCE. [book IV. ing the inquiry, whether the plaintiff was the author, or whether the passage read expressed his notions on the subject : the jury being entitled to have before them all the facts and circum- stances, from which they might be enabled to judge of the degree of credit due to the party as a witness.^ § 16. After the defendant, in an action for obstructing the highway with building materials, has sworn positively that he received the materials in person, and that they were put in the particular place according to his direction ; he cannot offer evi- dence that under the contract of purchase they were to have been delivered in another place.^ § 17. A statute authorizing the testimony of parties was by a liberal construction held applicable in the case of corporations, though not expressly mentioned. The court remark : " It may well be that the present case did not occur to the legislature when the statute was enacted ; but the design was to admit, as a witness, a party to an action, whenever the adverse party or person in interest could also be a witness. A corporation could never be a witness, but a corporation is composed of a person or persons, who are natural persons and are interested in the corpo- ration, and they can be witnesses."^ 1 Bradlaugh v. Edwards, 11 C. B. 2 Clark v. Kirwan, 4 E. D. Smith, 21. (N. S.) 377. » Per Marvin, J., 28 Barb. 84. CH. VII.] FRAUD AS A GROUND OF ACTION OR DEFENCE. 501 CHAPTER YII. TORT AND CONTRACT. FRAUD AS A GROUND OF ACTION OR DEFENCE. § 1. In an action on the case for falsely recommending a person as fit to be trusted, the knowledge of his insolvency, as well as the fraudulent intent, must be proved. ^ § 2. In an action for false representation as to the value of a business, the question will not be merely whether it was ever made, but whether the defendant kept it up ; and whether, even if he did, the plaintiff was thereby induced to complete the pur- chase. ^ § 3. In cross-actions between the vendor and vendee of a ship, the question in both being fraud in obtaining a classification as A 1, which had been obtained by trickery on the part of an agent of the vendor; the jury must, to find against the vendor, believe him to have been a party to this fraud : and letters from the agent to him are admissible to show his bona fides. ^ § 3 a. A bill of lading represented too many goods to have been shipped. This arose from the mistake of the mate, which, there was evidence to show, was caused by the fraud of the person who put the goods on board, who was either agent of the shipper or of his vendor. Held, there was evidence for the jury, that the misrepresentation was caused " wholly by the fraud of the shipper or of the holder, or some person under whom the holder claimed," within the meaning of the 18 & 19 Vict. c. Ill, § 3.* § 4. In an action for falsely representing that a good living might be got at a certain public house, evidence is admissible, that, a year or two before the plaintiff took it, some one else 1 Fooks t'. Waples, 1 Har. 131. * Valieri v. Boyland, Law Rep. 1 C. P. 2 Incle.lon v. Watson, '1 F & F. 841. 382. !* Tindall v. Baskett — Baskctt v. Tin- dall, ib. G44. 502 EVIDENCE. [book IV. found it impossible to get a living ; the character of the house not having since changed.^ § 5. In an action for a false representation that a third party to the best of his knowledge was responsible, the defendant may be asked in cliicf, whether at the time of the representation he believed the debtor to be in good credit ; and other persons residing in the neighborhood may be asked a similar ques- tion. ^ § 6. Parol evidence is admissible of false representations as to what passed by a lease. Thus, in case of a lease of a ferry-ship, using the words, '* or so much thereof as belongs to the " lessor; evidence is competent, of representations that he owned nearly the whole ship.^ § 7. Upon a question of fraudulent conveyance, the reputation of the grantee, as to means or property, in the town or neighbor- hood where he resided, is competent evidence upon the point of hona fides or mala fides J^ § 8. *' Generally, to establish an allegation of fraud, and perhaps to repel it, large latitude is allowed to the admission of evidence, but the evidence must have some bearing upon the matter in controversy."^ Thus, in an action for falsely representing a person as entitled to credit, evidence is not competent for the defendant of declarations of a different character made by him to other persons at about the same time. It tends in no degree to disprove the specific fraud charged in the declaration, to excuse the defendant, or lessen his responsibility for damages.*^ § 9. In an action for fraudulent conspiracy in the transfer of property against A and B, testimony is not admissible, that before the alleged fraudulent transfer A had endeavored to sell his property ; having no tendency to prove the honesty of the arrangement with B.'^ § 10. In an action to set aside a conveyance as fraudulent against creditors, evidence is admissible to show what other prop- erty the grantor had at or before that time, and its value, and that he had conveyed it to different persons without considera- tion and with fraudulent intent. First, for the purpose of show- 1 Penn v. Steadnian, 2 F. & F. 546. ^ -pev Strong, J., Graham d. Hollinger, '^ Sheen v. Bumpstead, 8 Jur. (N. S.) 46 Penn. 56. See p. 475. 702 ; 10 W. R. 740, Exch. 6 lb. 55. 3 Sharp V. Mayor, &c., 40 Barb. 2-56. 7 Tarns v. Lewis, 42 Penn. 402. 4 Amsden v. Manchester, ib. 158. See p. 429. CH. VII.] FRAUD AS A GROUND OP ACTION OR DEFENCE. 503 ing his situation at the time in question, and what he had done with his previous property. Secondly, to prove the fraudulent intent alleged in tiie complaint.^ § 11. In case of a sale alleged to have been made for the pur- pose of defrauding creditors, the fraud of the vendor niay be proved by statements and admissions, made by hiui before the sale, in the absence and without the knowledge of the vendee.' But not if they were subsequent to the sale.^ § 11 a. Mortgages given by a father, upon premises conveyed previously by him for a valuable consideration to his sons, are not admissible to prove his ownership, in the absence of other evidence showing collusion with the grantees.* § 11 6. The declarations of an alleged fraudulent vendor, not in possession, are not admissible to impeach the sale.^ § 11 c. In an action to set aside a conveyance of land, letters written by a purchaser from the original grantee, tending to show knowledge on the writer's part of the circumstances of the transaction, and also his bad faith, are admissible in behalf of the plaintiff.^ § 11 c?. Evidence of the acts of a debtor, in securing the trans- fer of funds in a bank to himself and from him to the defendant, and of his written declarations accompanying the acts, is admis- sible to show the fraudulent intent of the debtor, in an action under (Me.) Rev. Sts. c. 113, § 47, by a creditor, for aiding the debtor in the fraudulent transfer of his property." § 11 e. A deed executed by a debtor to his mother, for the con- sideration therein named of five dollars, was assailed, on the ground of fraud upon his creditors. Held, parol testimony might be introduced, of the actual amount received by the grantor from the grantee, in advances of money which he had agreed to secure by deed, and that to secure the same he had executed the deed in pursuance of the agreement. Such testimony would not change the legal chsimcter primd facie impressed by law on the deed.^ § 11/. Upon the question of title between a plaintiff and a claimant of property attached, if the latter introduced the defend- 1 Am?(len v. Mancliester, 40 Barb. 158. •> Tuple}- v. Tapley, 10 Minn. -148. - White V. Cliadbourne, 41 Maine, 14y. "^ Skowhegan Bank i: Cutler, 62 Maine, 3 Dennison r. Benncr, ib. 332. 609. * Preston v. Jones, 50 I'enn. 54. 8 Cunningham v. Dwyer, 23 Md. 219. ^ Shaw V. Robertson, 12 Minn. 445. 504 EVIDENCE. [book IV. ant, to prove that he had failed ten years before, and since had had no property; evidence is admissible for the plaintiff, that the defendant had property at the time in qnestion, and had put it into a relative's hands for the purpose of securing it to his own use § 12. A debtor's declaration of intention, though competent evidence to prove his fraudulent disposition of property in order to avoid the payment of his debts, must not have been made at 80 remote a period as to prevent them from becoming part of the resgestce; and this question of time is held to rest in the sound discretion of the judge at nisi ijrius? § 13. In replevin, for goods alleged to have been obtained by fraud and false pretences from the plaintiff, against one claiming them as a subsequent purchaser : the intent to defraud cannot be shown by declarations, other than the alleged false pretences, subsequently made by one A, to whom the plaintiff was referred by the purchaser for information ; nor by proof that the plaintiff found on inquiry, that a person, whom the vendee subsequently introduced to him as doing business at a certain place, did not do business there."^ § 14. Fraudulent misrepresentations, as to the price paid for real estate by the vendor, do not sustain an action for deceit in the sale. Such representations are to be regarded in the same light as those respecting the value. A purchaser ought not to rely upon them.* § 15. Upon a question of fraudulent conveyance, the grantor may testify to his actual intent.^ § 15 a. Upon the issue whether the defendant made fraudulent representations to the plaintiff, the question may be put to the defendant, when on the stand, by his counsel, " State what you know about the truth of the representations you made to the plaintiff, and what you then believed in relation to it ; " with instructions to the jury, that the answer is not to be regarded as conclusive, but that they should consider all the evidence upon the question of intent.^ § 16. A plaintiff, who has received from the defendant letters, 1 Foot V. Hunkins, 98 Mass. 52.3. * Henimer v. Cooper, ib. 3-34. 2 Hardee i\ Langford, 6 Florida, 13. 5 iMathews v. Poultney, 33 Barb. 127. 3 Easter v. Allen, 8 Allen, 7. « Watson v. Chesire, 18 Iowa, 202. CH. VII.] FRAUD AS A GROUND OP ACTION OR DEFENCE. 505 which, if existing, would be admissible, may prove their contents by secondary evidence, where the destruction of them is sliown to have arisen from misapprehension, and without fraudulent purpose, notwithstanding their destruction was the plaintilf's own voluntar}' act. To rej)el the inference of fraud, a witness, who was present and advised tiie destruction of tlie letters, may be allowed to state, as part of the n'.s" gestce^ his declarations made to the party at the time. The destruction of the letters was a question for the court; and fiom the evidence the court was also to decide that they were not dishonestly destroyed.^ § 17. In replevin, for goods alleged to have been obtained by fraud and false pretences, against one claiming as subsequent purchaser; it may be shown, by cross-examination of the phiintiff, that a few days before the trial he made a complaint against the alleged fraudulent party, and caused him to be arrested on the morning of the trial.^ § 18. In an action upon a contract, fraud is admissible as a defence."^ § 19. Where goods are obtained by fraud and false pretences, in an action by the owner against a subsequent purchaser, the burden of proof is upon the latter, to show that he was a pur- chaser for a valuable consideration, without notice.'* § 20. An agent, employed by seller and purchaser, on the purchase of a business, may be liable to the purchaser for false representations as to its value; and, if he declares that he has personal knowledge of the facts, and his statements are found to be false, that is evidence that they are false to his knowl- edge.^ § 21. Although, in an action for false representation, other false statements than those laid may be proved and considered by the jury, with reference to the question whether those laid were made fraudulently; the declaration will not be amended l»y intro- ducing them as distinct causes of action ; at all events without allowing, if necessary, time for their consideration by the de- fendant.*^ § 22. Where a widow intervenes, in a suit between the cred- 1 Tobin V. Shaw, 45 :\l!iine, ?,^\. * Easter v. Allen, 8 Allen, 7. 2 Easter r. Allen, S Allen, 7. ^ Wrifjlit v. Self. 1 F & F. 704. 3 Kobertson v. Keed, 47 I'enn. 115. •» Huiitingtou r. Massey, ib. (i'JO. 506 EVIDENCE. [book IV. itors of her late husband and his estate, to have annulled her renunciation of matrimonial rights in a notarial act of mortgage, on the ground of fraud ; parol evidence is admissible to show the fraud, although the notary is not a party and has not been con- victed of fraud.i 1 Cox V. King, 20 La. An. 209. CH. VIII.] assault; false imprisonment. 507 CHAPTER VIII. INJURIES TO THE PERSON ; ASSAULT AND BATTERY ; FALSE IMPRISON- MENT ; INJURIES TO HEALTH. 1. Assault, &c. 12. Injuries to health. 6. False imprisonment. § 1. In an action for assault and battery, the plaiutiir may prove previous threats, both for the purpose of showing that the defendant made the assault, and that it was malicious. Such a threat may have become of little importance, either from the time elapsing before the assault, or from other causes ; but, upon principle, a threat to do an act can never be rejected as irrelevant, where the issue is; whether the party making the threat did the act. And where it is material to show the animus, both the prior and subsequent declarations, as well as those which accompany the act, are admissible, whether the plaintiff knew of the threats before the assault or not.^ § 1 a. In defence of a violent assault, a provocation two weeks old is inadmissible. But a record of a conviction, and of a fine and costs incurred for the assault, is admissible in mitigation of puni- tory damages.^ § 2. It is not competent, in such a suit, to prove that the plain- tiff is a turbulent man, and of desperate disposition ; nor that the defendant is a quiet man and of peaceful demeanor.^ Nor is evi- dence admissible of hostile feelings, or a previous assault.^ § 2 a. When, in a trial for assault and battery, it is shown that the defendant was under reasonable fear of his life, or great bodily harm, from the prosecutor ; the prosecutor's temper, in connection with previous threats, &c., is sufficiently part of the 7'es gestce to go in evidence as explanatory of the state of defence in which the defendant placed himself.'' 1 Bartram v. Stone, 31 Conn. 150. 3 Sraithwick v. "Ward, 7 Jones, 64. 2 Johnston v. Crawford, riiill. (N. C.) * Dole ». Erskine, 37 N. H. 316. L. 342. s MuUins v. Cottrell, 41 Miss. 2yl. 508 EVIDENCE. [book IV. § 3. Where the defence of property is set up as a justification, lawful possession is sufficient, without proof of title ; as where the house was vacant, but a servant of the defendant had the key.^ So where the stewards of a musical festival occupied a county iiall, tiie title of which was in the county justices, accord- ing to a custom for several years, but without evidence of express permission.^ § 3 a. Evidence to show who was in the actual occupation of premises in dispute is admissible, in an action for an assault and batter}'- growing out of such dispute.^ § 4. In trespass for assault and battery, words uttered by the plaintiff against the defendant, on a former occasion, are not admissible in mitigation. Nor statements made by third parties to the defendant of such words. The defendant's condition in life and occupation may be put in evidence.* § 5. Though the defendant offers evidence, not objected to, of previous provocation, by charging him with a crime, evidence for the plaintiff of the truth of such charge is incompetent. 5 § 6. In an action for false imprisonment, on suspicion of steal- ing the property of an inmate of the house of the defendant, with whom the plaintiff lived as his servant ; the fact that the defend- ant signed the charge-sheet, and appeared before the magistrate, is strong though not conclusive evidence that he authorized the arrest.^ § 7. In an action for malicious arrest, the plaintiff need not prove the whole of the proceedings before the magistrates." § 8. The defendant cannot show, under the plea of not guilty, a judgment and execution against the plaintiff, even for the avowed purpose of proving that he was not guilty of the tres- pass.^ § 8 a. To establish reasonable and probable cause in the action for false imprisonment, it is not necessary to prove that the defendant beheved the facts stated in his plea, and that he acted upon that belief; but it is sufficient to prove such facts, as in the opinion of the judge amount to reasonable and probable cause. 1 Hall V. Davis, 2 C. «& P. 33. 5 Mowrey v. Smith (Mass.), Law Eeg. 2 Thomas v. Marsh, 5 C. & P. 596. Dec. 1865, p. 121. 3 Hardenburgh v. Crary, 50 Barb. 32. s Harris v. Digmim, 29 L.J. Exch. 23. ^ Jarvis v. Manlove, 5 Har. 452. 7 Biggs v. Clay, 3 Nev. & M. 464. 8 Coats V. Darby, 3 Comst. 517. CH. VIII.] FALSE IMPRISONMENT ; INJURIES TO HEALTH. 500 Reasonable and probable cause is a question for tlic judge, and Udt for the jury.^ § 9. In an action for false imprisonment, the plaiiitiO" may l)e asked what the owner of the article, an inmate of the defendant's house, stated, in the presence of the policeman, as to what the defendant had said to her, on her going to ask him what she should do as to giving the plaintiff into custody.^ § 10. Upon the question whether a release of personal property was obtained by duress by means of a criminal arrest; the declarations of the party, prior to the complaint, are admissi- ble evidence against him, for the purpose of showing probable cause.^ § 11. Where no justification is pleaded, upon the question of damages and wrong motives, evidence is admissible of grounds of suspicion,"* § 12. Upon a question made as to tlie pi-ofessional skill of the defendant, a surgeon, as compared with that of the profession in general : the opinion of the physician with whom he studied his profession is not competent evidence ; nor the general reputation among the profession of the medical institution at which he attended lectures upon surgery ; nor his declarations made to a physician, as to cases alleged to have been treated by him, and their symp- toms, and the course of treatment pursued, and the opinion of the physician, derived from the statements and from the symptoms observed by himself, as to the propriety of the course pursued by the defendant; nor his manner of treatment of surgical cases, two years after the treatment of which complaint is made in the action, and eight or ten months after the commencement of the action. The fact, that a surgeon of acknowledged skill assisted the defendant in the treatment of the case, a part of the time, but not by his procurement, during which time, however, the defend- ant had the charge and control of the case, and the consulting surgeon disagreed with him as to the course of treatment in rela- tion to which the unskilfulness was alleged ; is not competent proof to show either skill or diligence." 1 Hailes v. Marks, 9 W. R. 808; 4 L. s Haokctt v. Kintr. 8 Allen, 144. T. (N. S ) 805, Exdi. * Brown v. Cliadscy. :)'.• I',;,rh. 253. 2 Harris v. Difjjuim, 6 HurL & Nor. * LeiLMiton v. Sur^'ent, 11 Fost. 119. 943 ; 29 L. J. Exch. 23. 510 EVIDENCE. [book IV. § 13. In an action against a physician for unskilful treatment of a cut upon the plaintiff's thumb, several pliysicians testified that the disease of the thumb was a felon, which often resulted from a punctured wound. Held, that it was not competent to inquire of the plaintiff's nurse, who had attended her during all the time, when she first heard of a punctured wound in connec- tion with the injury, it not appearing that the defendant had ever assigned that cause as the origin of the disease. The declaration in such action alleged, that the defendant fraudulently represented to the female plaintiff that she was doing well, in consequence of which she did not apply to other physicians, and thereby lost the use of her hand ; but there was no evidence that the plaintiffs desired to call in any other physician. Held, a witness could not be asked, what effect was produced upon his mind by the declarations of the defendant concerning another physician in the same town. In such action, evidence is not competent for the plaintiff, to show the effect, of the remedies prescribed by the defendant for the wife, upon a person entirely well ; nor to prove that the husband was unable to labor, and dependent upon his wife for his support; there being no allegation in the declaration of a loss of the wife's services. There was evidence tending to show, that the defendant did not communicate to the plaintiff the nature of the disease, but that he opened her thumb, giving as a reason that there was a nerve partly cut off, and it would be better to cut it entirely off. Held, other physicians could not be asked : •' Is it good medical practice to say you opened a thumb to cut off a nerve, because it is already partly cut off?" But it is competent for the defendant to prove, that pliysicians, in addressing their patients, often call the tendon of the thumb a nerve ; and that it is good medical treatment in some cases for physicians to withhold from patients the extent of their disease and their actual condition ; and that the treatment of the disease, as detailed by the principal w^itness for the plaintiffs, was proper in the opinion of medical men.i 1 Twombly v. Leach, 11 Cush. 397. CH. IX.] LIBEL AND SLANDER. 511 CHAPTER IX. EVIDENCE IN ACTIONS FOR LIBEL AND SLANDER. 1 a. Proof of other words than those al- 8. VariMiice. leged. 10. IMalice. 3. Evidence as to the understanding of 17. Evidence in mitiKntion of damages ; the words. repetition; report; cliaiacter; property. 5. As to damages. 25. Justification of the truth. § 1. It is more peculiarly true of libel and slander than of almost any other wrong, that a consideration of the wrong itself necessarily involves a view of the evidence relating to it; which accordingly has been somewhat fully treated in other connec- tions.^ The plan of the present work requires a brief additional notice. § 1 a. In an action for slander, other words than those for which the suit is brought may be proved, as showing the intent.^ " Every uncalled-for utterance of a defamatory charge is more or less indicative of the speaker's malice at the time."^ So the plaintiff's answer to the slanderous words at the time they were uttered.'^ The whole conversation may be proved.^ But not words spoken after suit brought to explain the others.*^ § 2. In an action for a libel, the declarations of the defendant at the time of publication are evidence, as a part of the res gestce and to show the quo animo."' But not a verbal explanation of the libel at the time of publication.^ § 3. It is held that evidence may be given of the sense in which the words were undoi-stood by the hearers, unless their meaning was clear.^ So, although the mere opinions of witnesses as to the meaning of a libel, or that it was of and concerning the plaintiff, are not admissible ; yet, when the words are ambiguous, and the application doubtful, it must be shown that they were used in 1 See Ililliard on Torts, Chap. XV. « Lucas v. Xiclinis, 7 Jones, 32. - Taylor t>. Moran, 4 Met. (Ky.) 127. "^ Kice v. Simmons, 2 liar. 309. 3 Per Santlfbrd, J., Swift v. Dicker- ** Hapui r. Ilciidry, \>^ Ind. 177. man, 31 Conn. 2'.(1. 9 Barton v. Ilohiics, K) Iowa, 252; * Bradley v. Gardner, 10 Cal. 371. Garret v. Dickcrson, rjMd.418 ; DeMoss 5 Barton v. Holmes, 16 Iowa, 252. v. Haycock, 15 Iowa, 149. 512 EVIDENCE. [book IV. their actionable sense, and were applied to tlie plaintifiF, and that the hearers so understood them, and therefore the testimony of the hearers as to how they understood the words is admis- sible.i § 4. But the understanding of the by-standers cannot be shown to make words slanderous, which, as stated in tlie declaration, are not /)er se actionable.^ Audit is held, in Pennsylvania, notwith- standing some cited cases to the contrar}^ that tbe opinion of a witness that the [)laintifif was the person intended is not compe- tent evidence. " A party cannot thus aid the innuendo by the opinion of the witness. ... If this could be done, there would be no use for an innuendo. Its office would be supplied by the oath of witnesses, who would draw the inference from precedent facts instead of the jury. ... It is the business of witnesses to state facts, and the province of the jur}^ to draw such inferences or conclusions from them as they shall conscientiously believe to be warranted."^ Nor can it be shown that the words were used in a sense different from their natural one, unless accompanied with proof that such different meaning was explained at the time they were uttered.* It is for the jury, not for an expert, to judge of the meaning of the words. Thus, where the words were, that the plaintiff was "• getting up a bogus baby-affair," a " Mrs. Cuu- ningliam affair," evidence, as to what was generally understood by a " Mrs. C. affair," was rejected.^ § 5. In an action for slander of a physician in his profession, the currency of the slander in the place of his practice, following the utterance, may be given in evidence, as well as its effect upon his professional gains, in aggravation or proof of damages, with- out strict proof connecting the current report with the slander of the defendant; the fact of such connection being a question for the jury.*^ So evidence is admissible, in enhancement of dam- ages, that the plaintiff suffered great anxiety and distress of mind by reason of the slander, though the charge was against him in his professional and not in his private character.'' So where the plaintiff, in an action for a libellous publication in a newspaper 1 Smart v. Blanchard, 42 N. H. 137. * Dempsey v. Paige, i E. D. Smith, ^ Sniith r. Gaftard, 33 Ala. 168. 218. 3 Raigler v. Hummel, 37 Penn. 180 ; & Weed v. Bibbiiis, 32 Barb. 315. per Thompson, J., ib. 133, 134. « Riee v. Cottrell, 5 R. I. 340. ■J Swifts. Dickerman, 31 Conn. 285. CH. IX.] LIBEL AND SLANDER. 513 charging her with theft, liad alleged as special damage, that she had in consequence of the libel been discharged by one A from his employment as a seamstress in a neighboring town : held, she might prove, that a few days after the publication A had said to her, that there were flying reports in the newspapers about her and her sister, and that it would injure his shop to have such girls there, and had thereupon discharged her; although there was no other evidence, either that A had seen the particular publication in question, or as to what reports and what newspapers he referred to.^ But one charged with theft cannot show that he is a minis- ter, in order to enhance the damages, where there is no averment of that fact, and no allegation of special damage to him in his profession.^ So where the plaintiff, a surgeon, sued for a slander, charging him with having had a bastard child by a female servant, alleging that the words were spoken to A, whereby A would not employ him, and that he was otherwise injured in his business; held, he could not recover for damages to his general business occasioned by repetitions of the slander, but which did not follow directly from the speaking of the words to A.^ So, in an action for libels of and concerning the plaintiff as an opera manager ; the question, " What was the effect upon the house (the plaintiff's Opera House) or the filling of the house, of the articles that were published in the ' Herald,' and which are now complained of," is not competent, the answer being a mere opinion.^ § 6. It is held that, on a statement of special damage by loss of custom, the customers themselves must be called.^ § 7. In an action for libels published in the defendant's news- paper, although the complaint alleges that the defendant boasted of a circulation of 20,000 copies daily, and although this allega- tion is not denied by the answer ; copies published by him, at about the date of the libels, stating a greater circulation at that time, are competent evidence to prove that fact.^ § 8. Upon the subject of variance between the words alleged and those proved, some late cases adopt a strict rule, though doubting its policy. The rule is attributed to the f\ict, that " the action of slander has not been regarded with any great favor by the courts."^ Thus, in an action for slander, so many of the 1 Moore v. Stevenson, 27 Conn. 14. » Wood v. Jones, 1 F. & F. 301. 2 Gaudy v. Humpliries, 35 Ala. 017. ^ Fry v. Bennett, 3 Bosw. 200. 3 Dixon V. Smitli, o Hurl. & Nor. 450. T Per Walker, J.. 2'.» 111. 45'J. See * Fry V. Bennett, 6 Bosw. 200. M'Ciurkin c. Ewing, 42 III. 283. 33 514 EVIDENCE. [book IV. words complarned of must be proved as will establish the slan- der; not other words of similar import, or equivalent words. More words may be proved, provided they do not change the meaning. A difference in the tense of the word proved, and that alleged, will defeat a recovery, — as the use of " has " for '' had." 1 § 9. It is held calculated to mislead the jury, to refer it to them to determine, whether the defendant, " in substance," spoke or published the words charged, without explaining the meaning which the law would attach to that expression in connection with the pi'oof of the slander charged.^ § 9 a. Where the plaintiff alleges an office or special character, it is generally held sufficient to prove actual possession and en- joyment of the office, or actual exercise of the employment or profession.^ But an allegation of the mode of the plaintiff's appointment must be proved ; as in case of the allegation that he has taken a medical degree.'* If the charge itself assumes the alleged office or employment, this need not be proved.^ § 10. In an action for slanderous words, malice is an essential fact, and should always be proved.^ The defendant's manner, and other circumstances accompanying the slander, may be proved on the question of malice.'^ And, while malice is doubtless to be inferred from falsehood, evidence of actual malice is admissible upon the question of damages.^ § 11. Repetition of the slanderous words, or similar words, after suit brought, are held admissible proof of malice ; but not other words, amounting to a distinct slander.^ And when words, oral or written, actionable in themselves, other than the publication declared on, are offered in evidence to pi'ove malice, the court must caution the jury that they are not to increase the damages on that account.i*^ Thus A, and B his wife, sued C, and D his wife, for the slander of B by D, and introduced evidence to prove the words, and that they were similar to those contained in an anonymous letter, said to have been written and sent by D to B ; 1 Wilborn v. Odell, 29 111. 456. See 5 Berryman v. Wise, 4 T. R. 866 ; Maybee v. Fisk, 42 Barb. 326. Yrisarri v. Clement, 3 Bing. 432 ; Cum- 2 Atteberry v. Powell, 29 Mis. 429. men v. Smith, 2 S. & R. 440. 3 Jones V. Stevens, 11 Price, 235; Ber- •> Harry v. Constantin, 14 La. An. 782. ryman v. Wise, 4. T. R. 66. See Sellers ^ Parke v. Blackiston, 3 Har. 373. V. Till, 4 B. & C. 655 ; McPherson v. ^ Fry v. Bennett, 3 Bosw. 200. Chedeall, 24 Wend. 24; Smith v. Taylor, 9 Parmer ;•. Anderson. 33 Ala. 78. 1 N. R. 196. i» Lettou v. Young, 2 Met. (Ky.) 558. * Moises V. Thornton, 8 T. R. 303. CH. IX.] LIBEL AND SLANDER. 515 whicli letter contained libellous statements against l)otli B and her dauglitor. Held admissible, for the purpose of showing malice, though not to atfect the damages, provided the jury were cau- tioned by the court upon this latter point; that portion, however, relating to the daughter being evidence for no purpose whatso- ever. An instruction was given to the jury, to the effect that the letter was only admissible to show malice, and for no other purpose, and that they had a right to award such damages to the plaintiffs as they thought them entitled to from all circumstances proved in the case, lleld, the caution to the jury was not suffi- cient.^ § 12. Passion does not disprove malice.^ § 13. Where the plaintiff, to show malice, proves an admis- sion of the defendant, as to a conversation with the defendant's brother ; the defendant, to rebut the inference of malice, may show what he actually did say, and the circumstances of the conversa- tion.2 § 14. When the libel is primd facie a privileged communica- tion, it is open to the plaintiff to put in evidence subsequent statements made by the defendant, as tending to show malice at the time of publication. The judge ought, especially if there be a considerable interval between such statements and the publi- cation, to direct the jury to consider, whether such subsequent statements might not refer to something which happened subse- quently to the libel, so as not to show malice at the time of publi- cation.* § 15. Circumstances tending to disprove malice are admissible, in a slander suit, in mitigation of damages, but not evidence of the apparent good humor of the defendant, when uttering language clearly slanderous.^ And where mitigating circumstances are offered in evidence, for the purpose of repelling the presumption of malice, it should be shown that he knew of them at the time he made the charge.*^ § 16. The Act of 1855, of Connecticut, with regard to libels, provides, that, "in every action for an alleged libel, the defendant may give proof of intention; and unless the plaintiff shall prove 1 Letton V. YoiiiiR, 2 Met. (Ky.) 658. * Ilemmings v. Gasson, 1 Ell. B. &, E. 2 Hosley ('. Brooks, 20 111. 115. 346. » iSmitli V. Gafliird, ;i Ala. 108. 5 "Weaver c. Hen.lrick, 30 Mis. 602. 6 Swift V. Dickerman, 31 Coiin. 285. 516 EVIDENCE. [book IV. malice in fact he shall recover nothing but his actual damage proved and specially alleged in the declaration." Held, the former provision was only an extension of a previous rule ; such evi- dence having been always admissible in reduction of damages, and the only difference here being, that, in the absence of rebut- ting proof on the part of the plaintiff, it prevents the recovery of general damages. The latter provision was not intended to pre- scribe any new rule as to the kind and degree of malice to be proved, or as to the evidence by which it was to be shown, but only to require other evidence than mere legal presumption from the fact of publication. That the motives of the defendant were improper and unjustifiable, may be shown by the character of the publication itself, and by all the circumstances, without proof of any actually hostile motive. This construction of the act recon- ciles it with the provision of the constitution, that " every person, for an injury done him in his person, property, or reputation, shall have remedy by due course of law, and right and justice adminis- tered without sale, denial, or delay." ^ § 17. Evidence is not admissible, on the part of the defendant, of previous harsh language of the plaintiff's wife at the time.^ Nor, in mitigation, that in other conversations he spoke of the plaintiff less offensively.^ § 18. Evidence is not admissible, that the alleged slander was a mere repetition of what had been said by another, unless the authority was given.* So, if the defendant would avail himself in mitigation of damages of the fact, that at the time he told the injurious story he mentioned the name of the author ; it must not only appear that he did so mention his author, but also that he did so receive the story .^ § 19. It is held, that in an action for slander the defendant may show, in order to disprove malice and in mitigation of damages, that, when the words were uttered, a general report existed that the plaintiff had committed the act charged.^ (See § 21.) So for the purpose of proving, that the owner of a build- ing set on fire had reason to believe that a particular person was the incendiary, and used good faith in making statements charg- 1 Hotchkiss V. Porter, 20 Conn. 414 ; ■* Elliott v. Boyles, 31 Penn. 65. ace. Moore v. Stevenson, 27 ib. 14. 5 i^i^e v. Cottrell, 5 R. I. 340. •■J Hosley v. Brooks, 20 111. 115. See 6 Wetherbee o. Marsli, 20 N. H. 561 ; Thomas v. Dunaway, 30 ib. 373. Morris v. Barker, 4 Har. 520. 3 Bradford v. Edwards, 32 Ala. 628. CH. IX.] LIBEL AND SLANDER. 517 ing him with the crime; evidence that he was informed of decla- rations and acts of the suspected person, tending to show his guilt, is competent.^ § 20. But other cases hold the contrary .^ Thus it is hold, that the defendant cannot, under the general issue, prove that the words were but a repetition of common reports, either to rebut malice or mitigate damages. Nor, for either purpose, acts of the plaintiff tending to excite suspicions that he was guilty of the crime charged, but stopping short of actual proof of such guilt; although it is also proposed to show, that at the time the words were uttered a public investigation was going on, involving an inquiry into the plaintiff's conduct, and was a subject of public remark.^ So it cannot be proved, that the plaintiff was the object of general suspicion in the neighborhood in relation to the act charged.* Nor that another person had previously made the same charge, and the plaintiff did not deny it.^ Nor, in case of an alleged libel in a newspaper, that a similar article had recently appeared in another paper. '^ More especially, if the libellous matter be stated positively in the publication, and not as resting in rumor merely ; the mere existence of the rumor, known to all parties, is not admissible in mitigation of damages." § 21. It is generally held, that evidence of character is admis- sible.^ Thus, in mitigation of damages, of the plaintiff's bad character.^ Hence, in an action of slander, charging the defend- ant with having accused the plaintiff of adultery, it is competent for the defendant, in mitigation of damages, to prove that the plaintiff was commonly reputed to be unchaste and licentious. ^^ Other cases, however, hold the contrary. ^^ And in a recent case in England it is held, that, in an action for libel, where there is no plea of justification, questions cannot be asked, tending to show the plaintiff's previous bad character, in mitigation of damages. ^'-^ And the distinction is made, between evidence of the plaintiff's bad character, and that of particular reports, relating to the charge in question.^^ (See § 19.) Thus, in an action by 1 Lawler v. Earle, 5 Allen, 22. 9 Fuller v. Dean, 31 Ala. 654 ; 20 Til. 2 Richardson?'. Roberts, 23 Geo. 215. 325; Conroe v. Conroe, 47 renn. l'.»8; 3 Kniglit V. ?'()stcr, 3'.> N. H. 07G. Burton r. March, 6 Jones, 40'J ; Waples u. * Fuller V. Dean, 31 Ala. 654. Burton, 2 Har. 446. 5 lb. 1" Briduman v. Hopkins, 34 Verm. 69. 6 Sheahan v. Collins, 20 111 325. n Parke v. Blackis^ton. 3 Har. 373. 7 Haskins v. Lumsiltn, 10 Wis. 359. i- Bracc-irdle v. Bailey, 1 F. & F. 536. 8 See Bryan v. (Jurr, 27 Geo. 378. '3 yheahan v. Collins, 20 111. 325. 618 EVIDENCE. [book IV. a female for a charge of general uncliastity, upon a plea of the general issue, evidence is admissible for the defendant of the bad general reputation of the plaintiff for chastity, but not of reports of particular acts of incontinency. The court remark : " Without undertaking to review at length the numerous decisions made, especially in the English, Massachusetts, and New York courts, upon the question how far, in actions of slander, the defendant may, under the plea of not guilty, attack the character of the plaintiff, it may be safely said to be almost everywhere settled, that evidence of general bad reputation is admissible in miti- gation of damages. Whether reputation in that department of character which the alleged slander has assailed may be given in evidence, is perhaps not so well established by authority. In many of the cases the question has been embarrassed by the pleadings. There has been no plea of not guilty, or it has been accompanied with a plea or notice of justification." ^ So, in an action for charging a female with unchastity, evidence that the plaintiff's general reputation is bad, independently of the slander of which she complains, and that it was bad ten years before, and at another place, is admissible in mitigation of damages, although no such ground of defence is set up in the answer. But evidence of particular instances of her misconduct is not admissible.- And it cannot be shown, in mitigation of damages, that the plaintiff was quarrelsome.^ § 22. It is held, that no evidence can be offered of the plaintiff's good character, till it has been attacked.* The law presumes his character to be good.^ And this notwithstanding the proof of circumstances under the general issue, which may have awakened suspicion of the plaintiff's guilt in the mind of the defendant.^ § 23. In an action for a libel upon the plaintiff, in connection with a donation party which she had attended, the character of that party, and the conduct of its members, cannot be proved by the defendant under the general issue.'' § 24. It is held, that the wealth of the defendant cannot be offered in evidence ; ^ (a) nor his poverty;^ nor, in general, his 1 Conroe v. Conroe, 47 Penn. 198 ; per ^ Parke v. Blackiston, 3 Har. 373. Strong, J., ib. 200. « Chubb v. Gsell, 34 Penn. 114. 2 Parkhurst v. Ketchura, 6 Allen, 406. "? Smart v. Blanchard, 4'.^ N. H. 137. 3 Hosley v. Brooks, 20 111. 115. » Palmer v. Haskins, 28 Barb. 90. Con- 4 Tibbs V. Brown, 2 Grant, 39 ; 3 Har. tra, Humphries v. Parker, 52 Maine, 502. 373 ; 34 Penn. 314. 9 Pool v. Devers, 30 Ala. 672. (a) In actions for personal injuries, wealth of the defendant is inadmissible, proof, either direct or indirect, of the Moody v. Osgood, 50 Barb. 628. CH. IX.] LIBEL AND SLANDER. 519 circumstances as to property. ^ But evidence of the rank, profes- sion, or standing of either party is admissible.- § 25. The truth is a good defence to an action for libel or slan- der ;3 and this, notwithstanding malice.^ But when a defendant in slander pleads the general issue, he admits that the plaintiff is innocent of the charge. The truth can only be shown under a plea of justification.^ The defendant cannot, upon plea of the general issue, prove the truth of the words charged, for the pur- pose of disproving malice or of mitigating damages;^ though it is held, that he is not to be denied the benefit of mitigating cir- cumstances, merely because they tend to prove the truth of the charge, while they fall short of it ; and may show by way of excuse any thing short of a justification, which repels the pre- sumption of malice, but does not necessarily ii. ply the truth of the charge, or necessarily constitute evidence of it." And, in an action for slanderous words, the defendant cannot in the same answer deny and also justify the words. So an answer justifying the speaking must confess it. And an answer, merely stating that the words spoken are true, is not sufficient as a justification : it should state the facts constituting the crime or offence imputed, so that an issue either of law or fact may be found.^ And evi- dence is sometimes held not admissible in mitigation of damages, which tends to prove the truth ; " such as would, in the mind of a prudent man, justly awaken suspicions of guilt of the crime imputed. The purpose of the testimony is to mitigate the legal imputation of malice, on the ground of misapprehension, as to the character of the acts out of which tlie imputation of guilt was made, and consequently the damages. It must not tend, at the same time, to prove the truth . . . and hence that there was no misapprehension." ^ § 2G. But although the truth of the charge cannot be proved in mitigation of damages; it is sometimes held, that for this purpose the defendant may prove, under the general issue, a belief of its truth, and the facts upon which such belief is founded. Thus, in an action for the charge of poisoning a cow, the defendant may 1 Morris v. Barker, 4 liar. 520. ^ Swift v. Dickcrman, 31 Conn. 285; 2 Parke v. Blackistun, ?> Har. 373. Kniglit v. Foster, 3'.t N. II. 570. 3 Kayiie v. Taylor, 14 La. An. 40G ; 3 ■? Swift v. Dickerman, 31 Conn. 28.5. Bosw. 200. 8 Atteberry r. Powell, 2'.i Mis. 42'.t. 4 Fry !'. Bennett, 3 Bosw. 200. 9 Per Thompson, J., Suiitli j;. Smith, 6 Sheahan v. Collins, 20 111. 325. 39 Penn. 442. 520 EVIDENCE. [book IV. prove an actual poisoning; the hostility of the plaintiff; that the defendant had poisoned his dog, and the plaintiff had threatened to pay him in his own coin ; and that the defendant had attempted to instigate a malicious prosecution against the plaintiff.^ So where the words spoken charged the plaintiff with attempting to produce a '* bogus " baby ; the defendant, admitting their falsity, and setting up in mitigation of damage, that in common with others he believed the charge, may show, on the question of damages, as tending to prove absence of malice and a well-founded belief, that the physical condition of the father was such as to induce a sincere belief that at tiie time he was incapable of pro- creation.2 (a) And it is held in New York, that, if the defendant fails to prove his plea of justification, he may still offer evidence in mitigation, if the mitigating facts are stated in the answer.^ But it is no defence to an action for slander, by words imputing unchastity to a woman, to show that the defendant spoke the Avords to her, and was led to do so by her general conduct, and especially by her deportment with a particular man, believing the same to be true.'^ So a belief of the truth is held no defence to an action for libel ;^ more especially if the party was indiffer- ent whether it were true or false.^ § 26 a. It is held, that, where the defendant pleads, and offers evidence tending but failing to prove, the truth ; if this defence is made bond Jide, and not with the purpose of spreading and per- petuating the original slander, it ought not to aggravate the dam- ages: and whether the defence is made with a fair or malicious purpose, is a question for the jury.'^ (b) § 27. It is held, that, under a plea of the truth, evidence must be offered which would convict of the crime charged.^ Thus, in an action for charging perjury, the plea of justification must be estab- 1 Hutchinson v. Wheeler, 35 Verm. •> Moore v. Stevenson, 27 Conn. 14. 330. 1 Pallet v. Sargent, 36 N. H. 496. 2 Weed V. Bibbins, 32 Barb. 315. 8 Forshee v. Abrams, 2 Clarke (Iowa), 3 Russ V. Brooks, 4 E. D. Smith, 644. 571. See Hilliard on Torts, c. 15, § 34; * Parkhurst v. Ketchum, 6 Allen, 406. Ellis v. Buzzell (Maine), Amn. Law Reg. 5 Ery V. Bennett, 3 Bosw. 200. July 1873, p. 426. (a) It is held in a late English case, (b) Upon the point, whether an at- that, in an action by an optician against tempted justification aggravates the slan- a newspaper proprietor, for inserting an der, or whether, if set up bond Jide, it is advertisement alluding to him as a licensed no aggravation ; see Gorman v. Sutton, hawker and quack in spectacle secrets ; 32 Penn. 247 ; Richardson v. Roberts, 23 evidence tiiat this was true is admissible Geo. 215; Pool v. Devers, 30 Ala. 672; under the general issue, as showing that Rayner v. Kinney, 14 Ohio St. 283. the advertisement was not a libel. Ivey- zor V. Newcomb, 1 E. &. E. 487. CH. IX.] LIBEL AND SLANDER. 521 lished by such amount of evidence as would authorize a conviction for that crime. ^ So it is hehl, that tlie truth cannot be established by indirect and remote evidence.^ And the justification must apply to the very charge complained of. Thus, where the same otfence was committed only once, instead of repeatedly, as charged, the justification was held bad.^ So where, in slander, the worda laid in the declaration charged tiiat the plaintiff committed an offence with one person ; evidence that he had committed a like offence with other persons will not be received, either as a defence or in mitigation of damages. Nor evidence that he had committed a different offence either with the same or with other persons. Thus where the words laid charged that the plaintiff had com- mitted a rape on a particular person, named in the declaration ; evidence will not be received, that he had attempted to commit a rape on the same, and also on another person, either as a defence or in mitigation of damages. Nor will evidence be received in mitigation, that the plaintiff had admitted and boasted that he had committed, with other persons, offences of a like character with that charged upon him by the words laid in the (h claration.* So, under a plea of justification, in a suit for charging the plaintiff with fornication with a certain man, evidence that her child is a bastard is not sufficient.'^ So where the charge was, that the plaintiff, a physician, had no professional knowledge or skill, and lost almost all his patients; held, proof of particular instances, in which the plaintiff had shown want of knowledge and skill, was inadmissible, for the purpose of mitigating damages, or showing the professional reputation of the plaintiff. Reputation can only be proved by the direct testimony of those who are acquainted with it, and not by particular facts.^ So the plaintiff was charged in a newspaper with having " made himself invisible on account of too much borrowing and not paying; that is to say, ran away." Innuendo, that he had borrowed articles of property, and then ran away and absconded, without paying for or returning the same. General justification, without specification of particulars. Held, the charge was not met by evidence of the plaintiff's absconding in debt." So in an action for slander, in accusing the 1 Gorman v. Sutton, 32 Penn. 247. •• Pallet v. Sargent, 36 N. II. 496. - Forsliee v. Abraius, 2 Clarke (Iowa), * Richardson v. Roberts, 23 Geo. 215. 571. i> Swift r. Dickeiman, ol Conn. 285. 3 Burford v. Wible, 32 Penn. 95. See ' WaslUen v. Queuzer, 29 N. Y. (2 Forsliee v. Abrams, 2 Clarke (Iowa), 571. Tiffa.) 547. 522 EVIDENCE. [book IV. plaintiff of buying and selling by unsealed weights and meas- ures, and also of the crime of gross fraud and cheating at com- mon law; a justification of the truth cannot be supported by evidence, that the plaintiff "applied to a person to take some damaged meat and sell it, without letting it be known that the plaintiff was connected in the transaction." ^ So the defendant published of the plaintiffs, coal-merchants, what purported to be a report of an inquiry before a board of guardians respecting the fraudulent conduct of the plaintiffs' agent, who in per- formance of a contract for '^ best coals," had delivered at the workhouse coals of an inferior description, and (by falsifying the weighing machine by means of a wedge) deficient in weight. The libel commenced, " The way in which Messrs. P. (the plain- tiffs) do things at Guildford. Inserting the wedge ; " and ended with a recommendation of one of the guardians to " have nothing more to do with Messrs. P. ; " innuendo, " the defendant meaning thereby that the plaintiffs were cognizant of, and had sanctioned improper and fraudulent conduct by their agent at Guildford, and were accustomed to carry on their said trade there improperly and fraudulently." The defendant pleaded a justification, fol- lowing the innuendo, and saying that the coals delivered, as mentioned in the libel, were inferior in quality, as the plaintiffs well knew, and deficient in weight. Held, the defendant, having by his plea alleged that the fraud of their agent was sanctioned by the plaintiffs, must prove that the libel imputed personal misconduct and fraud to the plaintiffs, and the jury were bound to find for the plaintiffs, unless satisfied that the defendant had shown some complicity on their part in the misconduct and fraud imputed to their agent.^ But au action of slander for charging a man with having the venereal disease, and, with tliat disease upon him contracting marriage, and communicating the disease to his wife, cannot be maintained, if the plaintiff immediately after his marriage had the disease in fact, even by proof that his wife, whom he married without knowing that she had the disease, communi- cated it to him.'^ § 27 a. Where the defendant, to an action for slander, pleads the general issue and a justification, he may give evidence in mitigation of damages under the general issue ; though it may 1 Chapman v. Ordway, 5 Allen, 593. 3 Golderman v. Stearns, 7 Gray, 181. 2 Prior V. Wilson, 1 C. B. (N. S.) 95. CH. IX.] LIBEL, ETC. ; MALICIOUS PROSECUTION. 523 be doubted whetlier he can do it when a justification is pleaded alone.^ § 27 b. Where alleged libels imputed to the plaintiff, an opera manager, cruel treatment towards his artists, and the defendant justified ; evidence of the opinions of third persona as to such conduct was held inadmissible. The acts of the plaintiff, which are relied upon as a justification, must be proved, and, upon the evidence given, the truth or falsity of the charge determined by the jury. And evidence of the plaintiff's conduct towards some other person, employed by liira during a prior season, and in a previous year, is inadmissible.^ § 28. In an action of slander, for charging the plaintiff with fornication while a medical student in the city of New York, the defendant having attempted to prove the charge to be true, evidence is not competent for the plaintiff in rebuttal, " that he was at the time in straitened pecuniary circumstances, and had hardly the means of supporting himself." " Such a man in such a place might readily find other means than money, which would enable him to commit the acts charged."^ § 29. In an action of slander, where the general issue alone is pleaded, the plaintiff cannot in the first instance give evidence tending to prove the defendant's knowledge of the falsity of the words spoken. A plaintiff cannot give such evidence, except for the purpose of rebutting the defence.'* § 30. Where the slander imputes larceny, and the circum- stances of the alleged larcenous taking referred to have been proved by the defendant, the plaintiff may show in rebuttal, that, in taking the propert}"^, he acted upon the advice of counsel, that he had a legal right so to do.^ § 31. If, in an action for slander, a verdict has been found for the defendant on the ground that the words were privileged ; questions arising in the course of the trial, as to the admission or exclusion of evidence in reference to the truth, and the defence of justification on that ground, are immaterial.'^ § 32. The court will not permit the plaintiff to exhibit inter- rogatories to the defendant, the answer to which, if in the affirma- 1 Pallet V. Sarpcnt, 36 N. H. 496. * Hartranft v. Hcsser, 34 Pcnn. 117. 2 ii>y {.. Bennett, 3 Bosw. 200. * Gandv v. Humpliries. 85 Ala. 617. 3 Orcutt V. Kanney, 10 Cush. 183-185. ^ Lawler v. Earle, 6 Allen, 22. 524 EVIDENCE. [book IV. tive, would tend to show that he composed or published the libel, and would therefore criminate him.^ § 33. It is doubted whether, in an action for malicious prosecur- Hon, the defendant can be asked, in chief, if he had any other motive in view than to further the ends of justice.''^ § 34, In case for malicious prosecution, the plaintiff must prove the prosecution, acquittal, want of probable cause, and malice of the defendant.^ § 34 a. In an action by A against B for malicious prosecution, in causing A to be arrested on a criminal charge, on which A was acquitted by the jury, without leaving their seats ; after evidence that the prosecution was malicious and without probable cause, the defendant cannot ask the prosecuting attorney, ** On what ground was the plaintiff acquitted?"* § 34 b. In an action for bringing a malicious suit, evidence is competent of the plaintiff's declarations that he did not direct this action to be brought, and wished to stop it.^ § 35. The waiving of an examination before a magistrate, and giving bail for appearance at court, is not such an admission of guilt as will preclude an action for malicious prosecution.^ § 86. A discharge of a person arrested, by the prosecuting attorney, is the usual mode of terminating a prosecution, iu Illinois. A bill need not be ignored, before he may maintain an action for a malicious prosecution." § 36 a. The discharge, by an examining magistrate, of a person accused of a crime, is not such evidence of want of probable cause as will maintain an action for malicious prosecution.** § 37. The notes of a magistrate, taken on the hearing of a criminal charge, and never read to or signed by the witness, are not a deposition ; and are not evidence to impeach or contradict such party .^ § 38. In an action for malicious prosecution, the record of an action of replevin, brought by the plaintiff for the property alleged to have been stolen, is not competent evidence. It was 1 Tupling V. Ward, 6 H. & N. 749. « Sclioonover v. Myers, 28 Dl. 308. 2 Hardwick v. Coleman, 1 F. & F. 531. ■ lb. 3 Rhodes t'. Silvers, 1 Har. 127. 8 Thorpe v. Ballvett, 25 111. 339. * Tefft V. Windsor, 17 Mich. 486. 9 Sclioonover v. Myers, 28 ib. 308. 5 Leach v. Wilbur, 9 AUeii, 212. CH. IX.] MALICIOUS PROSECUTION. 525 for a different cause of action. All the plaintiff could have recovered in that suit was the value of the property and damages for taking it, aggravated perhaps by the accompanying circum- stances. He could have recovered nothing for the personal injury. This is an action for a personal wrong.^ 1 Scofield V. Ferrers, 47 Penu. rj4. 526 EVIDENCE. [book IT. CHAPTER X. MISCELLANEOUS INJURIES TO PROPERTY. 1. Watercourse. 9. Conversion. 2. Way. 9 e. Copyright. 4. Negligence, Carrier. Railroad, iScc. 10. Patent. § 1. In an action against a city, for obstructing a culvert for a watercourse under a highway, the burden of proof is upon the plaintiff, to show that the injury was caused solely by the defend- ant's negligence in not removing the obstruction. Upon such proof, and in the absence of any proof of neglect or want of care in the plaintiff or a third person, contributing to the obstruction, the action is maintainable.^ § 1 a. The plaintiff owned a mill and water-privilege, subject to a right in the defendant to take from the flume all the water necessary for his mill below. In an action for diversion of the water, by taking more than the defendant was entitled to, the plaintiff alleged, that he had a right to ^flow of the loater in great abundance and plenty to his mill. Held, that this was not descrip- tiue of his right, and therefore proof of the limited right which he held was not a variance ; also, that the taking, by the defendant, of more water than was necessary for his mill, was a diversion of the water of the plaintiff; also, that under the allegation, that the defendant had diverted the water and prevented it from flow- ing to the plaintiff's mill, the plaintiff might show that the trough, by which tlie defendant conveyed the water from the flume to his mill, was leaky, in consequence of which much water was wasted, and that his water-wheel was out of repair, and required more water to move it than if it was in a proper con- dition.''^ § 1 6. Where B. obstructed the waters of a brook, so that they flowed upon the land of the plaintiff, and the defendants P. and M. 1 Parker v. Lowell, 11 Gray, 353. See 2 Wier v. Covell, 29 Conn. 197. Union, &c. v. Crary, 25 Cal. 607. CH. X,] MISCELLANEOUS INJURIES TO PROPERTY. 627 afterwards purchased B.'s land, and maintained the obstruction ; held, P.'s admissions as to the injury to the land from the over- flow of water upon it, made a number of years before P. pur- chased an interest in B.'s land, were admissible against him.^ § 1 c. An action for obstructing the free course and use of water, &c., based only on prescriptive right, is not sustained by proof that both parties had a right to erect a mill on the stream, although the plaintiff was the prior occupant, and the defendant in repairing his dam has raised the water eighteen inches, there- by impeding the motion of the plaintiff's wheels, three miles above.2 § 1 c?. Upon a question of damages from back-flowage, evi- dence of damages paid within three years for flowage of the land opposite, and on about the same level, is inadmissible."^ § 2. Evidence that, since the commencement of an action against the owner of land for obstructing a way claimed over it by prescription in a definite line, the plaintiff broke down the defendant's wall and crossed the land in another direction ; is inadmissible for the defendant.^ § 3. A refusal to instruct the jury, that the closing of a way claimed by prescription, by agreement of the claimant of the way with the owner of the land over which it is claimed, and the sub- sequent use of a new way instead, may be deemed evidence that it was a way of necessity, shifting at the pleasure of the owner of the land; is no ground of exception, especially if the jury are correctly instructed as to the nature of ways of prescription and of necessity.^ § 4. In an action against a common carrier for failure to stop according to previous notice, at a time specified, at A, and take the plaintiff on his vessel as passenger, which failure occasioned great bodily exposure and mental suffering; the peculiar bodily condition of the plaintiff may be proved in aggravation of dam- ages.^ § 5. Where a passenger applied to the agent of a railroad for a ticket, who gave him a certificate that the tickets " were all out," which he showed to the conductor ; the testimony of the agent is 1 Pollv ". McCall, 37 Ala. 20. * Smith i-. Lee, 14 Gray, 473. 2 Rudd r. Williams. -13 HI. 385. » Ih. 3 Kelliher v. Miller, 'J7 Mass. 71. « lleirn v. McCaugban, 32 Misa. 17. 528 EVIDENCE. [book IV. competent, to show that the passenger apph'ed for a ticket, and the certificate, to show that the conductor knew that the fault of the passenger's not having a ticket lay with the company and not with the passenger.^ § 6. In an action for lost baggage, the fact that the plaintiff was a passenger may be proved, without an av^erment, by the possession of a baggage check and ticket; and by the check alone, if it appears that such cliecks are not given until the pas- senger-tickets are shown.^ § 7. In an action on a bill of lading for non-delivery of goods, alleged to be lost by the defendant's negligence ; tiiere being no evidence that the loss could have been prevented if the collision which caused it occurred, the proper question for the jury is, whether the collision was caused by negligence.^ § 7 a. In an action against a carrier by boat, for the value of a trunk, for which a through check had been given ; a witness, being a clerk on one of the defendant's boats, was offered, to prove that the trunk had been delivered over to the next carrier, who testified that it was the custom of the company to bring back to the ofiice a trunk that had not been delivered to the next carrier ; that he knew of no such occurrence at the time the plaintiff shipped as passenger ; that the baggage agent made lists of the through baggage, delivered by them to the next carrier, and that these lists were not preserved. Held, the evidence was legally insufiicient for the purpose for which it was offered."* § 8. In an action for injury caused by the negligence of per- sons having charge of a ship at a public dock, under the care of a ship-keeper ; there being no evidence by whom the keeper was appointed, held, the jury might infer from the ship's register, bearing the defendant's name as owner, that he employed the negligent parties.^ § 9. In an action to recover the value of leather delivered to the defendant to be made into shoes, the plaintiff alleging con- version of a portion of the leather, and the defendant that it had 1 St. Louis, &c. V. Dalby, 19 111. 353. * Baltimore v. Smith, 23 Md. 402. 2 111. Cent. &c. V. Copeland, 24 ib. 332. & Hibbs v. Eoss, Law Eep. 1 Q. B. s Grill V. General, &c. Law Rep. 1 534; Amn. Law Rev., Jan. 1867, p. 315. C. P. 600; Amn. L. Rev., Jan. 1867, p. 288. CH. X.] MISCELLANEOUS INJURIES TO PROPERTY. 529 all been returned in the shoes manufactured: some of the defend- ant's witnesses having descril)ed leather which tlicy supposed had been received by the defendant of the plaintiff, the defendant cannot ask another witness, called as an expert, how much leather, such as was described by the above witnesses, it would take, to make a certain number of pairs of shoes; it not appearing that the witness had the means of forming the opinion desired. ^ § 9 a. If goods, alleged to have been converted, have been mixed by a mortgagee with other similar goods, which the defendant, as mortgagee, had a right to retain under his mort- gage, and it is left for the jury to determine whether or not he had means for making a discrimination, which the other party had not ; evidence of a general demand by the plaintiff for the goods mortgaged, and of a reply by the defendant, that " he was sorry he could not acct)mmodate him, and that he had been expecting this demand for some days," is competent to be submitted to the jury, with the other testimony, to show a conversion. But if all the goods so intermixed have been sold by the defendant, no proof of demand is necessary .^ § 9 &. In trover by the mortgagee of a chattel, the plaintiff may give in evidence a prior mortgage assigned to him, to which his mortgage is expressly made subject, although such prior mort- gage does not specifically mention the chattel.^ § 9 c. If the plaintiff in trover proves title in himself as mort- gagee, evidence of a subsequent sale from the mortgagor to the defendant is immaterial, and its rejection no ground of excep- tion.* § 9 d. In trover by the mortgagee of a chattel, the defendant, although he has not pleaded title, may show that the mortgage was made without consideration, and that the mortgagor after- wards sold some of the property with the knowledge of the plaintiff.^ § 9 e. In an action for infringing the copyright of a play, it is not competent, in order to show that the play is not original, but dramatized from a book, to ask a witness, whether the incidents contained in that book are the same as those in the play, or 1 Eich V. Jones, 9 Cush. 320. * Clark v. Houghton, 12 Gray, 38. ' Simpson r. Carleton, 1 Allen, 109. 5 lb. 3 Clark V. Houghton, 12 Gray, 38. 34 530 EVIDENCE. [book IY. whether he could state from recollection any passages in the book which were similar to those in the play, or, giving him the book, to ask him whether the scenery, incidents, and language were not substantially the same as those of the play.^ § 10. In an action for infringment of a patent, for which there is no established patent or license fee, the value of the thing used may be determined by all the evidence as to its character, opera- tion, and effect.^ § 11. On the trial of issues in a patent case, if the defendant set up a prior user, the plaintiff may offer rebutting evidence. But, after the defendant's evidence has been summed up, he can- not offer further evidence in answer to the plaintiff's evidence in reply.3 1 Boucicault v. Fox, SBlatclif. C. C. 87. "•' Penn. v. Jack, Eng. Law Eep. 2 Eq. 2 The Suffolk Co. v. Hay den, 3 Wall. 314 ; Amn. Law Eev., Jan. 1867, p. 309. 315. CH. XI.] PUBLIC OFFICERS. 531 CHAPTER XL EVIDENCE IN ACTIONS RELATING TO PUBLIC OFFICERS. 1. Evidence of beinp; reputed and acting 14. Declarations and admissions, as an officer; act of de|iuty. 21. Records, writs, executions, &c. 4. Presuinf)tion and burden of proof in 24. Miscellaneous cases, case of officers. 7. Return of an officer, and evidence re- lating thereto. § 1. The record of a magistrate, acting judicially, and within his jurisdiction, in a criminal case, cannot be impeached for falsity, and parol evidence tending to contradict the record is inadmissible.^ § 1 a. Proof that an individual is reputed to be, and has notori- ously acted as, a public officer, is prim/i facie evidence of his official character. This exception to the general rule, requiring the best evidence, is founded upon the strong presumption which arises from the exercise of a public office, that the appointment to it is valid; and upon the general inconvenience of requiring full and strict proof of the appointment or election of public officers.^ § 2. In an action against a person, for an act which he had no right to do unless he were an officer, he must show that he was primd facie an officer de Jure. Proof of acting as such under color of authority, and of reputation, is admissible evidence for that purpose ; and is sufficient, in a collateral proceeding, to establish that character. The uniform practice has been, where officers have been sued for their official acts, and have sought to justify as such, to admit proof of their reputation and action as officers.'^ § 3. But, in an action against a sheriff for the misconduct of his bailiff, the plaintiff must prove the original warrant of execu- 1 Kelley v. Dresser, 11 Allen, 31. See Brifrfrs v. Taylor, o5 Yerm. 57. (In 2 1 Grecnl. Ev. 158, § 83; ib. 1G8, §§ this case the subject was very elaborately 91, 92. discussed, and tlie court were not unau- 3 Colton I'. Beardsley, 38 Barb. 29. imous in their opinion.) , 632 EVIDENCE. [book IV. tion from tlic former to tlic latter. It is not sufficient to prove official acts of the bailifl', he not being a general officer of the defendant.^ '' The under-sheriff is the general deputy of the high- sheriff for all purposes ; but this is not the case with the bailifl"." - " The bailiff" gives a bond to execute such warrants as shall be directed to him ; when a warrant is granted to him, he becomes the special officer of the sheriff. ... It did not appear that the sheriff' had granted any warrant to this officer." ^ § 3 a. An action of trespass against a sheriff, in which he is directly charged, will be supported by proof that the alleged trespass was committed by one acting as his deputy, for whose misfeasance he is by law answerable, although there is no such averment in the writ. And evidence that the trespasser was the deputy of the defendant, in connection with the defendant's brief statement justifying the act, makes out a prima facie case for the plaintiff.* § 4. While an officer de facio is in many cases presumed to be such dejure; by an extension of the same principle, the doings of an officer are presumed to be conformable to law, and the bur- den of proof is on the party alleging the contrary.^ § 5. In an action for neglecting to attach propert}^, the burden is upon the plaintiff" to prove that it was attachable, although the defendant claims it by purchase from, the debtor.^ So where the sheriff's return, and the deed made by him to a purchaser, set forth notice of seizure ; the burden of proof rests on the party attacking the sale, to show the falsity of such recitals, although it involves the proof of a negative." So in trover, for levying on a tool protected by an exemption act, the onus is on the plaintiff to prove that the value of all his tools, &c., including tlie one in question, did not exceed the sum exempted.^ So the presump- tion is, that a sheriff", who sells property on execution, has done his duty in previously making a levy, and the fact will be deemed admitted, if no objection is made at the trial.^ So, wdiere the law requires a sheriff' to appraise property taken and sold on execu- 1 Drake v. Sykes, 7 T. R. 113 5 But see Keane v. Cannovan, 21 Cal. ^ Per Ld. Kenyon, C. J., ib. 116. 291. Also, c. 1, § 11. 3 Per Lawrence, J., ib. 117. See ^ Phelps v. Cutter, 4 Gray, 137. Yabsley v. Doble, 1 Ld. Ray. 190 (a T Morse u. McCall, 13 La." An. 215. case, upon tlie authority of which the ^ Chambers v. Halsted, Hill & Denio, court seriously doubted, before deciding 384. as stated in the text). 9 Smith v. Hill, 22 Barb. 656. * Pratt V. Bunker, 45 Maine, 569. CH. XI.] PUBLIC OFFICERS. 533 tion, it is not iiicnmbciit on one claiming title under sucli sale to show that such appraisement was made. In the absence of proof, the sheriff will be presumed to have done his duty.^ § 6. But the general rule of presumption and the burden of proof may be changed l)y circumstances. Thus, where a siieriff is shown to be guilty of negligence in failing to serve a writ, the onus of showing that the defendant in the writ was insolvent devolves on him.''^ So, in a suit by the original ]ihiiiitiif in replevin for the sheriif's negligence in the custody of the prop- erty, no proof of title need be made, where it does not appear that any other person has made a claim of title. '^ § 7. The return of a sworn officer, in reference to facts which the law requires him to state, and as between the parties and privies to the suit, and others whose rights are necessarily dependent ui)on it, is conclusive, till vacated or set aside in due course of law. As to all others, it is only primd facie evi- dence. Privies are those who might maintain an action for false return. I>nt, in a suit by a purchaser of property against an attaching creditor and olHcer, for attaching the propert}' upon an order against the seller, though on the ground of fraud in the sale ; the ofKcer's return is open to contradiction by the plaintiff'^ § 8. In an action against an officer for the conversion of pi'op- erty attached by him on a writ against a third person, his return upon the writ, showing a sale of the property under the statutes as perishable, the certificate of the appraisers, and a schedule of prices received for the property at the auction sale, which were annexed to the return as a part thereof; are competent evi- dence against him, on the question of damages.^ So in an action against an officer, for not maintaining possession of personal prop- erty, which he has returned as attached upon a writ; his return is evidence of possession, tliat will render him liable, if the case discloses nothintr to show that such return was made under mis- 1 Mercer v. Doe, 6 Iiid. 80. ajjainst injury or loss ; but to wli.-it precise 2 Murpliy ?\ 'rrontinan, 5 .Tones, 379. deforce of care lie is hoiiiul iiinler tlie •* Moore I'. Westervc'lt, '2.\ N. Y. (7 various circimistanct's wliicli may attend Sniitli) 10;). In tliis case, the important sticli a takint,^ is not very well settled." question arose as to llie dejrree of care I'er Selden, .!., 21 N. Y. 105. See Storj-, required from an officer in tlie keeping Bailm. § l;30; Jenner r. Jolifle, 6 John. of property. The court remark: "A 'J; IJiirke ;•. Trevitt, 1 Mass. ".Itj. siieriff, marshal, or other officer of like •» I'iiillips v. Klwell, 14 Ohio St. 240. > character, wlio takes jjropcrty hy virtue ^ Sanborn v. liakcr, 1 Allen. ')2G. But of lethal ])rocess. is under some oliliyatinu see Bailey v. Capelle, 1 liar. 44'.t. to see to the protection of such property 534 EVIDENCE. [book IV. apprehension, and the creditor in the suit omits no duty required on his part to fix the liability of the officer.^ § 9. In an action by an execution creditor against a sheriff for false return ; the defendant having set up title in the assignees of the debtor under a bill of sale, with delivery, prior to the levy, evidence is admissible of an indebtedness of the debtor as a con- sideration of the sale, but only upon the question whether the sale was fraudulent in fact. If there were no indebtedness, the sale was a fraud in fact. Otherwise, and in case of a secret trust for the debtor, though valid between the parties, it was a fraud in law, and void against creditors. The plaintiff may also offer rebutting evidence that there was no indebtedness.^ So it is held that an officer may explain his return. ^ And where an officer's return showed a levy on a wagon, but no disposition thereof; and the plaintiff charged him with negligently permitting it to be stolen : held, the officer, having joined issue on this charge, might introduce proof that it was stolen from his bailee.* So, in defence of an action against a sheriff by a stockholder of a manufacturing corporation, for arresting him on an execution against the cor- poration ; it may be shown that he was a stockholder, although the return on the execution states that he was arrested as " now or formerly an officer of the within named corporation."^ § 10. In a summary proceeding against a sheriff for non-return of a summons, the inquiry is confined to the face of the return. Extrinsic evidence is not admissible.^ § 11. In general, evidence is not admissible to contradict a return.'' Thus the sheriff's return of service cannot be contra- dicted, except for fraud or collusion.^ So the officer cannot be a witness to falsify his return.^ Thus an officer, who had returned on an execution the taking of a yoke of oxen and a yoke, cannot be permitted to testify, on a trial in trespass, that he did not take the yoke ; though he may be permitted to amend his return according to the facts. ^^ § 12. One who claims by virtue of a sale on execution may show that the sale was made in a different manner from that 1 Wetherell v. Hughes, 45 Maine, 61. ■? Johnson v. Stone, 40 N. H. 197. 2 Connelly v. Walker, 45 Penn. 450. 8 Tillman v. Davis, '28 Geo. 494 ; 3 Langdon v. Summers, 10 Ohio (N. Brown (-•. Way, ib. 531 ; Wilson y. Spring, S.), 77. &c., ib. 445. 4 Harper v. Moffit, 11 Iowa, 527. » Eastman v. Bennett, 6 Wis. 232. 5 Richmond v. Willis, 18 Gray, 182. W Johnson v. Stone, 40 N. H. 197 ; 6 Hill V. Hinton, 2 Head, 124. Hatch v. Bartle, 45 Penn. 166. CH. XI.] PUBLIC OFFICERS. 535 stated in the officer's return. ^ So as between the purchaser at a sheriff's sale, and one who claims as mortgagee, the sheriff's return on the execution is not conclusive as to the time of the levy, but such mortgagee has a right to show that the levy was not made till after the time stated in the return, and after his right, as mortgagee, accrued. Such evidence would show, that there was no privity between the mortgagee and the judgment debtor, and that the sheriff had no right to make a return affect- ing the mortgagee or the property. And where a purchaser, knowing of a mortgage, colludes with the sheriff, and procures from him a false return of a levy before the giving of the mort- gage, and purchases on condition that such false return shall be made in a suit between the mortgagee and the purchaser ; this fraudulent collusion may be shown, and any effect of the return on the rights of the mortgagee defeated thereby .^ § 13. In a suit brought to quiet title, the complainant cannot, to defeat the defendant's title made under a sheriff's sale, and to show that the defendant had notice of his (the complainant's) rights, offer in evidence a notice to the sheriff of his rights under a deed, and an endorsement thereon by the sheriff, that he had read the notice at the sale ; it being no part of an officer's duty to read the notice or make such return.^ § 14. The declarations of the person, in whose hands property is attached as belonging to him, respecting his ownership, are evidence for the defendant, in a suit by a third party, claiming the property, against the sheriff,* § 15. Declarations by an execution defendant, before levy, are admissible to disprove property in the sheriff after levy.^ § 16. In trover against a sheriff, for levying an attachment against a partnership on goods claimed by the plaintiff, under a purchase from one of the partners, individually, the declarations of the others, that they had sold out to him, are mere hearsay, and therefore incompetent evidence.'' § 17. The admissions of one in possession of property, against his title, are admissible against an officer who has subsequently attached and taken possession of the property as his, in a suit brought against the officer to try the title, by one claiming ad- 1 Drake v. IMooney, 81 Vt. 617. * Ross v. Havne, 3 Iowa, 211. 2 Nail V. Granger, 8 Mieh. 450. 5 King v. Wilkins, 11 Iiid. 347. 3 Wickersliam v. Reeves, 1 Clarke '^ Hartshorn v. Williams, 31 Ala. 140. (Iowa), 413. 536 EVIDENCE. [book IV. versely both to the officer and the person who has made such admissions.^ § 17 a. On a statutory trial of the right of property in an attached stock of goods, the declarations and conduct of the defendants in attachment subsequent to the transfer to the claim- ant and the levy, and not accompanying, qualifying, or explain- ing any material fact in the case, are not admissible in evidence.^ But evidence of a witness, who testified that he was called in to take an account of the stock, and to a conversation at the time between the defendants and the claimant, that the stock was to be taken for the purpose of turning it over to tlie claimant to satisfy a debt, is admissible, as tending to establish a sale to the claimant. § 17 b. When goods have been attached by A as the property of B, and C has interposed a claim to them, and has executed a claim bond, which recites the levy and the interposition of the claim, and an action has been brought to try the right of property between A and C ; the bond is evidence for A, of the levy. And if a witness testifies, that, on the day on which the attach- ment is dated, he saw the officer (he having since died) levy an attachment against the defendants in favor of the plaintiff, the attachment and levy may be read, although not in the hand- writing of the officer." § 18. Inquiry made by a creditor, of a claimant of property alleged to be transferred to such claimant in fraud of creditors, relative to the claimant's business standing, and his reference to the business men of the place where he had formerly done busi- ness, do not make them agents with authority to speak, nor their declarations evidence in favor of an officer who afterwards attached the property on a suit by the creditors.* § 19. In an action of trespass by a father against an officer, for seizing and selling property as belonging to his son, the defendant offered evidence of the plaintiff's declarations that the property belonged to the son. Held, it was competent for the plaintiff to prove, in rebuttal, that prior to the execution the plaintiff had turned out to the sherifi' the same property, in the son's presence, upon an execution against the plaintiff himself.^ 1 HaywarJ, &c. v. Duncklee, 30 Verm. 3 Mayer v. Clark, 40 Ala. 259. 29. 4 Kosenbury v. Angell, 6 Mich. 508. - PuUiara v. Newberry's, 41 Ala. 168. 5 Roberts v. Young, 42 Penn. 439. CH. XI.] PUBLIC OFFICERS, 587 § 20. " The admissions of an under-sherifT are not evidence against the sheriff, unless they tend to charge himself, he being the real party in the cause. He is not regarded as the jzeneral oflScer of the sheriff, to all intents; ^ though the admissibility of his declarations has sometimes been placed on that ground.'^ At otiier times they have been received on the ground, that, being liable over to the sheiiif, he is the real party to the suit."^ And where the sheriff has taken a general bond of indemnity from the under-ofificer, and has given him notice of the pendency of the suit, and required him to defend it; the latter is in fact the real party in interest, whenever the sheriff is sued for his default, and his admissions are clearly receivable, on principle, when made against himself. It has elsewhere been said that the declarations of an under-sheriff are evidence to charge the sheriff, only where his acts might be given in evidence to charge him ; and they rather as acts, than as deciai-ations, the declarations being con- sidered as part of the res [/estce." * § 21. In an action against an officer for serving an attachment, the record of that attachment is competent evidence for him.^ § 22. To admit an execution in evidence, the judgment must be produced,'^ except in a few particular cases.'' § 23. In trespass against a sheriff, he cannot show that the title was not in the plaintiff, because acquired by a fraudulent sale from an execution defendant, without first alleging and proving his execution and justifying under it.^ § 24. In an action against the sheriff for not paying over money collected on execution, the defendant marked the case " not for the jui-y," and asked a continuance, which was refused, and judg- ment entered for the plaintiff, and the case continned for assess- ment of damages. Held, upon the trial on this issue, the plaintiff's right to recover was establisiied by the judgment, and, u|)on proof by him that the sherifi' had collected and not paid over the amount of the execution, he was entitled to recover that sum.'^ § 25. In an action by the execution debtor against an officer, to recover the balance of proceeds of sale after satisfying the 1 Snowball v. Goodricke, 4 B. & Ad. 5 Sneed v. Wopman, 23 Mis. 263. 541. « Tin.lall r. Miirpliv, 1 Hemp. 21. 2 Drake v. Sykes, 7 T. U. ll.'i. "' ran)i)l)ell r. Strong, il) 2r..j. 3 Yab.sley v. Doble, 1 Ld. Unvm. I'.lO. 8 Beaty v. Swnrtliout, 32 IJarh. 203. 4 AVlicder L-. Iliimbrigiit, 9S.'&R.3%; « Bradley v. Cliauibcrlain, 31 Verm. 1 Greenl. Ev. 283, n. 3. 468. 538 EVIDENCE. [book IV. execution, a bill of sale from the debtor to a third person, who had recovered against the officer in an action for wrongfully levy- ing on the property, is competent evidence.^ § 26. A purchaser of logs at a sheriff's sale, valid as to part only, must, in order to maintain trover, identify these logs.^ § 27. In an action against an officer for levying an execution, against a former owner of a saw-mill improvement erected upon leased land, upon a part of the machinery : the vendor of such improvement, by assignment and quitclaim indorsed on the lease, without warranty, is a competent witness for the plaintiff, because, if the machinery was a fixture, it passed by the assignment with- out warranty ; if detached, and personalty, it was not included in the assignment, and there was no implied warranty.^ § 28. In an action for neglect to serve a writ, the plaintiff must prove a cause of action against the defendant in such ^yrit, which he may do by the same evidence as in the action itself;^ as by the debtor's admission.^ Evidence must be given of ability to serve the writ ; as, of notice that the party was within the officer's precinct, and might have been arrested ; or that he had attachable property in his possession.^ § 29. In an action for failure to seize goods, the officer may show that they did not belong to the debtor, or reasonable doubt as to the title, and that the plaintiff refused to indemnify him." In case of an execution, he may show that the judgment was fraudulent, and that he held the process of another judgment creditor,^ or prior attachments to the full value of the goods.^ But where an officer levies on goods, and leaves them with a receiptor, who rightly claims to own them, and against whom, upon his retaining them, the officer recovers a judgment for their value ; in an action by the execution plaintiff, the officer is es- topped to deny that they belonged to the debtor, although, in consequence of the receiptor's insolvency, the judgment against him was worthless.^*' 1 Etters r. Wilson, 12 Rich. 145. ' Canada v. Southwick, 16 Pick. 656 ; 2 Brown v. Pratt, 4 Wis. 513. Bond v. Ward, 7 Mass. 123 ; Marsh v. 3 M'Invoy v. Dyer, 47 Penn. 118. Gold, 2 Pick. 285. * Alexander v. Macauley, 4 T. R. 611 ; » Clark v. Foxcroft, 6 Greenl. 296 ; Ritrgs V. Thatcher, 1 Greenl. 68 ; Gunter Pierce v. Jackson, 6 Mass. 242. V. Cleyton, 2 Lev. 85. 9 Commercial, &c. v. Wilkins, 9 Greenl. 5 Gibbon i-. Coggon, 2 Camp. 188 ; 28. Dyke v. Aldridge, 7 T. R. 665 ; 4 ib. 611. ^ The People v. Reeder, 25 N. Y. (11 6 Beckford i-. Montague, 2 Esp. 475 ; Smith) 302. Frost V. Dougal, 1 Day, 128. CH. XI.] PUBLIC OFFICERS. 539 § 29 a. On motion for failing to return an execution, evidence that the execution defendant was reputed insolvent is inadmis- sible. ^ § 29 b. The sufficiency of bail is presumed to be known to the officer ; hence slight evidence of their insufficiency will sustain an action against him ; as that they have been pressed by creditors, and repeatedly broken their promises to pay.^ The officer is liable, without proof of knowledge on his part; though he may show in defence that the bail were apparently responsible and in good credit.^ 1 Vaushan v. Warnell, 28 Tex. 119. » Jeffery v. Bastard, 4 Ad. & Ell. 823; - (iwylliiu r. Sclioley, . s Robinson v. Burton, 5 Har. 335. '^ Preston v. Bowers, 13 Ohio St. 1. « 1 Greenl. Ev. 122, § 54. 3 lb. "! Kerry v. Watkins, 7 C. & P. 308. CH. XII.] PARENT AND CHILD. 543 asked, even on cross examination, and with reference to tlie time near the alleged seduction, whether she had connection with other men, for the purpose of showing her had character, or of contradicting her in case of denial. The court say : " True enough, the parent is entitled to damages for the disgrace brought upon the family by this stain upon the general good character or repu- tation of the daughter, but is entitled to damages only for the loss of service, if her previous reputation for chastity was bad. . . . But reputation is a fact that is to be directly proved, and not inferred from special acts. . . . The law does not inquire whether the reputation is well founded or not; for, to do so, it would have to investigate the whole life." ^ § 13. A father may maintain an action, for harboring or secret- ing his minor daughter, and persuading her to remain absent from his family and service without his consent, and in such action may recover for his mental suffering thereby caused ; though he may not introduce evidence thereof, distinct from and in addition to that which shows the nature and extent of the injury.2 1 Per Lowrie, C. J., Hoffman v. Kem- '^ Stowe v. Heywood, 7 Allen, 118. erer, 4J: Penn. 453 ; 5 Har. 335. 544 DAMAGES. [book V. BOOK V. DAMAGES. CHAPTER I. GENERAL RULES OF DAMAGES. 1. General remarks. 6. Liberal construction in favor of the lb. A question for the jury; subject to plaintiff; exceptions and limitations. any le^al rule or measure of damages. 7. Jlode of ascertaining damages; writ of 4. Nature of damages; ^e?2e»-oi and s/Jeci'a/. inquiry, &:c. 5. Pussiblt injury; de minimis, &c. § 1. In case of tort, two entirely distinct questions arise with respect to damages. First, is the injury one which justifies an action for damages ; or is it so sh"ght, so remotely connected with the act or neglect of the defendant, or so far attributable to the fault of the plaintiff himself, that no action can be maintained. The other question is, supposing the action to be maintainable, to what amount of damages is the plaintiff entitled, or by what standard, if any, is that amount to be governed. The former of these questions has been considered at some length in the third and fourth chapters of the work to which the present is a supple- ment. The latter we propose now to consider. Of course it has been incidentally treated in connection with the subject of evi- dence ; — inasmuch as all facts legally admissible in evidence may affect the damages ; and, on the other hand, every thing which has a legitimate bearing upon the damages may also be offered in evidence. In a less degree, also, damages are connected with pleading ; because the amount which the plaintiff is entitled to recover is often determined by the allegations of the writ. The subject, however, is a distinct one, by itself, and, as a branch of the general topic of remedies, requires a full and detailed con- sideration. § 1 a. It hardly need be added, that the subject of damages, in CH. I.] GENERAL RULES OF DAMAGES. 545 actions for torts, is of very great and peculiar importance. Tlie amount of damages for breach of contract is in many, perhaps a majority of cases, determined by the contract itself. A party, who neglects or refuses to pay a certain sum of money, or to deliver certain property, which he has expressly or impliedly agreed to pay or deliver, will, in a suit at law, suffer a verdict and judgment against him for that sum or for the value of that prop- erty ; not unfrequently, it is true, with incidental accompaniments, but still 07ily as accompaniments to a fixed standard or basis. But, on the other hand, an action for tort is in many cases said to sound in damages ; that is, the damages themselves, as determined by a jury, constitute the first defined pecuniary claim and liability between the parties. ^ Under these circumstances, it of course becomes proportionably important, that the knv should substitute some at least approximate standard of damages for that, Avhicb in case of contract the parties furnish for themselves. § 1 6. It is held that damages arising ex delicto cannot be recov- ered unless specifically proved,^ and that a plaintiff must make his case certain, not merely probable.^ Thus a husband, in an action against a physician for malpractice while attending his wife, cannot recover for alleged expenses without proof of such expenses.* So in a suit for possession of property unlawfully taken away, with a claim for damages for unlawful detention, the court will restrict the judgment for damages to the amount actu- ally proved.^ So one decreed to be the owner of a mule, in the possession of another, may recover it, and hire for its services while in the possession of the defendant ; but not its value in money in default of delivery, without proof of its value.*^ But where it is proved, in a writ of entry for land levied on, that the judgment debtor, who procured the land to be conveyed to the tenant, Avas so indebted at the time as to render the conveyance fraudulent ; the demandant need not show, even approximately, the amount of such indebtedness." § 1 c. In an action by A, one of a mercantile firm, against a railroad, for injuries to his person, A cannot ask B, the other part- ner, what was the damage to the firm for a specified time, by reason of A's absence, caused by his injuries. B cannot state his 1 See Smith v. Warner, 14 Mich. 152. 5 Means v. Hyde, U) La. An. 478. 2 Minor V. Wrijiht, 16 La. An. 151. « Dan.u'erfieUl v. Fauvcr, ib. 17L 3 lianson v. Labranciie, ib. 121. T Clark v. Chamberlain, 13 Allen, 257. * Hyatt V. Adams, 16 Mich. 180. 35 546 DAMAGES. [book V. Opinion as to the amount, but only facts from which the jury can estimate it.^ § 1 c/. In an action for a wrong, whether arising out of trespass or negligence, tlie jury, in estimating the damages, may take into consideration all the circumstances attending it; ^ such as circum- stances in aggravation,'' which give character to the transaction." ^ And it is held, that the jury may give such damages as the case requires in equity."^ Thus where one obstructed a way, whereby another was prevented from repairing his dam when necessary : the measure of damages was held not necessarily the reasonable cost of removing the obstruction ; but the decision of the jury, considering the motives of the parties, and all the circumstances, was the only standard.^ A passenger on a steamboat, injured by the explosion of a boiler, may recover for his bodily pain and suffering.^ So, in an action for injury caused by an accident upon a railroad, damages may be allowed for the plaintiff's mental sufferings, the dismay and consequent shock to the feelings, with- out reference to the question of vindictive damages. " His mind is no less a part of his person than his body ; and the sufferings of the former are oftentimes more acute, and also more lasting, than those of the latter. . . . The dismay, and the consequent shock to the feelings, which is produced by the danger attending a personal injury, not only aggravate it, but are frequently so appalling as to suspend the reason, and disable a person from warding it off." " So in a suit by a passenger against a steamboat, under an allegation that, by reason of the steamer being over- loaded Math passengers, the plaintiff and his family " were sub- jected to great inconvenience and injury ; " the plaintiff may give in evidence his sickness caused by the want of sufficient bed- clothing.^ So, in estimating the damages against a railroad for injury to a child, the jury should consider the health and con- dition of the plaintiff before the injury, as compared with his present condition in consequence of such injury, whether the injury is in its nature permanent, and how far it is calculated to 1 Blair v. Milwaukee, 20 Wis. 262. &c., 25 ib. 467 ; St. Paul v. Kuby, 8 Min. 2 Emblin v. Myers, 6 Hurl. & Nor. 54 ; 154; Allison v. Chandler, 11 Mich. 542. 30 L. J. Exch. 71. See Bell v. Midland, 5 McTavish v. Carroll, 13 Md. 429. &c., 9 W. R. 612, C. P. ; Jones v. Allen, ^ Swarthout v. New Jersey, 46 Barb. 1 Head, 626. 222. 3 Bateman v. Goodyear, 12 Conn. 575. 7 Seger v. Barkhamsted, 22 Conn. 4 Leland r. Stone, 10 Mass. 459, 462; 290; per Storrs, J., ib. 298; Cooper v. Weld V. Bartlett, ib. 470 ; Aldrich v. MuUins, 30 Geo. 146. Palmer, 24 Cal. 616 ; Boyce v. California, 8 Roberts v. Graham, 6 Wall. 578. CH. I.] GKNERAL RULES OF DAMAGES. 547 disable him from engaging in tliose mechanical employments and pursuits for which he would otherwise have been qualified; also, his ph^'sical and mental suffering.^ So in an action by a husband and wife against a physician, for an injury to the wife in deliver- ing her of a child, damages may be given for her mental suffering produced by the destruction of the child.- So, in an action for malicious arrest, the jury are bound to consider the jeopardy to liberty, the distance the plaintiff was compelled to walk, his age and physical condition, bodily suffering, mental anxiety and pain.^ So in an action against a gas company, for refusing to supply gas to a store, he is entitled to compensation for the pecuniary loss, and also for the inconvenience and annoyance experienced by him in his mercantile business.* So an armed body of men, who break into a store, take away the stock, put the owner in fear of bodily harm, threaten his life if he resists, and injure his business, are liable not only for the value of the property taken, but also for breaking and entering the store, seizing the property, putting the owner's person in danger, breaking up his stock, and injuring his business, and greatly annoying and disturbing him.' And, in general, in an action for a personal injury resulting from negli- gence, the jury may allow damages for the plaintiff's natural anxiety and mental suffering at the time, caused by the danger.*^ § 2. In general, the remedy shall be commensurate with the injury.^ If there be a legal rule for the measurement of damages, the jury must follow it ; ^ as, for example, in an action of trover.^ And if a judge at nisi prius does not inform the jury what is the proper measure of damages, on an issue on which it is admitted that the plaintiff is entitled to a verdict and to damages, the court will direct a new trial, ajthough the point was not taken by counsel at the trial. ^° (a) So, in an action for running over 1 Bannon v. Baltimore, 24 Md. 108. Swift v. Barnes, 16 Pick. I'Ji ; Bussey v. 2 Smitii V. Overby, 30 Ga. 241. Donaldson, 4 Dall. 206. 3 Aliern v. Collins, 39 Mis. 145. » Warren v. Cole, 15 Mich. 265. 4 Shepard f. Milwaukee, 15 Wis. 318. » Kyan v. Baldrick, 3 M'Cord, 498; * Freidenlieit c. Edmundson, 36 Mis. Baker v. Wheeler, 8 Wend. 505. 226. 1" Knight v. Egerton, 12 Kng. L. & Eq. s Masters v. Warren, 27 Conn. 393. 562. 7 Kockwood V. Allen, 7 Mass. 254 ; {(i) Wliere property is in question, tlie In an action for forcihly lirickiiijj up value of the article, as nearly as it can he the entrance of a restaurant kej)! hy the ascertained, furnishes a rule, from which plaintitt", and thereby brt-aking u]) his the jury are not at liberty to depart. Hille- business, evidence that " the plaintiff did brant v. Brewer, 6 Tex. 45. a pretty large business," that " tiie busi- 548 DAMAGES. [book V. the plaintiff with a train of coal-cars, by reason of which the ampu- tation of his foot became necessary, the court charged the jury, "that there was no certain rule by which to estimate the damages for the personal injury to the plaintiff, and that the jury will fix them at such sum as they think right and proper under the evidence." Held, the injury not being wilful, com- iiess was good and profitable," and that "one-halfof the receipts were clear profit," is admissible, to show in some manner the nature and extent of the injury. Marquart V. La Farge, -5 Duer, 5.59. In an action for conversion of a large numl)er of watches, testimony as to their average value is competent. Illingworth V. Greenleaf, 11 Minn. '2'd'o. In an action to recover damages for conversion of gold coin, the measure of damages is tiie value of the gold, esti- mated in currency. Taylor v. Ketchum, 5Kob (N. Y.) 507. In detinue, a witness was permitted to prove the value of the property at the time of taking. Held, as this was the true measure of damages in the absence of fraud, malice, or oppression, the de- fendant could not complain that the more stringent rule, which leaves to the jury the amount of damages when there are aggravating circumstances, was not ap- plied to his case. Whitfield v. Whitfield, 40 Miss. 352. Evidence of what property brought at auction, subsequent to the alleged con- version, is admissible, as having some ten- dency to prove its value. Smith v. Mitcliell, 12 Mich. 180. Although witnesses may give opinions as to the value of property, such testimony as to the amount of damages sustained is inadmissible. Prosser v. Wapello, 18 Iowa, 327. Where injury is done to property, the measure of damages is not the cost of restoring it to its original condition, if such cost may exceed its value, or the actual damage. Harvey v. Sides, 1 Nev. 539. Where an injury was done in Canada, and a suit brought in a United States court, a sum in United States currency was allowed, which approximateil most nearly to that to which the party injured was entitled at the place of the injury. Cramer v. Allen, 5 Blatchf C. C. 248. The defendant cut logs on the land of A, the plaintift"'s intestate, his partner, but showed no license from A, or that the proceeds were carried into the partnership account. Held, the logs being the prop- erty of A, the plaintiff could recover the amount received for them, being not more than their real value, with interest. Symes V. Oliver, 13 Mich. 9. In an action for killing a horse, the value of the horse at the time of his death is the measure of damages. But the de- fendant may show the condition of the horse, by witnesses who had seen him at any reasonable time before the killing, ranging within three months, and then, after proving by other witnesses that his condition was unchanged, the former may testify to the value of the horse at the time of the killing, on the hypothesis that his condition was the same as when they saw him. Toledo r. Smith, 25 Ind. 288. Where cofi'ee was damaged on its voy- age from Boston to Kew Orleans, and in its damaged state was shipped up the river to St. Louis : the original cause of damage being established, and there be- ing no evidence of any additional damage received in its last voyage ; held, the amount of damage ascertained to have been received, on examination at St. Louis, might be received as a fair criterion of the amount received on its arrival at New Orleans. The Norman, 1 Newb. Adm. 525. A peculiar question as to the measure of damages is presented by the separation of the property in question from the realty, of which it made a part before the wrongful act complained of. The value of (/old thus separated is to be estimated as of the time when it becomes a chattel. Antoine, &c. v. Ridge, &c. 23 Cal. 219. The value of an orchard is to be esti- mated, with reference to what, in its growing state, it is worth to the ])remises. Mitchell I'. Billingsley, 17 Ala. 391. The actual value of growing timber is not its supposed worth to the owner, but the price for which it would sell at the time in the neighborhood in which it is situ- ated. Ivey V. McQueen, ib. 408. In trespass quare clausum, where no indignity to the person or invasion of personal rights is shown, the extent of the injury to proprietary rights forms the true measure of damages. Jefcoat v. Knotts, 13 Rich. L. 50. CH. I.] GENERAL RULES OF DAMAGES. 549 pensafion was the measure of damages, and the instruction was erroneous for want of precision upon this point.^ So it is error, in an action for a personal injury, to leave to the jury to deter- mine the legal import of actual damages : the court should instruct them that " compensation " consists in remuneration for loss of time, necessary expenditures, and permanent disability ."■^ § 3. But, as is truly remarked in a very recent case : " It is often much easier to discover when an assumed rule for damages will lead to erroneous results, than to point out in all cases, in advance, what the true rule should be." ^ In actions for personal torts, the law does not fix precise rules of damages, but the mat- ter is left to the discretion of the jury.* In actions for quasi offences, the law has left a discretion to the court and jury to assess the damages." § 4. The nature of damages, and the distinction between gen- eral and special damages, are thus explained by an approved writer: " All damages must be the result of the injury complained of. Those which necessarily result, are termed general damages, being shown under the ad damnum, . . . for the defendant must be presumed to be aware of the necessary consequences of his conduct, and therefore cannot be taken by surprise in the proof of them. . . . But where the damages, though the natural conse- quences of the act complained of, are not the necessary result of it, they are termed special damages; which the law does not imply; and therefore, in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them. But where the special damage is properly alleged, and is tlie nat- ural consequence of the wrongful act, the jury may infer it from the principal fact."*^ § 5. A mere possible injury furnishes no ground of damages.'^ But every trespass to property gives a right, at least, to nominal damages.^ It is held that the maxim, " de minimis non curat lex,' when properly applied to prevent a right of recovery, has refer- ence to the injury, and not to the resulting damages. That it is never properly applied to a wrongful and positive invasion of 1 Heil V. GlanilinjT, 42 Penn. 493. ^ pjkg „. Doyle, 10 La. An. 3G2. 2 Parker v. Jenkins, 3 Hush, oS7. 6 2 Greenl. Ev , 20'J, § 254. 3 Per 'riininpson, J., McKniglit I'. Rat- " Massey i\ Craine, " 1 M 'Cord, 489 ; cliff, 44 Penn. Hi'.). Bond v. Quattlebaum, ib. ")S4. * Aldrich v. Palmer, 24 Cal. 513. » Ciiampion v. Vincent, 20 Tex. 811. 550 DAMAGES. [book V. property, wlien damages result which are capable of estimation. That to give a riglit of action there must be both an injury and a damage ; but every violation of a right imports some damage ; and, if none other be proved, the law allows nominal damages. Thus, in levying an execution upon, and removing machinery from a building, in order to disengage it from the bands by which it was connected with the shafting, which bands did not belong to the owner of the machinery, but to the plaintiff, the mortgagee of the building; the defendants cut the thongs by which the bands were laced together, which thongs could have been easily untied and taken out without cutting. The testimony tended to show that these thongs were considerably worn, and of small value. The court charged the jury, that, if they found that the thongs were old, worn out, and nearly worthless, the defendants would not be liable for cutting them, unless they did so wantonly ; and advised them, as the suit appeared to be brought to try the defend- ants' right to enter the building and take the machinery, not to decide it upon the ground of a trifling damage of this kind to the thongs, provided the officer acted in good faith. Held, these instructions were erroneous, because the damage, though small, was still capable of estimation, and the plaintiff was entitled to recover for such damage, and therefore a new trial was granted.^ § 6. In many cases, the law gives a liberal construction in favor of the plaintiff to the right of recovering damages for injuries. Thus a party, who appropriates to his own use another's land, is liable in damages for the value of the land to one luho has a use for it? So where, from the circumstances of the case, the defend- ant, but not the plaintiff, has it in his power to show the amount of damage sustained, heavy damages are justified.^ So, in an action for conversion of property fluctuating in value, the plaintiff is entitled to the highest value at or after the time of conversion.^ And a plaintiff is not restricted, in the amount of damages, to the sum which he demanded of the defendant for the injuries.^ But a court of equity, in assessing damages resulting from a wrongful taking and detention of property, will give neither vindictive nor speculative damages, but compensation only for the actual loss 1 Fullam V. Stearns, 30 Verm. 44.3. 4 Douglass v. Kraft, 9 ib. 5G2. - arCartliv i\ Cabrera, 17 Tex. 629. 5 Western, &c. v. Carlton, 28 Geo. 3 Antoine,'&c. v. Ridge, 23 Cal. 219. 180. CH. I.] GENERAL RULES OF DAMAGES. 551 and injury.^ And it is said, " What the law seeks to secure in an assessment of damages to an injured party is compensation. He can ask no more than to be made whole." ^ More especially, "In all actions on the case, the question is, What is the amount of dam- ages sustained ? " ^ And it is sometimes held, in trespass, where there is no aggravation, that damages shall be given only for the actual iDJury."* Thus, where the judge instructed the jury, in an action of trespass for levying an execution upon property which the plaintiff had conditionally sold to the execution debtor, to find the value of the property and interest, and such further amount, as, under all the circumstances of the case as argued by the counsel, they might think the plaintiff entitled to demand, if any; held erroneous; the court remarking: "This is giving them a discretionary power without stint or limit, highly dangerous to the rights of the defendants. . . . Nothing appears which should swell the damages beyond the value of the interest which the ven- dee (vendor) had in the property."^ § 7. In case of default, the ordinary mode of ascertaining dam- ages is by a ivrit of inquiry. And it is held, that the record must show such writ.^ Where the defendant in trespass qu. clans. becomes defaulted, he has a right to be heard in damages. And, if the jury assess them at the request of the plaintiff', either party may except to the instructions of the judge as to the principles which should govern them.''' {a) So in trover, after default, the 1 Sanders v. Anderson, 10 Rich, Eq. * Conard v. Pacific, &,c., G Pet. 2G2. 232. 5 Ko-ie v. Story, 1 Barr, I'.tl. - Per Strong, J., M'Inroy v. Dyer, 47 ^ Wctzcil v. Waters, 18 Mis. 396. Penii. 121. '' Cromniett v. Pearson, G Sliep. 344. 3 West V. Rice, 9 Met. 564. {a) "Where defendants in trespass mark all. Bowman v. Noyes, 12 N. H. 302. See their cause "not for the jury," and tlie Pratte v. Corl, 9 Mis. 1G3 ; Evans v. court order judgment for tiie plaintiffs, Bowlin, ib. 406; Chambers v. Latlirop, 1 and that the damages be assessed by a Morris, 102 ; Davis v. Morford, ib. 99 ; jury ; tlie defendants may still introduce Parvin v. IIooi)es, ib. 294 ; Romaine v. any evidence relevant to damages. Cham- Commis.^ioners, &c., ib. 357; Kalioon v. berlin r. .Murphy, 41 ^'t. 111). " Wiscousin, >.^ic., 10 AVis. 290; Kecler After default, not ui)on an instrument v. Campbell, 24 111. 287 ; Van Dusen v. in writing, the defendant has a right to Pomeroy, ib. 289 ; Nobles v. Christmas, have the damages assessed by a jury. 2 How. Miss. 885; Grigsby v. Ford, 3 Brown r. King, 39 Mis. 880. ib. 184; Clemson v. State Bank, 1 Scam. In New Hampshire, when a default is 45. entered, the court as.sess the damages. On the execution of a writ of inquiry, unless, for s])ecial reasons, it is deemed after judgment by default, in an action ex])edient to order an inquiry of damages for levying upon tlie plaintill 's projierty by the jury. If one defendant be de- under an execution against A ; the de- faulted, and another plead, the jury, if fendant may show, in mitigation of dam- they find for the ])laintitt', assess damages, ages, that at the time of and before the for which judgment is rendered against levy the property was in possession of 552 DAMAGES. [book V. defendant is entitled to be heard in the assessment of damages by the court, he having moved for a liearing before the final adjourn- ment of the court, and before judgment had been entered up. " In the English practice, upon default, the plaintiff is entitled, as of right, to a writ of inquiry, and an assessment of damages by a jury, unless he consents that they be assessed by a master or a prothonotary appointed by the court. The defendant . . . has no such election. Pie has no right to a jury to assess damages."^ § 8. Where the jury have found a verdict for the defendant, with leave given to the plaintiff to enter a verdict for a sum at which his damages have been without objection contingently assessed, the court will not grant a new trial, in order that there may be a fresh assessment.^ § 9. Where there is an issue of law and an issue of fact in the same cause, and the latter is first tried, there is no need of assess- ing damages contingently, if the issue of fact goes to the whole declaration.^ § 9 a. Upon an agreed statement of facts, not fixing or provid- ing for the assessment of damages ; a judgment for the plaintiff will be for nominal damages."* § 10. In trials at common law, all testimony must be delivered orally in presence of the jury, who are to try a cause or assess damages, except where the statute provides for the admission of 1 Becrg V. Whittier, 48 Maine, 314 ; per » Bates v. Green, 19 Wend. 630. Appleton, J., ib. 315. * McAneany v. Jewett, 10 Allen, 151. ^ Booth V. Clive, 4 Eng. L. & Eq. 374. A ; and, also, that the plaintiff was not that any thing new has been discovered the owner, that fact not being necessarily by the plaintiff since the granting of the inconsistent with the right to the posses- original order. Joannes v. Fisk, 3 Bob. sion; but not that the plaintiff had not (N. Y.) 710. such a title as would authorize a recovery. In an action for the delivery of cotton, Sterrett's v. Raster, 37 Ala. 366. or for damages in default tiiereof, damages It is held, that no writ of inquiry is may be assessed by the judge at the time allowable for a defendant. Hopewell v. of default. Seris v. Bellocq, 17 La. An. Price, 2 Har. & G. 275. 146. In an action to recover a penalty under The court may assess damages without Rev. Stat, of ]\Iaine, c. 158, § 17, for a jury, when judgment is rendered upon falsely and corruptly certifying as a wit- the overruling of a demurrer, under a ness, the amount to be recovered may be statute which permits it in cases of default, assessed bv the jury. Kennedy v. Wright, Hopkins v. Ladd, 35 111. 178. 34 Maine, 351. Art. 75, § 62, of the (Md.) Code, as Wiiere, in an action for libel, the de- amended and re-enacted by the Act of fendant fails to appear, and the plaintiff 1864, c. 175, contains no limitation as to procures an order to assess damages by a time within which inquisitions upon judg- sheriff's jury, such order will not be ments by default must be taken, and it vacated upon motion of the plaintiff, in embraces by its terms all cases in which order to have the damages assessed by a default was entered before its passage, trial before a judge, if it does not appear Stansbury v. Keady, 29 Md. 361. CH. I.] GENERAL RULES OF DAMAGES. 553 depositions. Therefore the evidence spread on the record, in a case in which a demurrer is offered to evidence, cannot be allowed to go to a second jury, impanelled to assess damages after the demurrer is overruled.^ § 11. Upon a writ of inquiry, the defendant cannot set up a substantive defence.^ (a) § 12. By consent (in Ohio), the court may leave a question of damages to arbitrators.^ § 13. In Indiana, where the report of persons appointed to assess damages sustained for draining a creek was set aside, the application for a second assessment cannot be made seven years thereafter.'* 1 Young V. Foster, 7 Port. 420. 2 South, &c. V. Foster, 20 111. 296. 3 Conner v. Drake, 1 Ohio St. 1G6. 4 Brake v. The Board, &c., 2 Cart. 606. (a) In Illinois, the defendant cannot set shall stand open until a particular day, up any new defence ; but he may cross- examine witnesses, offer testimony in re- duction of the sum claimed, and ask instructions of the court. Herrington v. Stevens, 2t; 111. 298. A detault, and agreement that the case when damages shall he assessed by the magistrate, is not a waiver by tlie defend- ant of his right to plead to the merits upon appeal. Jaha v. Bellcg, 13 Allen, 7«. 554 DAMAGES. [book V. CHAPTER 11. AMOUNT OF DAMAGES ; NOMINAL DAMAGES ; MITIGATION OF DAM- AGES. 1. Nominal damage!?. 6. Equitable and statutory grounds of 2. iMitigatiou or reduction; recoupment; reduction; counter-claim. set-off. 15. Ketuni of the property taken ; applica- tion of proceeds to the plaintiff's benefit. § 1. We have already stated the general principle, that a party is entitled to damages corresponding with the amount of injury suffered, however small. With more special reference to what are technically termed nominal da?nages, (a) it is the prevailing rule, that, where an invasion of a right is established, though no actual damage be shown, the law imports damage, and nominal damages will be given. As where the unlawful act might have an effect upon the right of a party, and be evidence in favor of the wrong-doer, if the right ever came in question ; or where a continuance of the wrong might result in an easement or incum- brance on land. So when one wantonly invades another's rights, for the purpose of injury. Though not for a trespass to personal property, when no unlawful intent, or disturbance of a right or possession, is shown, and when the property sustains no injury .^ Thus, in an action of slander, where there is no real injury, the jury may find for nominal damages ; and, it seems, may consider the question of costs. As, in an action by the master of a work- house, for words imputing to him that he dishonestly got honest men turned out of employment there, in order to get in creatures of his own, for his own purposes. The words were held action- able ; but, being spoken in angry altercation, and without malice, the jury were directed that they might, if they thought there 1 Paul V. Slason, 22 Verm. 231; Bassett w. Salisbury, &c., SFost. 438; Whipple v. Cumberland, &c., 2 Story, 661. (a) It is hardly necessary to remark, action is maintainable ; and therefore ap- that the question whether nominal dam- pertains to the general subject of torts, ages, at lenst, can be recovered, is but rather than to the special head of damages, another form of the question, whether an CH. II.] AMOUNT OP DAMAGES, NOMINAL DAMAGES, ETC. 555 was no real injury, give nominal damages, so as not to carry costs ; and the defendant's counsel was allowed to ask, on cross-examina- tion, what would be the probable amount of costs to the defendant if a verdict for more than a nominal amount were given. ^ So a plaintifF in trespass, failing to prove the value of the rents and profits, use and occupation, damages or aggravating acts, is enti- tled only to nominal damages.^ So, in trespass for taking and converting property, the proof must show the value, or special damage, in order to recover more than nominal damages.^ So, in an action against a common carrier for neglect, only nominal dam- ages can be recovered, unless special injury is proved.'*(a) So, it is the prevailing rule, that, in an action for flowage, if the damage is so small that it cannot be estimated, the plaintifF is still enti- tled, at common law, to nominal damages.^ (b) Damage is implied, but " the lowest damage." ^ So where an action is brought for damages to personal property, and damages are proved, but not the amount, judgment should be for the plaintiff, with nominal damages.'^ But, in a summary proceeding under a penal statute, nominal damages are not recoverable.^ § 1 a. In late English cases it is held, that, on an inquiry whether any and what damage has accrued from the unlawful use of a trade-mark, the plaintiff must prove special damage ; and it will not be presumed that, but for such use, the plaintiff would have sold the amount of goods sold by the defendant.*-^ So an action cannot be maintained against one who digs a well near the land of another, which thereby is caused to sink, and a build- • Wiikelin v. Morris, 2 F. & F. 26. « Pastorius v. Fislier, 1 Eawle, 27. '^ Smith V. Huizar, 25 Tex. (Supp.) '' Brown i\ Emerson, 18 Mis. 103. 205. 8 Hamilton ?•. Ward, 4 Tex. 356. 3 Lay V. Bayles, 4 Cold. 246. s Leatlier, &c. v. Hir.«clifield, LawTJep. * Southern v. Kendrick, 40 Miss. 374. 1 Eq. 2U"J ; Amn. Law Hev., Oct. 1866, p. 5 Cory V. Silcox, 6 Ind. 39. 170. (a) Li an action for not entering satis- action for general average, and, the jury faction of a paid judjrment, tlie jur}' may Leing about to render a general verdict give more tlian nominal damages, al- for the ilefendant. l)ecause tiiey could not though tliere was no evidence of special ascertain any definite sum as the plain- damage. Allen V. Conrad, 51 Penn.487. tiff's proportion, a nonsuit was taken', and, (/)) It is said (2 Greenl. Ev. 210, 255), on motion, the court ordered a verdict for "If they (the jury) are unable to apree, the plaintiff, with (id. damages.) and till' plaintiff has evidently sustained Wliere a case is submitted upon an some (himages, tlie court will permit him agreed statement of facts, but without to take a verdict for a nominal sum." agreement respecting damages, the plain- (Tliis, however, cannot be regarded as the tiff can recover only nominal damages, prevailing rule. The case cited is Feize McAneany v. Jewett, 10 Allen, 151. V. Thompson, 1 Taun. 121. This was an 556 DAMAGES. [book V. ing, not twenty years old, to fall; if without the building the land would have sunk, but without appreciable damage.^ § 2. Mitigation or reduction of damages is a subject which gives rise to very nice and numerous questions. § 3. Recoupment is a familiar mode of reducing damages. Recoupment is defined as " the right and the act of making a set- off, defalcation, or discount, by the defendant, to the claim of the plaintiff." 2 Recoupment is distinguished from set-off, as being a reduction of the claim upon which the action is founded ; while the term set-off is applicable only to a claim which grows out of an independent transaction.^ (a) Thus, in an action to recover back advances made by the plaintiff on cotton delivered him by the defendant, where the cotton had been destroyed by fire : if the defendant would be entitled to damages of the plaintiff for the loss of the cotton, he may recoup such damages; and, for this purpose, may prove the destruction of the cotton, and the manner in which it occurred.^ So in an action on a note, given in consid- eration that certain premises should be surrendered in as good condition as when received, damages done to the premises, after the contract and before the surrender, may be recouped.^ So, in an action by an agent against his principal, to recover compensa- tion for services, the principal may set off any damages he may have incurred, in consequence of any action of the agent in refer- ence to the subject-matter of his agency, after his authority ceased.^ So, in an action for foreclosure of a mortgage, with a note, to secure rent ; the defendant may recoup his claim for mis- representations as to the quantity and productiveness of the farm leased.'^ So in a suit upon notes, given in consideration of a sale of land under misrepresentations and concealments, the pur- chaser may set off damages for such misrepresentation, to be determined by the jury.^ So damages, on account of a lessor's 1 Smith i\ Thackerah,LawRep. 1 C. P. lett, ib. 361 ; Grand, &c. v. Knox, 20 Mis. 564; Amn. Law Rev., Jan. 1867, p. 433. 297. 3 Avery v. Brown, 31 Conn. 393. 2 Bouvier's Law Diet., "Recoupe." See * Hatchett v. Gibson, 13 Ala. 587. Keyes v. Western, &c., 34 Verm. 81 ; King 5 Streeter r. Streeter, 43 111. 15.5. V. Woodbridge, ib. 565 ; McLure v. Hart, « McEwen v. Kerfoot, 37 111. 530. 19 Ark. 119; Stow v. Yarwood, 20 111. 1 Avery v. Brown, 31 Conn. 393. 597 ; Gilmore t- . Cook, 33 Mis. 25 ; Snow » McFarland v. Carver, 34 Mis. 195. V. Carruth, Sprague, 324 ; Nichols v. Trem- (a) Damages not alleged to be due and unpaid cannot make a set-off. Lemon v. Stevenson, 36 lU. 49. CH. II.] AMOUNT OF DAMAGES, NOMINAL DAMAGES, ETC. 557 misrepresentations as to the capacity or condition of a mill on the premises, may be set off in an action of covenant for rent.^ So where the defendant set up, in recoupment, damages sustained by false representations made in negotiation for an exchange of lands; it is proper, as affecting the true measure of the plaintiff's damages, to ask the dcfendanl's witness, " What estimate was placed upon the property received by defendant, and the prop- erty transferred to the plaintiff, at the time the contract was made?" In such case, on proof of false representations as to the quantity of land, the measure of the defendant's damages is the contract price, and interest, of the deficit, — not the value at the time of contract and interest.^ So, under the (Ind.) Code, a defend- ant may set up fraud or breach of warranty, by way of counter- claim, and recover any damage greater than the plaintiff's claim.^ So, in an action for pasturing cattle and sheep, it appeared that there was a contract fixing the price by the week for the season, but no express stipulation as to the manner in which the animals should be kept, or as to the care the plaintiff should take of them ; that the plaintiff's rams got with the defendant's ewes in the latter part of August, and consequently sixty of the ewes had lambs in midwinter, and that fifty-six of the lambs died "by reason of so unseasonable a birth." Held, the plaintiff did not exercise proper care, and the defendant could recoup the dam- ages sustained in consequence. The contract was entire, as the cattle and wethers were safely kept, though the defendant might recoup his whole damage.'* § 4. But recoupment can never be pleaded in bar.^ And evi- dence to prove damages, by way of recoupment, is not competent, where no claim to such recoupment is set up in the answer.*" So where A contracted with B to build a steamboat, and have it com- pleted at a certain time ; the price to be paid in instalments ; and the vessel was not delivered until two months after the agreed time, but B made no objections at the time of delivery: in an action by A for that part of the purchase-money which remained unpaid, held, B could not recoup the amount which he lost as freight during the two months ; because the damages were speculative.' 1 Cafie r. Phillips, 38 Ala. 382. 5 Birdsall v. Perego, 5 Klatchf. C. C. '■J llallam v. Todliiintcr, 24 Iowa, 166. 251. 8 Love V. Oklliain, 22 Iiid. 51. « Crane v. Ilardnian, 4 E. D. Smith, 4 Phelps I'. Paris, 3'J Vt. 511. 448. • ^ Taylor v. Maguire, 12 Mis. 313. 558 DAMAGES. [book V. So, in an • action by one partner against his copartner, for money loaned upon a contract distinct from the partnership, the defend- ant cannot recoup damages growing out of the partnership. ^ So a defendant cannot recoup money obtained from him by duress, unless it was legal duress.^ So the plaintiffs agreed with a town to build piers for a bridge, to be completed before a cer- tain time ; but failed to complete the work within the time agreed, whereby individual inhabitants were subjected to expense and inconvenience. Held, in a suit for the price, the defendants could not recoup these damages.^ So in case of an executed sale, by executors, of the property of their testator, the purchaser making no offer or attempt to rescind ; in an action for the pur- chase-money, he cannot avail himself of false and fraudulent representations, made by them at the time of sale, in respect to its subject-matter, either as a defence, or by way of recoupment or counter-claim. His remedy, if any, is against them personally.^ So, in an action for injuries done to hogs, which had broken into the defendant's inclosure, the defendant cannot recoup for dam- ages done to his crop by the hogs, when it is shown that his fence was not a " lawful fence," agreeably to the statute.^ And where A hired slaves of B, and gave his note therefor, and C, as coro- ner, took the slaves on execution, and, in a suit by B on the note, A elected to recoup the damages he had sustained ; held, A had thereby precluded himself from suing for damages for the loss of the hire of the slaves, but might still maintain an action for a trespass, which could not have been recouped in the former action.*" § 5. Action upon a bond to procure the discharge of a vessel attached to enforce a lien for repairs. The defendants claim to recoup for delay in repairing. Held, the measure of damages was not the probable profits of the vessel, but the rent or price which would have been paid for the charter, as the vessel was used or chartered at the time." § 6. There are other, less technical, grounds of deduction from the damages proved on the part of the plaintiff", sometimes depend- 1 Taylor v. Hardin, 38 Ga. 577. 5 Woodward v. Purdy, 20 Ala. 379. 2 Haskin v. Haskin, 41 111. 197. 6 McLane v. Miller, 12 ib. 643. ' Kinne v. New Haven, 32 Conn, 210. "^ Rogers v. Beard, 36 Barb. 31. 4 Westfall V. Dungan, 14 Ohio (N. S.), 276. CH. II.] AMOUNT OF DAMAGES, NOMINAL DAMAGES, ETC. 559 ing upon express statute, (a) Thus, in Kentucky, § 152 of the Code authorizes a counter-claim on behalf of one of several defend- ants, to be set up in answer to the action ; but such counter- claim must be a cause of action arising out of the transaction set forth in the petition, or be connected with the su])ject of the action. Where the petition states the occupation of the land, pending an injunction against the execution of a judgment for restitution, and claims damages therefor ; any interference by the plaintiff, rendering such occupation less profitable or less valuable to the occupant, even though amounting to a trespass or other tort, is a good counter-claim, and the taking of the growing crop by the plaintiff is a good defence to the demand of rent for that year, and siiall go in redaction of damages, claimed for the with- holding of the possession for that year. But, as the injunction protects the occupant during its pendency, and the injunction bond secures the other party for rent during the occupancy, the occupant, when his original entry is lawful, is a quasi tenant during the pendency of the bond ; and, as the duration of this is uncertain, he is entitled to emblements, and the taking and dis- posing of them by the plaintiff, when he obtained possession, constituted a good counter-claim under the Code.^ (6) § 7. Action for damages, occasioned by the filling up by the defendants of their land, lying adjacent to that of the plaintiffs, whereby the free flow of water off the plaintiff's land, as formerly existing, had been obstructed. Instructions to the jury, that " they should take into consideration the evidence on both sides bearing on this point, and, if they were satisfied that the filling up had actually benefited the plaintiff's estate in any particular, 1 Tinsley v. Tinsley, 15 B. Mon. 454. (a) As to the set-off, in assumpsit, of mitted to give evidence of such freezing, damages tor not deUvering ail tlie goods Held, evidence was admissible tliat the contracted for; see Fisiiell v. Winans, 38 potatoes froze by tlieir default. Starbird Barb. 1'20. v. Barrons, 38 N. Y. 230. (/') As to rniiiiter-claiin in Oliio and New A release of a co-trespasser is adnussi- York, see Wiswell v. First, &c., 14 Ohio ble as evidence of some i)aymcnt by the St. 31 ; Barhyte v. Hughes, 33 Barb, party to whom it was given ; and, if it 320; Tyler (^ Willis, ib. 327. purport to acknowledge full satisfaction, The plaintiff, owner of a canal-boat, unless rebutted, it reduces the damages contracted with the defendants to carry to a nominal sum. If rebutted so far as their potatoes, and brought an action to to show that tiiere was no full satisfac- recover damngos in i)art for delay in load- tion, the damages will be reduced to the ing and unloading his boat. The defend- e.xtent that it was payment. Chamber- ants set up a counter-claim for loss on lin u. Murphy, 41 Verm. 110. frozen and rotten potatoes, and were per- 560 DAMAGES. [book V. they would, in assessing the damages, make an allowance for sucli benefit, and give the plaintiff such sum in damages as they found upon the evidence would fully indemnify and compen- sate him for all the damage he had actually sustained." Held correct.^ § 8. Against a claim for mesne profits, the value of the improve- ments made by the defendant is a fair set-off, provided he took possession of the premises bond fide. Trespassers are not entitled to the benefit of this principle, except where the profits have been increased by the repairs or improvements. In that case, it is proper for the jury to take into consideration the improvements or repairs, and diminish the profits by that amount ; but not below the sum which the premises would have been worth with- out them. Whether the defendants are trespassers, is a question for the jury .2 § 9. In case of obstruction of a road by a railroad, any benefit accruing to the plaintiff from the railroad may be shown in miti- gation of damages.^ So, in estimating the damages of locating a railroad over land, and filling up an adjacent canal in which the owner had a privilege : the jury may properly be instructed, that, if the value of the remaining land was so increased in conse- quence of some peculiar advantages conferred upon it, not shared by neighboring estates not lying upon the canal, that the remainder of the land was worth as much as the whole lot previously, the owner has no claim for damages; though they are further instructed, that the benefit to be set off is some increased value of the estate, in consequence of becoming better adapted to, and more valuable for, some specific purpose than the other estates where the land had not been taken, and illustrations of such benefits are given.* § 10. In tort for conversion of machinery in a workshop, con- sisting merely in refusal to allow a removal, without appropriation to the defendant's own use, removal, or actual possession, except by rightful possession of the shop ; the defendant may set up, in mitigation of damages, a notice to the plaintiff that he had relin- quished all claim to the machinery.^ § 11. The general rule, that the value of property wrongfully 1 Luther v. Winnisimmet Co., 9 Cush. 3 Porter v. North, &c., 33 Mis. 128. 171. 4 Whitmans. Boston, &c., 7 Allen, 313. - Beverly v. Burke, 9 Geo. 440. 5 Delano v. Curtis, ib. 470. CH. 11.] AMOUNT OP DAMAGES, NOMINAL DAMAGES, ETC. 561 taken shall be the measure of damages in an action by the owner, may be controlled by circumstances, which make this too large a measure, and require an equitaldc deduction. Thus a party distrained growing corn for lent, and tiie proceedings to enforce the distress resulted in favor of the defendant. I'eiiding tlicse proceedings, the plaintilf caused the corn to be harvested. Held, in an action of trespass against him. for distraining, he might recoup tlie expense of harvesting.' So, in an action for unlawful seizure of goods during their manufacture, evidence is admis- sible to show how much it would cost to complete them for the niar- ket.2 So in an action to i-eoover a portion of a mining claim, and damages for wrongfully removing the gold therefrdm, evidence is admissible, by way of lessening the, damages, of the expense of digging the gold-bearing earth frora the claira.^ So,iA a suit to establish the right to coal mines, it appeared that they'belonged to the plaintiff, but that the defen^^ant, the owner of adjoining mines, had worked them, bona fide. .Held, the defendant should be allowed the cost of obtaining th^ coals, paying only the fair value, as if he had purchased the mine from the plaintiff.^ So, in an action to recover damages for an entry on a mining claim, and taking away gold-bearing earth ; the trespass not' being wilful, the measure of damages is the value of the. earth at the time it was separated from the surrounding soil, estimated by deducting tl>e expense of extracting the gold from the value of the gold itself.^ So, where the creditor of a husliand took certain property, belong- ing to the trust estate of his wife, on execution against him, and the husband bid off such property for the trustees, when it was sold at the port, paying less for it than its value: hold, in an action of trover, brought by the trustees against the creditor, that proof of such fact was admissible in mitigation of damages ; the real damage, which was the sum paid at the port, furnishing the rule of damages. ** So, in an action by the mortgagee of goods against an ofBcer who has taken a portion of them as the mort- gagor's, the defendant may show, on the question of damages, that the plaintiff has received his debt out of the other goods." So that property taken by a trespasser has been levied upt)n and J Bates )•. Courtwri^Mit, 3G 111. 518. & IMaye v. Tappan, 23 Cal. 306. 2 Kmmons v. Westtield, 97 Mass. 230. « Bahlwin v. I'orter. 12 Conn. 473. 3 (ioUer V. Felt. 30 Cal. 481. « Ward v. Henry, 15 Wis. 23U. ■» Hilton V. Woods, Law Kep. 4 Eq. 432. 36 562 DAMAGES. [book V. sold under procesR against the owner; is admissible in mitigation of damages.^ And altliougli, in an action of trespass for taking goods, if the plaintiff is liable over for them, he may recover their full value ; yet the defendant may show, in mitigation of damages, under the general issue, that the goods at the time of the letting belonged to a third person, and that the plaintiff was not liable for them to the owner.^ Or, that the goods did not belong to the plaintiff, and that they have gone into the hands of the owner, or been taken f)r his debts.'^ (See § 15.) So, in trover, it may be siiown, in mitigation of damages, that the goods were not the plaintiff's, and have gone to the owner's use. '' The reason why a party having possession should maintain trespass is, that he may have sustained injury by being deprived of the goods ; nor should his claim to damages be construed strictly. Ordinarily, he is either the owner or answerable over to the owner ; and in either case he is entitled not only to damages for the taking, but also for the value of the goods. . . . But here . . . the plaintiff is not answerable over. The real damage sustained by him arises from the injury to his special property." * So where a purchaser of property brings an action against an officer, who seizes and sells it upon an execution against the former owner; if it appears that he himself bought the property at the execution sale, and remained in possession, the value, with interest, is not the measure of dam- ages, but the sum bid at the sale, with interest.^ So where the purchaser of a vessel from B, who bought it of A, sued an officer for taking it without legal process, although he subsequently sold it on a fi. fa. against B and C, as the property of B ; held, the defendant might show, in mitigation of damages, that the pro- ceeds were applied to the satisfaction of the judgments against B and C. Also, as foundation for this proof, that the sale by B and A was fraudulent as to the creditors of B.^ So in an action against an oflScer, for attaching goods of the plaintiff upon a writ against the vendor of the goods, who became an insolvent debtor shortly after the attachment; the fact, that the sale was fraudulent and void as against the assignees in insolvency, and that the goods were delivered to them, may be shown in mitigation of damages.^ 1 Bates V. Courtwright, 36 111. 518. & M'Inroy v. Dyer, 47 Penn. 118. 2 Anthony v. Gilber"t, 4 Blackf. 348. ^ CJotton v. Reed, 2 Wis. 4-58. 3 Criner v. Pike, 2 Head, 398. ^ Leggett v. Baker, 13 Allen, 470. * Squire v. Hollenbach, 9 Pick. 5-51, 552. CH. II.] AMOUNT OF DAMAGES, NOMLNAL DAMAGES, ETC. 563 So where, upon a wrongful tax sale, the owner purchases the property, in an action for dam ii^es, the amount of the tax must be deducted. 1 So in trespass and trover against a collector for the value of a horse wrongfully distrained for taxes ; the plaintiff, having procured the horse to be bid off for himself, and apj)ropri- ated him to his own use, can recover only what lie was compelled to pay for him.^ § 12. And the same general point is hypothetically illustrated by Chief Justice Shaw, as follows: '' A factor has a lien on goods to half their value. The principal becomes bankrupt, and the property vests in his assignees, subject of course to all legal liens. The assignees, denying and intending to contest the factor's lien, get possession of the goods and convert them. The factor brings trover, establishes his lien, and recovers. How shall damages be assessed? If he recover the full value of the goods, he will be responsible directly back to the defendants themselves for a moiety of the value. To avoid circuity of action, why should not damages be assessed to the amount of his lien ? He is fully indemnified, the balance of the value is in the hands of those entitled to it, and the whole controversy is settled in one suit." 3 § 13. Upon a similar principle it is held, that, in an action for conversion of a promissory note, the insolvency of the maker may be proved in mitigation of damages.* So where a carrier, having a lien for freight, wrongfully sells the goods, the measure of damages is the market value, deducting the amount of tlie lien, though not the expenses of making the sale, which was an unlaw- ful act.^ § 13 a. In an action of trespass for removing a fence, the plain- tiff" c\i\.\ra\ng exemplary damages; held, the defendants might, in mitigation of exemplary damages, introduce evidence- that they were acting in pursuance of a vote of the town.^ So in an action for injuries to the person, resulting from the burstingof a steamboat- boiler through the negligence and unskilfulness of the engineer, the complaint having charged that the engineer was " unlicensed ; " held, the defendant might prove that he was a competent engineer, to rebut evidence tending to show a flagrant violation of duty in 1 Alexiinder r. Ilelbcr, 35 Jlis. 334. •* Latham v. Brown, 10 lown, 118. 2 Hmlhurt r. Green, 41 Vt. 4U0. 5 Briggs v. Boston, &c., G Allen, 246. » Chaniberliu v. IShaw, 18 Tick. 283. 6 (_jray v. Waterman, 40 111. 522. 6G4 DAMAGES. [book V. employing him, and thereby keep down vindictive damages. ^ So in trespass by the occupant against the owner, for the wrong- ful invasion of liis possession, the title of the defendant should be considered in mitigation of exemplary damages. The gra- vamen of the action is the trespass to the person, goods, and chattels of the tenant. He cannot recover for damages to the real estate.^ So, where exemplary damages are claimed for gross negligence or recklessness, evidence is admissible tending to explain the circumstances relied on to aggravate the dam- ages.^ § 13 b. Upon a hearing in damages after demurrer to a dec- laration for negligence, the defendant may show, for the purpose of reducing the damages to a nominal sum, that the plaintiff was guilty of negligence directly contributing to the injury.* § 13 c. On execution of a writ of inquiry, after judgment by default in an action for levying on an execution against A, the defendant can show, in mitigation of damages, that at the time of and before the levy the property was in the possession of A ; also that the plaintiff was not the owner, that fact not being neces- sarily inconsistent with the right to possession : but he is estopped by the judgment from showing that the plaintiff had not such a title as would authorize a recovery.^ § 14. There are many cases, however, where no such claim of an alleged equitable deduction from the value will be allowed. Thus, in an action of trespass, brought by B against A, for taking, by attachment, B's growing grass ; the expenses of cutting, cur- ing, and storing the hay, though included in the costs taxed against B, in the suit brought by A against B, and collected and applied on the execution, shall not be deducted from the value of the hav, as damages.^ So where a slave, confined in jail for rape and murder, was taken out and hung by the defendants : it was held, that the measure of damages was not what any particular person would give for him, if this charge were true, but his market-value, determined from age, appearance, and health ; also, that from motives of public policy the jury might give vin- dictive damages.' So A, having recovered in ejectment against 1 Fay V. Davidson, 13 Minn. 523. 5 Sterretti). Kaster, 1 Ala. (S. C.) 404. 2 Keeder v. Purdv, 41 111. 279. ^ Benjamin v. Benjamin, 15 Conn. 347. 8 Millard v. Brown, 35 N. Y. 297. '^ Polk i'. Fancher, 1 Head, 336. * Daily v. New York, 32 Conn. 356. CH. 11.] AMOUNT OF DAMAGES, NOMINAL DAMAGES, ETC. 565 B, sued him for mesne profits, and obtained judj^ment on demurrer. While that suit was pending, B brouglit an ejectment against A for the premises, and recovered. On A's executing his writ of inquiry, held, B could not offer his judgment in evidence in mitigation of damages, the record not showing the date of the demise, and that B's title had commenced before A's cause of action. 1 So, in trespass for assault and battery, the circumstance, that the defendant entered the house for the purpose of making an attachment, is not admissible in evidence in mitigation of dam- ages. "It ought rather to aggravate the damages; for the defend- ants had no legal right to break open a dwelling-house for such a purj^ose, and it was an abuse of legal process."^ So, in an action of trespass, it is a correct instruction to the jury, that one could Dot trespass upon another's rights, and allege in defence that there was no market for the property taken, or that it was on that account of less value, but the measure of damages was the full and fair value of the property ; that if, at the time of the trespass, the market was depressed, too much importance should not be given to that fact, and that to the trespasser must be meted out an assessment in damages commensurate to the injury he had done. " If at any particular time there be no market demand for an article, it is not of course, on that account, of no value. What a thing will bring in the market at a given time is perhaps the measure of its value then, but it is not the only one." ^ § 14 a. So although a steamboat was lying up as unriverworthy at the time of a tortious sale by a sheriff, the owners may recorer her actual value as property.'* So in detinue, under the plea of the general issue, where the plaintiff claims under a mortgage, evidence of a sale of the property under the mortgage by the plaintiff and its purcliase by the defendant, after the plaintiff" had acquired possession under the statutory bond given by him in the action, is not competent for the purpose of mitigating the damages." So liability for the value of slaves wrongfully appro- priated was held not affected by the subsequent abolition of slavery.^ So evidence that a coal mine is unworkable and dilapi- dated is irrelevant to show the value of the mining fixtures, 1 Biintin ;•. Diichane, 1 Hlackf. 255. * Crow v. State, 23 Ark. 084. - Sampson i\ Henry, 11 I'iek. 37'J ; per ^ Foster v. Cliamberlain, 41 Ala. 158. Willie, J., ib. 38'J. « Calhoun r. Burnett, 40 Miss. 5'J9. 3 Trout r. Kennedy, 47 Penn. 387 ; per Strong, J., ib. 393. 566 DAMAGES. [book V. machineiy, and other personal property tlierein.^ So a sale of chattels was made, upon condition that they should remain the vendor's until paid for. The vendee subsequently made pait pay- ment, and then sold them. Held, in trover by the vendor against the purchaser from his vendee, that the measure of damages was the value of the property at the time and place of conversion, with interest, without any deduction on account of the partial payment.^ § 15. The return or recovery of the property in question, or its appropriation to the use and benefit of the owner, though not eifectual to " purge the trespass or bar the action," ^ is often set up in mitigation of damages.'^ It is said, in trover, " It is quite common for the courts to make a rule, stopping the action on a redelivery and payment of costs." ^ Thus, in trover, where the property converted has been sold, and the proceeds applied to the payment of the plaintiff's debt, or otherwise to his use, it goes in mitigation of damages.^ (See §11.) The rule of damages for conversion of a horse and carriage, which have been returned to the owner and received by him, is their market value at the time of conversion, less their market value at the time of the return.'^ So, in trover, for tortious taking of personal property by a collector of taxes, the proceeds having been applied in part payment of the taxes, the measure of damages is the value of the property at the time of the conversion, deducting the amount of such payment.^ So a railroad, which negligently transported slaves without authority, so that they escaped, was held liable only for the value of their services for the time they were absent, they having returned.^ So in an action of trespass against a collector of the customs, for seizing and detaining the plaintiff's vessel, for a pretended breach of the registry laws ; the vessel having been restored, held, the difference between the price at which the vessel would have sold, at the time of seizure, and the price for which she actually sold at public auction, immediately after her restoration, together with the actual expenses incurred, 1 Carey v. Bright, 58 Penn. St. 70. 6 Pierce v. Benjamin, 14 Pick. 356 ; 2 Brown v. Haynes, 52 Maine, 578. Prescott v. Wrisjht, 6 Mass. 20 ; Caldwell 3 Per Shaw, C. J., 10 Met. 319. v. Eaton, 5 ib. 399. * See Robinson v. Barrows, 48 Maine, '' Lucas v. Trumbull, 15 Gray, 306. 186 ; M'Inroy v. Dyer, 47 Penn. 121 ; 8 Pierce '•. Benjamin, 14 Pick. 356. Sniitli V. Perry, 18 Tex. 510. 9 Louisville v. Young, 1 Bush, 401. 5 Stevens v. Low, 2 Hill, 132. Doubted in Sedgwick on Damages, 504, n. ch. il] amount of damages, nominal damages, etc. 567 with interest on the amount, constituted a proper estimate of damage.^ So, in an action of trespass quare clausum and de bonis, against a justice, for issuing an attachment against the goods of the plaintiff as an absent or absconding debtor, without legal proof of the fact of concealment ; the restoration of the property, before the suit, to the plaintiff, cannot be pleaded in bar of the action, nor puis darrein continuance, but may be admitted as evidence in mitigation of damages.^ So A, a deputy sheriff, levied an execution, against B, on certain live stock and produce on a farm occupied by B. C forbade the sale, claiming that all the property belonged to him, and, at the sale, he bid in most of the stock, including a certain cow. A gave C a bill of sale of all the property purchased by him, including this cow; but refused to take pay for the cow, excepting her in the receipt at the foot of the bill, and reciting that the price of her was tendered him by C. In an action of trespass, brought by C against A, to recover the value of the property sold by the latter, A specified in defence, that, after the sale, the cow was returned by hiiu to C, and accepted by C in full of all damages, if any, he was entitled to ; and, a verdict having been rendered for C for the value of the property, including the cow, held, that he could have judg- ment only on condition that he should remit expressly on the record the price of the cow, and take judgment only for the bal- ance. '* The plaintiflf has got his cow, and also a verdict for the value of her. . . . The plaintiff, while he has the cow in his possession, will take from the defendant, as a trespasser, the value of the cow, and then the plaintiff, as a purchaser, will pay back the defendant, as the vendor of the cow, the same money. . . . What occurred . . . was a sufficient acquittance ... of all claims to the purchase-money, so that the plaintiff . . . would have no right of action for the value of the cow."^ § 16. In an action of trespass for goods, which the plaintiff demanded before action, and the defendant promised to return, but which were attached on a writ against the plaintiff while the defendant was preparing to return them ; the measure of damages is the same that it would have been if the defendant had returned the goods.* So A brought trover against B, for goods which A 1 Woodham v. Gelston, 1 Johns. 134. •' Long: v. Liinikin, 9 Cusli. 3G1 ; per 2 Vosburgh v. Welch, 11 ib. ITo. Fletcher, J., ih. 3(J8. * Kaley v. Shed, 10 Met. 317. 668 DAMAGES. [book V. had surreptitiously taken from B, and which had been by con- sent of A transferred to B as his, which goods were afterwards levied upon as the goods of A, by his direction. Held, A could only recover nominal damages, if any thing, against B for a deten- tion of such goods ; and tliat the presumption was, in the absence of proof to the contrary, that the goods either went to satisfy the execution, or were returned to A.^ But, in trespass for taking the plaintiff's only cow on execution, the value of the cow is the measure of damages, though the proceeds of sale have been applied to tiie execution. " The provision exempting a man's only cow from attacliment was intended for the relief of the poor, and ought to be so construed as to give all which the legislature intended ; and the value of the cow, at least, ought in all cases to be given in damages. There will then be no inducement to a creditor to take his debtor's last cow."^ So, in an action for excluding a wife from her house, it cannot be shown, in mitigation of damages, that the house was obtained by fraud of her husband ; more especially unless it occurred so near the act complained of as to show excitement arising from that cause.^ And in trespass against a sheriff, for seizing and selling the plaintiff's goods under a judgment against another person, the amount paid out of the proceeds of sale for rent of the premises cannot be received in evidence to abate the damages.'^ § 16 a. When persons, to prevent the spreading of a fire, with- out legal authority, destroy personal property which is in immi- nent danger of destruction by fire ; the measure of damages is, substantially, the value of the property which might have been saved if they had not interfered.^ § 17. In an action of trespass for pulling down a building, evidence that the building was peaceably taken down and its materials preserved, in conformity with the directions of the commissioners of the townsliip, during a period of great public excitement and disorder, with the view of saving the neighbor, hood from threatened violence, is admissible in mitigation of damages. But not that the commissioners had by law the power to abate and remove nuisances, and that a grand jury, after instructions by a competent court, presented the building as a 1 Perkins v. Freeman, 26 111. 477. •* Dallam v. Fitter, 6 W. & S. 323. 2 Hill V. Loomis, 6 N. H. 263, 264. 5 Parsons v. Pettingell, 11 Allen, 507. ' Jacobs V. Hoover, 9 Min. 204. CH. II.] AMOUNT OF DAMAGES, NOMINAL DAMAGES, ETC. 569 public nuisance, and recommended its abatement. " It sometimes happens, in the mountainous region of Pennsylvania, that there is no other way of arresting the progress of the flames and saving property, but by firing against the fire : although those who fire against the fire are liable for the actual damage . . . they cer- tainly might ... in mitigation of damages, show that the act was . . . induced by the necessity of their situation to protect their property and that of their neighbors from inevitable destruc- tion. Houses are frequently pulled down in towns and cities to arrest the progress of . . . fire." ^ § 18. In an action against an officer for negligently levying only a part of the execution debt, judgment was entered for the whole debt, and the plaintiff released the part levied.^ 1 Reed v. Bias, 8 W. & S. 189; per 2 Maccubbin v. Thornton, 1 liar. & Burnside, J. ib. I'JO. M'H. 194. 570 DAMAGES. [book V. CHAPTER III. DAMAGES IN REFERENCE TO TIME. 1. General remark as to time. 9. Exceptions to thie rule of prospective 2. Value of property at the time of taking, damaajes. &c., tlie treneral measure of damages. 10. Miscellaneous cases as to the time for 4. Prospective or remote damages. which damages shall be estimated. 5. Damages estimated to the time of trial. 1.5. Damages resulting in part from the 8. One recovery a bar to a second action plaintitf' s own fault or neglect. for continuing damage. § 1. The question of time is one of great importance in settling the amount of damages. It involves the various inquiries, /ro/?i what time and to what time the damages are to be estimated ; at what time the valuation is to be made, in case of a change of value ; and especially in what cases and upon what principles prospec- tive and contingent damages may be added to those which are certain and imniediate. The cases, as might be expected, are numerous, various, and by no means entirely reconcilable. The fixed standards of damages, which it has been the prevailing pur- pose and tendency to establish, must be admitted still to have left much latitude to the discretion of a jury.^ § 2. The rule of damages for the wrongful taking of goods is the market value at the time, not the price paid.^ Thus, in trover, the measure of damages is the value of the property at the time of conversion, with interest to the time of trial ; as, for example, against a bailee;^ or in case of conversion by sale.'^ And if before conversion the plaintiff as vendee paid the defendant for the article, and he, before trial, resold it at an advanced price, the rule is the same.^ So, in trespass de hoii. aspor.y the value at the time of taking is the measure of damages.*^ And, in trespass for severing and carrying away coal from the plaintiff's mine, the proper measure of damages, in 1 See Bishop v. Williamson, 2 Fairf. ■* Dorsett v. Frith, 2-5 Geo. 537. 504; Story v. N. Y. &c., 1 Seld. 85. & Kennedy v. Whitwell, 4 Pick. 466 ; 2 King I'. Orser, 4 Duer, 431. Watt v. Potter, 2 Mass. 77; Lillord v. 2 Vaughan v. Webster, 5 Harring. Whitaker, 3 Bibb, 92. 256. « Schurdel v. Schurdel, 12 Md. 108. en. III.] PROSPECTIVE AND CONTINGENT DAMAGES. 571 respect of the coal taken, is its value as soon as it existed as a chattel, that is, as soon as severed.^ So for taking land to widen a street, tlie measure of damages is the value of the land at tiie time of taking.2 And damages caused by the construction of a canal must be estimated as of the time of such construction. A subsequent purchaser cannot maintain an action for injury done to liiin.'^ So, in case of a raih'oad, the land damage is predicated upon the value at the time, with interest.'* So, on the question of fraud in the sale of land, evidence of the value of the land to fix the damages should be confined to the time when the sale took place.^ § 3. In trover, for the capture and detention of a cargo, bound to A, on the high seas, the proper rule of damages is the value of the cargo, at the time and place of capture, estimated upon the prices at A, with interest; and deducting a reasonable premium of insurance from the place of capture to A, also the value of such part of the cargo, or of the avails thereof, as had been restored.'' § 3 a. In an action against an association for refusing to permit a transfer of stock ; the measure of damages is its actual value at the time of such refusal." (a) § 4. The general rule is laid down, that prospective damages may be recovered, where the cause accrues before the commence- ment of the action.^ That, in an action for trespass, the plaintiff may prove special damages, if strictly the consequence of the trespass, or if the act causing such special damages constitutes part of an entire transaction, of which the principal trespass was the commencement.^ That, where the act complained of is admitted to have been done with force, and to constitute a proper ground for an action of trespass vi et armis, all the damage to the {)laintiff of which sue!) injurious act was the efficient cause, and for which the plaintiff is entitled to recover in any form, may be » Morgan v. Powell, 2 Gale & Dav. s Gniilden v. Sliehee, 24 Geo. 4;]8. 721. f Ilallett V. Novion, 14 Jolins. 273. 2 Parks V. Boston, 15 Pick. 198. "^ Building, &c. v. Sendmeyer, uU Penn. ^ Zimmerman v. Union, &c., 1 W. & 67. S. 34C.. 8 Tarleton v. M'Gawlev. Peake, 205. * Whitman v. Boston, &c., 7 Allen, 313. 9 Damron i'. Roach, 4 "lluiiiph. 134. (n) In an action for entering a mill, order, or the value of tiie machinery and taking away jiortions of tiie macliin- renioved, is not a ])n)per rule of damages, ery, necessary for oi)erating the works ; Jolly v. Single, KJ Wis. 280. the cost of restoring the mill to running 572 DAMAGES. [book V. recovered in such action, altliough, in point of time, such damage did not occur till some time after the act was done.^ Thus, in an action for breaking a close and removing timber, the deterioration of the land may be an element of damages.^ So in an action, brought in 1833, for harboring and conveying avi^ay a slave bound to serve until 1837, damages might be recovered for the whole term.^ So A pulled down the fence of B, whereby the cattle of B escaped and were lost. Held, the loss was strictly the consequence of the trespass, and evidence thereof admissible in an action of trespass for throwing down the fence and permitting the cattle to escape.* So, in an action of trespass for wrongfully removing a fence, the defendant is liable for injuries to crops by cattle entering through the breach.^ So, for making a railroad through a farm, the measure of damages is the market value of the land taken, with an allowance for the disadvantages resulting from the mode of dividing the farm.^ Evidence is admissible of what the property would have sold for, before and after the road was made and went into successful operation ; and the difference may be considered in estimating the damages." So, in trespass for breaking down and destroying part of a mill-dam, damages may be allowed for the cost of repairs, and interruption to the use of the mill, or diminution of profits caused by the flow of water through the break, and its thereby falling too low for the working of the mill.^ So, in the damages arising from breaking a lumber raft, may be included the fall of price in the market to which the lumber was destined.^ So in an action for breaking and entering a close, and carting gravel thereon, the plaintiff, upon the question of damages, may prove the cost of removing the gravel therefrom.^*^ So, in an action by an employe against a railroad, for injuries resulting from its carelessness, the plaintiff may prove " that he had no means or property to subsist upon, and that he was entirely dependent upon his labor for his sup- port." 1^ (a) So in an action against a railroad, for permitting the 1 Dickinson v. Boyle, 17 Pick. 78. ^ East, &c. v. Hottenstine, 47 Penn. 2 Wallace v. Goodall, 18 N. H. 439. 565. 3 Stille V. Jenkins, 3 Green, 302. 8 White v. Mosely, 8 Pick. 356 ; ace. * Damron v. Roach, 4 Humph. 134. Allison v. Chandler, 11 Mich. 542. 5 Gray v. Waterman, 40 111. 522. 9 Dubois v. Glaub, 52 Penn. 238. 6 East, &c. V. Hottenstine, 47 Penn. '« Holt v. Sargent, 15 Gray, 97. 565. 11 Hunt v. Chicago, 26 Iowa, 363. (rt) In such an action, the defendant's the absence of bad motive, or any fact to ability to pay should not be taken into entitle the plaintiff to exemplary dara- consideratiou to increase the damages, in ages. Hunt v. Chicago, 26 Iowa, 363. CH. III.] PR08PECTIVR AND CONTINGENT DAMAGES. 573 plaintilT's mules, in charge of the company, to stampede, a part of which the plaintiff by search recovered ; the damages may include his services and expenses.^ So, in an action for injuries caused by the negligence of a railroad, evidence of the nature and extent of the plaintiff's business, and his loss from inability to attend to it by reason of the injury, may properly be admitted ; and it is not error to instruct the jury, that, " if a man has an ordinary business yielding ordinary receipts, he will be entitled to recover the diminution of those receipts resulting from such injury." ^ So, in an action against a gas company for refus- ing to supply a store with gas, the evidence of the plaintiff is admissible, to show the extent and nature of his business, and that it was inconvenient and difficult to transact it without gas; and that the want of gas, he alone being deprived of it, tended to diminish his business by making his store less attractive.'^ So when a gas company wrongfully shuts off gas, an element of the damages to which the owner is entitled, in case of a sale or lease of the premises, is the depreciation of them, as compared with neighboring property which is supplied with gas ; also, the cost of the change of arrangement occasioned by the disuse of gas.* So, in trespass for taking and carrying away goods, the damages may include compensation for the destruction of business, and for all the injury actually caused by the trespass.^ So, in an action against a railroad for personal injury, evidence of the plaintiff's occupation as pedler, and the amount of his annual sales and profit thereon, is competent, as affording means for computing damages for loss of time and prevention of business.*^ So, in an action by an architect for personal injuries, evidence of the plain- tiff's average annual profits from his profession is admissible." So, in an action of the case by the owner and operator of a cot- ton-mill, against the owner of a mill on the same stream, for the unlawful raising of a dam below, and causing backwater, and thereby diminishing the profits of the plaintiff; evidence of the profits lost from the interruption may be submitted to the jury, as a basis, if not as the measure, of damages. The court remark : " Evidence as to profits, as a general rule, is rejected ; because, generally, they are uncertain and contingent ; depending upon • North V. Akers, 4 Kans. 453. 6 Allred v. Bray, 41 Mis. 484. '^ Kinney v. Croclter, 18 Wis. 74. •» Hanover v. Coyle, 65 Penn. 396. 3 Sliepaicl V. Milwaukee, 15 Wis. 318. "^ New Jersey v. Nichols, 3 Vroom, * Gas V. Coliiday, 25 Md. 1. 166. 574 DAMAGES. [book V. other circumstances than tlie injurious act of the defendants, and not the natural result of it. Nevertheless, the general rule is subject to many exceptions. . . . Whenever a loss of profits is the natural and necessary result of the act charged, — such as the party probabl}' would have made, not what by chance he might have made, but what any prudent man must naturally have made, — evidence has been, if not always, most usually admitted as to them." ^ So, in trespass qu. ch, the plaintiff might claim for damage to his crop by driving away his negroes.^ So, in an action for a personal injury, whereby the plaintifi" has been for a year unable to attend to his ordinary business, evidence of his net income, or the fixed compensation he has received during the year preceding the injury, is admissible.^ So, in an action for damages sustained by a defect in the highway, evidence is admissible of the plaintiff's business, its extent, and the conse- quent loss arising from his inability to prosecute it.* So, in an action for injuries, a plaintiff can recover compensation for the loss of physical and mental capacity, so far as occasioned solely by the negligence; and evidence of previous occupation and capacity, and subsequent capacity, is admissible, for the purpose of showing the extent of such injury. (Though it is held that the damages must be limited to personal injury, and not be given for interference with business.^) So, in an action against a rail- road for personal injury caused by the negligence of the company, evidence is admissible of consequent loss in business, and there- fore of the nature and extent of such business, and the impor- tance of the plaintiff's personal oversight. But the opinions of witnesses as to the amount of loss are not competent.^ So, in a suit by the keeper of a livery stable for an injury done to two stallions by the communication of a distemper to them by a horse of the defendant, which the plaintiff had been induced to receive by the defendant's representation that the horse had recovered from the distemper and could not communicate the disease ; the plaintiff may prove the profit he would probably have otherwise derived from the services of one of the stallions during the foal- 1 Simmons v. Brown, 5 R. I. 299 ; per * Nebraska r. Campbell, 2 Black, Brayton, J., ib. 302. 590. 2 Johnson v. Courts, 3 Har. & M'H. » Ballou v. Farnum, 11 Allen, 73. 610. "j Lincoln v. Saratoga, &c., 23 Wend. 3 Grant v. Brooklyn, 41 Barb. 381. 425. CH. III.] PROSPECTIVE AND CONTINGENT DAMAGES. 575 ing season, as an aid in estimating tlie damages.^ So in an action by a railroad passenger, wrongfully expelled for refusing to pay an excessive rate of fare ; the company are liable for the consequences of the wrong.^ So, in an action for fraudulently misrepresenting that a cow sold to the plaintiff was free from infectious disease ; if the plaintiff has placed the cow with five others, who have caught the disease and died, he can recover the value of all.^ So, in an action for an illegal distress, evidence is admissible of the number, quality, and value of the plaintiff's stock, which the illegal distress caused him to sell at a loss, of his condition after the distress, of the scarcity and high price of such food in the neighborhood, and of the sale by the j)laintifT of his stock, and the prices which it brought and the terms of the sale.* So in an action against municipal officers, for illegally seizing the plaintiff as a soldier, and sending him to camp, he may prove, in aggrava- tion of damages, his mental suffering caused by the injury, and also his confinement in the guard tent when he was taken into camp.^ So, to an action against an attorney for negligence in the examination of securities, whereby the plaintiff had suffered great loss, the defendant pleaded the Statute of Limitations. The examination occurred in 1814, but the defect was not dis- covered till 1820, up to which time the interest was paid. Upon the ground, that, if the action had been brought immediately after the neglect occurred, the plaintiff might have recovered damages for the probable future loss, the defence was sustained, the statute being held to run from 1814, not from 1820.'^ So where a toll-bridge was carried away by the defendant's fault, the rule for assessing damages is the value of the superstructure, or so much of it as was carried away and lost, and the loss of tolls during the time that was reasonably necessary to repair or rebuild." So where the defendant's horse, driven b>' his servant, ran against and injured the horse of the plaintilf ; held, the cost of cure, the value of the services of the horse while being cured, and his depreciation in value, constituted the measure of dam- ages.*^ And, in general, where the chief value of the thing I Fultz V. Wycoff, 25 Ind. 821. 5 Tyler v. Pomoroy, 8 Allen, 480. '^ Jellersoiiville r. Rogers, 2iS liid. 1. <> Howell v. Young, 5 B. & C. 259 ; ace. » MuUett V. Mason, Law Hep. 1 C. P. Smith c. Fox, 12 Jur. 130. 569. ' Sewall's, &c. r. Fisk, 3 Fost. 171. * Dailey v. Grimes, 27 Md. 440. » Streett v. Lanniier, 34 Mis. 409. 676 DAMAGES. [book V. injured is its daily use, damages are not confined to interest on the value.-' § 5. It is the result of the rule of damages above stated, that, for an injury continuous in its nature, the party is entitled to recover for all damages done 'previously to the trial? Thus a libel, the subject of the action, appeared in the defendant's news- paper in the form of an advertisement, on the 4th of October. Placards containing copies of the advertisement were also exten- sively posted, and distributed through the town. The defendant was served with the writ on the fifth of October. Held, evidence of injury was admissible, to increase the damages, accruing to the plaintiff after action brought. Also, that the jury were rightly instructed to consider what was the natural consequence of the defendant's act, without reference to other publications.^ So the hirer of a slave for a specified time may recover, from one who takes the slave from him, the value of the slave's services for the entire term, though the suit is brought pending the term.'* So, in actions of trespass for injuries continued after the actions are brought, damages may be recovered up to the time of trial.^ (a) So, in an action by a town for removing paupers into such town, and thereby throwing upon it the burden of their support, the rule of damages is the amount necessarily and in good faith expended in supporting the paupers from the time of their removal to the time of trial.^ So the jury in an action for personal injury, occasioned by the negligence of a carrier, may consider loss and pain, both past and future.'^ But, in an action of trespass, &c., to recover freedom, the plaintiff was held not entitled to damages after the institution of the suit.^ And where, in trover for a negro woman, a jury gave damages for the value of her child, born after the action was commenced, a new trial was granted.^ So, in an action for a nuisance, the measure of damages is the injury received up to the time of commencing the action.^*^ 1 Williams v. Phelps, 16 Wis. 80. 5 Pepoon v. Clarke, 1 Con. Ct. 137. •'! Puckell V. Smith, 5 Strobh. 26 ; Van- 6 Stratford v. Sanford, 9 Conn. 275. devoort v. Gould, 36 N. Y. 639. "^ Russ v. War Eagle, 14 Iowa, 363. 3 Harrison v. Pearce, 4 Hurl. & Nor. ^ Tramell v. Adam, 2 Mis. 155. 863. 9 Craig v. Todd, 2 Const. (S. C) 757. < Moore v. Winter, 27 Mis. 380. 1° Dorman v. Ames, 12 Minn. 451. (a) The plaintiff in a second suit, on mencement of the former suit. Beck- account of a continuing nuisance, can with v. Grisvvold, 29 Barb. 291. recover only for damages since the com- CH. III.] PROSPECTIVE AND CONTINGENT DAMAGES. 577 § G. The plaintiff bad pledged a depreciation note in the nature of a certificate of ])nblic debt, nominally worth $2,029.48, for a loan of $G00, a part of which was subsequently paid. The pledgee, without demand of payment or notice of sale, sold the certificate for $625, which was then its highest market value. Eleven years after, the administrator of the pledgor went to the house of the pledgee to demand it, but made no demand, in consequence of the incapacity of the pledgee to attend to business. The admin- istrator then brought his action to recover the value of the certificate. Held, the measure of damages was the price of the certificate at the time of the proposed demand.^ So, in an action for wrongful conversion of shares in a corporation, the plaintiff having commenced and prosecuted it with reasonable diligence, but the case being protracted, and the stock having risen from $59G2 to $8175 ; he was held entitled to recover the latter sum as damages.^ ^ Q a. In an action against a railroad by husband and wife, for injuries received by -the wife, there was evidence tending to show that the injuries were likely to disable her for life, and in consequence another person was, and probably would have to be, employed to do the work which she had been accustomed to do. Held, the Carlisle tables were admissible to show the expectancy of the life of the wife on the question of damages.^ § 7. In a late case, being an action against a common carrier, damages were allowed beyond the time of trial.* § 8. The rule above stated, as to special or prospective damages, of course involves the consequence, that no subsequent action can be maintained for damages resulting from the wrongful act for which a former action was brought, though subsequent to the former action.^ Thus, where the leg of a slave was broken by another, and damages given to the owner for the deteriorated value of the slave in consequence of this permanent injur}'- ; held, such damages were in lieu of loss of service, as being in full compensation for the wrong.^ So, in estimating the value of land condemned for the use of the Chesapeake and Ohio Canal Company, it is the right and the province of the jury to consider 1 Cortelyou v. Lansinjx, 2 Caines' Cas. •» Riiss v. Steamboat, &c., 14 Iowa, 363. in Er. 200. " See Hicks v. Herring, 17 Cal. 506. a Koinaine v. Van Allen, 2G N. Y. (12 5 See Herriter v. Porter, 23 Cal. 385. Smitli) 30y. *i Johnson v. Perry, 2 Humph. oO'J. 3 McDonald v. Chicago, 2G Iowa, 124. 37 578 DAMAGES. [book V. all damages which the owner would sustain, whether immediate, remote, or contingent ; and the legal presumption is, that the jury awarded damages to the extent of their authority, and to all persons who might be affected by their finding. An action of trespass cannot therefore be sustained by an owner of land for such damage, he having already received an adequate remunera- tion. ^ So where one town recovers judgment against another, for damages caused by the leaving of a pauper in the limits of the former town, the damages being assessed up to the time of trial ; and, having unsuccessfully notified the defendant to remove the pauper, brings another suit for subsequent damages : the former judgment is a bar to such action. The case is not like that of the continuance of a nuisance, wliich is a constantly renewed cause of action. In this case, the wliole injury was in contemplation of law done by the original wrong, although the future damages were contingent.^ § 9. There is, however, a class of cases which reasonably qualify the general rules above stated. It is said, if remote damages were allowed, the rules would become so numerous, complex, and uncertain, as to be impracticable.^ And this principle is more especially applied to damage caused in any degree by third persons."^ (See pp. 579, 586.) In other cases it is said, " the damage must be a natural consequence of the principal injury." ^ " The negligence must be the immediate and not the remote cause of damage. The plaintiffs are entitled to recover the actual damage of which such negligence is the direct and efficient cause, and no other." '^ And in a late case in Pennsylvania, relating to a mine, the court remark: "These damages would depend on a thousand contingencies. The success in working the mine against the ever-resisting laws of nature to efforts to disembowel the earth. These, to be successful, would depend on the management of its affairs. After this would come the contin- gencies of a market, of transportation, of the demand for the particular product, the abundance or scarcity of money, the crops, and the state of the country." ^ So the actual damage at the 1 Canal Co. v. Grove, 11 Gill & Johns. * Fitzsimons v. Inglis, 5 Taun. 534 ; 398. Sedg. on Dam. 67. - Marlborough v. Sisson, 81 Conn. & Phillips v. Hoyle, 4 Gray, 571. 332. •* Waite v. Gilbert, 10 Cush. 178. 3 Per Marvin, J., Jones v. N. Y. &c., 29 ^ Per Thompson, J., M'Kuight v. Rat- Barb. 644. See Nightingale v. Scannell, cliff, 44 Penn. 169. 18 Cal. 315, CH. III.] PROSPECTIVE AND CONTINGENT DAMAGES. 579 time and place of injury, and not probable profits at the port of destination, is the measure of damages, in cases of collision as well as insurance.^ So, in an action for injuries done to growing crops by hogs, evidence is inadmissible of what the crops injured in June would have been worth in the fall, if uninjured.^ 80, in an action for forcibly bricking up the entrance of a restaurant or refreshment saloon, kept by the plaintiff, and thereby breaking up his business; he is entitled at least to a full indemnity, and the value of the business is a proper subject of estimate for the jury. But not, it seems, the possible or probable profits.-^ So in an action for injury to the plaintiff, personally, damage is not recover- able for loss of profit on contracts which might have been entered into by him. Such damage is too remote.'^ So, in an action for assault and battery, evidence is not admissible, in aggravation of damages, that, in consequence of the injury, the plaintiff lost a place to which he was about to be appointed, having withdrawn his application; though specially alleged in the declaration. The assault is not the proximate cause of the loss. " It is soniewdiat like the case of a merchant who should offer to prove that, in consequence of an assault and battery, he was unable to go to his store, and thereby lost the opportunity to close a particular bar- gain which would have been profitable : or of a farmer who should offer to prove that, in consequence of such an act, he was unable to gather in his crop of grain, and thereby lost it. One of the intervening causes of the loss of the office appears to have been a voluntary act of the plaintiff's own will, and there must also have been the concurrent voluntary acts of other nien."^ (See pp. 578, 586.) So the defendant caused the plaintiff to be apprehended upon an unfounded charge, and to be detained from half-past one until two o'clock. In support of a claim for special damage in an action for false imprisonment, the plaintiff proved, that he would have been engaged as a journeyman if he had pre- sented himself at the fiictory at two o'clock on the day in question ; l)ut that, being unwell from the treatment he had received, he went home and did not go to the factory until the next morning, when he found that his intended employer had engaged another 1 Smith r. Comlry, 1 How. 28 ; 17 Pet. •* Priestley v. Maclean, 2 F. & F. 288. 20. ^ Brown v. Cumniings, 7 Allen, 507, 2 Hays V. Crist. 4 Kans. 350. per Cliapraan, J., ib. 50'J. 8 Warquart v. La Farge, 6 Duer, 559. 580 DAMAGES. [book V. man. Held, that this damage was too remote.^ So but one action can be maintained to recover damages for an injury to the person. The party is not obliged to wait until all the consequences of the injury are fully developed ; he may sue whenever he thinks proper, and recover damages for both past and future pain of body, as well as for past and future deprivation of health or of any of his bodily powers. But nothing prospective should be conjectural. Thus, in an action against a railroad corporation, to recover damages for an injury, it is not erroneous to charge the jury that, in ascertaining the amount of damages, it would be proper for them to consider the bodily pain and suffering which had occurred, or was likely to occur, in consequence of the injury, but that they could not act on conjecture as to the prospective condition or situation of the plaintiif ; they could only regard, in respect to the future, what the evidence rendered reasonably certain would necessarily and inevitably result from the original injury .2 So in an action against a railroad for an injury, evidence is not admissible tliat the plaintiff had dysentery after the injury, and stated the effects of it, there being no evidence that the disease was induced by the injury .^ So in an action against a city for an injury sustained by the overturning of a carriage by a hole left in the street, it was held improper to admit evidence that the injured party went to Cuba for the restoration of her health, without show- ing that the journey was necessary.^ So, wiiere imported wool of the plaintiff, on which the duties had been paid, was injured by rea- son of the negligence of the defendant's servants, and in conse- quence it became necessary to take it out of the original packages, and in a few weeks afterwards an act of Congress was passed, under which, if the wool had remained in the original packages, the plaintiff would have been entitled to a return of duties; held, the plaintiff was not, on this ground, entitled to additional damages.^ So it is held, generally, that, in trespass for an injury to property, the value of the property at the time of the injury, with interest, is the measure of damages ; ^ that, in actions of trespass, the measure of damages is the value of the property destroyed, unless the 1 Hoey v. Felton, 11 C.B. (N. S.) 142; 3 Detroit v. Van Steinburg, 17 Mich. 8 Jur. (N. S.) 764; 31 L. J. C. P. 105. 99. See, as to the damages in case of imprison- * Chicago v. Allen, 43 111. 496. nient of a slave, Woodfolk v. Sweejjer, 2 ^ Stone v. Codman, 1.5 Pick. 297. Humph. 88. *> Brauniu v. Johnson, 1 App. 361. ' - Curtis V. Rochester, &c., 20 Barb. 282. CH. III.] PROSPECTIVE AND CONTINGENT DAMAGES. 581 trespass is wanton and malicious, which is a question entirely for the jury, who may give vindictive damages ; ^ and that, in actions of tort for the destruction of property, its value furnishes the measure of damages, from which, if the jury materially depart, the court will order a new trial.^ Hence where, in trespass for taking personal property, without malice, and under a claim of right, to which the controversy solely relates, the plaintill" claims that by the taking of the property he has been broken up in his business; a charge, that the defendant must make the phiintiff good for all the actual damage sustained by him at the defendant's hands, resulting directly and naturally from the injury, is errone- ous.^ So, in an action for injuring a coal-mine, the measure of damages is the actual injury sustained in delay, loss of time, damage to machinery, &c., and, if the mine was irreclaimable, the value of the estate and property ; but merely speculative profits, supposed to have been lost, cannot be included.^ So speculative estimates of profits of a commercial undertaking are not an element of damages ; and a witness cannot testify as to what a mercantile house ought to have made upon a given capital, in order to reach anticipated profits.^ So, where one finding stray hogs on his land shut them up; held, in an action of trespass for the injury done by the hogs, he could not recover the cost of keeping them.^ So, in trespass for taking away a ^'oke of oxen, the jury ought not, in estimating the damages actually sustained by the plaintiff, to add to the value of the oxen any sum for their services." So, in an action for removing a belt by which water-power was communicated to the plaintiff's machinery, and placing it so as to run the defendant's machinery, accompanied with a claim of right so to do, and with such forcible acts and threats as to lead the plaintiff to believe that such interruption would be continued; the plaintiff cannot recover, as damages, for the expense and delay of fitting up another wheel to drive his machinery.'^ So, in an action of trespass for obstructing a ditch running through the plaintiff's land, damages can only be recov- ered up to the commencement of the suit.^ So, in an action for 1 AVylie V. Rmitbernian. 8 Ired. 2.% ; 5 McWliirtcr r. Dou North v. McDonald. 47 Barl.. r^29.. V. IIiiL^irins, Const. Kcp. •IHC). ^ Anthony v. Gilbert, 4 Blackf. 348. •i P.ailey r. Jeflords, 2 S\^Q■^T. 271. 3 Sibley v. Hoar. 4 Grav. 222. 8 Oviatt r. Pond, 29 Conn. 47'.t. » Shaw v. Etheridge, 3 Jones, 300. * Mclvnight v. Ratcliti; 44 Penn. 150. 582 DAMAGES. [book V. breaking and entering the plaintiff's close, and tearing down his unfinished building, he cannot show, for the purpose of proving damages, what the building would have cost, or rented for, if it had been finished according to the plan.^ So, where a municipal corporation so negligently constructs a wall that it falls down and injures a mill, it is liable to the owner only for the actual injury with interest ; or, if rent is recoverable, it would only be for such time as was necessary to repair.^ So in an action for the loss of a horse, caused by the defendant's negligence, the plaintiff cannot recover for the loss of the use of the horse.^ So, in an action against a railroad company for injury to a mill, caused by the construction of the road, the injury to the unused and surplus water-power of the plaintifi", and its actual market value for any useful purpose, constitute the measure of damages, the mill remain- ing as it was when the mill was made. But evidence is not admissible of the power which might be gained by erecting a new dam further down the stream, making a shorter race, and other alterations. Such damage is merely theoretical and speculative.^ So loss by delay, resulting, in consequence of intervening badness of the roads, from the taking in execution of an emigrant's horses and wagon, is not such a natural, proximate consequence of the act as will constitute legal damage.^ So in an action against an officer for taking a vessel of the plaintiff under a writ of attach- ment against a third person, there being some evidence that she was preparing for a voyage, but no proof of malice, the jury were directed to estimate her value at the time of taking, and " the additional damage sustained, if any." Held, the jury were not authorized to allow damages for the breaking up of the voyage.^ So where the navigation of a river is unlawfully obstructed by a gas-pipe, upon which a vessel, navigated with due care, in passing is caught, subjecting the charterer to expense in getting her off; in an action against the gas company, he may recover such expense, but not for delay in his business, or other consequential damage.'' So, in an action against a railroad for an oblique fracture of the plaintiff's leg, caused by a collision, it appeared that the nature of the injury made probable another fracture. But the court remarked : " The present and probable future condition of the 1 Bennett v. Clemence, 6 Allen, 10. 5 Vedder v. Hildreth, 2 Wis. 427. 2 Ludlow V. Yonkers, 43 Barb. 493. 6 Boyd v. Brown, 17 Pick. 543. 3 Edwards v. Beebe, 48 Barb. 106. 7 Benson v. Maiden, &c., 6 Allen, 149. * Dorian r. East, &c., 46 Penn. 521. CH. Ill,] PROSPECTIVE AND CONTINGENT DAMAGES. 583 limb were proper matters for inquiry ; but the consequences of a hj'-potlietical second fracture were obviously beyond the range of it, and calculated to draw the minds of the jury into fanciful con- jectures ; " and decided accordingly.^ (a) § 10. It is said, the rule of damages for personal injuries, in- flicted by negligence, is loss of time during the cure, and expense incurred in respect of it, the pain and suffering undergone by the plaintiff, and any permanent injury, es[)ccially when it causes a disability for future exertion, and conseijuent pecuniary loss.^ But where, by reason of tlie negligence of the lessors, an opera- house was not completed in season, whereby one of the singers took cold, and the lessee lost the anticipated receipts of the per- formance ; held, the sickness of the performer was too remote to be the subject of damages.^ So, in an action against a railroad corporation for injuries to a horse from a defect in the highway caused by the defendants, a proper measure of damages is the diminution in the market value of the horse at the commence- ment of the suit, reasonable expenditures for the purpose of curing him, and a reasonable compensation to the plaintiff for attempting to cure him, and for the loss of use of the horse while under such treatment; not exceeding, however, the value of the horse.'^ § 11. In an action of trespass against the New York collector of customs, it appeared that the plaintiff's vessel was illegally seized, and detained nearly eleven months, when she was re- stored. Six months before the seizure, the plaintiff bought the vessel for $12,474 ; and, the day before, contracted to sell her for $9500. Eight days after the restoration, the vessel was sold at auction for $4288. Held, the measure of damages was $9500, with interest and marshal's fees, deducting the sum of $4288.5 1 Lincoln v. Saratoga, &c., 23 "Wend. ■♦ Gillett v. Western, &c., 8 Allen, 425. 560. =2 Peoria, &c. v. Loomis, 20 111. 235. ^ Woodliam v. Gelston, 1 Jolins. 134. 3 Academy, &c. v. Ilackett, 2 Ililt. 217. (a) Under an uiidcrtakintr to pay (lam- certain work was obtained; Iield, tlie ages sustained l»y an injunction, tlie costs ditterencc, between the cost ot' construct- of unsuccessful "motions and otlier pro- ing tlie work when the injimction was ceedings to remove the injunction cannot laid and wlien it was dissolved, was spec- be recovered. Childs v. Lyons, 3 Kob. ulative and conseciuentiiii. and not ])roper (N. Y.) 704. to l)e considered by the jury. Morgan v. Where an injunction against doing Kegley, 53 Penn. 153. 584 DAMAGES. [book V. § 12. In an action against a railroad for non-delivery of goods in reasonable time, the measure of damages is not the decline of price at tlie time of delivery. ^ The court remark, upon the gen- eral subject, in connection with a full examination of the cases : " The bailor may, in such a case undoubtedly recover an indem- nity for any legitimate damages . . . the natural and proximate consequence of the breach of the contract or duty . . . damages that naturally result from the breach, and which are not too remote, speculative, or contingent. This may include interest upon the value of the property during the time the owner was deprived of it ; or, if it should be property he could use, the value of the use of it. Many special circumstances may exist entitling him to damages, within the principles referred to."^ § 12 a. The measure of damages is held to be the highest value of the property at any time between conversion and the day of trial.^ But if, in case of non-delivery, the article advances in price, but goes back to its former value, the advance cannot be recovered, Avithout showing that the plaintiff could have sold for the increased price.^ § 13. In trover by a mortgagee against a purchaser from the mortgagor, who has himself sold the property ; the measure of damages is the value of the property, with interest from the latter sale, not the former.^ § 14. The plaintiffs made a conditional sale of brown cottons to a printing company, who, after printing them, transferred them to the defendant, without having complied with the conditions. In trover, held, the measure of damages was the value of the goods before being printed.^ § 14 a. In trover against a person, who, under orders from the United States military authorities to take tlie horses of a stranger, took those of the plaintiff, and passed them over as his own to the government, and was credited with them ; the measure of damages is the value of the horses according to the standard price of the government, with interest from the time they were passed to the government until verdict.'' § 15. It is held, that an injured party cannot recover for damages, which at a trifling expense or by reasonable exertion he might 1 Jones V. N. Y., &c., 29 Barb. 633. 5 Barry v. Bennett, 7 Met. 354. 2 Per Marvin, J., 29 Barb. 643. 6 Dresser, &c. v. Waterston, 3 Met. 9. 3 Wilson V. Mathews, 24 Barb. 295. ■? Thomas v. Sternheiuier, 29 Md. 268, 4 WUlianis v. Phelps, 16 Wis. 80. CH. III.] PROSPECTIVE AND CONTINGENT DAMAGES. 585 have prevented ; ^ especially if remote, speculative, and contingent.^ It is incumbent upon any person subjected to an injury to use such means as are reasonably in his power to make the evil conse- quences as light as possible. And where an injured party, by rea- sonable efforts, succeeds in reducing liis actual damages, his claim for redress must be reduced accordingly.'^ Thus where a trespass consisted in removing a few rods of fence, the measure of damages is the cost of repairing it, and not an injury arising to the subse- quent year's crop from the defect in the fence.^ So, in Pennsyl- vania, in an issue under the Act of 19th February, 1849, to assess the damages done to a water-power by the construction of a railroad ; it is error to reject evidence, that the cause of mischief complained of could be removed for $140, a verdict being returned for $3472. " It was much more certain proof in its nature, than those specula- tive views on which damages in such cases are too often assessed.'' ° So, in trover for a bond, the condition of which was, that, if the plaintiff would remove to the town of P., and dwell there a year, he should have certain lands; he not having removed, the measure of damages is the value of the lands, deducting what it would have cost to perform his part of the condition.*' So the measure of damages in an action for injuries arising to house, grounds, . When the value is fluctuating, the plaintiff may recover the highest market value at the time of the conversion, or at any time afterwards.* (a) § 20. For conversion of plates for printing labels or advertise- ments, of great value to the plaintiff, though of trifling value to others ; the measure of damages is the former value, estimating the cost of replacing the plates.^ § 20 a. The measure of damages, in an action for taking and conversion of property under a void attachment, is the value of the property.^ § 21. In an action for conversion, the amount of damages is not affected by the defendant's having afterwards attached the property, discontinued the action, and offered to restore the prop- erty to the plaintiff, who refused to receive it." § 21 a. Under special circumstances, the jury are held to have an arbitrary discretion as to the amount of damages.^ § 21 h. In trover for the conversion of rafts of timber at Pitts- burg, sold by the defendant at Cincinnati ; evidence as to the price of timber at Cincinnati is inadmissible.^ § 21 c. In trover, for logs removed from the plaintiff's land to 1 Selkirk r. Cobb, 13 Gray, 813. 5 Stickney v. Allen, 10 Gray, 352. ^ Beeclier v. Deiiniston, \h. 354. ^ Kelly v. Archer, 48 Barb. 68. 3 Symes v. Tucker, 13 Mich. 9. 1 10 Gray, 352. * Hanier v. Hatheway, 33 Cal. 117 ; 18 » Joiie.s v. Allen, 1 Head, 626 ; Backen- Com. B. (N.) 403; Burt v. Butcher, 34 toss v. Stabler, 33 Penn. 251. N. Y. 493; Morgan v. Gregg, 46 Barb. » Hill v. Canfield, 56 Penn. 454. 183. (a) Under § 3022 of the (Geo.) Code, the the trial, but without interest. Barnett v. plaintiff in trover can recover the highest Thompson, 37 Ga. 335. proved value between the conversion and CH. IV.] DAMAGES IN ACTIONS FOR PARTICULAR WRONGS. 593 S. in an adjoining county, and there manufactured into lumber, evidence a8 to the value of the logs in S. is admissible. Although the plaintiff might have treated the removal as a conversion, he was not compelled to do so.^ § 21 d. In trover, for conversion of three rafts of timber, the defendant may properly ask the court to instruct the jury, that " in no event can the plaintiff in this action of trover recover more than the actual value of the three rafts of timber and interest thereon, — the value to be fixed by the market value of tlie tim- ber at the time when, and the place where, the alleged trover and conversion took place." ^ § 22. The plaintiff had wood cut and piled on the defendant's land in the town of F., with a view to selling it to him. Before the sale was completed, the defendant, by mistake, carried the wood to J., and there mingled it with other wood, so that it could not be identified. The plaintiff demanded it at J., and, failing to obtain it, brought this action to recover the value of the wood at J. Held, the proper measure of damages was the value at F., at the time of conversion, Avith such increase as it may have received from fluctuations of the market, or other causes, inde- pendent of the acts of the defendant.^ § 22 a. The law presumes damages from a trespass ; and an instruction to the jury, that, if no damage was done, they should find for the defendants, is error.** § 22 h. In an action of trespass vi et armis, or in that character, the jury may consider as damages the immediate and necessary consequences.^ § 23. In trespass quare clausum, the jury may give damages for the conduct of the defendant in entering the premises, know- ing they were not his, and for his subsequent acts after such entry .'' § 24. Where it appeared, in an action of trespass for the seizure and detention of the plaintiff's vessel, that the plaintilf, afterwards, but some time before the date of his writ, purchased her under a decree of court; it was held, that damages might be given for the detention, after she was so in the plaintiff's pos- session, down to the date of the writ, as she was restored only Final i'. Backus, 18 Midi. 218. * Attwood v. Fricott, 17 Cal. 37. Hill V. Canfiekl, 5(J Peiin. 454. 5 Baltimore v. Bloclier, '11 M.l. 277. Weymouth v. Chicago, 17 Wis. 650. 6 Kidgely v. Bond, 17 Md. 14. 38 594 DAMAGES. [book V. by the substitution of the plaintiff's money for her value as sold.^ § 25. In an action for burning a house, in mitigation of dam- ages, the defendant may show it to be a house of ill-fame, by the actions of persons visiting the house, when going to and from it, and in its immediate neighborhood.^ § 25 a. The measure of damages, in an action against a city by owners of goods, taken by force from their store by a riotous assemblage, too strong to be resisted by the plaintiffs without the aid of the civil authorities, is the full damage to the store, with the full value of the goods taken by force against the will of the plaintiffs, or by them surrendered under apprehension of force.'^ § 25 b. In trespass, for breaking and entering a close and carry- ing away trees and bark, the measure of damages is the value of the property at the time ; and evidence as to the price of bark, both before and after, may be considered.* § 26. In an action under (N. H.) Statute of Dec. 31, 1828, for not taking a deposition after notice, the damages are double the fees allowed at the time when the cause of action arises.^ § 27. An act of the legislature authorized a corporation to make a canal, and provided that any person damaged thereby might apply to the Superior Court, and have his damages adjudged to him. Held, this provision was not intended to give a remedy from time to time, as the damages might actually arise, but to give a remedy at once for all the damages that might be sustained by having the lands perpetually incumbered.^ 1 Denison v. Hyde, 6 Conn. 508. < Adams v. Blodgett, 47 N. H. 219. 2 Abrams v. Ervin, 9 Iowa, 87. ^ Qould v. Kellev, 16 N. H. 551. 3 Mayor v. Poultney, 25 Md. 107. ^ Woods v. N. M. Co., 5 N. H. 467. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. 595 CHAPTER V. SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES ; MALICE, ETC. 1. Nature and definition of special dam- 9. As affected by actual or possible crim- ages. inal prosecution for tiie same ad 2. Must be expressly alleged. 12. Injutie-i to property, not indictable. 3. Exeir)pliiry damages. 16. Disallowiince of exemplary damages; 5. As depending on malice, insult, &C. misconduct of the plaintiff. § 1. Under a general allegation of damage, the party is entitled to those damages only, which the law presumes to have accrued from the wrong complained of, and which will compensate him for the injury. 1 Damages additional to the amount of direct and immediate injury are often termed special. It is said, special damage is that which may " be given in evidence to aggravate the damages in one action, or be itself the substantive cause of action, as in the case of trespass quare clausum, and carrying away plaintiff's goods; the carrying away the goods may be a ground of special damage, or be the cause of a separate action." ^ Where the plaintiff frames his declaration with reference to some special ground only, he cannot introduce evidence of any loss or damage beyond what is expressly alleged.-^ (a) § 2. The right to recover special damages usually depends upon the allegations in the writ. Such damage must be sjjccially alleged, solely for the purpose of giving tiie defendant notice of the plaintiff's claim with regard to it; while he is held to take notice of such damage as is the necessary consequence of his act, without any special allegation,'* and without any statement of the 1 Burrell v. New York, 14 Mich. 84. ' Graves v. Severens, 40 Vt. 636. 2 Per Shaw, C. J., Smith v. Sherman, * Gay v. Winter, 34 Cal. 153 ; Bristol, 4 Cush. 413. &c. V. Gridley, '2b Conn. 201. (a) In a suit against a common carrier for cial damage commences as if it were a not carrying a i)arty according to con- new count, and it is manifest that it was tract, the allegation of a breach, " where- the purpose of the pleader to .sot them b}' the plaintiff was subjected to great out as special damages, all constituting inconvenience and injury," is not an alle- one count, such statement will not con- gation of special damage. Roberts v. trol the obvious purpose of the pleader. Graham ; Leg. Intell. Burnside v. Grand, 47 N. 11. 554. If the statement of each item of spe- 596 DAMAGES. [book V. particular circumstances of aggravatiou,^ Thus, in a suit to recover for injury done to a horse through the unskilfuhiess of the defendant, the expense of doctoring and taking care of it cannot be recovered, unless declared for as special damage.^ So, in an action for falsely and maliciously giving information that the plaintiff was about to offer for sale unw^holesome meat, the jury cannot assess damages for an injury to the plaintiff's repu- tation, without an averment that the defendant stated that the plaintiff knew the meat to be unwholesome.^ So an allegation, that the defendant caused by the erection of a mill-dam " an unhealthy pond of standing water," does not authorize evidence of sickness caused by the pond.* So, in an action for injury to real estate, loss of rents, not being a necessary result of the act complained of, must be specially alleged.^ And, upon the same ground, special damages for the obstruction of a way must be specially alleged.*^ So, in an action against the commissioner of patents, for refusing to give copies of patents, in his office, on demand and tender of fees, special damage, if not alleged in the declaration, cannot be proved.'' So, in trespass for killing a mare, damages, for taking care of the wounded beast, and rearing two colts she was suckling, not the direct necesvsary results of the trespass, cannot be given, unless specially alleged. And where evidence to the above effect was given, and the jury gave much more than the average estimated value of the mare, and more than the highest estimate in the testimony ; it was presumed that they gave the above improper damages.^ So an unmarried woman cannot recover damages, on account of her prospects of marriage being lessened by injury which she has received, unless alleged and proved.^ So, in trespass for a ship, more especially unless specially alleged, the plaintiff cannot show that a writ of replevin for the ship, taken out by one A in his own name, was procured by the plaintiff for his benefit.^'^ So, under a declaration for loss of the benefit and profit from working a mill, and the custom and trade thereof, by a disturbance, the plaintiff can only recover the value of the use of the mill. Special damages, as that he was obliged to transport the grain he raised to a distant mill, must be 1 Heirn v. M'Cauglian, 32 Miss. 17. ^ Adams v. Barry, 10 Gray, 361. 2 Patten v. Lihbey, 32 Maine, 378. 7 Boyden v. Biirke, 14 Hdw. 575. 3 Hemmenway v. Woods, 1 Pick. 524. 8 Teagarden v. Hetfield, 11 Ind. 522. * Morris v. McCarney, 9 Geo. 160. " Hunter v. Stewart, 47 Maine, 419. 5 Parker v. Lowell, 11 Gray, 364. '" Hempstead v. Bird, 2 Day, 293. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. 597 alleged, to admit of evidence as to tliem.^ So, in trespass for mesne profits, alter ejectment for a liouse used as an inn, the plain- tiff cannot recover the loss sustained by shutting up the inn and destroying the custom, unless specially stated.^ (o) § 3. As we have seen, in the absence of proof of aggravation, compensation is the proper measure of damages. Thus, in an action of trespass, where the defendant has suffered a wall to remain, after a recovery by the plaintiff in a former action for the same cause, but not from a wanton disregard of the plaintiff's rights, or disregard of his comfort and convenience, but for the proper purpose of again trying the question of title ; it is not a case for aggravated damages.^ It may affect the question of exemplary damages, though not the question of actual damages, from trespass, that the trespasser honestly believed that he was the owner of the property.* ^ § 4. It remains to be stated, that in numerous cases, (li) 1 JIcTavish v. Carroll, 13 Md. 429. 2 Dunn V. Large, 3 Doug. 335. 3 Nivin V. Stevens, 5 liar. 272. * Hillman v. Baunibach, 21 Tex. 203. (a) The omission to lay damages in a declaration, though in an action sounding altogether in damages, will be cured after verdict by the (Virginia) Statute of Jeo- fails. Stephens r. White, 2 Wash. 203. A judgment for a sum greater than the ad diiiiitiinii is bad. It seems, if no specific ad daiiniuin be alleged, a verdict not ex- ceeiling the stating part of the declara- tion may stand. Walcott v. Holcomb, 2'4 111. 331. And, it is said, damages may exceed the value alleged in the body of the count. 2 Greeid. Ev. 214, § 2(10. Wliere unauthorized damages are claimed, and a general judgment ren- dered ; an arrest is held to be lawful. Stirling v. Garritee, 18 Md. 468. In tresj)ass to try title and for damages, mesne profits are recoverable ; and, though not so called in the petition, they may be thus denominated in the verdict. IJien- court V. Parker, 27 Tex. 558. A petition, in an action for trespass, brought for exeini)lary damages for a forcible inva- sion of the plaintiff's domicile, &c., ask- ing judgment for §10,000 damages for the injuries aforesaid, has a sufticient allega- tion of the damage. Otherwise where special damage only is recoverable. It is too late after verdict to object that the plaintitt' has not alleged any smn as dam- ages, iloggland V. ("athren, 25 Tex. 345. It is not necessary, under (Mass.) Gen. Sts. c. 129, § 2, to set out in detail the elements of damages sought to be recov- ered ; but, under a general averment, all such damages as naturally How from the cause of action described may be recov- ered. Prentiss v. Barnes, Allen, 410. In Connecticut, in an action of trespass, removed from a justice of the jieace upon plea of title, treble damages are allowed, tliough they exceed the amount claimed. Hart V. Brown, 2 Hoot, 301. In an action of tort, after a verdict for the plaintifl', the damages will be i)re- sumed to have l)een assesscil according to the case proved ; and, if iin])ro[)er circum- stances were alleged as ajigravation, the presumption is that no (lamages were given on such ground. Richards v. Farn- ham, 13 Pick. 451. (l>) No question relating to damages has been so prolific of discussion, and still remains so unsettled, as the one, whether in any case, and if so in wh;it cases, ex- emplary damages may be given. Tliere are several reasons for not entering at large ujjou this discussion in the present work. In tlie first place, it would be for- eign from the brief aiul coni])endious jtlan of the work, and would occupy a space altogether disproportionate to tlie consid- eration of other equally or more impor- tant topics. Another reason is, that the question still remains an open one ; the reports abounding with direct decisions 598 DAMAGES. [book V. according to the weight of authority, exemplary damages may be given ; and the question is for the jury,^ resting altogetlier in their discretion, and dependent on tlie complaint stated in the dechira- tion and the proof offered to support it.^ More especially vindic- tive damages for personal injuries can be recovered, where they are accompanied with circumstances of aggravation.^ § 5. Punitive, vindictive, and exemplary damages are, in legal contemplation, synonymous terms.'* In a late case it is said, '' Exemplary damages would seem to mean, in the ordinary and proper sense of the words, such damages as would be a good round compensation, and an adequate recompense for the injury sustained, and such as might serve for a wholesome example to others in like cases." ^ Malice is the usual requisite for exemplary damages ; ^ as in case of insult; " (a) disposition to annoy, harass, or tease ; ^ oppression, outrage, or vindictiveness ; ^ wanton or mali- 1 Nagle V. Mullison, 34 Penn. 48; Ma- jor V. Pullain, 3 Dana, 582 ; Allison v. Chandler, 11 Mich. 542; Snively v. Fahnestock, 18 Md. 391. '^ Nivin V. Stevens, 5 Har. 272. 3 Chiles V. Drake, 2 Met. (Ky.) 146. 4 Chiles V. Drake, 2 Met. (Ky.) 146. See Graham v. Roden, 5 Tex. 141. and incidental dicta, which, notwithstand- ing the labored and ingenious efforts of opposing elementary writers to explain them away, respectively adopt both sides of the question ; and the expression of another individual opinion would add no weight to either. And, finally, witli great deference it is suggested, that the practi- cal importance of the subject has been very much overrated. In a large propor- tion of cases where exemplary damages can even plausibly be claimed, the plain- tilf may at any rate claim full indemnity or compensation, and this will include, in the discretion of the jury, precisely the same elements, of wounded feeling on the one side, and malice on the other, which would enter into a verdict ostensibly ren- dered for tlie sake of individual punish- ment or public example. The term vin- dictive is often used as synonymous with exemplary ; and, without reference to ex- ample or punishment, a jury may feel bound and authorized to award an amount of damages which will vindicate the authority of the law, and avenge, with reference to the plaintiff, the wrong com- plained of. It may be added, in this connection, 5 Per Holmes, J., Freidenheit v. Ed- mundson, 36 Mis. 226. « Fry V. Bennett, 3 Bosw. 200 ; Etch- berry V. Levielle, 2 Hilt. 40 ; Schindel v. Schindel, 12 Md. 108. 7 Wilkins v. Gilmore, 2 Humph. 140; Anthony v. Gilbert, 4 Blackf 318. 8 Etchberry v. Levielle, 2 Hilt. 40. 9 Nagle V. Mullison, 34 Penn. 48. that, as the terms are generally used, the distinction between special damages, whether exemplari/ or not, and prospective or contingent damages, which we have already considered, tiiough perhaps not always very precisely observed, would seem to be this: Special damages are predicated chiefly on the circumstances of aggravation attending the injury com- plained of, as connected with the conduct or motives of the defendant; while dam- ages of the other class pertain more par- ticularly to the effects of such injury upon the plaintiff. Damages of both kinds may and often do co-exist ; but neither neces- sarily involve the other. (a) To allow damages for insult is said to prevent duelling. Merest v. Ha- mey, 5 Taunt. 442. In an action of trespass, where the defendants, in the night-time, had thrown stones and eggs through the plaintiff's windows ; and her family consisted of herself, her four daughters, and young son : the jury may be instructed to award s\xv\\ exemplary damages as they deemed proportioned to the alleged insult, &c., on a consideration of all the circumstances. Ellsworth V. Potter, 41 Vt. 685. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. 599 cious motives, or a reckless disregard of the rights of others ; circumstances of great hardship and oppression ; ^ or circumstances of contumely or indignity. Malice is not merely the doing of an unlawful or injurious act ; but implies that the act was conceived in the spirit of mischief, or of criminal indifference to civil obliga- tions.2 And it is held, in an action for a trespass, that the defend- ant must be presumed to have intended the legitimate effects of such trespass.^ And tlie plaintiff in trespass may give in evi- dence, to enhance damages or for punishment, such circumstances accompanying the wrong as may have occasioned him especial inconvenience or injury.'* »^ § 6. Malice of the defendant may be proved by his own testi- mony.^ § 7. It is sometimes held that malice can be shown to increase the damages only in questions of character.^ And there is no doubt of the rule, that, for the speaking of words actionable per se, the jury may give smart-money.' So it is sometimes laid down, that exemplary damages may be recovered for injuries to person or character.^ (a) Thus, for an aggravated and unprovoked assault.^ (Jj) 1 Dorsey v. Manlove, 14 Cal. 553 ; Kennedy v. Nortli, &c., 36 Mis. 351. '■^ Philadelphia, &c. v. Quigley, 21 How. 202. 3 Allison V. Chandler, 11 M'ch. 542. * Snively v. Falniestock, 18 Md. 391. 5 Norris v. Morrill, 40 N. II. 395. « Stallings v. Corbet, 2 Speers, 613. See M'Cune v. Norwich, &c., 30 Conn. 321. 7 Guard v. Risk, 11 Ind. 156. 8 Bell V. Morrison, 27 Miss. 68. 9 Foote V. Nichols, 28 111. 486 ; Birchard V. Booth, 4 Wis. 67. (c() In an action for malicious abuse of process, vindictive daniaj^'es may bcf,nvcn, in case of actual malice, or a formed desijjn to injure and oppress. Barnett v. Reed, 51 Tenn. lUO. The allowance of vindictive damages, in an action i'or malicious prosecution, though the rule which limits them to Com])cnsation is deemed most nearly logically correct, will not be disturbed, when a change will make no ditTerence in results. Malone v. Murphy, 2 Kans. 250. If an attachment is not vexatious as against the defendant liimself, the fact, that the attaching creditor was actuated by malice against a third person, is no ground for vinchctive (himages in an ac- tion on the attachment bond. Wood v. Barker, 37 Ala. GO. (b) Words are no justification for blows, and should never be considered by the jury in assessing actual damages. But they may be considered in assessing e.xemphiry damages. When a battery is committed under highly ])r()voking lan- guage, the law will not im])ly such malice as requires pvmishmeut with vindictive damages, unless the wrong be carried to an excess, and beyond what a reasonable man would do under such circumstances. Whether stich damages should be given is a question tor the jury, and not for the court. Donnelly v. Harris, 41 III. I2G. In a late case in Maine, being an ac- tion of trespass r/ et anin's for maiming and disfiguring the plaintiti", a majority of the court held, that the jury aic author- ized to give exemjilary or ])unitive dam- ages, if they find the deTendant wantonly committed the injury, 'i'he instructions to the jviry, " that, in such case, tliey ■were authorized, if they thought ju'oper, in ad- dition to the actual damages the plaintiff has sustained, to give liim a further sum, as exemplary or vindictive damages, both 600 DAMAGES. [book V. 7 § 8. But the prevailing rule now is, without restriction to any particular classes of injuries, that, in actions sounding in tort, whether to person or property, if the injury was inflicted wilfully, wantonly, or maliciously, the jury are not limited, in assessing damages, to mere compensation, but may give exemplary (includ- ing in this term the evil example of the act) or vindictive dam- ages, in view of the degree of malice or wantonness, and, as is sometimes held, may take into consideration the plaintiff's expenses in the prosecution of his suit.^ Compensation is the measure of redress for the legal wrong; but for the moral wrong, the recklessness of the act, the personal malice with which it is done, the violence and outrage attending it, reasonable exemplary dam- 1 Baltimore i'. Blocher, 27 Md. 277 ; Walker v. Wilson, 8 Bosw. 686 ; Dibble V. Morris, 26 Conn. 416 ; Tillotson v. Cheatliam, 3 Jolins. 56 ; Milburn i-. Beach, 14 Mis. 104; McWillianis v. Bragg, 3 Wis. 424 ; Wilkins v. Gilmore, 2 Humph. 140; Edwards v. Beach, 3 Day, 447; as a protection to the plaintiff and as a salutary example to others, to deter them from offending in like cases," was held to be in accordance with tlie weight of judicial authority in this country, in the courts of the United States, and in those of the several States. On the other hand, Mr. Justice Rice remarked, that, "in actions of tort, damages are given as a compensation for injuries received, and should be commensurate with those in- juries ; no more, no less. Exemplary, vindictive, or punitive damages are some- thing beyond, given by way of punish- ment. Tills rule of damages is presented in the ruling in this case distinctly, and without any ambiguity. Hitherto, it has not been adopted in this State. Deem- ing it unsound and pernicious in principle, I cannot concur in engrafting it upon our law, nor in adopting it as a rule of prac- tice in our courts." Pike v. Dilling, 48 Maine, 539. 'J'he amount of damages in actions for assault and battery is not fixed by law, tut is left to the discretion of the jury. The jury should look at the nature and extent of the injuries, and the circum- stances under which they were inflicted, and then say what is just and proper under all the circumstances. Little v. Tingle, 26 Ind. 168. In assessing damnges for a violation of personal liberty, the judge has discretion, without calculating altogether on the pecuniary loss. Block v. McGuire, 18 La. An. 417. Hatch V. Pendergast, 15 Md. 251 ; Denni- son ;;. Hyde, 6 Conn. 508 ; Williams v. Keil, 20 III. 147 ; Peoria, &c. v. Loomis, 20 111. 235; Day v. Woodworth, 13 How. 363, 371 ; Treat v. Barber, 7 Conn. 274; Ously V. Hardin, 23 111. 403; Wylie v. Smitherman, 8 Ired. 236. In a suit for damages caused by per- sonal injury, in the absence of proof of evil motive, exemplary damages cannot be recovered. Hyatt v. Adams, 16 Mich. 180. In an action for assault and battery, the jury was instructed, that " damages are of three kinds, — nominal, compensa- tory, and exemplary;" that "nominal damages are proper when any right has been invaded, and no evidence is given of any particular amount of loss;" that "compensatory damages are given when no elements of oppression or malice enter into the commission of the offence, and are designed merely to furnish actual compensation for injury sustained; " that " exemplary damages are given whenever elements of oppression or fraud or malice enter into the commission of the offence ; and in such cases the jury are not limited to the actual compensation, nor are they required to scrutinize very closely the amount of their verdict, but blending together the rights of the injured party and the interests of the community, they may give such a verdict as will compen- sate for the injury, and at the same time inflict some punishment upon the defend- ant for his wrongful act, protect society, and manifest the detestation in n'hich the act is held bji them." Held, the final clause was erroneous. Hendricksou v. Kings- bury, 21 Iowa, 379. CH, v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAC.ES. 601 ages will bo allowed. ^ In a very late case in Pennsylvania, it is said " In wanton and aggravated trespasses more than mere compen- sation may be allowed by way of punishment." ^ So in another late case it is held, that exemplary damages may be recovered in actions for injuries caused by the gross negligence of the defend- ant, as well as in actions for forcible injuries.-'^ And in actions for injuries to personal property, whether trespass or case, the jury are not restricted to the pecuniary loss, but may take into consideration the circumstances of aggravation. Thus, where it was alleged and proved, in an action on the case, that, the plain- tiff, a clothier, being the owner of one moiety of certain clothier's works, with the land and privileges connected therewith, which he had mortgaged to a third person, and had paid the mort- gage debt, leaving the legal title outstanding, the. defendants, pro- prietors of an adjoining manufactory of cloths, purchased the other moiety, and then, with a view to break up the plaintiff's business and get rid of him as a competitor, bought in the outstanding legal title, and, under color of that title, appropriated the whole of the water privileges and clothier's works to their own use, and expelled the plaintiff therefrom ; it was held, that the jury, in estimating the damages, might consider the motives and objects of the defendants, in committing the act complained of.* So exemplary damages may be given, in case of an entry in good faith, under a belief of right, for wilful damage to goods.^ So, in an action for obstructing a public way, the jury may allow puni- tive damages.*^ So, in an action for wilful trespass in carrying away the plaintiff's wheat, the jury may give "smart-money."'' So exemplary damages may be recovered in actions of tresjjass qu. c/aiis., when there are such circumstances of aggravation, insult, or malice, as would warrant them in any other form of action.^ And it is held that these circumstances are not indis- pensable. Vindictive damages may be given, though the defend- ant did not enter maliciously, in a rude, aggravating, or insulting manner.^ Where the defendants were part of a body of 1 Hodpson V. Millward, 3 Grant, 406. « Windliani i-. T^lianic, 11 Kicli. 283; 2 Per Tlioniiison, J., McKniglit v. Kat- Jcfcoat v. Knotts, ib. G4U. cliff, 44 Penii. 1(58. ' Hull v. Griswold, I'J III. C'll. ^ Kounts t'. Erownz, 16 B. Mon. 577. ** Perkins v. Towle, 48 N. II. 'J20 ; * Merrill v. Manufacturing Co., 10 Greenville v. Partlow, 14 Hich. L. 'J:57. Conn. 384; Tiliotson v. Clieetham, 3 » Devauglin d. Heath,! Ala. (6. C.) Jolins. 56. 623 ; 37 Ala. 505. 5 Best V. Allen, 30 111. 30. 602 DAMAGES. [book V. armed men, which forcibly broke and entered a store, put the plaintifif in bodily fear, and carried away most of his goods and injured his business ; tlie value of the goods was held not to be the measure of damages. ^ So, in a suit against a landlord by a tenant for an unlawful eviction, the jury may award exemplary damages, when the trespass was accompanied by circumstances of aggravation, and was gross in itself.^ So where A advised and incited a party of rebel soldiers to camp on the farm of B, consume and destroy his provisions, and carry off his property ; held, A was liable to B for the value of property so destroyed and carried off, and also for smart-money.^ So, in trespass for taking away goods, the jur}', in estimating the damages, may con- sider the circumstances which accompanied and gave character to the wrong.* And the court will not disturb a verdict on the ground of excessive damages, in a case of trespass, and exposing a crop to be destroyed by cattle, where the jury gave the high- est price for which the crop might have been sold.'^ (a) So in an action of tort against a common carrier, for a personal grievance, by fraud, gross negligence, or oppression, the jury may in their discretion award such damages, by way of punishment or for the sake of example, as they may think that the peculiar circum- stances justify.^ So exemplary damages may be given against an overseer of a highway, who cuts down a tree therein without authority and maliciously.'^ § 9. Another very important point of inquiry is, how far actual punishment, or mere liability to punishment, in a criminal prosecu- tion, is to affect the amount of damages in a civil action for the same Avrongful act. Upon this point it has been held, that, in a civil action for assault and battery, vindictive or exemplary damages may be given, though the act may be punishable in a criminal prosecution.^ So, notwithstanding tlie defendant has been convicted and fined in a criminal prosecution for the same 1 Freidenheit v. Edmundson, 36 Mis . ^ Denby v. Hairson, 1 Hawks, 315 ; 226. Allen r. Craig, 1 Green, 294. 2 Bonsall v. McKay, 1 Houst. 520. ^ Heirn v. M'Caughan, 32 M'ss. 17. 3 Bronson v. Green, 2 Duv. 234. 7 Winter v. Peterson, 4 Zahr. 524. * Young V. Mertens, 27 Md. 114. 8 Wilson v. Middleton, 2 Cal. 54. (fi) It is sometimes held, that ex- The Pennsylvania Statute of March emplary damages may be given in tres- 29, 1824, § 3, giving treble damages, does pass, even if it is not shown that the not apply to an innocent purchaser of defendant was actuated by ill-will and timber cut from another's land. OReilly hostility. Goetz v. Ambs, 27 Mis. 28. v. Shadle, 33 Penn. 489. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. 603 offence.^ And, it seems, the fact that the defendant has been pun- ished criminally cannot be given in evidence to mitigate dam- ages. And although, it seems, after a criminal conviction, the court may, with a view to the measure of punishment, suspend judgment until the decision of a civil action pending for the same cause; yet, it seems, the proceedings in the civil action will not be stayed for the purpose of awaiting the event of the criminal prosecution.- And, in assessing damages for an assault, it is com- petent for the jury to consider the effect which the finding of trivial damages may have, to encourage disregard of the laws and disturbance of the peace.^ § 10. There is, however, another class of cases, which hold a different doctrine. It is this. While, on the one hand, forcible injuries are those in which the element of malice is most likely to be found, and are therefore peculiarly the subjects of exemplary damages ; on the other hand, being liable to prosecution as crim- inal offences, they are held to be, for this reason, exempted in a civil action from any thing more than the actual damages.* § 11. In a case in Massachusetts, Mr. Justice Metcalf remarks : " Whether exemplary, vindictive, or punitive damages, that is, damages beyond a compensation or satisfaction for the plaintiff's injury, can ever be legally awarded, as an example to deter others from committing a similar injury, or as a punishment of the defendant for his malignity, or wanton violation of social duty, in committing the injury which is the subject of the suit, is a ques- tion upon which we are not now required nor disposed to express an opinion. The arguments and the authorities on both sides of this question are to be found in 2 Greenl. Ev. tit. Damages, and edgwick on Damages, 39 et seq. If such damages are ever recoverable, we are clearly of opinion that they cannot be recov- ered in an action for an injury which is also punishable by indictment ; as libel, and assault and battery. If they could be, the defendant might be punished twice for the same act. See Thorley v. Lord Kerry, 4 Taunt. 355 ; Whitney v. Hitchcock, 4 Denio, 461; Taylor v. Carpenter, 2 Woodb. & Min. 1, 22." ^ 1 Corwin v. Walton, 18 Mis. 71 ; Jeffer- * Taber v. Hutson, 5 Iiid. ^'22 ; Ornisby son V. Adams, 4 Harring. 321; Cook ?\ r. Johnson, 1 B. Monr. 80; lIutni)lirios v. Ellis,*) 11111,466; Roberts t;. Mason, 10 Johnson, 20 Ind. liJO ; Austin r. Wilson, Ohio (N. S.), 277. 4 Cush. 278. ^ Cook V. Ellis, 6 Hill, 466. 6 Austin i-. Wilson, 4 Cush. 274. 3 Beach v. Hancock, 7 Fost. 223. 604 DAMAGES. [book V. Accordingly, in Indiana, one liable to a penalty under the liquor law of 1853 cannot also be liable for vindictive damages in a civil action.! gg [^ jg held, that the record of a judgment upon a crim- inal complaint for assault and battery should, if proved in a civil action, be a sufficient defence against exemplary damages.^ So, for a malicious trespass, exemplary damages cannot be given. A criminal prosecution is the proper remedy.-^ It is to be observed, however, that in cases of this description, as remarked in a recent case, the jury may consider " every circumstance of the act which injuriously affected the plaintiff'';'* and thus, probably, reach the same point of damages, as if they were termed exemplary. § 12. We have already spoken of injuries to property as the subjects of exemplary damages, with reference to this class of wrongs as distinguished from those which are also liable to crim- inal prosecution. Further illustrations may properly be added in the present connection. The recent cases are numerous, and can only be briefly noticed. § 12 a. In an action of ^resjoass, where the wrong is wanton or wilful, the jury may give damages beyond the actual injur}^, as a punishment, and to preserve the public tranquillity. But not when the wrong-doer acts in good faith, with honest intentions, and with prudence and proper caution.^ In an action of trespass for cutting and carrying away timber, where the defendant had wilfully, or through gross negligence, cut over the line; it was held that the damages were not to be confined to mere compen- sation, but the jury might give such damages as would be also adequate' in their judgment for prevention.^ So in a case of aggravated trespass, resulting in the loss of the plaintiff's slave, the jury were authorized to give exemplary damages.''' So vindic- tive damages may be given in trespass, for a wanton violation of the plaintift''s rights, by killing hogs that wandered repeatedly into an insufficiently fenced potato patch.^ In an action of tres- pass for personal injuries resulting from a runaway horse, the defendant having placed the plaintiff, a little girl, in a buggy, under perilous circumstances, — the act being without malice, — no vindictive damages can be given.^ > Stnible V. Nodwift, 11 Ind. 64. 6 Kolb v. Bankhead, 18 Tex. 228. ••2 Cherry v. McCall, 23 Geo. 193. 1 Hedgepetli v. Robertson, 18 ib. 858. 3 Butler V. Mercer, 14 Ind. 479. ^ Champion v. Vincent, 20 ib. 811. * Nossaman v. Uickert, 18 Ind. 350. 9 Pierce v. Millay, 44 111. 189. 6 Hawk V. Kidgway, 83 111. 473. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. G05 § 13. In an action for wilful neglig^ence, the jury may take into consideration the motives of the defendant, and, if the negh'gence is accompanied witli a contempt of the plaintiff's rights and con- venience, may give exemplary damages.^ § 13 a. For injuries inflicted by a ram, permitted to run at large, and alleged to have been known by the defendant to be vicious and disposed to injure mankind, exemplary damages are allowed, only on clear proof of gross and criminal negligence, evincing a wanton disregard of the safety of others, and in law equivalent to malice.^ § 13 b. In an action against a railroad, for injuries received by a passenger from negligence, it is not liable for smart-money, when there is no gross negligence or wanton recklessness.^ So in an action against a street-railway company for damages, for an injury suffered by a passenger, an instruction, that, " if the negligence of the driver was gross, the jury should find exemplary damages, in their discretion, beyond the actual injury sustained, for the sake of the example and punishment for such gross negli- gence," was held erroneous.'* So in an action against a railroad for failure to deliver a passenger at her destination, it is errone- ous to instruct the jury, that their finding should include punitory damages for disregard of public duty. It should have been added that punitory damages should only be given, if ihe circumstances of the case were found to justify or require them. The question is for the jury to determine, as a matter of sentiment and feeling, to be exercised by them according to their sound discretion, duly weighing all the circumstances, and considering the stated degree, quality, trade, or profession of the party injured, as of him who did the injury. The jury may also consider the sex of the plain- tiff, the peril in which she was placed, and her mental and physical sufferings. An instruction, which assumes that every failure to discharge all the duties imposed by the nature of the office of common carrier amounts to gross and wilful misconduct, for which punitive damages may be given, is erroneous. The jury are the sole judges of the existence and weight of facts justifying vindic- tive damages. A mere neglect of duty, unattended with any cir- cumstances of insult, of aggravation of feelings, of injury to the 1 Emblen v. Myers, 6 Hurl. & Nor. 54. » Kentucky r. Dills. 4 Rtisli. 503. 2 Pickett V. Crook, 20 Wis. 358. * McKeon i-. Citizens', A2 Mis. T'J. 606 DAMAGES. [book V. person or liis property, or of bodily or mental suffering, would not justify them.^ So in an action against a railroad for live stock accidentally killed by its trains, as by reason of failure to fence, a verdict allowing smart-money will be set aside.^ So, although every traveller on a highway, crossed by a railroad, is entitled to the benefit of the signal required by statute, yet, if the signal is not given, a party who can both see and hear the train in time to avoid it, and does not use the proper means, or any means, to avoid it, will not be entitled to vindictive damages for an injury received from the train.^ So where a railroad adopts all rules and regulations needful for the safety of the passengers, and employs competent agents, whose duty it is to see that these are observed ; the company, in case of injury to the passengers, happening by the carelessness of a subordinate agent, cannot be held liable for punitive damages.* So in an action by a pas- senger for injuries sustained by the overturning of a street car, drawn by horses, the jury cannot award exemplary damages.^ So in an action by a passenger against a railroad, on account of injuries resulting from a collision of its trains, the recovery may include his pain and suffering, expense of medical attendance, and loss of time ; but, unless the injury has been wanton, the damages must be strictly compensatory.*^ § 13 c. But exemplary damages may be given against a rail- road in case of gross negligence or wanton misconduct of an employe." So in an action by a child, run over by a steam car, at a city street-crossing ; wanton and malicious, or gross and outrageous, conduct of the defendant warrants punitive dam- ages.^ And a passenger, injured by the neglect of a railroad car- rier to transport him safely, is entitled to compensation for the pain caused by the injury.^ § 14. In order to recover special damages, for loss by dis- ease communicated to another part of his flock, from sheep pur- chased of, and warranted by, the defendant, the plaintiff need not allege nor prove that the defendant knew at the time that they were intended to be placed with the other sheep.^"^ § 15. A physician who, in what was called a frolic, put in the 1 Soutliern v. Kenclrick, 40 Miss. 374. « Penn v. Books, 57 Penn. 339. 2 Toledo V. Arnold, 43 III. 418. ^ N. O. v. AUbriton, 33 Miss. 242. 3 Chicago V. McKean, 40 111. 218. 8 Baltimore v. Breinig, 25 Md. 378. * Ackerson v. Erie, 3 Vroora, 254. " Pennsylvania v. Allen, 53 Penn. 276. 5 Louisville v. Smith, 2 Duv. 556. i'^ Packard v. Slack, 32 Verm. 9. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. 007 plaintiff's glass of wine a potion of cantlmrides, from the effects of which he was not free for months, was held liable to pay very exemplary damages.^ § 15 a. Exemjilary damages are allowable in an action for wilful deceit? In an action to recover the value of the running gear of a gin, alleged to have been wrongfully, wilfully, and mali- ciously taken by A, and converted to his own use ; it appeared that A went to the premises of the plaintiff, and removed the gear, representing to a tenant that he had purchased it. There was other evidence tending to show an incomplete negotiation for the sale of the property. Held, the trespass partook, though very slightly, of the elements of fraud and oppression, and there- fore presented a proper case for exemplary damages.^ But one who has purchased property through fraudulent representations or concealment of material facts, cannot recover vindictive dam- ages without showing some injury.** § 15 b. In an action for conversion, it is proper for the court to submit to the jury the question of malice, so as to allow smart- money.^ § 15 c. But in trover, unless particular circumstances justify it, an instruction is improper, that the jury may go further than the ordinary rule for the measure of damages in such cases, " when there has been an outrage in the taking, or vexation or oppres- sion in the detention, as a compensation to the party injured." ^ Replevin sounds in damages like trespass ; and, where there has been outrage in the taking, or vexation and oppression in the detention, exemplary damages may be given." § 16. It is held, that, while damages should be full and ample, but not vindictive, or beyond what has been really suffered ; and the language used by the judge to the jury was ^^ exemplary dam- ages : " yet, if the jury appear not to have gone beyond the actual injury, the verdict will not be disturbed.^ § 17. Vindictive damages should never be allowed against the representative of a deceased iort-feasorP In an amicable action, to try the respective rights to a division wall, part of which has been wrongfully used by the defendant ; it is error to instruct the jury, that, if there had been a wanton invasion of 1 Genay v. Norris, 1 Bay, G. 6 Carey v. Bright, .58 Pimiii. 70. 2 Nye V. Merriam, 35 Vt. 438. ^ Herdic v. Yuuiiir, ;")'> IVmi. ITU. ' Gordon v. Jones, 2~i Tex. t)20. 8 Taylor v. Carpenter, 2 W. & >L \. 4 Barber v. Kilhourn, 1(5 Wis. 485. 9 Rippey v. Miller, 11 Ired. 247. 6 Wiide V. Hexter, 50 Barb. 448. 608 DAMAGES. [book V. the plaintiff's rights, they were not confined to the actual dam- ages.^ In Maine, vindictive damages are not intended to be given, by Rev. Sts. c. 154, § 23, against a shipmaster transport- ing an inftint. Tlie measure is the value of the child's services up to the time of bringing the suit, or, if the child die previously, up to his death.'-^ In an action for nuisance, the plaintiff can- not have exemplary damages, if the defendant exercised due care and prudence himself, and the damage occurred by reason of the neglect of his workmen to follow his directions.^ Nor vin- dictive damages against a master or principal for the act of his servant or agent, unless expressly or impliedly authorized or ratified.* Nor exemplary damages, in an action of trespass, for building a house on the land of tiie defendant, whereby the plain- tiff's house is darkened, and its value greatly diminished.^ Nor for mere failure to pay over money collected; though it seems it would be otherwise in a case of special damage and deception.^ So a mortgagor in possession is not entitled to exemplary damages on account of the mortgagee's refusal to discharge the mortgage after it was satisfied, when he is not shown to have been damaged.^ § 18. In an action of trespass, for the wrongful taking and detention of slaves, it was competent to show malice, and thus increase the damages ; but not to prove a fact which was legal in itself, and had no tendency to show that the act was unjustifiable or wantonly done. As, for example, the institution of and failure to prosecute an action by the defendant, for the recovery of the slaves. s § 19. While the motives and disposition of the defendant are often an important subject of inquiry ; on the other hand, al- though the plaintiff has a right of action, the jury may look at all the circumstances, and at the conduct of both parties, and if, in going on with the action, the plaintiff has acted in an obstinate and perverse manner, they may take that into consideration when estimating the damages. Thus, the plaintiff delivered to a rail- way company certain goods to carry from A to B, paying the carriage, to be delivered to a party there. Part of the transit was effected by another railway company, which refused to deliver 1 Amer v. Longstreth, 10 Barr, 145. 5 Hays v. Askew, 7 Jones, 272. 2 Jsickerson v. Harriman, 38 Maine, ^ Neill v. Newton, 2-1 Tex. 202. 277. 7 Mickie V. xMcGeliee, 27 Te.x. 134. 3 Morford v. Woodworth, 7 Ind. 83. 8 Williams v. Kewberry, 32 Miss. 256. * Hagan i'. Providence, &c., 3 R. I. 88. CH. v.] SPECIAL, EXEMPLARY, AND VINDICTIVE DAMAGES. 609 lip tlie goods to the consignee without payment of an additional specified sum ; but, an action having been thieatened against the contracting company, an offer was made to deliver them up with- out that payment. The action was, however, persevered in, the plaintiff declaring against the company as carriers, with a count in trover for the conversion of the goods, subsequently to which they were given up in a damaged state. Held, that the additional sum demanded for the goods was not the measure of damage. It was also questioned, whether the plaintiff could recover for deteri- oration of, and damage done to, his goods Avhile detained by the company, or for loss of profits arising from his being deprived of the use of them during that time.^ So in an action of trespass, for breaking the plaintiff's close, and taking certain liquors, adjudged to be forfeited in a judicial proceeding to which he was a party : he cannot recover the value of the liquors ; and, if the defendants acted in good faith, believing their doings to be author- ized, he can recover only nominal damages.- So in trespass, for removal of goods from, and destruction of, a store ; the defendant might show, in mitigation of damages, that the chief business was an unlawful traffic with slaves.^ So, in trespass, for an injury to a vicious and annoying animal, only nominal damages can be recovered, unless actual damage is proved.* 1 Davis V. North-Western, &c., 4 ^ Boulard v. Calhoun, 13 La. An. Hurl. & Nor. 855; 4 Jur. (N. S.) 1303, 445. Exch. •! Custard v. Burdett, 15 Tex. 456. - Plummer v. Harbut, 5 Clarke, 308. 39 610 DAMAGES. [book V. CHAPTER VI. DAMAGES FOR FRAUD, ETC. 1. General remarks. 5. Miscellaneous cases. 3. General rule of damages; value of the 7. Exemplary damages, property, &c. 8. Miscellaneous cases. § 1. Having completed our view of those general rules and principles relative to damages, which seem for the most part indiscriminately applicable to all subjects, injuries, and forms of action, we proceed to a consideration of the separate wrongs, in relation to which the same class of questions arise. From the nature of the case, some repetitions must occur of what has already been more generally stated. § 2. In conformity with the plan heretofore adopted, we proceed to consider, first in order, the subject of damages for that injury which connects tort and contract, namely, fraud, (a) § 3. The general rule is laid down, that the proper measure of damages, in an action for fraud and deceit in the sale or exchange of property, retained by the purchaser, is the difference between its actual and represented values at that time ; the price paid being strong, but not conclusive, evidence of the latter.^ Thus the measure of damages, in case of a consignment for sale in fraud of the insolvent law, is the value of the goods when the unlawful preference was made, not when the consignee might avail himself of the proceeds.^ So where the purchaser retains the property, and where numerous misrepresentations in relation to it, or in 1 Stetson V. Croskey, 52 Penn. 230; (Iowa), 368. See Stevenson r. Greenlee, Carr v. Moore, 41 N. H. 131 ; Page v. 15 Iowa, 96. Parker, 41 ib. 47 ; Likes v. Baer, 8 Clarke '^ Burpee v. Sparhawk, 97 Mass. 342. (a) In California, a complaint may set show fraud at the inception of the con- forth a breach of contract on the part ot tract, in a predetermination not to carry the defendants, a steamship company, to it out, and this may be considered by convey the plaintiff, and also wrongs and the jury in connection with the subse- injuries, resulting in physical and mental quent tortious acts. Jones v. Cortes, 17 hardship, committed in connection with Cal. 487. such breach. The plamtiffs may also CH. VI.] DAMAGES FOR FRAUD, ETC. 611 relation to several distinct particulars or qualities of it, were made by the vendor, some of which may be material, and others immaterial, some fraudulent and others honest, though all false ; the rule of damages is the diiference between the actual value and the value as it would have been if the representation had been true, in those particulars concerning which the false and fraudulent representations were made, on which the verdict was founded. In such case the price paid is strong, but not conclu- sive, evidence of the value of the property as it was represented to be, whether such representations were fraudulent or honest, provided they were material.^ § 4. The same rule of damages is adopted in case of fraudu- lent misrepresentations in the sale of real estate.^ (a) So, A and B being cotenauts in common of a vessel, C agreed to buy the whole vessel of A for a certain price. A afterwards bought of B his share at a less rate, by means of alleged fraudulent repre- sentations. In an action of B against A for such fraud, held, on the question of damages, evidence was admissible that the sum paid B was the full value of his share ; but that the price to be paid by C was strong, though not conclusive, evidence of the value.^ So, in a suit in equity for relief from a contract into which 1 Page u. Parker, 43 N. H. 3G3. 1G2 ; Likes v. Baer, 8 Clarke (Iowa), 2 Muberly v. Alexander, 19 Iowa, 368. 3 Matthews v. BUss, 22 Pick. 48. {a) In an action by a purchaser against ation received by tlie vendor; but only a vendor of land, tor falsely representing the difference between the value of tiie that a mill and mill-pond were included in land at tlie time of sale, and wliat it tlien the tract sold, tiie measure of damages is would have been worth, had it been such the diminution of the value in conse- as the defendant represented it. Gates quence of the mill and pond not being v. Reynolds, 13 Iowa, 1. on the land; and a witness will not be A, professing to have autliority from allowed to make comparisons between the owners of certain premises, granted a the actual value of the land and tlie parol lease of them for seven years to B, value upon the supposition of the pond and let him into possession. The own- being on other land. Poster?;. Kennedy's ers, disavowing the authority of A, Adm'r, 38 Ala. 35U. demanded possession from B ; and, on An agent, will), by false representations his refusal, brought ejectment. B, re- as to the demand for and value of lands lying on a statement of A tliat he of Ills jirincipal, jirocures a conveyance had authority, and tiiat the ejectment thereof tor less than they are worth, and would not be persevered in, and al.-^o on nieanwiiile negotiates a' sale to a thinl the advice of his own attorney, deleiided party for a much greater sum ; is charge- the ejectment, but unsuccessfully, and able with the ditierence, with the same was turned out. B liaving brought an rate of interest thereon as he received on action against A for this false assumption the deferred pavnients. Stoner v. Wei- of authority, the jury found that A had ser, 24 Iowa, 434. acted bond ^fide and without fraud, and A vendee of real estate sued the ven- through a misajipreliension that he had dor for false and fraudulent representa- authority. Held, B was not entitled to tions at the time of sale, but did not offer recover the costs incurred in (k'fending to rescind. Held, that he could not the ejectment. Pow t;. Davis, 1 Ell., B. & recover the money value of the consider- S. 220. 612 DAMAGES. [book V. the plaintiff has been induced to enter by fraud, the court, in ascertaining the value of the consideration fraudulently obtained from him, will adopt the price fixed by the parties themselves as the value of shares in a mining company transferred by him as a part thereof, if the price fixed does not appear to have been uncon- scionable, and he has practised no fraud, and both parties had equal opportunities to judge of their value. ^ So, by the laws of Louisiana and Kentucky, the fraudulent vendor of goods is not liable to vindictive damages, nor to the costs of transpor- tation to and from the place of delivery. The measure of dam- ages is the difference between the real value and the contract price.2 § 5. In an action of deceit for knowingly selling and conveying to the plaintiff more land than the defendant had title to, the measure of damages is the pro rata value of that part of the land to which the plaintiff could get no title, and the expense of perfecting his title to another part.^ § 6. The measure of damages, in an action against directors of a company for false representations as to its affairs, whereby they induced the purchase of shares which were worthless ; is the difference between the purchase-money paid and a fair price at the time.* § 7. But on the other hand it is held, that in cases of fraud the jury may give exemplary or smart damages.^ More especially where the fraud is not indictable.^ Thus, for deceit in a sale, the purchase-money, with interest, is held not the proper measure of damages." So where a horse having a contagious disease is sold, and the seller, though having knowledge of the fact, fails to give information of it, he is liable for the injury caused by communi- cation of the disease to other horses of the buyer.^ So a railroad corporation, who fraudulently put an end to a contract for grading their road, pretending to act under a power reserved to them therein to terminate the same, if in their opinion not complied with by the contractor; are liable to the contractor in damages, including any loss of profit sustained by him by the breaking off 1 Franklin v. Greene, 2 Allen, 519. 5 Oliver v. Chapman, 15 Tex. 400 ; Nye - Singleton v. Kennedy, 9 B. Monr. v. Merriam, 35 Verm. 438. See p. 607. 222. 6 Millison v. Hoch, 17 Ind. 227. 3 Parker v. Walker, 12 Rich. 138. 7 Brown v. Sliields, 6 Leigh, 440. * Huntington v. Massey, 1 F. & F. 8 Paris v. Lewis, 2 B. Monr. 375. 690. CH. VI.] DAMAGES FOR FRAUD, ETC. 613 of the contract. 1 So, in an action for deceit in selling a vessel as British, when she was not, nor entitled to a British national character ; the plaintiff may recover the difference of value of the vessel, as sold, and her value if her real character had been known, and also the amount of such repairs made on her, on the faith of the representation, as had not been remunerated by her earnings, or in any other way.^ § 7 a. Where, in a suit upon a sale of tobacco, to be manu- factured according to a sample, it appeared that the tobacco was inferior and damaged, and was fraudulently packed in boxes made of green lumber, whereby it became unsalable : held, the measure of damages was the actual loss, ascertained by deduct- ing the market value at the time of delivery, from the market value of that which was contracted for ; to which the jury were at liberty to add something by way of punishment.*^ § 7 6. In an action for deceit, in a sale to the plaintiff which he has repudiated, the only correct measure of damages is that which would apply if the defendant had wantonly broken his agreement to sell.'^ § 7 c. In an action for misrepresenting the value of property sold, a witness may testify as to the value of a part of the property.^ § 7 cZ. Where one sells a lot of sheep, falsely representing them to be free from certain diseases, and other sheep owned by the vendee contract the same diseases from the sheep so sold ; the vendee may recover damages for the injuries, whether the ven- dor knew of the vendee's possession of other sheep or not.*^ § 7 e. In an action of deceit upon the sale of a negro, the measure of damages was held to be the difference between the negro's value as an incorrigible runaway, and as it would have been if he had possessed the good qualities alleged by the vendor's agent at the time when and place where he was purchased. But this does not apply to damages caused directly by the negro's habit of running away ; as, e.g., those incurred in capturing him.'' § 8. Where a ship-master received divers casks of lime on freight, consigned to him for sale, which had been duly inspected and branded, and were represented by the owner as good lime, 1 Philadelphia, &c. V. Howard, 13 How. ^ Warren v. Cole, 15 Mich. 2C^b. 307. * Winslow v. Newlan, 45 III. 145. 2 Sherwood v. Sutton, 5 Mas. 1. ^ Sherrod v. Langdon, 21 luwa, 518. 3 McAroy v. Wright, 25 Ind. 22. '> Morton v. Scull, 23 Ark. 289. 614 DAMAGES. [book V. and accordingly sold as such by the master, but in fact were filled with substances of little or no value ; whereupon he was sued by the vendee, and obliged to respond to him in damages, having given the owner immediate notice, and faithfully and prudently defended the suit : held, he might recover of the owner the amount of the judgment recovered against himself, with all neces- sary costs and expenses, and that a copy of the judgment was admissible evidence.^ § 9. One obliged to take steps to relieve himself from another's fraud may generally recover his attorney's fees as special dam- ages. Otherwise, where he sets up fraud in a contract as a defence to an action thereon.^ § 10. A sold to B a bill, representing it as unpaid, when he knew it had been paid. B transferred it to C, and afterwards, having it in his possession, he sued A for the fraudulent sale. Held, B's possession enabled him to sustain the action, and the measure of damages was the amount of the bill, with interest.^ § 11. Action by C, in the name of A, against B, on a promissory note payable by B to A. At the time the note was given, A had secretly given a defeasance to B, with intention to defraud who- ever might purchase the note. C had purchased the note, in ignorance of the defeasance, paying for it partly in money and partly by his own note to B, which B had sold to D for its full value, D also being ignorant of the fraud. Held, the rule of damages to C was the amount of the note in suit and interest ; B, a party to the fraud, not being entitled to any deduction, on the ground that C, when sued on his note by D, in B's name, could avoid it.^ § 12. In an action for misrepresenting the location of a mill, privileges, and land described in a deed, the vendee retaining so much as actually passed ; the measure of damages is the expense of obtaining by writ ad quod damnum, or other equally cheap and speedy remedy, the land falsely represented to pass.^ § 13. Where a printer, having contracted to print for his employer a thousand copies of a book, and no more, printed from the same types, while set up at the expense of his employer, five hundred other copies, for his own disposal ; he was held liable to 1 Henderson v. Sevey, 2 Greenl. 139. * Lyon v. Summers, 7 Conn. 399. 2 Flack V. Neill, 22 Tex. 253. 5 Reynolds v. Cox, 11 Ind. 262. 3 Spikes V. English, 4 Strobh. 34. CH. VI.] DAMAGES FOR FRAUD, ETC. C15 refund to his employer one-third part of the expense of setting up the types, no actual damage having been proved. ^ § 14. Tlie laws of Alal)ama permit the defendant, in an action on a sealed instrument, to impeach the consideration, as if the writing were not under seal; they also permit such instrument to be assigned by indorsement, and the assignee to sue in his own name, allowing the defendant the benefit of all payments, dis- counts, and set-offs, made, had, or possessed against the same, previous to notice of the assignment, in the same manner as if the suit were brought by the obligee or payee. Held, the defend- ant, in a suit brought by the assignee of a bond given for the price of a chattel, might prove, in reduction of damages, that the sale was effected by means of false representations on the part of the payee as to the value of the chattel, although the chattel had not been returned or tendered to the plaintiff.'-^ § lo. In an action for deceit in procuring a receipt, where the defendant, as agent of the maker of a note payable to the plain- tiff, by fraud and misrepresentation prevailed on the plaintiff to accept notes against insolvent persons, and give a receipt in full discharge of his note ; the plaintiff is entitled to recover nominal damages, although the maker of the note which he gave up was also insolvent.''^ § 16. Lands fraudulently transferred, by means of a judicial sale, descended to the heirs of the alienee, who, without notice of the fraud, assigned them in partition to A, one of such heirs. A took possession, paid the annual taxes, and bond fide made valuable and permanent improvements. A judgment-creditor filed his petition against the alienor and the heirs, to set aside the transfer for fraud, and subject the lands to payment of the judgment. Held, A was entitled, in this proceeding, to equitable compensation for his expenditures from the proceeds of any sale which might be ordered ; and an answer, claiming such compen- sation, was good, on demurrer; and that a decree, merely saving the rights of A under the occupying claimant law, and ordering that the property be appraised and sold, was erroneous.* • Williams i'. Gilnian, 3 Greenl. 27G. * Bombcrcer v. Turner, 13 Ohio, '^ Withers v. Greene, 9 How. 218. G61. 203. 3 Ledbetter v. Morris, 3 Jones, 543. 616 DAMAGES. [book V. CHAPTER VII. INJURIES TO THE PERSON ; ASSAULT AND BATTERY ; FALSE IMPRISON- MENT ; INJURIES TO HEALTH. 1. Assault, &c.,r— exemplary damages. 6. False imprisonment, — malicious arrest. 2 rt. Mitigation, — provocation; criminal 11. Injury to health, prosecution, &c. § 1. The plaintiff in an action for a simple assault and battery, without alleging special damages, is not confined to merely nomi- nal damages, but may recover such general damages as he may prove to have resulted from the injury. ^ § 1 a. The damages may include bodily pain and suiferiug.^ The jury may consider the injury inflicted by the blow, the expense incurred, loss of time, of hearing, of peace of mind, and individual happiness, occasioned by the injury .^ So, in estimating damages for an unintentional but reckless assault, the jury may consider the pain as well as the wounded feelings of the female plaintiff.^ (a) And for an unprovoked and aggravated assault exemplary damages may be given.^ So, as we have already seen (Chap, v.), damages may be allowed for circumstances of insult, &c.^ So, also, for any natural and necessary consequences, even those subsequent to the trial." Thus a verdict for $85, for a violent beating and wounding with an axe, was held not exces- sive ; nor would a much higher verdict be considered extra va- 1 Andrews v. Stone, 10 Minn. 72. 5 Foote v. Nichols, 28 Ind. 486. 2 Ransom v. New York, &c., 15 N. Y. 6 Bracegirdle v. Orford, 2 M. & S. 77; (1 Smith) 415. Tullidge v. Wade, 3 Wils. 19. » Cox V. Vanderkleed, 21 Ind. 164. ? Fetter v. Beale, 1 Ld. Ray. 339 ; Moor 4 West V. Forrest, 22 Mis. 344. v. Adam, 2 Chit. 198. (a) Where brutal violence is used to the intercourse should not be taken as overcome the resistance of a female, and the basis of damages. If consent is ob- her ultimate consent to sexual intercourse tained by such violence, the intercourse is obtained, although not in consequence is a part of the assault and a ground for of such violence, a right of action for the exemplary damages. Dickey v. McDou- previous violence clearly remains. But nell, 41 lU. 62. CH. VII.] INJURIES TO THE PERSON, ETC. 617 gant, especially where it was proved that the defendant was amply able to pay it.^ § 2. But it is sometimes held, that the court caunot instruct the jury to allow " smart money " in an action for assault and bat- tery .^ And, in trespass for an assault and battery upon the child or servant of the plaintiff, the measure of damages is the actual loss of the plaintiff; and exemplary damages cannot be given, though the assault be of an indecent character, upon a female, and under circumstances of great aggravation.^ (a) And the plaintiff cannot, for the purpose of showing special damages, prove that by reason thereof he lost a position to which he was about to be appointed, although the declaration so avers.'* § 2 a. In an action for trespass upon the person, evidence was held admissible, in mitigation of damages, of the defendant's declaration while in the commission of the trespass, that he was doing it because the plaintiff had traded with his negroes.'^ The defendant may prove, in mitigation of damages, that the plaintiff, immediately before the assault, charged him with a crime. But the plaintiff cannot, in reply, go into proof that the charge was true. Nor the defendant, that the charge was false. The evi- dence is admissible solely for the purpose of showing that the defendant acted under the sudden provocation of the charge, and not from premeditated malice.*" And provocation, to be admitted in mitigation of damages, must be so recent and immediate, as to induce a presumption that the violence done was committed under the immediate influence of the feelings and passions excited by it. The defendant cannot give evidence of acts or declara- tions of the plaintiff at a different time, or any antecedent facts which are not fairly to be considered as part of one and the same transaction, however irritating and provoking." And no provo- cation, amounting to less than justification, will render the defend- ant liable in less than compensatory damages.^ 1 Gore V. Chadwick, 6 Dana, 477. 5 Gilliam v. Love, 30 Ga. 8G4. - Mooney v. Kennett, 19 Mis. 551. '' Bartrain v. Stone, 31 Conn. 159. * Whitney v. Hitclicock, 4 Dcnio, " Lee v. Woisey, 19 Joiins. 329. See 461. Corning v. Corning, 1 Seld. 97. * Brown v. Cummings, 7 Allen, 507. ** Bircliard v. Bootli, 4 Wis. G7. {(i) In a snit for assault and battery, which lie had charged to tlie jjlaintifl', and the jilaintifl' alleged that he had been of which none had been paid, llekl. the "obliged to pay" large sums to get evidence did not support the allegation, cured. His jjhysician testified, that his Ward v. Haws, 5 Min. 440. services had been worth a few dollars, 618 DAMAGES. [book V. § 3. It is competent, for the purpose of mitigating vindictive damages, to show that the defendant has been convicted and punished at the suit of the State.^ § 4. That the plaintiff had prosecuted the defendant's child for malicious mischief, whereupon the defendant committed the assault, is not matter in mitigation of damages.^ §5. Whore the defendants accused the plaintiff of stealing a watch, and wiiipped him to get it back ; held, he might show, upon the question of damages, that he was (to the knowledge of the defendants) of weak mind.^ § 6. In an action for false imprisonment although without malice, the plaintiff may recover for loss of time, interruption of business, and bodily and mental suffering,* ^ Q a. In an action for malicious arrest^ injury to credit is not ground of special damage.^ § 7. It is held, that damages may be awarded by way o^ punish- ment, but not to an arbitrary amount. Thus a verdict for $2000 for a short detention in the police-office, the plaintiff being dis- charged for want of any appearance against him, was set aside as excessive.^ § 8. In New York, evidence may be given, in mitigation of damages, without having filed any answer, on the execution of a writ of inquiry.'' § 9. In an action for assault and false imprisonment, it is no ground of new trial, that the plaintiff had expended 11. 14s. in procuring a discharge from custody, but the jury awarded him only a farthing.^ § 10. Where the defendant caused the plaintiff to be arrested upon an unfounded charge, and detained from 11^ to 2 o'clock: held, damages could not be allowed, upon the ground that the plaintiff would have been engaged as a journeyman by A if he had presented himself at the factory at two o'clock ; but, being unwell from the imprisonment, he did not go to tlie factory till the next morning, when another had been engaged. In this recent case, the court suggested some considerations in reference 1 Smitliwick v. Ward, 7 Jones, G4. 6 Brown v. Chadsey, 39 Barb. 253. - Schlosser v. Fox, 14 Iiid. 365. ^ Hays v. Berryman, 6 Bosw. 679. 3 Ously V. Hardin, 23 111. 403. » Bradlaugh v. Edwards, 11 Com. B. 4 Parsons v. Harper, 16 Gratt. 64. (N. S.) 376. 5 Macfarlane v. Ellis, 1 E. & F. 288. CH. VII.] INJURIES TO THE PERSON, ETC. 619 to remote damages, wliicli are of general applicability and of much value : " The damage does not immediately, and according to the common course of events, follow from the defendant's wrong ; they are not known by common experience to be usually in sequence. The wrong would not have been followed by the damage, if some facts had not intervened for which the defendant was not responsible. Thus, there was the act of the plaintiff, who returned home instead of going to the factory and explain- ing ; and, although it was said he was unwell, ... it was not suggested that he was so unwell as to be unable to go. There was also the act of the intended employer, changing his purpose in respect of the plaintiff." ^ § 10 a. Where a private person makes an arrest under circum- stances which do not justify him, but would justify an officer, he should be held to pay reasonable and fair damages, according to the circumstances, mitigated by the reasonable or probable causes that induced it. Where such arrest was made upon strong grounds for suspecting larceny, a verdict of $3000 was set aside as exces- sive.^ § 10 &. Where the plaintiff was arrested and imprisoned for refusing to testify under a void complaint, placed in the custody of the sheriff at the jail, but not locked in the cell which was given him as a sleeping-room, and was allowed to visit freely the sheriff's apartments, being only restrained from leaving the jail- yard ; he is entitled to more than nominal damages, i.e., sufficient to pay him for his loss of time. In such case the jury are entitled and required to find general damages, as well as any special damages, which are proved.^ § 11. In an action against a surgeon, ihe increased amount paid to another surgeon, to effect a cure, by reason of injuries result- ing from the unskilful treatment of the defendant, may properly be considered by the jury ; and that is the proper limit.^ 1 Hoey V. Felton, 11 C. B. 140 ; per 3 page v. Mitchell, 13 Mich. 63. Erie, C. J., ib. 146. 4 Leighton v. Sargent, 11 Fost. 119. 2 Keuck V. McGregor, 3 Vroom, 70. 620 • DAMAGES. [book V. CHAPTER VIII. LIBEL, ETC., AND MALICIOUS PROSECUTION. 1. Measure and grounds of damages ; spe- 10. Plea of the truth; mitigation of dam- cial and exemplary damages ; wealth of the ages, defendant. 15. Malicious prosecution. § 1. In an action for libel, the actual damages are to be deter- mined b}^ the jury, upon a careful consideration of the charge against the plaintiff, the circumstances of the publication, the extent of its circulation, and the natural and necessary conse- quences of such a publication, according to the results of human experience.^ It is held, that the jury are at liberty to give puni- tive damages.^ (See Chap. Y.) So in an action of slander, in case of actual malice, it is held that exemplary damages may be given.^ And this, more especially, if accompanied by another form of actionable injury. Thus, in a late case, where the defend- ant charged a female with larceny, commenced a criminal prose- cution against her, and had her arrested for that offence, and persisted in the prosecution after being advised by able and learned counsel to desist ; a verdict for $1400 was held not exces- sive. The court remarked : " The result will probably make the defendant wiser for the future, and have a good influence upon others, who are tempted to gratify feelings of revenge at the expense of female character."'^ § 2. In an action against a railroad corporation for a libel, the jury cannot find damages for a publication made after the com- mencement of the suit ; nor exemplary damages, without proof that the act was done maliciously or wantonly.^ § 3. Where, in an action for slander, no special damages are claimed by the petition, and there is no evidence of actual dam- 1 Fry V. Bennett, 3 Bosw. 200. * Humphries v. Parker, 52 Maine, 502 ; 2 Hunt V. Bennett, 19 N. Y. (5 Smith) per Walton, J., ib. 508. 173. 5 philadelpliia, &c. v. Quigley, 21 How. 3 Knight V. Foster, 39 N. H. 576. 202. CH. Till.] LIBEL, ETC., AND MALICIOUS PROSECUTION. 621 f age, a new trial cannot be allowed, because the jury gave only nominal damages.^ § 4. In an action of slander, the following instructions, taken together, were held correct; being given after stating the differ- ent kinds of damages : " Compensatory damages are given, where the Avords were spoken without malice, but under circumstances which show a want of caution, and a proper respect for the rights of the plaintiff. Compensatory damages are such as will pay the plaintiff for his expenses and trouble in carrying on the suit, and disproving the slanderous words ; the character of the plaintiff can never be considered, until the jury come to the question of giving vindictive or exemplary damages." ^ § 5. In case of slander of a physician, as such, the currency of the slanderous report in the place of his practice, following its utterance by the defendant, may be given in evidence, as well as the effect of such report upon the professional gains of the plain- tiff, in aggravation or proof of damages, without strict proof con- necting the current report with the slander of the defendant ; the fact of such connection being for the jury, and not for the court, to pass upon.2 § 6. In an action by a surgeon for slander, imputing that a female servant had had a bastard child by him, whereby D would not employ him as an accoucheur, and the plaintiff was otherwise injured in the way of his business ; it was proved that the words were spoken by the defendant in conversation with D. Held, that the plaintiff was not entitled to recover such damages, in respect of a general loss of business, as might have been caused by repe- titions of the slander, but could not have arisen directly from the speaking of the words by the defendant to D.'* § 7. In an action of slander, for charging the plaintiff with having illicit intercourse with a married woman, and thereby committing the crime of adultery ; the defendant may prove, in mitigation of damages, that, before the speaking of the words, the plaintiff's general character and rc[)utation in the community for chastity was bad, and that he was generally reputed in the com- munity to be an unchaste and licentious man. Such evidence is 1 Irwin V. Cook, 24 Tex. 244. 8 Rice r. Cottrel, 5 R. I. 340. 2 AriiLstrong v. Pierson, 8 Clarke * Dixon v. Smith, 5 Hiu'l. & Nor. (Iowa), 20. 450. 622 DAMAGES. [book V. not restricted to the reputation of the plaintiff in reference to the crime of adultery .^ (See § 12.) § 8. It is held, in late cases, that in an action for slander the plaintiff may prove the pecuniary condition of the defendant to increase the damages.^ The wealth of the defendant is said to be " an element which goes to make up his rank and influence in society, and therefore his power to injure the plaintiff by his speech. " ^ (a) § 9. Anxiety and distress of mind caused by a slander may be proved in aggravation of damages, though the charge was made against the plaintiff as a physician only.^ § 9 a. L., a step-brother of the wife of K., spoke slanderous words to K., imputing to Mrs. K. gross levity, and asserting that she had been all but seduced by another man before marriage. The husband thereupon dismissed her, and sent her to her father. She (joining her husband, as co-plaintiff, for conformity) brought an action against L., alleging her loss o£ the husband's consor- tium as special damages. Held, whether or not the action lay, the damages were too remote ; not being the natural and prob- able consequence of the injury complained of; seeing that no husband, acting reasonably, would dismiss a wife on an unsup- ported charge of gross levity, when no actual adultery was imputed.^ (b) ' Bridgman v. Hopkins, 34 Verm. ^ Humphries v. Parker, 52 Maine, 502 ; 532. ib. 508, per Walton, J. 2 41 111. 142; Kamey v. Paisley, 13 4 Swift w. Dickerman, 31 Conn. 285. Iowa, 89 (questioned in Law Reg., August, ^ Lynch v. Knight, 5 L. T. (N. S.) 291 1863, p. 639) ; 52 Maine, 502. — H. L. (a) In a late case it is held, that the slanderer, for the special damage caused jury may take into account the pecuniary to her by the loss of the husband's circumstances of the defendant, as well consortium. Lords Wensleydale and as the character of the plaintiff, and also Brougham, that a married woman can- the reiteration of the slander at ditferent not maintain an action for being deprived times and to different persons, and also of the society of her husband by the slan- any eifort the defendant has made to have der of another upon her character, though the plaintiff indicted ; and they may give the husband deserts her in consequence, exemplary damages. Harbison v. Shook, LordWensleydale,tiiat, although no action 41 111. 142. lay, yet the desertion by the husband was (b) In this case the several judges in- properly laid as special damage ; for, to cidenlally expressed their views as fol- make words actionable by reason of lows : Lords Campbell and Cranworth, special damage, the consequence must be that, where a person imputes to a married such, as, taking human nature as it is, woman adultery, which he pretends to with its infirmities, and having regard to know and assert as a fact, and the bus- the relationship of the parties concerned, band, reasonably believing the charges might fairly and reasonably have been to be true, dismisses her, the wife is anticipated to follow from the speaking entitled to maintain an action (joining of the words, and need not be such as her husband for conformity) against the would reasonably follow. Lords Camp- CH. VIII.] LIBEL, ETC., AND MALICIOUS PROSECUTION. 623 § 10. It is held, that a plea of the truth, in slander, made in good faith, under an honest belief in the truth of the words uttered, and with reasonable grounds for such belief, furnishes no cause for exemplary damages. " The motive with which the justification was pleaded, is for the consideration of the jury. If they find that it was done with the intention to injure the plain- tiff, the}^ may rightfully consider it an aggravation of damages ; but where no wrongful intention is found, there is no just ground for the punishment of the defendant." ^ § 11. In an action of slander, circumstances which disprove malice, but do not tend to establish the truth of the charge, may be given in evidence in mitigation of damages.^ And it is some- times held, that evidence may be available in mitigation of dam- ages, though it tends to prove the truth, but does not necessarily prove it.^ (See § 7.) § 12. In an action for a libel, the defendant cannot prove, in mitigation of damages, an independent libel on himself by the plaintiff. Otherwise, where such libel by the plaintiff affords a reasonable presumption that it provoked the libel by the defend- ant, or where it impliedly refers to it, or explains the meaning of it or the occasion of writing it.^ § 13. To authorize proof of mitigating circumstances, as rebut- ting the presumption of malice, it must appear that they were known to the defendant at the time.^ § 14. In an action of slander, for saying that the plaintiff, a physician, had no professional knowledge or skill, and lost almost all his patients ; evidence is inadmissible, in mitigation of dam- ages, of particular instances of ignorance or want of skill. '^ § 15. Under a declaration, that the defendant, without probable cause, maliciously sued out a writ against the plaintiff from a court which had no jurisdiction of the plaintiff, and attached his 1 Ravmond v. Kinney, 14 Oliio St. ^ Swift v. Dickerman, 31 Conn. 285. 283 ; per Wilder, J., ib. 287 ; Clement v. * Child v. Homer, 13 Pick. 503. Brown, 30 III. 43. 5 Swift v. Dickerman, 31 Conn. 286. ■^ Oilman v. Lowell, 8 Wend. 573, •* Ib. See Porter v. Henderson, 11 Mich. 20. bell and Brougham, tliat the law of Eng- chastity of a modest matron or pure vir- land is barbarous in holding tliat an gin, is not actionable, without proof that imputation by words, however gross, on it has actually produced special temporal aa occasion however public, upon the damage to her. 624 DAMAGES. [book V. property thereon, and kept and detained the property from the plaintiff for twenty days ; the plaintiff may recover damages for the trespass to his property .^ § 15 a. In an action in the nature of an action for malicious prosecution, the plaintiff was held entitled to recover the hire of a slave which had been attached, for the time she was illegally detained and he was deprived of her use, the constructive ser- vices being wholly rendered before the abolition of slavery.^ § 16. If the holder of a promissory note, after suing out a writ against the maker, and procuring thereon a return of non est, under a mistake as to his legal rights, sues out an attachment against the indorser ; in an action for wrongfully and vexatiously suing out this latter process, the proceedings against the maker are admissible in evidence in mitigation of damages.^ § 16 a. The defendant in an action for malicious prosecution cannot prove, in mitigation of damages, that the plaintiff had instituted a similar complaint against him.* § 17. In an action for commencing a suit against the plaintiff without authority, evidence of express malice on the part of the defendant towards the plaintiff, although not necessary, is still competent.^ § 18. If the plaintiff in such action disclaims any damages for injury to his character, the defendant cannot attack such charac- ter, either to rebut the evidence of malice, or in mitigation of damages.^ § 19. If no specific instructions as to damages are requested, it is a sufiicient instruction, that, in case they find for the plaintiff, the jury are to give such a sum as will indemnify him for the injuries he has sustained by the wrongful acts of the defendant.'' § 20. In an action for malicious abuse of process, compensatory damages are proper, when there is only constructive malice, and are such as to indemnify the plaintiff, including actual loss or injury of property, loss of time, and necessary expenses, counsel fees, and any other actual loss.^ The plaintiff is entitled to recover such smart-money, as will sufficiently punish the defend- 1 Whiting.r. Johnson, 6 Gray, 246. 5 Smith v. Hyndman, 10 Cush. 554. 2 Dickinson v. Maynard, 20 La. An. *> lb. 66. ^ Leach v. Wilbur, 9 Allen, 212. . 3 White V. Wyley, 17 Ala. 167. 8 Barnett v. Eeed, 51 Penn. 190. 1 Bliss V. Franklin, 13 Allen, 244. CH. VII.] LIBEL AND MALICIOUS PROSECUTION. 625 ant.i "Where a court found tlie damages for malicious prosecution awarded by a referee to be excessive, but confirmed his report on a stipuktion by the phiintifF that he would reduce the amount, the judgment was reversed.^ The jury may consider the pecu- niary ability of the defendant.^ 1 Callahan v. Caffarata, 39 Mis. 13G. 8 Whitfield v. Westbrook, 40 Miss. 2 Cassiii V. Delaney, 38 N. Y. 178, 311. 40 626 DAMAGES. [book V. CHAPTER IX. NEGLIGENCE ; NUISANCE ; WATERCOURSES ; RAILROADS ; TOWNS. 1. Negligence. 11- Railroads. 4. Nuisance; Watercourse; Patent; Trade- 19. Towns; Highways, mark. § 1. The measure of damages for negligence is held to be the actual damage suffered.^ Where property, bought in one place, and delivered by the seller to be carried to another place, is lost on the way by his negligence, the value of it. at the latter place is the measure of damages.^ So where a prize had been offered, for the best plan and model of a machine for loading colliers from barges, and plans and models intended for the com- petition were to be sent by a certain day ; and the plaintiff sent a plan and model accordingly by railway, but through negligence it did not arrive at its destination until after the appointed day : held, it seems, the proper measure of damages is the value of the labor and materials expended in making the plan and model, and not the chance of obtaining the prize, as the latter is too remote a ground for damages.^ The judges remarked as follows : " The plaintiff had put his damages upon a right principle, for he said the goods were made for a special purpose, which has been de- feated by the negligence of the defendants, and they have become useless." * " He says he has lost the chance of one hundred guineas. I have great doubts whether that chance was not too contingent and remote . . . but we are here as a court of appeal, and the case laid before us does not advert to that point. . . . We give no opinion as to the remoteness of the damages." ^ So in an action against a boatman, for negligently permitting the plaintiff's 1 Goetz V. Atnbs, 27 Mis. 28. * Per Patteson, J., ib. 501. 2 Bailey v. Shaw, 4 Post. 297. ^ Per Erie, J., ib. 601. 3 Watson V. Ambergate, &c., 3 Eng. L. & Eq. 497. CH. IX.] NEGLIGENCE. 627 tobacco to be sunk in the river, whereby the value was diminished, the measure of damages is the difference between the value of the tobacco before and after its submersion.^ So in an action against the publishers of a newspaper, for neglecting to insert an advertisement of a public sale of real estate, for which they received payment in advance ; the measure of damages, in the absence of fraud, is the amount paid. They are not liable to speculative damages.^ In an action for damages to a horse, the defendant is liable, if the injury was caused by his negligence ; and the measure of damages is the expense incurred in curing the horse, the loss of his use while being cured, and the difference in his value.-'^ § 2. It is sometimes held, however, that exemplary damages may be given for negligence.* Thus, where the proprietor of a newspaper published a false and unfounded libel on a tailor, stating that he had been flogged ; and, although it was complained of at once, and the falsehood shown, delayed publishing any con- tradiction until after action : these circumstances were left to the jury as evidence of negligence, and a verdict sustained for very large damages.^ So, in an action for negligence, the damages may be aggravated by the conduct of a defendant having been reckless, or accompanied by expressions showing a disregard for the safety or property of others. Thus, in an action for neg- ligence in pulling down a wall, whereby a portion of the bricks fell upon the plaintiff's stable, broke down the roof, and damaged his horse, the jury may take into consideration, as a ground of damages, expressions of the defendant to the workmen, that they should not take any care to guard against mischief to the plaintiff's property in so doing.^ § 3. But special damages must be expressly claimed in the declaration and warranted by the evidence ; as in an action against a common carrier, for an injury arising from his negli- gence. Thus an unmarried woman, receiving an injury by the neglect of a carrier in whose carriage she was upset, cannot recover damages for impaired prospect of marriage, such dam- ages not being specially alleged in the writ, nor sustained by the evidence." 1 Stark V. Porter, 4 J. J. Marsh. 211. 5 Sniitli v. Harrison, 1 F. & F. 565. 2 Kiseiilolir r. Swain, oo I'cnn. 107. 6 Kniblin v. Myers, 8 M. II. 6G5, Kxch. ' Streett i'. Launiier, 34 Mis. 469. 7 Hunter v. Stewart, 47 Maine, 419. * Huntley v. Bacon, 15 Coun. 267. See p. 605. 628 DAMAGES. [book V. § 3 a. It is held in a late English case, that one who for his own purposes brings, collects, and keeps on his land any thing likely to do mischief if it escapes, must keep it at his peril, and, without proof of negligence, is prima facie liable for all damage naturally resulting from its escape.^ § 3 6. In a suit to abate a nuisance, caused by digging a ditch on the plaintiff's land, and for damages, the court cannot prop- erly order an abatement, and a sum sufficient to pay for the filling of the ditch, &c. The case is not one for prospective damages, and the plaintiff cannot recover beyond the injury sustained.^ § 4. The law implies damage from the flooding of the ground of another, though it be in the least possible degree, and without immediate actual prejudice. Hence a mere reversioner may maintain an action therefor. " In contemplation of law, the rent issues out of the land ; and whatever impairs the productiveness of it, decreases the landlord's security ; but compensation recov- ered by the tenant would be a poor substitute for the means of payment derived from an unimpaired enjoyment of the premises. Besides, the market value of the reversion would be greatly les- sened by an apparent injury which would permanently affect the property, or saddle the purchaser with a lawsuit." ^ § 5. It has been sometimes held, in an action for obstructing a watercourse, that the jury must find the full value of the land overflowed in damages.* And where the damages of overflowing land were not equal to what was sworn to by some of the wit- nesses, the court refused to set aside the verdict, though they seemed high.^ § 6. In trespass for destroying a mill-dam, &c., the plaintiff may give evidence of damage sustained by the stoppage of the mills. The court remark: " In an action of trespass, for destroy- ing a mill-dam (not merely a dam which may be for other pur- poses), the stoppage of the mills supplying its means with water-power seems to fall within the description of such a damage as naturally or necessarily results from the act. . . . These words have received a large construction, so as to embrace consequential 1 Fletcher v. Rvlands, Law Eep. 1 Ex. Gibson, C. J., ib. 14. See Miller v. Lau- 263 ; Aran. Law Kev., Jan. 1867, p. 294. bach, 47 Penn. 154. 2 De Costa v. Massachusetts, &c., 17 * 4 Dall. 147. Cal. 613. 5 Winans v. Brookfield, 2 Smith, 847. 3 llipka V. Sergeant, 7 W. & S. 9 ; per CH. IX.] negligence; nuisance, etc. 629 injuries not specifically mentioned in the declaration, but ordi- narily flowing from the act complained of. Under the . . . alia e/iormirt, damages naturally arising may be given in evidence . . . though not stated." ^ § 6 a. On a petition to recover damages caused by the erection of a mill, if the water was ponded back by the defendant's dam on the plaintiff's wheel, but produced no substantial injury, the plaintiff is entitled to nominal damages.^ § 7. Where one riparian proprietor had, by means of a water- wheel, raised and diverted from the premises of another about one-fortieth part of the volume of a stream; held, that it was for the jury to consider whether he had thereby inflicted on the other any sensible or material injury.^ § 7 a. The owner of land, through which an ancient water- course runs, may maintain an action for nominal damages against one who diverts it above him so as materially to diminish the flow of water by his land, without proof of actual injury.'* § 8. In the assessment of damages caused by diversion of a river, the tenant of a mill will be entitled to damages for his loss during the unexpired term of his lease.'^ § 9. The owner of a mill-dam cannot, in an action against the owner of a mill above, for forcibly taking down more of the plain- tiff's dam than was necessary to remove the defendant's mill, recover, as part of his damages, any thing paid for counsel fees or to engineers for making surve^ys.^ § 9 a. A conveyed a mill to B, and covenanted with him to keep one-half of the dam in repair. The dam was afterwards carried away by a flood, and B dvdy requested A to aid him in rebuilding it. A refused, and B repaired it at his own expense. Held, B could not recover damages for loss of the profits of the mill by reason of the delay caused by A's refusal, but only for one-half of the expense of repairing it. jNIr. Justice Dewey remarks : " It being the duty of the plaintiff to make one-half of the repairs, and it being a right which he might at once exercise, to proceed to make the whole repairs, after neglect and refusal of the defend- ant, upon reasonable notice, to aid in the repairs ; if the plaintiff 1 Spipclmnyer v. Walter, 3 W. & S. * Stowell v. Lincoln, 11 Grny. 434. 540 ; per iSer^'eant, J., ib. 542. 5 Matter of Water Commissioners, 4 ■■2 Little V. ytanhack, (53 N. C. 285. Edw. Cli. 545. 3 Korbury v. Kitcliin, 3 F. & F. 292. « Day v. Wood worth, 13 How. 3G3. 630 DAMAGES. [book V. delayed to exercise that right, and thereby sustained a loss, it is one which he alone must bear." ^ § 9 6. In an action for interfering with the regularity of the flow of water into a ditch, proof that the plaintiiF has thereby lost his customers, is competent.^ § 9 c. In an action for overflowing lands, no recovery can be had for injuries accrued after the commencement of suit; but evidence of such injuries is admissible as showing the conse- quences of the diversion, under similar circumstances, before the suit.^ § 9 c?. In an action for injuries done premises by water, in consequence of diverting a stream from its channel, in building a culvert, the rule of damages has no reference to the cost of removing a bar of gravel carried upon the premises by a flood. The measure of damages is the depreciation in value of the premises occasioned by the defendants' acts. But where such deposit is comparatively extensive, and the cost of removing it would probably equal, if not greatly exceed, the value of the soil covered by it ; the rule contemplates, that the deposit is to remain ; and one item of damage is the consequent depreciation in the land. And the owner of the land is under no obligation to remove the gravel by reason of his having received compensation for his damages from the wrong-doer ; nor does he incur any peril, in a legal sense, by suffering it to remain.* § 9 e. The damages, accruing after a complaint for flowage is filed, must be assessed in yearly sums, reckoning from the date of filing the cotr.plaint ; and the judgment should embrace all the yearly payments that have become due when it is rendered.^ § 10. In Maine, the damages for three years may be assessed in one aggregate sum. Execution may issue for damages to the time of the verdict ; and, when the case has been referred, to the time of the award.^ § 10 a. To indemnify a patentee in damages, the jury may allow actual costs in suits relating to the patent, and also reason- able counsel fees ; and the Circuit Court, under the act of Con- gress, will award treble what is found by the jury as damages, if 1 Thomson v. Shattuck, 2 Met. 615, < Easterbrook v. Erie, 51 Barb. 94. 619. See p. 608. ^ Billings v. Berry, 50 Maine, 31. 2 Natoma v. McCoy, 23 Cal. 490. 6 Bradstreet v. Erskine, 60 Maine, 407. 3 PoUy V. McCaU, 1 Ala. (S. C.) 246. CH. IX.] NUISANCE ; PATENT, ETC. 631 deemed proper to protect useful inventors from combination and ruin.i § 10 h. Under a reference to a master, to ascertain and report the amount of profits realized, or which might with due diligence have been realized, by a defendant to a bill in equity, to restrain the infringement of a patent, for work done by mechanics similar to the plaintiff's; the plaintiff is entitled only to the actual profits realized by the defendant, and not to any greater amount of damages sustained by the plaintiff.^ § 10 c. In a suit to recover damages for infringement of a patent, the plaintiffs are entitled to recover all the actual profits which the defendant has made by the use of the principle of the plaintiff's combination, the law presuming, that, if the defendant had not put his machines into the market, the demand would have been for the plaintiff's, and he would have received the profits. The interest on the capital, the risk of bad debts, and the expenses of selling the machines, are all to be taken into account. Vindictive or exemplary damages are not to be allowed.^ § 10 d. In a very recent English case, where a bill in equity had been filed to restrain the infringement of a trade-mark, and a decree obtained for an injunction ; the court offered a decree for an account of profits, but the plaintiffs elected an inquiry as to damages. Held, the law would not presume that they would have sold the amount of goods sold by the defendant, but the burden of proof was on them to show special damage by loss of custc-m or otherwise. The remarks of the court have an important bear- ing upon the subject to which in various connections we have so often referred, — remote or contingent damages : " How can the court assume that the persons who bought what the plaintiffs aver were inferior articles at an inferior price, would necessarily, if they had not done so, have bought the superior articles at the higher price, . . . and that in the absence of any evidence that any of the purchasers had at any time been customers of the plaintiffs. But even supposing that such an assumption were possible, why is the court to assume that, even if the purchasers would have bought the higher-priced article, they would have 1 Allen V. Blunt, 2 AV. & M. 121. See » Wilbur v. Beeclier, 2 Blatch. Ct. Earle v. Sawyer, 4 Mas. 1. 132; Hall r. Wiles, ib. VM ; Pitts v. Hall, ^ Livingston v. Woodworth, 15 How. ib. 22'j ; McCormick v. Seymour, ib. 240. 546, 632 DAMAGES. [book V. bought it of the plaintiffs ? There were or there may have been persons licensed by the plaintiffs to use their trade-mark and to sell goods manufactured by their process, or there may have been, and doubtless were, persons who had purchased from the plain- tiffs with a view of selling again. How can the court assume that the supposed purchasers would have . . . purchased direct from the plaintiffs." ^ § 11. The measure of damages, in actions against railroads, of course depends upon the nature of the particular injury com- plained of. In case of personal injury, much discretion is left to the judge or jury.^ So in case of negligence.^ § 12. A person ejected from the cars three or four miles from a station, but without any aggravating circumstances, he having refused to pay his fare, and offered without any explanation a ticket which was void by the usages of the road, and his inten- tion being to ride from one station to another, is entitled to only nominal damages.'^ § 13. But a passenger, expelled from a train without fault on bis part, may recover more than nominal damages, though no pecuniary loss or actual injury to his person is proved. In an action under the (HI.) Statute against a railroad, for wrongful ex- pulsion of a passenger who had been unable to procure a ticket before entering the car, although the conductor acted in good faith, and without violence or insult, and no actual damage was sustained ; the jury, in estimating the damages, may consider not only the annoyance, delay, and risk to the passenger, but also the indignity in the mere fact of expulsion.^ So in an action by a passenger against a railroad company, for carrying him beyond his station, the verdict was for $4500 damages. The court thought the verdict very large, but held, that, as the action sounded in tort, the jury could give punitive damages, and so refused to set aside the verdict.^ So it is held that the jury may in their dis- cretion give exemplary damages, where a personal injury has 1 Leather, &c. v. Hirschfield (Eng.), 188. But see Sanford v. the Eighth, &c., Law Rep., Eq. Series, Feb. 1867, pp. 298- 23 N. Y. (9 Smith) 343. 301, 5 Chicago v. Flagg, 43 111. 364. See p. 2 Choppin V. New Orleans, 17 La. An. 606. 19. 6 New Orleans, &c. v. Hirst, 36 Miss. 8 Frank v. New Orleans, 20 La. An. 25. 660. * Terre Haute, &c. v. Vanatta, 21 111. CH. IX.] RAILROADS. 633 been caused by the gross carelessness of a railroad in the man- agement of its trains.^ § 14. It has been held that, in an action brought against a rail- road for a persona] injury occasioned by their negligence, dam- ages may be recovered for loss of business.^ So, in an action against a railroad for injury done to a child of the plaintift", the damages may include all such prospective loss as must necessarily result from the injury.^ But a verdict for damages occasioned by a railroad collision, of more than twice the amount limited by law if the accident had occasioned the death of the plaintiff, will be set aside, on motion for a new trial. As where, in a case said to involve no peculiar aggravation or gross negligence, although the plaintiff was crippled for life, a verdict was given for eleven thousand dollars. (In this instance, adopting a practice not unusual in cases of contract, but rarely applied to torts, the motion for a new trial was denied, if within twenty days a stipu- lation is given to reduce the verdict to five thousand dollars.'*) So the measure of damages, in an action against a railroad for negligence, whereby certain slaves of the plaintiff were permitted to escape, is not the full value of the property. It lies in the discretion of the jury, after a consideration of the circumstances.^ And in a case, afterwards referred to by the same court as being very carefully considered, it was held, that a female teacher injured, when travelling on the highway, by the engine of a rail- road, cannot claim damages, with reference to iier occupation and means of earning support, unless specially alleged in the writ. The court remark : " Under the (Mass.) Practice Act, St. 1852, c. 312, a general allegation of damages at the end of the decla- ration will not entitle a party in an action of tort to prove special damages; that is, such damages as are not implied by law, be- cause they do not necessarily arise from the act complained of. Tiie rule of the common law, which requires a plaintilf, for the pur- pose of guarding against surprise, ... to set out any particular damage, . . . remains unchanged. There is no specific provi- sion . . . which authorizes any alteration. . . . On the contrary, it is expressly provided in § 6, that the rules of evidence and the measure of damages shall remain unchanged, * except so far as 1 Hopkins v. Atlantic, &c., 3G N. H. 9. * Collins v. Albany, &c., 12 Barb. 4^2. 2 Kinney v. Crocker, 18 Wis. 74. 5 O'Neall v. South, &c., U Kicii. 4G5. a Drew V. Sixth, &c., 2(3 N. Y. (12 Smith) 4'J. 634 DAMAGES. [book V. . . . herein specially provided for.' Besides, to the forms of dec- larations . . , there is this significant note : ' The ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed.' . . . The evidence offered by the plaintiff to show her education and learning, and that she was a school-teacher . . . did not tend to show an injury falling within the class of general damages, . . . such damages as any other person . . . might, under the same circumstances, have sustained from the acts set out. . . . This part of the plaintiff's claim could be founded only upon a peculiar loss, ... by reason of the interruption to her occupation." (The learned judge also sug- gested it as " a more difficult question whether the evidence would be admissible under any form of declaration." i) § 15, In an action against a railway company for carelessly letting sparks fly from their engine, so as to set the herbage and pasturage on fire, the compensation should be measured as in the case of an unwilling vendor? § 16. A judgment for the plaintiff against a railroad, for the destruction of a building by fire communicated from an engine, is a bar to a subsequent action for the destruction of other build- ings by fire communicated from the building first destroyed, although the subsequent action is brought and prosecuted for the benefit of an insurance company which has paid to the plaintiff the amount of a policy thereupon. " The loss of the shop and of the dwelling-house and shed were distinct items or grounds of damage, but they were both the result of a single and indivisible act. The plaintiff therefore does not show any right to maintain another action to recover additional damages merely by showing that, in consequence of his omission to produce upon the trial all the evidence which was admissible, ... he failed to obtain the full amount of compensation to which in that event he might have been entitled. ... To protect their interest, the insurance company should have seasonably intervened and supplied . . . the evidence which would have shown that the plaintiff ought to recover . . . for the burning of the dwelling-house and shed." ^ § 17. With reference to another class of actions against rail- 1 Baldwin v. Western, &c.. 4 Gray, 3 Trask v. Hartford, &c., 2 Allen, 331 ; 333; per Bigelow, J., ib. 835. per Merrick, J., ib. 332. - Gibson v. S. E. Railway, &c., 1 F. & F. 23. CH. IX.] RAILROADS. 635 roads ; land damages (a) cannot be recovered of a railroad for neglect to remove the stones thrown upon land by blasting, while grading the road, though damage by the blasting itself may be. The duty of the road was to remove the stones in reasonable time, and the jury were bound to presume that they would do it. " They can only embrace, in their estimate, injuries caused by the acts of the company which are authorized by their charter." The remedy for the neglect in question is an action at common law.^ § 18. In case of a lateral railroad, in Pennsylvania, the measure of land damages is the injury done to the tract as a whole, or the difference between its value at the time of the entry and its value after completion of the road.^ § 18 a. In a very recent English case, it is held that the owner of a house, whose lands have not been taken by a railroad com- pany, cannot, under the Lands Clauses Consolidation Act, or the Railway Clauses Consolidation Act, of 1845, recover damages for depreciation of the house caused by the vibration, smoke, and noise incident to the ordinary use of a railroad. The case was very elaborately argued, and numerous decisions were cited. The remarks of one of the judges, who gave their opinions at length, show the grounds of adjudication, and illustrate the gen- eral subject. " The claim to compensation is subject to two important limitations. . . . The land must be injuriously affected in this sense . . . that the injury must be one for which an action would have lain, had the act of the company not been authorized by the statute. . . . The land must be ' injuriously affected by the execution of the works,' which is the expression used in one of the acts. . . . The words ... in their ordinary and proper sense, mean nothing more than the construction of the railway. . . . The 6th section of" the other act " is preceded by the fol- lowing heading : ' And with respect to the construction of the railway and the works connected therewith.' Therefore, one would suppose, the clauses which are about to follow that head- 1 Wliitehouse v. Androscoggin, &c., 5 - Brown i*. Corey, 43 Penn. 495. Maine, '208. («) In Wisconsin, a railroad (or persons tendering the amount wlicn so ascer- acting under it) entering \\\w\\ liiml and taincd), is liable in trespass for tlie actual perniant'iuJy occupying and appropriating damages, tliougli tiie laiKlowucr lias it witiiout compensation (or liaving its taken no steps to iiave the value assessed. value ascertained as provided by law, and Loop i;. Chamberlain, 20 Wis. 136. 636 DAMAGES. [book V. ing would be clauses relating to the construction of the railway, and would have no reference to it afterwards. Section 6th then goes on to enact . . . ' The company shall make to the owners and occupiers of, and all other parties interested in, any lands, taken or used for the purpose of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all damage sustained by such owners, occupiers, and other parties, by reason of the exercise, as regards such lands, of the powers by this or the special act, or any act incorporated therewith, vested in the company.' . . . The legislature uses the words 'by the construction thereof as equivalent to, or synonymous with, ' by the exercise of the pow- ers of the act.' . . . What was intended was no more than was intended by the form in the G8th section of the Lands Clauses Consolidation Act, namely, the exercise of the power given to execute the works, that is, in the present case, to construct the railway ; so that the compensation must be limited to such dam- age as was occasioned to the property by reason of the construc- tion of the railway. All the damage which is caused to the claimant was damage occasioned ... by the use of the railway . . . legalized by the act of Parliament."^ § 19. The damages recoverable against a town in Massachusetts under the Rev. Sts., c. 25, § 22, are for an injury to the person or property only, and not merely on account of a risk or peril which causes fright and mental suffering. But, where an actual injury to the person is sustained, however small, which causes mental suffering, that suffering is a part of the injury for which the town is liable.^ § 20. In an action against a city for personal injury caused to the plaintiff, a practising physician, by its neglect to repair a bridge ; the plaintiff may show the nature and extent of his busi- ness, and the loss arising from his being disabled by the injury to pursue it, as affecting the amount of damages.^ § 21. In an action for injury caused by a defective highway, the jury cannot add interest to the damages.^ 1 Brand v. Hammersmith, &c., (Eng.) 3 Nebraska, &c. v. Campbell, 2 Black, Law Rep. Com. L., Feb. 1866, p. 130 ; per 590. Lush. J., ib. 146. 4 Sargent v. Hampden, 38 Maine, 581. 2 Canning v. Williamstown, 1 Cush. 451. CH. IX.] RAILROADS, TOWNS. 637 § 22. It is lield, by a late case in Kentucky, that, in condemning land for a bridge, damages cannot be allowed fi)r injury to a ferry, but only the value of the land taken, and incidental or col- lateral injury to other land.^ § 23. In estimating damages to property by act of a city on the highway, the cost of restoring a building to a condition as good as before should be considered, and also the loss of the use of the house.2 § 24. For the location and opening of a highway through land, the measure of damages is the difference between its market value at the time with and without the highway .^ ^ Riclimoml v. Ttopers, 1 Duv. 135. 8 Sedener v. Essex, 22 Ind. 201. 2 Freeland v. Muscatine, 9 Iowa, 4(31. 638 DAMAGES. [book v. CHAPTER X. DAMAGES IN ACTIONS AGAINST OFFICERS. 1. General rule of damajres, as affected by the motives, (S:c., of the defendant. S. For failing to return process. 10. For false return. 14. For wrongful taking of property, — ac- tion by the defendant in the process. 16. For loss of property taken. 18. Action b}' one not party to the process for seizure of his property; value of the property; additional damages; motives of the officer. 24. Damages for neglect to levy, &c. 29. Mitigation of damages; application of proceeds to the plaintiff's benefit, &c. 31. Damages for neglect to arrest. 32. For escape; taking insufficient bail, &c. 42. Miscellaneous cases. § 1. No class of cases has given rise to more questions, relating to damages, than those brought against officers (a) for neglect or misfeasance in the service of process intrusted to them, whether by seizure of property, or by arrest and commitment. § 2. For wanton violation or neglect of duty, officers are liable to a very rigid accountability. (&) Thus, in a very late case, it (rt) In an action before a justice, under the (Iowa) Code of 1851, § 509, against a comity treasurer for the wrongful sale of land for taxes ; the measure of damages is the sum paid to him by the plaintiff, with interest. The measure of damages fixed by the Act of 1858, c. 152, § 63, is not applicable in cases of sale made before that act took effect. Costs incurred in foreclosing the tax-title are not recover- able in an action under tliis act. Traer V. Filkins, 10 Iowa, 563. In an action against public officers for injury done in the construction of a road, by building a causeway instead of a bridge, it is competent for one of the de- fendants to prove, as showing the absence of malice, that before commencement of the work he had received a message from the supervisor of the adjoining township, a codefendant, that he would not join in building a bridge because the people of his township were opposed to it. Yealy V. Fink, 43 Penn. 212. A maglsti-ate, who has rendered judg- ment for the plaintiff" in an action pending before him, and, pn request for an execu- tion, has issued one which is invalid on its face, is liable for such damages as are the natural, necessary, and proximate conse- quences of his wrongful act ; but not for tlie costs of levying the execution, or losses to which the plaintiff has been sub- jected by reason of attempting to enforce it. And he may show, in mitigation, that the condition and circumstances of the judgment-debtor were such, that nothing could have been collected upon a valid execution. Noxon v. Hill, 2 Allen, 215. In an action by a land-owner against a town supervisor, for refusing to lay before the board of supervisors an assessment of damages awarded to him on account of the laying out of a road through his land, the measure of damages is the amount of the assessment, interest, and costs. Clark V. Miller, 47 Barb. 38. {b) The defendants, bailiffs, in serving an execution, found money secreted in a wall, and took it away and embezzled it, and did great spoil to the debtor's goods. Held, they were liable, not only for the money, but for any other damage to which the plaintiff would make oath. Childrens v. Sarby, 1 Vern. 207. See E. Ind. Co. V. Evans, ib. 808. CH. X.] DAMAGES IN ACTIONS AGAINST OFFICERS. 639 was remarked by the court in Pennsylvania : " Nothing could be more irregular or unwarrantable than the sheriff's conduct. Indemnified by the plaintiff, it was his duty to sell the goods under the fi. fa. If he found them claimed by adverse parties, there was the Interpleader Act for his guidance and protection. To lie still until the last days of the life of the vend. exjD., and then to take a bond from strangers to the writ, to protect him against the consequences of his official delinquency, was a gross breach of duty, which he ought to have been ashamed to offer as a legal return to the writ of vend, exp." ^ So, in an earlier case, it is said : " It is to be regretted that officers, having a plain path before them, will not pursue it. If they deviate from it, it must be at their own peril ; and they cannot protect themselves, against the damages arising from a breach of official duty, by any col- lateral stipulation for indemnity." ^ § 3. But, on the other hand, it was said, in an early case in Massachusetts : " It is peculiarly the right of the jury to assess the damages, and in this they are not restricted to any precise sum. They may give more than the former judgment, if they believe that the wrong was wilful on the part of the officer ; for they may, and sometimes do, add to the amount of the first judg- ment the expenses and costs not taxable, in actions against the officers by way of damages. And as they may exceed, so thej may fall short of the former judgment ; the great object of the action being to restore the plaintiff to what he has lost by means of the misdoings of the officer. If it should be apparent to the jury that the wrong on the part of the officer was not the result of a design to injure, and also that by the wrongful act of the officer the plaintiff is put in no worse situation than he would have been in, had the officer done his duty ; the jury would be at liberty, indeed it would be their duty, to see that a humane or mistaken officer is not made to pay more than the party has really Buffered by his wrong." ^ And in a much later case it is held, that an officer, who is not guilty of gross and wilful neglect in not serving process, but acts in good faith, though erroneously, is only liable for the actual damage.^ 1 Per Woodward, J., Connelly v. * Blodgett v. Brattlehoro', 30 Verm. Walker, 45 Penn. 450. 579. See Hodsdon v. Wilkins, 7 Greenl. - Per Parsons, C. J., Denny i». Lincoln, 113; Ackley v. Cliester, 5 Day, 221; 6 Mass. 38U. Potts v. Commonwealth, 4 J. J. Marsh 3 Per Parker, J., Weld v. Bartlett, 10 202; Commonwealth i\ Bradley, ib. 209. Mass. 473. 640 DAMAGES. [book V. § 4. In other late cases the distinctions are made, that an officer of the law, committing a raah'cious trespass, under color of process, is liable in vindictive or exemplary damages. Otherwise, though there be malice on the part of the party putting an execution into the hands of an officer, if the acts of the officer be honest and bo?id fide} Damages for an illegal seizure, made in good faith and upon reasonable cause, and without circumstances of aggra- vation, cannot exceed compensation or the value of the property and interest, although the execution is void. If the plaintiff asks for consequential or vindictive damages, the defendant may show all the circumstances which bear upon his motives and intention,^ § 5, For misfeasance in office by a sheriff, each creditor can recover only what he has lost by it, and one who could have got nothing, if the sheriff had done his duty, can demand nothing for the breach of it."^ § 6. Though an officer conduct the service of an execution irregularly, yet, if the goods are fairly sold, and the proceeds applied to the execution, only nominal damages can be recovered. But he is liable for the amount of any difference between the value of the goods and the sum for which they were sold.^ § 7. The plaintiff, the grantee of an equity of redemption, caused the equity to be sold on execution against the grantor, for the purpose of strengthening his title, bid it off himself, took a deed from the officer, and paid the officer only his fees and expenses. In consequence of the officer's neglect, the sale was ineffectual, but the plaintiff 's title was valid independent of the sale. In an action against the officer for his default, the measure of damages was held to be only the amount of fees and expenses actually paid by the plaintiff, with interest.^ § 8. In an action for not returning process, the measure of damages is the actual injury ; and they will be merely nominal if the debt was not collectible.*^ Thus, to an action for not making return in a suit upon a note, the officer may set up the invalidity of the note as a defence.' So, to an action for not returning 1 Nightingale r. Scannell, 18 Cal. 315. officer, Brooks v. Hovt, 6 Pick. 468 ; 2 Van Pelt y. Littler, 14 ib. 194 ; Dor- Shackford v. Goodwin, 13 Mass. 187; sey r. Manlove, ib. 553. Burrell v. Lithgow, 2 ib. 526; 9 Conn. 3 Hamner v. Griffith, 1 Grant, 193. 387 ; Rich v. Bell, 16 Mass. 294. * Daggett V. Adams, 1 Greenl. 198. *> Hamilton v. Ward, 4 Tex. 356. 5 Se.xton V. Nevers, 20 Pick. 4-51. See '' Woolcott v. Gray, Brayt. 91. further, as to the general liability of an en. X.] DAMAGES IN ACTIONS AGAINST OFFICERS. 641 a writ, the officer may show the existing ability and h'ability of the debtor in mitigation of damages. ^ So, in an action for non- return of an execution, the plaintiff must show the amount of damages. The measure is pot the amount of the execution.^ § 9. For non- return of an execution for Commonwealth's notes, the officer is liable for the value of the notes, with interest and damages. Without proof of value, the judgment is erroneous.^ § 10. In an action against a sheriff for a /a/se return on ixfi.fa., the measure of damuges is primd facie the execution debt. He may show that other executions in his hands would have taken the proceeds of a sale, in mitigation of damages.* § 11. Where an officer sold an equity of redemption on execu- tion, without having given notice of the place of sale, but falsely returned that he had, whereby a subsequently attaching creditor was prevented from obtaining satisfaction of his demand ; in an action for the false return, the measure of damages is the debt and interest, if the value of the property attached amounts to so much.^ § 12. In an action by a creditor against an officer, for falsely returning that he had served upon the creditor a copy of the noti- fication that a debtor intended to take the poor debtor's oath (the copy actually served being such that the creditor, if he had chosen, might have been present at the examination), the officer may give in evidence, in mitigation of damages, that the debtor had no attachable or visible property ; and if this, in connection with other evidence, satisfies the jury that the debtor was enti- tled to take the oath, the plaintiff ought to recover only nominal damages.^ § 13. In a suit against an officer, who had attached property and taken a receipt, for not delivering either the property or the receipt, it is not competent to show, in mitigation of damage, that the property was of a value less than that which he alleged in his return." § 13 a. A debtor may maintain trover against an officer who attaches personal property exempt from attachment ; but, if he has sustained no actual damage, he can recover nominal damages 1 Woolcott V. Gray, Brayt. 91. * Forsyth v. Dickson, 1 Grant, 26. 2 Bennet v. Vinyanl, o4 Miss. 216. 5 Wliitaker v. Sumner, 'J Pick. 308. See Sanders i'. Bank, &c., 2 Met. (Ky.) 6 Woods v. Varnuni, 21 ib. li).5. 327 ; Goodrum v. Koot, ih. 427. ^ Alien v. Doyle, 33 Maine, 420. 3 Williams v. Hall, 2 Dana, 97. 41 642 DAMAGES. [book V. only : and wliere the property is mortgaged, and after the attach- ment by direction of the attaching creditor, who has become legal owner of the mortgage, is duly sold by the officer upon the mortgage, and the proceeds of the salej being less than the amount of the mortgage debt, are properly applied upon that debt ; the price should go in mitigation of damages.^ § 14. In an action against an officer, for attaching tools of trade, and disturbing the plaintiff in the use and occupation of his barn: if by the attachment the plaintiff wholly lost the tools, he may recover their value with interest ; if for a time only, the amount of injury from the loss of their use ; and, if the property was kept in the barn to the exclusion of the plaintiff, then for the loss of the use and occupation of such part of the barn as was not occu- pied by the tools."^ § 15. In an action on the case, for an illegal sale of property lawfully attached ; if the property deteriorate without the officer's fault, the value at the time of sale is the measure of damages. The court make the following remarks, involving an important distinction as to forms of action : " If the defendant had . . . made a valid sale of the mare . . . upon the writ, he would have been accountable only for what he got . . . upon the sale. . . . An officer is not liable for accidents and injury to property held by him under attachment . . . which happen without any fault of act or neglect on his part. . . . It is claimed, that . . . the defendant became trespasser ab initio, and, therefore, the measure of damages is the value of the property at the time it was taken. . . . Whatever might have been the rule, if the plain- tiff had brought trespass ... he cannot . . . insist upon that measure of damages in the present case." ^ § 15 a. In an action against an officer for injuries to attached property in his possession, occasioned by his negligence, evidence of his wilfulness is admissible to enhance the damages.* § 16. If, after seizure and levy at the suit of the plaintiff, the sheriff permit the property to be " run offer eloigned," he or his sureties are liable to the plaintiff for the debt, interest, and costs in his execution, if the property was of so much value.° § 17. If an attachment is not vexatious as against the defendant, 1 Cooper V. Newman, 45 N. H. 339. * Vance v. Vanarsdale, 1 Bush, 504. 2 Clapp V. Thomas, 7 Allen, 188. 5 Mitchell v. Commonwealth, 37 Penn. 3 Walker v. Wilmarth, 37 Verm. 289 ; 187. per Barrett, J. ib. 294. CH. X.] DAMAGES IN ACTIONS AGAINST OFFICERS. G43 the fact, that the attaching creditor was actuated by malice against a third person, is nu ground for vindictive damages in an action on tlie attachment bund.^ § 18. If the sheriff, following his instructions, not wiH'ully, wantonly, or with any unnecessary oppression, without malice or aggravating circumstances, on the part of either officer or cred- itor, seize the properiy of a stranger : the measure of damages is the actual loss, being the value thereof and interest to the time of the verdict;^ the cash value of the articles in the market at the time they were taken, or the amount of money it will take in the market to replace the articles.'^ Where the sheriff, acting in good faith and with good discretion, takes goods not the property of the defendant, no exemplary damages can be allowed ; the measure is the legal interest upon the value while the owner was out of possession (they having been replevied), compensation for depreciation, if any, and the expense of replacing them."* Thus, in a suit against a sheriff for an illegal attachment upon a stock in trade, proof of injury to the plaintiff's business as a merchant is inadmissible as a basis of damages.^ So in trespass against one furnishing an execution to an officer, and against the officer, for taking a stock in trade, with a charge of malice, and claim of vindictive damages : evidence of the retail value of the goods is inadmissible ; the market cost of replacing them is the proper basis for damages.^ § 19. If goods attached, on a writ against a person not owning them, are delivered to the owner, and by him receipted, he may yet sue the othcer in trespass, and the measure of damages is the value of the goods at the time of the attachment, without interest. But, in an action by the officer, the owner would be estopped to set up property in himself.'*' § 20. The rule of damages, in case of articles of merchandise, allows interest from the expiration of the usual term of credit on sale. If an auction sale has become necessary in consequence of the levy, the plaintiff will be entitled to recover the expenses of such sale; as also the amount of the premium for insurance against 1 Wood V. Barker, 37 Ala. 60. 3 Cassin v. Marshall, 18 Cal. G89. 2 Plielps V. Owens, 11 Cal. 22; 18 ib. * Beveridge c. Wddi, 7 Wis. 4G5. 372; 14 I'enn. W, 1 Baldw. 138; Smith v. & De.vter v. Taupli, 18 Cal. 372. Putnev, 6 Shepl. 87 ; Walker v. Borland, <> N'ightin DAMAGES. [book V. fire effected on the goods. But not counsel fees or other expenses incurred in prosecuting the suit.^ § 21. When an officer is liable in trespass to the assignee of a mortgage of personal property, for taking it on an execution against the mortgagor, and holding it until the assignee paid the amount of the execution and officer's fees ; the measure of dam- ages is the amount paid, and interest, and reasonable compensa- tion for the taking and detention.^ § 22. A mortgage estops one who joins in it from asserting his title only as against the mortgagee ; and he may recover the full value in trespass against an officer who attaches the property as the mortgagor's, notwithstanding a settlement, without the mort- gagor's consent, between the attaching creditor and the mortga- gee.^ § 23. For attaching, in an action against a third person, prop- erty which remains in the owner's possession until judgment and execution, the measure of damages is the value at the time of taking.* § 24. For neglect seasonably to collect and return an execution, the amount of the execution is the measure of damages, unless the defendant can show that the debtor had no property upon which it could be levied.^ Substantially the same rule is laid down in other language. The measure of damages against an officer or his sureties, for neglect to seize property, is the actual loss.'^(a) § 25. A declaration in case against a sheriff alleged, that, although he could have levied of goods of the execution-debtor within his bailiwick the moneys indorsed on the writ, yet, disre- 1 Ins. Co. V. Conard, 1 Bald. 138. * Henshaw v. Bank, &c., 10 Gray, 518. 2 Carpenter v. Cummings, 40 N. H. ^ Bowman v. Cornell, 39 Barb. 69. 158. 6 Marshall v. Simpson, 13 La. An. 437. 3 Cram v. Bailey, 10 Gray, 87. (a) In Alabama, upon a suggestion the property; it is subordinate to the against a sheriff, that the money could general rule, that in cases not requiring have been made on an execution by due punitive damages the loss actually sus- diligenee, the measure of damages is the tained is the true measure. Warner v. amount of the judgment and interest Ostrander, 44 111. 356. - thereon to the time of the issuance of the Where a party claiming an unfinished execution, togetlier with ten per cent on hull of a ship, winch has l)een levied upon that amount. Bondurant v. Lane, 9 Port, as the property of the builder, is suffered 484. to finish it at his own expense ; the meas- The rule, that the measure of damages ure of damages, in trover by the purchaser for a wrongful levy and sale of projx-rty under the execution against him, is its is the value thereof at the sale, ajjplies value when levied upon. Green v. Hall, only where the purchaser has obtained 1 Houst. 506. CH. X.] DAMAGES IN ACTIONS AGAINST OFFICERS. 645 garding his duty, he did not levy of the said goods the moneys, or any part thereof; and, further disregarding his duty, falsely returned, cfcc. Held, though the execution-debtor had other goods, which the sheriff had not seized or not sold, the measure of damages was what the goods would have realized if sold for the best price which the sherifi' could have obtained.^ § 26. In an action against an officer for making an insufficient levy, the measure of damages is the actual injury, and not the amount of the execution, unless that measures the injury .^ § 27. When a sheriff levies upon goods and refuses to sell, the plaintiff in the execution is entitled to recover from him the value of the goods or the amount of the execution, whichever is least. His only remedy is against the sheriff to the amount of the goods.-^ § 27 a. In an action against an officer for not serving and returning an execution, he may show the insolvency of the debtor in mitigation of damages, notwithstanding he does not return the precept, nor allege that it is lost. It is incumbent on the plaintiff to show that the precept has never been returned.* § 28. For refusal to levy upon and sell property, mortgaged for more than its value, upon executions against the mortgagor, the officer is liable only to nominal damages.^ § 29. Where property of a party is sold under illegal process, and bid off for his benefit for the precise sum demanded by the process, the measure of damages, in an action of trespass, is the amount of the bid, and interest, not the value of the property.^ And, in general, upon a wrongful sale by an officer, if the owner buys the goods, the measure of damages is the price paid." So, in trover, if the property has been applied to an execution at the plaintiff's request, only nominal damages are recovered.^ So, in a suit brought by A, one of two partners, to recover his interest in property taken wrongfully on an execution against the firm, B, the other partner, refusing to join as plaintiff, was joined as defendant. Held, a recaption of the goods, whether before or after suit brought, b}^ B, was in legal effect a recaption on joint account of himself and A, and to this extent would reduce the 1 Mullett V. Challis, 2 Eng. L. & Eq. * Varril v. IK'ald, 2 GroiMiI. 01. 260. 5 Cooper v. Wolf, l.j oliir) St. .'')24. ^ Commonwealth v. Lightfoot, 7 B. "^ Baker v. Freeman, U Wend. ■Wi. Mon. 298. ^ Ale.\an\ Warner, 11 Gruy, 43. See 962. Bartlett ('."Orecnlcaf, 11 Grav, 98. ^ Knight i^. Egerton, 12 Eng. L. & Eq. 3 iMiukle V. .Miles, 1 Grant, 320. 562. * Keen v. Priest, 4 Hurl. & Nor. 236. 668 DAMAGES. [book V. lent representation as to the territorial extent of the lessor's right, the proper measure of damages is the sum which the lessee in good faith is obliged to pay to a third person, to obtain what the lease would have given him if the representation had been true.i § 18 a. A landlord, who enters upon his tenant's premises by forcibly breaking in a window, and makes a distress for rent, ia liable for the full value of the goods seized.^ (a) § 19. Where a tenant by lease holds over, and is removed by execution under the landlord and tenant process, he is liable to the landlord in an action of tort, alleging forcible entry and keeping out the plaintiff, for all damages caused to the latter by exclusion from the property, from the expiration of the lease to the time of such removal. The (Mass.) Statute, providing the landlord and tenant process, also provided, that the judgment should not bar an action for trespass on the premises. " The plaintiff has the same remedy which was formerly open to a demandant, after a recovery in a writ of entry ; namely, an action of trespass for mesne profits." Whether a count upon the covenants in the lease could be sustained, was considered a doubtful question.^ § 20. In an action by the mortgagee of a mill-privilege for flowing the water back so as to render it useless, the measure of damages is the interest of the value of the privilege, if unob- structed, from the time of taking possession.* § 21. The measure of damages for timber cut on land held as security, is the amount of injury to the security, not the value of the timber.^ § 22. A mortgagee may recover, for a levy upon the property as the mortgagor's, at least the amount of the debt, if not the value of the property, subject to restriction in equity .^ § 23. In an action by a second against a first mortgagee of personal property for conversion, the measure of damages is the amount due the plaintifi'." 1 Whitney v. Allaire, 1 Comst. 305. ■» Hatch v. Dwight, 17 Mass. 289. 2 Attack V. Brarawell, 3 B. & S. 520. 5 state v. Weston, 17 Wis. 107. 3 Sarsient v. Smith, 12 Gray, 426 ; per ^ Peck v. Inlow, 8 Dana, 192. Metcalf, J., ib. 427. ^ Chadwick v. Lamb, 29 Barb. 518. (o)0n an appeal from an alderman's jutlg- damage by the removal and the value of ment, ejecting a tenant under the (Penn.) the place to him. Koenig v. Bauer, 57 Landlord Act of 1863, he may show liis Peun. 168. Cri. XII.] MORTGAGE. 6G9 § 24. In trover, by a second mortgagee against a stranger, the measure of damages is the value of tlie property, without deduct- ing the amount of the first mortgage.^ § 25. To a suit by a mortgagee to obtain a sale of the mort- gaged property, upon a mortgage given for the purchase-money ; the defendant may set up in defence a counter-claim for fraud in the sale. " The counter-claim . . . must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the founda- tion of the plaintiff' 's claim, or connected with the subject of the action." - § 26. In an action by the mortgagee, against a receiver ap- pointed in supplementary proceedings, for seizing, selling, and converting mortgaged chattels, the damages should be assessed as in an action on the case for an injury to the plaintiff's rever- sionary interest, by confining the damages to the loss he has sustained by the dispersion of his property among the several purchasers.'^ 1 White V. Webb, 15 Conn. 502. 3 Manning v. Monaglian, 28 N. Y. (1 'i Allen V. Shackelton, 15 Ohio St. 145. Tiffa.) 585. 670 DAMAGES. [book V. CHAPTER XIII. DAMAGES FOR THE TAKING OR CONVERSION OF NOTES AND OTHER PAPER SECURITIES. 1. Conversion, &c., of negotiable securities. 8. Refusal to transfer stock. 5. Neglect in tlie collection of notes, &c. 9. Miscellaneous cases. § 1. Questions have often arisen, as to the measure of dam- ages for wrongful appropriation of notes and other papers, which derive their value from being evidences of property. § 2. In an action for unlawful appropriation of a paper security, the measure of damages is the amount of the debt of which the paper is the evidence.^ Thus, in a suit for conversion of a prom- issoiy note, in the absence of proof, the presumption is, that the instrument is worth the sum payable on it.- (a) The measure of damages is not the amount of property in the hands of the maker liable to execution: but, if the defendant offer evidence that the maker is in debt and unable to pay his debts, the plaintiff may then prove him to be an honest man, who would pay when he should be able, and that he was working for the plaintiff, and expected to be able to pay ; and may thereupon recover the amount of the note.^ It is competent for the defendant, in an action for conversion of a note, to prove the insolvency of the maker, and thereby lessen the damages ; but the presumption is that he is solvent. The proper question to a witness, is, " Are the parties to the note solvent, and able to pay their debts?"* § 2 a. Where the payee of a note more than six years old pledges it for a debt, which he pays, and demands the note ; in 1 Eoraig V. Romig, 2 Rawle, 241. ^ Rose v. Lewis, 10 Mich. 483. 2 Menkens y. Menkens, 28 Mis. 252; ■» Potter v. Merchants', 28 N. Y. (1 Ingalls V. Lord, 1 Cow. 240; Latliam v. Titlk.) G41. Brown, 16 Iowa, 118 ; Potter v. Mer- chants', 28 N. Y. (1 Tifla.) 641. (o) The measure is the same in an action trusted to them by tlie plaintiff was lost, of case against an express company for American v. Parsons, 44 111. 312. negligence, through which a note in- CH. XIII.] TAKING OR CONVERSION OF NOTES, ETC. G71 an action against the pledgee, for not returning the note, he may recover its full amount, no inability of the promiser to pay it being shown, and although the defendant files in court an obliga- tion to indemnify the plaintiff against any act done or to be done by the defendant in relation to the note.' § 3. Where the transfer of a note by the payee, who was an infant and w feme covert, to the maker, before it fell due, was void ; held, in an action, by the administrator of the payee, against the maker, for conversion of the note, the jury should assess dam- ages, by deducting from the amount of the note and interest all the interest that had been paid on the note to the payee, and the value of all necessaries furnished by the maker to her, and money advanced by him and applied by her to the procurement of necessaries.^ § 3 a. An officer who, upon arresting a person charged with larceny, takes from him other property than that alleged to have been stolen, and refuses to give it up on demand, and retains it for two years after the person arrested has been convicted, is liable in damages ; and, if the property so taken is a promissory note, the maker of which becomes insolvent before the offer to restore it, the measure of damages is the value of the note at the time of the conversion, and interest thereafter.^ § 4. Deposit of notes by the plaintiff with the defendant, as collateral security for the discharge of certain mortgages ; one being that of the defendant himself, the others notes of A, given to the plaintiff in payment of laud, which the latter had conveyed to him, by a deed conditioned to be valid upon payment of the notes. A quitclaimed the land to the defendant, who agreed with him and the plaintiff to pay the notes. Afterwards, the plaintiff deposited the notes as security, and conveyed the land to the defendant, who subsequently, with the plaintiff's consent, con- veyed it to A. Held, after the plaintiff had so removed the mortgages as to be entitled to have the notes back, the rule of damages in trover for them was the full amount due upon them.^ § 4 a. In a leading case, already cited in another connection, April 29, 178G, the plaintiff's intestate. A, deposited with the defendant a depreciation note, nominally worth $2G29, to be 1 Thomas v. Waterman, 7 Met. 227. 3 Ring v. Ilam, 6 Allen, 298. 2 TUUnghast v. Ilolbrook, 7 K. I. 230. * Kobbins i-. Packard, 31 Verm. 570. 672 DAMAGES. [book V. delivered to A on payment of $600 and interest. In 1788, the defendant sold the note for the best price he could get, but less than the debt. In 1791 or 1792 A died, and in 1799 the plaintiff, as his administrator, went to the defendant's house to redeem, but was prevented by his illness from seeing him. In an action of assumpsit, held, the measure of damages was the value of the certificate at the time last mentioned.^ § 5. The rule of damages, in an action by an indorsee and owner of a promissory note against a justice or his sureties, for negligence, whereby the collection of the note intrusted to the justice for collection Avas lost, is the actual loss occasioned by such neglect.2 § 5 a. In an action against the seller of a note which has been paid, for knowingly misrepresenting that it was still due, the measure of damages is the full account of the note.^ § 6. The payee of a note left it for collection with a banking firm in A, who transmitted it to their correspondents at B, the residence of the maker, where it was protested by them for non- payment, but the indorser was not notified by them. The payee afterwards transferred the note, and after divers negotiations it came again into his hands, when he sued the banking firm for negligence. Held, the measure of damages was prima facie the face of the note, and was not changed by the fact that the plain- tiff bought it at a discount. Also, that the plaintiff must make out the insolvency of the maker, and the solvency of the indorser ; that the defendants might mitigate damages by showing the sol- vency of the maker, insolvency of the indorser, partial or entire security for the note, or any other fact that would lessen the actual loss to the plaintiff, which was the fact to be arrived at by the jury. But the plaintiff might show solvency of the indorser, not only on the day of maturity, but on any day between that and the commencement of the action; and the defendant could show only such facts as the indorser could have availed himself of in defence to a suit against him, or as would have rendered wholly or partially valueless a judgment against him.* § 7. In an action against a banker for neglect to demand pay- ment of a note and charge the indorser ; the instruction to the ^ Cortelyou v. Lansing, 2 Caines, Cas. ^ Sibley v. Hulbert, 15 Gray, 509. in Er. 200. 4 Borup v. Xininger, 5 Min. 523. 2 Dehn v. Heekman, 12 Ohio (N. S.), 181. CII. XIII.] TAKING OR CONVERSION OP NOTES, ETC. 673 jury, as to damages, should Iiave reference to the pecuniary means of the indorser. The worth of such a claim against "such a man as the indorser was shown to be " is not the proper measure of damages. This is primd facie the amount of the note, but it may be shown, in mitigation, that the indorser was insolvent, or not worth enough to pay the judgment, and entire insolvency is a defence to the action. The court significantly remarked : " Fidda may be a very mean man, and yet the claim be collect- ible against him. The rule laid down by the judge admitted of the construction, that Fulda, being contemptible, denying him- self when called on for the payment of the drafts, the jury miglit find that nothing could be collected from him." ^ § 8. Questions have arisen as to the measure of damages for wrongfully refusing to transfer stock, (a) In Massachusetts, wdiere an insurance company, bound to enter on its books a trans- fer of assigned shares, refused to enter such transfer, and attached and sold them as the property of the assignor ; the measure of damages, in a suit by the assignee, was held to be the value of the shares at the time of refusal, with interest. This decision, however, was not the unanimous opinion of the court, and was admitted not to be in conformity with the rule in New York.^ So in New Hampshire, where, upon a sale on execution of shares in a corporation, a certificate is demanded of the corporation by the purchaser, and refused ; the measure of damages is the value of the stock at the time of the demand, with interest, and not the value at the time of trial, or at any intermediate period.^ But in Pennsylvania, for withholding bank stock, if the consideration has been paid, the measure of damages is the highest market value between the breach and the trial, with the bonus and intermediate dividends. If the consideration has not been paid, the difference between it and the value, with the difterence between the interest on the consideration and the dividends.'* § 9. In trover for Uast India Company warrants for cotton, which had risen, from sixpence per pound at the time of conver- sion, to ten and a half pence ; it was held, that the jury in their 1 Bridire v. Mason, 45 Barb. 37 ; per ^ Pinkerton v. Manchester, &c., 42 Leonard, J., ib. 30. N. 11. 424. 2 Sai .rent v. Tlie Franklin, &c., 8 Pick. * Bank, &c. v. Reene, 20 Penn. 143. 90 ; ace. Gray v. Portland, &c., 3 Mass. 304. See Clark v. Pinney, 7 Cow. 681. (a) See Jarvis v. Rogers, 15 Mass. 389, a case relating to 150,000 acres of Missis- sippi scrip. 43 674 DAMAGES. [book V. discretion miglit measure the damages by tlie value at the time of conversion or any subsequent time.^ § 9 a. In an action against an association for refusing to permit a transfer of stock, the measure of damages is its actual value at the time of the refusal.^ In an action for fraudulent representa- tions in regard to stock of a corporation, sold, the rule of dam- ages is the difference between the real value at the time of the sale, and what its value would have been had the representation been true.^ § 9 6. Upon a bill in equity to compel the transfer of stock, on a decree for the plaintiff, and inability of the defendant to transfer it ; the plaintiff is entitled to the value of the stock when the decree was rendered.* § 9 c. If the transfer of a certificate of stock is void, so as to render the holder liable in trover for a sale of the stock ; the shares are to be considered as converted, and not merely the paper certificate, so as to render him liable only for nominal damages.^ § 9 d. In an action for conversion of stock, the measure of dam- ages should be the highest value of the stock from the time of conversion to the end of the trial, if reasonable diligence in the prosecution of the action is exercised.^ § 9 e. In a suit for the conversion by a broker of stock on his hands, the measure of damages will be the market value of the stock at the time of conversion.'^ § 9/. The measure of damages in an action of tort, whether considered as in trover or case, brought by the pledgor of stock against the pledgee, for selling it at private sale, is in general the actual value at the time of such sale, deducting the amount of the debt.8 § 9 gr. Where one purchased, at a sale for non-payment of assessments, shares in a corporation held by him as collateral ; he is liable, in trover, for the value of the shares, at the time of the sale, for the dividends received by him, and interest, less the amount of the assessments and the expenses of sale. ^ 1 Greening v. Wilkinson, 1 Car. & P. ^ Morton v. Preston, 18 Mich. 60. 625 (substantially overruling Mercer v. 6 Koniaine v. Van Allen, 26 N. Y. (12 Jones, 3 Camp. 476). Smitli) oO'j. ^ German v. Sendmeyer, 50 Penn. 67. '' Parsons v. Martin, 11 Gray, 111. 3 Bowman v. Parker, 40 Vt. 410. 8 Baltimore v. Dalrymple, 25 Md. 269. * O'Meara v. North American, 2 Nev. 9 Freeman v. Harwood, 49 Maine, 195. 112. CH. XIII.] TAKING OR CONVERSION OF NOTES, ETC. 675 § 9 h. Where tlie bailee of specific gold coins, to be redelivered in specie, sells them for a premium, and fiiils to redeliver them on demand ; he is answerable for the amount which he has realized by the conversion. A refusal to redeliver is evidence of a con- version, and will justify the inference that the conversion was at the usual premium for such coins.^ § 9 i. An action was brought against a real-estate broker, for not paying over to the plaintiff or his agents the purchase-money (Confederate treasury notes) of land of the plaintiff's which the defendant had soUl for him; the money having been retained by the defendant, without giving notice that he had received it, until it became valueless. The declaration contained no specific allegation of fraud or collusion, nor of special damages. Held, the measure of damages was the value of the currency at the time it was received by the defendant, with interest.^ § 10. In case of the conversion o{ title-deeds or other evidences of title to real property ; if the title is not afiected, and the injury occurred from mistake, slight negligence, or omission, the measure of damages is the actual loss, and the trouble and expense of establishing and perpetuating the title by law. But, if the act is wanton or malicious, punitive damages may be given ; and, if the defendant vexatiously withhold the instrument, to the lull value of the land or more.^ § 11. Where the defendant had falsely represented to the plain- tiff, his principal, that he had effected an insurance ; held, the former was bound by this representation, and, in trover for the policy, the plaintiff's loss being proved, the measure of damages was the same as if express proof had been given of the insur- ance."* 1 Bank r. Burton, 27 Ind. 426. * Harding: v. Carter, Park on Ins. 4 ; 2 WitsL'll V. Hiuj^s, 14 Ricli. L. 186. Scc^!,^ on Dam. 3d ed. 517. See Kolme 3 Mowry v. ^A'uod, 12 Wis. 413. v. The Insurance Co., &e., 1 Wasli. C. 03. 676 ' DAMAGES. [book V. CHAPTER XIV. WRONGS CONNECTED WITH SALE. 1. General remarks. 3. Conditional sale. 2. Bu\-er against seller; refusal to deliver, 6. Fraud, conversion, &.c. § 1. Although the sale of property is itself a contract, yet the question of damages often arises from some wrong connected with such sale.i § 2, Notwithstanding the title to goods may have passed from seller to buyer, yet, if the former will not surrender them, the latter may in a special action on the case recover the difference between the price agreed on and the market value of the goods at the time and place when and where they should have been deliv- ered.2 So, in trover for goods bought by the plaintiff of the defendant for an agreed price, the value, not the price, is the measure of damages.^ So A, having bought sheep on credit, left them in the custody of the vendor. Without any default on the part of A, though the price had not been paid or tendered, the vendor resold them. Held, a conversion, and A was entitled to maintain trover. Also, that the measure of damage was not the value of the sheep, but the loss sustained by A by not having them delivered to him at the price agreed on.* § 3. In trover by assignees of a bankrupt, for goods purchased by him under an agreement that the purchase-money be paid by instalments, and an assignment of the property executed when the whole had been paid, with power to re-enter upon default in payment ; they are entitled to recover the full value of such goods against a mere wrong-doer, notwithstanding default had 1 See Kent v. Ginter, 23 Ind. 1 ; Wey- ^ Stevens v. Dow, 2 Hill, 132. mouth V. C. & N., &c., 17 Wis. 550. * Chinery i-. Viall, 5 Hurl. & Nor. 288. 2 Biggers v. Pace, 5 Geo. 171. CH. XIV.] WRONGS CONNECTED WITH SALE, ETC. 677 been made in some of the instalments, and the vendor had to that extent an interest in the goods. ^ § 4. Where goods were sold at an agreed price, to be paid in notes, and were delivered conditionally ; the condition not being performed, the seller brought trover for the goods. Held, the price was not the measure of damages, but the defendant might offer evidence that the price exceeded the value.^ § 5. The plaintiff sold to A, in February, a pair of oxen, for $120, to be paid for in the following September, — "to remain the property of" (the plaintiff) "until paid for." A, having sent $G0 to the plaintiff, in part-payment, sold the oxen to the defendant, who converted them to his own use. Held, in trover, the measure of damages was the value of the oxen at the time and place of conversion, not deducting the amount of the payment. The court remark : " He might sell the same, and the purchaser would acquire a perfect title. The oxen might be attached as his, and the attachment would be held valid. The plaintiff might replevy them from any person in whose possession they might be found. His rights are not impaired by any attempt on the part of some one to purchase on conditions which have never been complied with. The vendee has no attachable interest in the property or its increase, until performance of the condition. . . . If the plaintiff had resumed possession . . . for non-performance ... he would have been under no legal obligation to repay the sums received in part payment." The court remark upon the points of distinction from this case of other cases, involving a return of the property, special property of the plaintiff, a lien of the defendant, or an increase of value by loorh done on the prop- erty ; in all which cases a deduction is allowed from the dam- ages.-'^ § 5 a. In case of false representation by a vendor, the measure of damages is the difference between the true and the repre- sented value.'* § 6. A purchaser may plead fraud to an action for tlic price, and thereby defeat the action or reduce the damages. Fraud may also be set up as a counter-claim, and any excess of damages there- upon recovered by the defendant.^ » turner v. Har.k-astle, 11 C. P. (X. S.) « Brown v. Ilavnes, 52 Maine, 578 ; per 683 ; 31 L. J., C. V. 193. Apj.leton, C J. ib. 581. 2 Stevens v. Low, 2 Hill, 132. ■« Molicrlv v. Alexander, 19 Iowa, 162. 5 Love i-.'Okliiani, 22 Ind. 51. 678 DAMAGES. [book V. § 7. Where a cow was sold by the defendant to the plaintifif with the fiilse and fraudulent representation that she was free from infectious disease, and was placed with others, which took and died of the disease; held, the plaintiff might recover, as damages, the value of all the cows.^ 1 MuUett V. Mason, Law Rep. 1 C. P. 559: Amn. Law Rev., Jan. 1867, p. 294. CH. XV.] INTEREST, COSTS, COUNSEL-FEES, EXPENSES. 679 CHAPTER XV. INTEREST, COSTS, COUNSEL-FEES, EXPENSES. 1. Interest. 3. Costs and expenses. § 1. It is l)eld tliat, in actions for tort, the jury may in their discretion calculate interest on the damage actually sustained, and add it to their verdict. ^ But when, in an action for unliquidated damages, interest may be considered by the jury, it is not recov- erable as such in addition to the sum found due, but must enter into and form part of the estimated amount.^ § 2. A late case in New York gives the following view of deci- sions upon the subject in that State : " It has for a long time been a controverted question whether in actions of tort interest could be given as matter of right, in addition to the damages. In Dana v. Fiedler (2 Kern. 42), it was held, that, in an action for damages on a breach of a contract, the plaintiff was entitled to interest on the damages awarded for the breach from that time until the trial. So in actions of trespass for taking the plaintiff's prop- erty (I John. 136; 1 Baldwin, 318. And in trover (4 Cowen) 58 ; 7 Wend. 354), the plaintiff has been considered as entitled to interest on the value of the property taken or converted, from the time of conversion ; but this rule has not, as far as I am aware of, been applied to other classes of torts, where there was no prop- erty taken or converted, and where tlie question was one of dam- ages purely, unliquidated and to be assessed by a jury. Tiie rule in such cases has been to leave the question to the jury, not only as to the amount of damages, but as to the question of interest. This rule was recognized in "Walrath v. Redfield (18 N. Y. Rep. 1 Hogg V. Zanesville, &c., 5 Ham. 410 ; 358. But see Green v. Garcia, 3 La. An. Derby r. Gallup, 5 Min. 11'.); Beals v. 702. Guernsey, 8 Jolin. 446 ; Hyde r. Stone, 7 •* Dozier r. Jerman, 30 Mis. 216. Wend. 354 ; Handley v. Chambers, 1 Litt. 680 DAMAGES. [book V. 462). Seidell, J., says : ' The jury were not instructed to allow interest, but its allowance was submitted to their discretion. There was no error in this. In general, in actions ex delicto, it is in the discretion of the jury wliether to allow interest by way of damages or not.' This was so held in an action against a carrier. (Richmond v. Bronson, 5 Denio, 55 ; Lakeman v. Grinnell, 5 Bosw. 625)." 1 § 2 a. In an action of debt upon a sheriff's bond for abuse of process in not complj'ing with the appraisement act, the grava- men being trespass by illegal sale, the jury may in their discre- tion allow interest upon the value of the property from the time of sale. But the court cannot properly suggest to the jury to do S0.2 § 3. The jury, in estimating damages, have no right to take into their consideration what amount will carry costs, the question of costs being with the judge. Hence the counsel for the plaintiff has no right to tell the jury, that, unless they should give damages for 51. 5s., in all probability the costs would be thrown upon the plaintiff.^ § 3 a. Under a special count, the plaintiff may recover the actual damage caused to him by the defendant's wrongful con- duct in respect to the property, but the expenses of the suit beyond the taxable costs cannot be embraced as such dam- age.^ § 4. In an action for fraud in the sale of a horse, the judge instructed the jury, that, in determining the damages, if they found a gross and wilful fraud, they were at liberty and it would be proper for them to give exemplary or vindictive damages, increased by taking into consideration the plaintiff's expenses in the suit. Held, the jury might have understood that they might properly add to the damages the entire amount of the plaintiff's expenses, without regard to the taxable costs to be recovered by him, and, since the verdict much exceeded the value of the horse, that they probably did so understand the charge ; and a new trial was granted, unless the plaintiff would remit the taxable costs, or 1 Per Ingraliam. P. J., Black v. Cam- * Park v. McDaniels, 87 Verm. 594 ; den, &c., 45 Barb. 41. Warren v. Cole, 15 Mich. 265; New Or- - Crow V. State, 23 Ark. 684. leans v. Moore, 40 Miss. 39. 3 Poolo V. Whitcombe, 3 Post. & Fin. 79. See Day v. Woodworth, 13 How. 363. CH. XV.] INTEREST, COSTS, COUNSEL-FEES, EXPENSES. 681 such part of the damages as would be equal to tliera.^ So, in an action of trespass, if the wrongful act is neither wanton nor malicious, the jury are not at liberty to give more than actual ,dan)ages ; nor to take into consideration the expenses incurred by the plaintiff in the prosecution of his suit. Such expenses are no part of the natural and proximate consequences of the injury, and cannot be made the subject of averment in the declaration, or of proof on the trial. A jury is allowed to take them into con- sideration in cases of wanton and malicious injury, as a known and actual incident of the injury, although not its natural con- sequence, only because the law furnishes no definite rule of damages in such a case. But where the injury is not malicious or wanton, the law furnishes a definite rule of damages.- So, in an action for conversion, the plaintiff cannot recover as special damages the costs and expenses of an unsuccessful suit against a person to whom the defendant had delivered the property .^ So it is held that a counsel-fee, which the plaintiff may be required to pay his counsel in the cause, is not to be allowed by the jury in estimat- ing the plaintiff's damages.'* So the plaintiff, being in treaty with C for the purchase of the good- will of a business, was referred to B for the particulars of the returns of such business. The defendant, whom the plaintiff sent to B for such particulars, repre- sented to the plaintiff that B had told him that the returns were of a certain value, whereupon the plaintiff concluded his purchase. The value being afterwards found to be much less, the plaintiff, without further inquiry, sued C for a false representation, but failed, on tiie ground that no such representation had been made by either B or C. In an action against the defendant for false representation, held, that the plaintiff' was not entitled to recover, as damages, the costs of the action against C, inasmuch as they were not the natural and proximate consequence of such false representation.^ So A, professing to have authority from the owners of certain premises, granted a parol lease of them for seven years to B ; and let him into possession. The owners^ disavowing the authority of A, demanded possession from B ; and, on his refusal, brought an ejectment against him. B, relying 1 Piatt V. Brown, 30 Conn. 336. * Welch v. Northeastern, &c., 12 Rich. 2 St. Peter's, &c. v. Beach, 26 Conn. 290. See Lincoln, &c., 23 Wend. 425. 355. 5 Kichardson v. Dunn, 8 C. B. (N. S.) 3 Wilson V. Mathews, 24 Barb. 295. 655. 682 DAMAGES. [book V. on a statement of A, tliat lie had authority, and that the eject- ment would not be persevered in, and also on the advice of his own attorney, defended the ejectment, but unsuccessfully, and was turned out. B havinj^ brought an action against A for this false assumption of authority, the jury found that A had acted bond fide and without fraud, and through a misappreliension that he had authority. Held, B was not entitled to recover the costs incurred in defending the ejectment.^ (a) § 5. But other cases hold a somewhat different doctrine. Exemplary damages may include reasonable counsel-fees.^ Where malice is the gist of the action, and vindictive damages are recov- erable, necessary and reasonable fees, paid to counsel in defending against the wrongful act of the defendant, may be proved and considered by the jury in the assessment of damages.^ So the jury, in a suit for fraud, may take into consideration the expenses of prosecuting the suit.* So, in trover by a party to a bailment, against a wrongful taker, he may recover the costs of a previous suit against himself.^ So damages, if duly claimed in the declara- tion, are recoverable by the bailor, for time spent, and expenses, in searching for property wrongfully taken from the possession of the bailee.^ So, in an action for negligence, the jury cannot take into consideration the probable expenses of conducting the suit, beyond the taxable costs and counsel-fees.'^ So in an action for flooding the plaintiff's land, a compensation to the plaintiff, for his trouble and expense in conducting his suit and establishing his right at law, is not recoverable.^ So in an action for a nuisance upon the plaintiff's land, caused by the discharge of impure water, from the defendant's brewery, into the plaintiff's clay-pits, through a drain dug by the defendant ; the water having been complained of as a nuisance, and the Board of Health having ordered that one of the pits be filled up by the plaintiff; held, the expense of this operation should be included in the damages. 1 Pow V. Davis, 1 Best & Smith, 220. 5 Pritchard v. Blick. 1 F. & F. 404. 2 Roberts v. Mason, 10 Ohio (N. S.), ^ Rennet v. Lockwood, 20 Wend. 223. 277 ; New Orleans v. AUbritton, 38 Miss. '' Lincoln v. Saratoga, &c., 23 ib. 425. 242. 8 Good V. Mvlin, 8 Barr. 51 ; overrul- 3 Marshall v. Betner, 17 Ala. 832. inor Wilt v. Vickers, 8 Watts, 235, and * Ives r. Carter, 24 Conn. 392. See Rogers v. Fales, 5 Barr, 159. Linsley v. Bushnell, 15 ib. 225. (a) Damages cannot be allowed the de- judgment is in favor of the plaintiff", fendant as attorney's fees, where the Levy v. Baer, 19 La. An. 468. CH. XV.] INTEREST, COSTS, COUNSEL-FEES, EXPENSES. 683 " If filling up the pit was necessary to destroy the nuisance, the necessity having been caused by the defendant, he ought to be liable for the expense. It does not appear by the report, that any cheaper mode could have been adopted, and there being an order from the Board of Health to fill it up, it should be pre- sumed to have been necessary, unless the contrary had been shown." ^ 1 Shaw V. Cummiskey, 7 Pick. 73 ; per Parker, C. J., ib. 78. 684 DAMAGES. [book V. CHAPTER XVI. INJURIES RESULTING IN DEATH. § 1. Contrary to the rule of the common law, it is now very generally provided by statute, that for an injury resulting in the death of the party injured, his official or natural representatives may maintain an action, and recover damages for the benefit of his family or heirs-at-law. The statutes on the subject con- tain very diverse provisions, but in their construction substan- tially similar principles have been adopted. If ;iot originating in, or, as is probably sometimes the case, restricted to, accidents caused by railroads^ they have, as might naturally have been expected, been chiefly called into practical exercise in cases of that description.! § 2. It is held, that in case of death, not instantaneous, caused by the fault of a railroad, the administrator may recover |:)^^7^^7^ye damages.^ But the term punitive damages, in a statute allowing a civil action by the personal representative of one killed by the wilful neglect of another, does not exclude the idea of damages for compensation. The damages are allowed as compensation for the loss sustained, but the jury are permitted to give exemplary damages on account of the nature of the injury .^ § 2 a. In an action by a widow against a railroad company for negligence, by which her husband was killed, exemplary damages cannot be recovered, unless such negligence was wilful. Nor damages for the loss to his children.* § 3. Where a person is killed by the act of another, under such circumstances that the deceased, had he survived, could have maintained an action for the injury, an action can be maintained 1 See Pym v. Great, &c., 4 Best & 3 Chiles v. Drake, 2 Met. (Ky.) 146. Smitli, 396. ^ Pennsylvania, &c. v. Ogier, 35 Penn. 2 Murphy v. N. Y., &c., 29 Conn. 496 ; 60. Bowler v. Lane, 3 Met. (Ky.) 311. CH. XVI.] INJURIES RESULTING IN DEATH. 685 under 9 & 10 Yict. c. 93, §§ 1, 2, for tlie benefit of the surviving relatives, in respect of an injury arising from a pecuniary loss occasioned by the death, although the same pecuniary loss would not have resulted to the deceased had he lived. The loss of the benefit of a superior education, and the enjoyment of greater comforts and conveniences of life, is a pecuniary loss for which the wife and children of the person killed may maintain an action, where the income of the deceased wholly ceases with his death, or where the premature death prevents the deceased from having made the extra provision for his family which he might reasonably be expected to have made had he lived out his natural life.^ So, in an action for causing death by negligence, the jury may properly be instructed, that the wife of the person killed would have been entitled to a support from him for life, and his child during minority.^ § 4. Where, in an action by a father for injury resulting from the death of his son through the negligence of a railway company, it appeared that the son, who was twenty-seven years of age, and unmarried, but living away from his parents, had for the last seven or eight years been in the habit of visiting them once a fortnight, and of taking them on those occasions presents of tea, sugar, and other provisions, besides money, amounting in tlie Avhole to about <£20 a year: held, the jury might infer that the father had such a reasonable expectation of pecuniary benefit from the continuance of his son's life, as to entitle him to recover damages under the statute; but not the expenses of the funeral or family mourning.^ § 5. It is not error, in an action by a widow for an injury resulting in the deatli of her husband, for the court, after giving a correct instruction to the jury as to the measure of damages, to add, "much is left, and much must always be left, to your sound discretion." It must be intended, that this discretion is to be exercised within the limitation previously prescribed to them by the court. ^ § 5 a. In an action brought by children jointly for negligence in causing the death of their father, the measure of damages is 1 Pvm r. Great, &c.,8 Jur.8I0.81Law (N. S.) 711; Frunklin v. S. E. Kaihvf J. Q. B. •J4U ; 10 Weekly Kep. 737 ; G L. Co., 8 II. & N. IJII ; 4 Jur. (N. S.) 3l)5. Times (N. S.), rui'. * Pennsylvania, &c. v. Ogier, 35 Pen ■' AUi..,*', . n'^..u" o Titit. o < ,1 nr> Althof V. AVolf, 2 Hilt. 344. GO. 2 Dalton V. Southeastern, &c., 4 Jur. ay Penu. 686 DAMAGES. [book V. the pecuniary value of his life.^ There is error " in supposing that none but those who can show some actual damage are entitled to recover. If such were to be the rule, we should have the indecent spectacle of an investigation whether the loss of a parent or child was or was not in fact an advantage rather than a loss ; for, cer- tainly, if none be allowed to recover but such as are able to show a pecuniary loss, the defendants would, with great apparent reason at least, be entitled to claim the right to prove the contrar}', and to show peradventure that, by the death, the party suing may have succeeded to an estate, or, on the other hand, had been relieved from the burden of maintenance. In case of the death of aged persons or helpless infants we might expect ... to have the point discussed whether the death was an actual loss or gain. The law means not to open the door to any thing so shocking. It treats the value of the life lost as a species of property, and gives it, where children sue, to them in the same proportions as the personal estate. . . . Hence the propriety of joining all the chil- dren." 2 § 5 &. But, in an action by the personal representative of a deceased person, to recover damages for his death under 9 : Hudson, &c., 24 N. Y. (10 p. 121. See Sts. 17 Car. 2, c. 8, § 1 ; 15 Smith) 471. & 16 Vict. e. 76. 2 Kramer v. Waymark, Law Rep. 1 3 Altliof i^. Wolf, 2 Hilt. 344. Exch. 241 ; Amn. Law Rev., Oct. 1866, (a) The later reports abound with cases upon tlie subject considered in the text, of which only a brief abstract can here be given. Parents, in an action for the death of a minor child, can recover only the pecuni- ary value of his services during minority ; not for their agonized feelings, or loss of the child's society. Caldwell v. Brown, 53 Penn. 453. Under §§ 11 & 12, c. 135 (Wis ) Rev. Sts., a parent can recover, for injuries to a minor causing death, only the actual pecuniary damages resulting from the injuries. Unless the indigent condition of the parents be proved, the damages must be limited to services during minority. Potter V. Chicago, 21 Wis. 372. The law entitles the mother to the ser- vices of her child f)nly during his minor- ity (the father being dead) ; the chances of survivorship, his ability or willingness to support lier, and her mental suttering because of the death of her child, are mat- ters too vague to enter into an estimate of damages merely compensatory. State V. Baltimore, 24 Md. 84. In an action by a father against a rail- road for the negligent killing of his female child, the court refused to instruct the jury, that, in estimating what the services of the deceased, until she was twenty-one years old, would have been worth to the plaintiff, they were to make " allowance for the chances of her marriage alter she should attain the age of eighteen years ; " but instructed them that the contingency of marriage was "too remote to be con- sidered by them." Held, whether such contingency was too reinote or not, it was correctly excluded, because there was no evidence upon which the jury could have arrived at a conclusion on the subject. Seaman i\ Farmer's, 15 Wis. 578. In an action against a railroad for negligently causing the death of the plaintitfs' daugh- ter, a child ten years old; to entitle the plaintiffs to damages, based upon a reas- onable expectation of pecuniary benefit to them from a continuation of the child's life after she shoiild become of age, they should show their circumstances and con- dition, so as to raise a reasonable pre- sumption that they might need and receive aid from her after her minority. Instead of a general statement that they are "poor," it would be better to give some details of the degree of their poverty, and as to their age, and whether they were afflicted with transient or chronic disease. Evidence of the character and disposition of the child while living is all the evidence that can be given as to whetiier after minority she would have the disposition CH. XVI.] INJURIES RESULTING IN DEATH. 689 to aid lier parents. Potter v. Chicago, 22 Wis. G15. Evidence tliat a hoy, when he was killed, was on an errand tor Jiis jiarents, is evidence of tiie pecnniary valne of liis life. O'Mara v. Hudson, ^8 \. Y. 445. In an action bj' an administratrix against a city, to recover damages for her intestate's death resulting troni insutti- cient street-ligiits, evidence that she was the mother, next of kin of, and dependent for sujjport upon, the ileceased, is admis- sible, as afl'ecting tlie amount recover- able. Chicago V. I'owers, 42 111. IG'J. In estimating damages from an injury causing death to tiie husband of thephiin- tiB| the jury may consider tiie value of the life, and in so doing regard his jiroba- ble gains and accumulations. Catawissa V. Armstrong, 52 I'enn. 282. In estimating the damages in a case where a wife is suing a railroad, under Irwin's (Ga.) Code, § 2'J20, for the liomi- cide of her husbanci, who was without fault, the jurj' are to inquire what would be a reasonable support for her, according to his circumstances in life, as they ex- isted at his death, and as they may rea- sonably be supjiosed to exist in the future, in view of his character, habits, occupa- tion, and prospects, and, when the annual money value of that support has been time of his death. Baltimore v. State, 24 Md. 271. In an action by a father, as adminis- trator of his wife, alleged to have been killed by the defendant's negligence, evi- dence in relation to the cajiacity of the mother to transact business and make money is proper, as showing the pecuniary benefit winch the mother was to her chil- dren, and lier cajiacity to bestow such training and education as would lie jiecu- niarily serviceable to the children in after- life. Tilley v. Hudson, 29 N. Y. (2 Tifla.) 252. In an action by an ailministrator to re- cover damage oji account of tlie death of his intestate, causeil by the negligence of a railroad, if the next of kin of the de- ceased were not dependent ujion him for support in whole or in part, tiie jury can only find nominal damages. Chicago, &c. R. R. Co. V. Swett, 45 lU. 197. The recovery in an action under the (111.) Statute against a railroad tor death resulting, &c., can only be for the ])ecuni- ary loss and damage, and not for the be- reavement. Nothing can be given as solatium. If the next of kin are collateral kindred of the deceased, and have not been receiving from him pecuniary assist- ance, and are not in a situation to require it, it is immaterial how near tlie degree of found, to give, as damages, its present relationsliip may be, only nominal dam worth, according to the expectation of life of the deceased, as ascertained by the mortuary tables of established reputation. Macon r. Johnson, o8 (!a. 409. In an action Viy the wife for damages for the death of her husband, caused by the carelessness of a railroad, evidence was given of the age, habits, health, and ages can be given. If, on the other hand, the next of kin have been dejicndent on the deceased for support, in wliole or in part, it is innnaterial how remote the re- lationship may be, there has been a jieciniiary loss for which compensation must be given. So, also, if the deceased was a minor and leaves a father entitled occupation of the deceased at the time of hy law to his services. Chicago v. Shan- his death, and also of the number of his non, 43 111. 388 ; Chicago, &c. v. Swett, famil}', and their condition before and 45 111. 197. after ills death; but no evidence of (lie specific wages paid him at the time of his In an action by a widow and children of death. Held : 1. That a prayer, " that a person killed by negligenre ; held, the in the absence of proof, other than the plaintitis had an interest in his life to the death, age, and condition of health, atul extent of their sujijiort, at least, although members and state of the family of tiie deceased, of actual damage, the verdict, in the event of its being for the iiiaiiititf, must be for nominal damages only," was properly rejected. 2. That the jury should take into consideration only such he was largely indebted at the time ot his death. Pennsylvania v. Henderson, 51 I'enn. 315. In an action against a railroad for neg- ligence in causing the death of the jilain- titf's father; the value of the life lost. compensation to the surviving members estimated by a pecuniary standard is wliat of the deceaseil's family, as would supjily is to be recovered, to be divided among to them the same results as would liave all the children alike. Korth y. Robinson, followed from his labor during the proba- 44 Penn. 175. ble period he wouUl otherwise have lived The damages in case of death by neg- and earned a livelihood ; but that they ligence are the pecuniary loss. Caldwell might take into consideration his age, v. Brown, 53 Penn. 453. health, and occupation, and the comfort In an action by minor children against and support aHorded his family at the a railroad for negligently causing the 44 GOO DAMAGES. [book V. death of their father, it was held to be error to instruct the jury that " It wouhl perhaps he a tiiir way to estimate tlie amount of diimanes, to take tlie probaljle amount of tlie father's accumuhitions for the time lie might reasonably have been expected to live, and find that for the plaintitts ; but if you can find a better rule you arc at liberty to adopt it. It might not be fair to deduct his family expenses." The proper measure of damages is the pecuniary loss, without any solatium for distress of mind ; and that loss is what the deceaseil would have probably earned by his intellectual or botlily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, tak- ing into consideration his age, ability, and disposition to labor, and his habits of liv- ing and expenciiture. Penn. li. li. Co. v. Butler, 57 Venn. 335. In an action by an administrator of a deceased person who was killed on a rail- road through the negligence of the com- pany, the jury were instructed that they were not limited to the assessment of damages for the actual present loss that might be proved, but they might go fur- ther and compensate for the relative injury with reference to the future, and compen- sate for pecuniary injuries present and prospective. Held, to be erroneous, as being too general and indefinite. In such an action, it was error to instruct thejury as to the disposition the deceased may have had to aid his mother; the question was, Did he help her, was he bound to do so, and what does she lose in this regard by his death "? Chicago v. Swett, 45 111. 1U7. That part of the (Conn.) Statute of 1853 relating to railroads, which hxes the minimum of damages to be recovered for the loss of life of a passenger by reason of negligence in the management of the road, is not penal, but remedial. There- fore, where, in an action brought by an administrator against the trustees of a railroad, for the loss of the hfe of the intestate by reason of negligent carriage, the Superior Court, on a hearing in dam- ages, after demurrer overruled, found as a fact that the defendants were not guilty of any negligence ; held, nevertheless, that the plaintiff was entitled to recover the minimum sum of $10(J0 fixed by the statute, as the defendant by demur- ring and omitting to deny the facts admitted the existence of sufficient negli- gence to give a right of recovery on the statute. Lamphear v. Buckingham, 33 Conn. 237. The (Conn.) Act of 1853 (Rev. 1866, p. 202) provides, that, where a life is lost by reason of the negligence of a railroad com))any, the company shall be liable to pay to the executor or ailministrator of the deceased, for the benefit of the family and heirs of tlie deceased, damages not less than $1000, and not more than $5000. Held, the ground of the damages was not the loss to such relatives by tlie death, but the injury to the deceased. Goodsell V. Hartford, 33 Conn. 51. Testimony in regard to the family of a decedent, their ages, deceased's occupa- tion, age, health, habits, earnings, and property, is admissible in ascertaining damages in an action against a railroad to ascertain the pecuniary damage to the estate, at least where the jury have been instructed not to allow any thing for pain and suffering of the deceased, or grief of his family, or loss of his society. Donald- son V. Mississippi, 18 Iowa, 280. Two cases upon the subject have re- cently occurred in Pennsylvania: — Opinion by Sharswood, J. This was an action by the defendants below as guardians of the minor children of William Butler, deceased, against the plaintiffs in error to recover damages on account of the death of their father, caused, as it was alleged, by negligence. The first error assigned has been prop- erly abandoned, as it is too well settled to be now controverted, that a stipulation by a common carrier, that he shall not be liable for damages, does not relieve him from responsibility for actual negligence by himself or servants. Goldey u. Penn. R. R. Co., 6 Casey, 242; Penn. R. R. Co. V. Henderson, 2 P. F. Smith, 315. The charge was as favorable to the plaintiffs in error on this point as they could have asked. The second error assigned is that the learned judge erred in his instructions to the jury as to the measure of damages. These instructions were as follows ; " It would perhaps be a fair way to estimate the amount of damages to take the prob- able amount of his (the decedent's) accumulations for the time he might rea- sonably have been expected to live, and find that for the plaintiff. This, as we said, may be a fair way of calculating the damages sustained, but as it lias been said in Penn. R. R. Co. v. McClosky, 11 Harris, 526, if you can find a better rule you are at liberty to adopt it. In esti- mating his accumulations, you will re- member that it might not be fair to deduct his family expenses, because his family lived out of it, and now they do not have it to live upon." We tliink that there was manifest error in this in- CH. XVI.] INJURIES RESULTING IN DEATH. G91 stniction. It pave the jury no definite measure of daiiuif^es whatever, l)ut left tlieni at liberly to adopt any one tliey saw fit. The case of Peini. K. K. Co. v. McCIosky, 11 Harris, o2tJ, to wliicli tlie learned jiidjie referred, was an action by the personal representative of tlie de- ceased under the Act of Ai)rill5, l.S.')l,and has no a[)piicahility to an action inslitiiteil as tlds was under tlie .Vet of April 2(1, 1855, as is shown by the j)resent Chief Justice in his opinion in the I'enn. R. R. Co. V. Zebe, '.) Casey, MS. There is no doubt an inherent difficulty in plaeinjj a pecuniary value ujjon human iile, espec- ially the value of a faliier's life to Ids children. Yet it is certainly iin])ortant tliat a clear and definite ride should be established, antl, as this case yoes back, it seems to be our duty to say what the in- struction of the court below to the jury oujjht to have been. After an attentive exannnation and review of all the cases which have heretofore been decided, we are of opinion that the projier measure of damages is the i)ccimiary loss suHered by the parties entitled to the sum to be re- covered, — in this instance the children of the decedent, — without an}' so/afium for distress of mind ; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and wliich would have gone for the benefit of his children, tak- ing into consideration his age, ability, and disjxisition to labor and his habits of liv- ing and expenditure. This mode of stat- ing the rule is substantially that which was adopted by the learned president of the twelfth judicial district (Judge Pear- son), in Fink v. Garman, 4 W'right, U5, but wiiicli, as it was acquiesced in by both parties and no exception taken, was not passed upon by this court. Tlie third assignment of error is be- cause the court erred in admitting the testinioii}' of George W. Wiley, touching the dependence of the plaintifis below on their grandparents, and the circunistaiices of those grandparents. This was clearly irrelevant, and had no bearing whatever on the true measure of damages, — the pecimiary loss of the plaintifis. The learned judge below became convinced himseit tiiat it was so, and in his charge withdrew it entirely from tiie considera- tion of the jury. That this may some- times be done has certainly been decided. The rule upon this subject, with its Lamotte v. Archer, 4 E. D. Smith, Brooks, 2 ib. 403 ; Britten v. South, &c., 46. See Fitzgerald v. Boulat, 13 La. An, 3 H. & N. 963 ; Duberley v. Gunning, 4 116; Jones v. Pereira, ib. 102. T. R. 651. ^ Harrell i-. Durrance, 9 Florida, 49,0; 3 Britton v. S. Wales, &c., 27 L. J. Brockman v. Berryhill, 16 Iowa, 183. Exch. 355. CH. XIX.] INSUFFICIENT DAMAGES, ETC. 707 for $8000 was held to be excessive, and a remittitur of all except $5000 was entered.! § 3(3 d. Where a judgment was for the return of property to a defendant in replevin, or in default for the payment of a sum which was too large ; held, the judgment might be modified by inserting the proper sum when it could be determined by mere computation, if the defendant would remit the balance.^ § 37. Where the amount of damages is matter of computation, as in most cases of debt or contract, it is held a ground of new trial, that the damages are too small. And the same ground has been sometimes recognized, for the same reason, in actions for tort. As where trespass is brought for entering a house and taking property, and the jury find for the plaintili" less than the value of the property.^ So where, in an action for injury by negligence, the jury found a verdict for the plaintiff with b'c?. damages, though it appeared he had paid M. 10s. for medical attendance rendered necessary by the injury.^ And a new tiial has been granted for the same cause in actions relating to waste, libel, slander, assault, and injury upon a railroad.^ § 38. But, on the other hand, it was held no ground for a new trial, in an action for assault and false imprisonment, that the plaintiff had incurred an expense of 11. 145. in procuring his dis- charge from custody, and the jury awarded him only a farthing.^ So where, in an action against a bailee for injury to and destruc- tion of goods, the jury returned a verdict for the plaintiff, with nominal damages; held, it was no ground for anew trial, that, according to the evidence, tlio damage, if any, must have been more than nominal, and that there was uncontradicted evidence of a loss of goods to the extent of 11.' So a new trial was refused in an action of trespass, for taking the plaintiff before a magis- trate upon an unfounded charge of felony, though a question of character was involved, and the verdict was for only a farthing damages.^ And the fault of the plaintiff may prevent a new trial for small damages; as where very great bodily injury was sus- 1 Sherman v. Western, 24 Iowa, 615. v. Ward, 3 Hand. 52 ; Bacot v. Keilli, 2 2 Dodjje I'. Cliandler, 13 Minn. 114; Bay, 400 ; Kobbins v. Tlie Hudson, &c., La Crost^e v. Robertson, ib. 2'Jl. 7 Bosw. 1. a Torieiu-; r. Hazel, Harper, 332. « Bradlaugli c. Kdwards, 11 C. B. * Ted.l V. l)ou«las, 5 Jar. (N. S.) 1029, (N. S.) 377. C. P. ; 5 C. B. (N. S.) 805. 7 M„,styn v. Coles, 7 H. & N. 872; 31 5 Weeding v. Mason, 2 C. B. (N. S.) L. J. Kxcli. 151. 382; Englisii i". Clerry, 3 Hill (S. C), 8 Apps v. Day, 26 Eng. L. & Eq. 335. 27y ; Levi v. Milue, 4" Bing. 1Mb ; Kixey 708 DAMAGES. [book V. CH. XIX.] tained in being run over by a dray, the plaintiff having been in fault, though less so than the defendant, and the verdict being for fifty dollars.^ § 39. If the jury find that the plaintiff is not entitled to dam- ages, erroneous instructions as to their amount furnish no ground of new trial,''^ § 40. Under an ordinance of a city, requiring a committee of the city council, upon laying out a drain, to report the names of land-owners, with the amount of damages allowed each ; with reference to the validity of the proceedings, a report of the names of all abutters, not mentioning any damages, is a sufficient award that no one is entitled to damages. It might be, that they all waived their claims to damages ; or, if not, then any party would have his legal remedy, as upon an award that he was not entitled to damages.'^ § 41. Unless it appears that a bill of exceptions reports all the evidence relating to damages, the court above will not review the assessment of the jury, for want of evidence of actual or special damages.* 1 Flanders v. Meatli, 27 Geo. 358. 3 Hildreth v. Lowell, 11 Gray, 34.3. 2 Pope V. Machias, &c., 52 Maiue, 535. *■ M'Intyre v. Park, 11 Gray, 102. APPENDIX. FORMS AND PIIECEDENTS OF DECLARATIONS AND PLEAS IN ACTIONS FOR TORTS. The following forms, though not always complete, are sanctioned by the cases to which they respectively refer, and in wliicii the sufficiency of the pleadings was the direct point of decision. The cases are mostly recent, and may sometimes turn in part upon local statutes. The statutory law, however, in simplifying, as it has done so extensively, the rules and forms of pleading, has everywhere proceeded upon substantially the same basis. Hence the forms, and the cases which accredit them, are believed to be of universal applicability, and reasonably safe guides for the practitioner under the same or similar circumstances, (a) TORT AND CONTRACT. — FRAUDULENT SALE. The plaintiff bought of the defendant, for Cnaming the sum), being a sound price, (naming the number) hogs, and said hogs had the disease of cholera. And the defendant represented said hogs to be sound and healthy, knowing such representations to be untrue. And the plaintiif bought said hogs relying iipon said representations, and unable by reasonable diligence to ascertain that they were false. — 22 Ind. 257. FRAUDULENT PURCHASE. The plaintiff sold and delivered the defendant goods to the (a) Tlie incidental requisites of plead- pensed witl) by express statute. And the int: — such as name, number, time, and citnlinns will fail of tlieir chief purpose, if place, and the formal introductory and in actual practice they do not lead, out of closing averments — are of course to be ahuuddut caution, to an inspection of the added, unless, as is now often done, dis- entire forms as set out in tiie Reports. 710 APPENDIX. amount of, &.G., on a credit of six montlis. And tlie defendant was insolvent at the time of said sale, and purchased the goods without any intent to pay for them and with the intent to defraud the plaintilf of their value, and by reason of said fraud the defendant became liable to pay for the goods immediately upon their delivery. — 27 Barb. 652. (While this form of declaring is doubtless sufficient, there maybe more doubt as to the rule of law upon which the action is founded.) INDORSEE AGAINST FRAUDULENT INDORSER OF NOTE. The defendant, with intent to deceive the plaintiff, falsely rep- resented that said, &c. (the maker of the note), was solvent, and, relying on said representation, the plaintiff accepted said note. — 35 Mis. 483. FALSE REPRESENTATION AS TO A MORTGAGE. The defendant represented that said mortgage was good, and a valid security for payment of said note, and the plaintiff supposed and verily believed, at the time he bought the same as aforesaid, the said mortgage to be good, and that it was a valid and suffi- cient security. — 18 Wis. 196. FALSE RECOMMENDATIONS. The plaintiff purchased of the defendant a note against one (A) whom the defendant affirmed to be a person of good credit, the defendant well knowing said affirmation to be false ; and the defendant was in fact poor, and the note was of no value, whereby the defendant deceived and defrauded the plaintiff. — 8 Fost. 118. The defendant (a director of a bank) falsely and fraudulently represented that the stock of said bank was worth par, when in truth said stock was worthless; the defendant knowing that said stock was not worth par, and making said representation with intent to induce the plaintiff to purchase said stock. — 3 Bosw. 346. MISCELLANEOUS CASES OF FALSE REPRESENTATION. The defendant, employed as architect by A and others to super- intend the building of a church, falsely and fraudulently repre- TORT AND CONTRACT. 711 sented and pretended that lie was authorized by A to order, and did order, stone of the plaintiffs for the building of said church, for and on account of, and to be charged to A; and the plaintiffs, relying on that representation, and believing that the defendant had authority from A to order the stone on his account, delivered the same, and the same was used in the building of the church ; whereas, in truth and in fact, the defendant was not, as he well knew, authorized so to order the said stone. And, A refusing to pay for the stone, the plaintifls, trusting in tlie defendant's repre- sentation, sued A for the price, and failed in their action, and had to pay A's costs, and also the costs incurred by their own attor- neys. — 37 Eng. L. & Eq. 275. The defendants falsely and fraudulently deceived the plaintiff in this, that they, as brokers of the plaintiff, employed by him to purchase oil, with the fraudulent intention of deceiving and injur- ing the plaintiff, falsely represented to him that they had " pur- chased for him twenty-five tuns of palm-oil," to arrive by the, 6. comparative weight of, and oibei evidence, 437. of officer, 537. ADULTERY, proof of, 5-10. ADVERSE POSSESSION, 171. {See Ejectivient.) of defendant, as necessary to ejectment, 175. AFFIDAVIT, in ejectment, 229 n. AFFIRMATIVE, burden of proving, 391. AGENT, replevin in case of, 47, 64. disseisin by, 171. admission of, 442. and servant, damages in case of, 652. ALABAMA, replevin in, 77. ejectment in, 219 n. 742 INDEX. AMENDMENT, in replevin, 89. case of variance, 248 ANIMALS, injury to, by railroads, pleadings in reference to, 381. ANSWER, in ejectment, 207. APPLICATION OF WRITING, parol evidence as to, 494. APPRAISAL, in replevin, 74 n. APPRENTICE, damages in case of, 654. ARKANSAS, replevin in, 7 n., 18, 28 n., 74 n., 82 n., 90 n., 115. ejectment in, 162 n., 222 n. ASSAULT, &c. pleading in case of, 321. evidence, " 507. damages for, 616. ATTACHING CREDITOR, ■whether replevin lies against, 43. ATTACHMENT, replevin in case of, 52, 92. constructive, replevin in case of, 53 justification by, in replevin, 86. proof of, 637. damages against officer, in case of, 641. AVOIDANCE, plea of, 274. AVOWRY, 80. in case of distress, 23. B. BAIL, evidence as to sufficiency of, 538. damages against officer, on account of, 649. BAILEE, damages in action by, 662. BAILMENT, damages in case of, 654. BETTERMENTS, allowance for, in ejectment, 220. BODILY DISEASE AND INJURY, declarations as to, whether evidence, 445. INDEX. 74^ BOND, replevin, 73 n., 117. effect of, on title to the property, 3G. BOUNDARIES, in deed, as affecting seisin and ejectment, 163. BURDEN, of pleading fraud, 285. proof, in trespass, 308. action for assault, 323. of allirmative and negative allegations, 391. and weight of evidence, distinction, 393 n. c. CALIFORNIA. replevin in, 126, 133, 147 n., 159 n. ejectment in, 167 n., 194 n., 202 n., 211 n., 218 n., 220 n., 225 n. pleading in, 232 n., 317. CASE, action on the, pleading in, 316, 325. and trespass compared, 317, 325, 326 trover, joinder of, 335. distinguished, 335. CERTAINTY, in pleading, 252. CHARACTER, evidence of, 442. in action for slander, &c., 518. CHOSES IN ACTION, replevin for, 12. damages in case of, 670. COGNIZANCE, in replevin, 81. COLLOQUIUM AND INNUENDO, in slander, 349, 350. COLOR OF TITLE, 174, 179. deed gives, 162, 163. by possession, 171. co:mmencement, of replevin suit, what, 20. COMiMITAIENT, neglect of officer as to, damages for, 646. COMMOX CARRIERS, joint a'tion against, 269, pleading in case of, 387. evidence, 528. damages in case of, 656, 662. COMMONWEALTH, no adverse possession against, 172, 187. 744 I^•D""x. COMPENSATION, as the measure of damages, 547, ooO, 597. COMPROMISE, admissions for, 440. CONCLUSION, statement of. in pleading, 260. CONDITIONAL DEED, title by, in ejectment, 1G2 n. sale, damages in case of, 6S0. CONNECTICUT, replevin in, 19, 21, 22 n., 28 n., 73 n., 74 n., 121. pleading in, 317 n. CONSENT, prevents adverse title, 172. 176. ((See EsTOPPKL.) CONSPIRACY, declarations in case of, whether evidence 455. CONSTABLE, service of replevin by, 74 n. CONSTRUCTIVE POSSESSION, 174. CONTINUANDO, in trespass, 303. slander, 353. case of defective road, 3S5. CONTINUOUS DAMAGE, no second action for, 576. CONTRACT, of manufacture, &c. ; replevin in case of, 33, 46. written, parol evidence as to, 490, 492. CONTRA PACEM, trespass and case, distinction. 325. formmn sialidi, allegation, 236. CONVERSION, action for, pleading in, 335. evidence in, 528. damages, 590. CORPORATION, admission in case of, 442. COSTS, in connection with damages, 680. COUNSEL-FEES, as damages, 680. COUNTER-CLAIM, 559, 677. COUNTING UPON AND PLEADING STATUTE, distinction between, 303. COUNTS, joinder of, in case of fraud, 285. trespass, 311. INDEX. 745 COUNTS — continued. joinder of, in trespass and case, 319. action for assault, 323. slander, &c., 249. COUNTY, replevin as to, 74 n. COURTS, in what, replevin lies, 14. CREDITOR, whether liable to replevin, 43. CRIMINAL PROSECUTION, as affecting exemplary damages, 602. CUSTOM, pleading of, 240, n. evidence of, 433. CUSTODY OF THE LAW, replevin of goods in, 40. D. DAMAGE FEASANT, plea of, in trespass, 310, 314. DAMAGES, in replevin, 98. ejectment, 218. mitigation of, in action for assault, 321. in action for slander, 359. as connected with evidence, 544. pleading, 544. in contract and tort, compared, 545. a question for the jury, subject to any legal rule or measure, 545. general and special, 549, 595. none for mere possible injury, 549. de minimis non, &c., as applied to, 549. sometimes allowed liberally ; exceptions and limitations, 550. mode of ascertaining; writ of inquiry, 551. referred to arbitrators, 553. second assessment of, 553. nominal, 554. mitigation or reduction of, 554. reconpment, 556. set-off, 556. counter-claim, 559. equitable and statutory allowances, 559. return of property taken ; application of pro- ceeds to the plaintiff's benefit, 566. 746 INDEX. DAMAGES — contimied. at and to what time estimated, 670. in general, the value at the time of tak- ing, 570. prospective or remote, 571, 584. to the time of trial, 576. in case of continuing damage, no second recovery, 577. prospective damages, when not allowed, 678. miscellaneous cases, 583. remote damages caused by the plaintiff's act or neglect, 58-4. for fraud or deceit, 588, 610. taking or detention of personal property ; including trover and tres- pass, 588. in trover, 590. trespass, 593. statutory remedy for, 593. special, 59 . nature and definitionof, 595. must be expressly alleged, 595. in general limited to compensation, 597. exemplary, punitive, or vindictive, 597. as depending on malice, insult, &c., 598. affected by actual or jpossible criminal prosecution for the same act, 603. for injuries not indictable, 604. "vvhen not allowed, 607. in case of the plaintiff's own miscon- duct, 609. for fraud; value of the property, 610. miscellaneous cases, 611. exemplary damages, 612. miscellaneous cases, 612. assault, &c. ; exemplary, 616. mitigation; provocation; criminal prosecution, 618. false imprisonment, 618. injury to health, 619. libel and slander, 620. measure and grounds of damages; special and exemplary; wealth of the defendant, 620, 622. plea of the truth; mitigation of damages, 623. malicious prosecution, 623. negligence, 626. nuisance, 628. to watercourse and mill, 628. patent, 630. INDEX. 747 DAMAGES — continued. for nuisance, to trade-mark, 631. in case of railroads, 632. for injuries to person and property, 632. the takinjr of land, 634. towns and highways, 636. actions against public officers, 638. as affected by the motives, &c., of the defendant, 638. for not returning process, 640. false return, 641. wrongful seizure; action by the de- fendant in the process, 641. loss of property, 642. in action by third person for seizure of property; value of the property; additional damages; motives of the officer, 643. for neglect to levy, 644. mitigation of damages; application of proceeds to the plaintiff's ben- efit, &c., 645. neglect to arrest, 646. escape, taking insufficient bail, &c., 647. by officers, 650. in case of master and servant, &c., 652. principal against agent, 652. third person against prin- cipal, 654. agent, &c., against prin- cipal, &c., 654. against third person, 654. in case of bailment, 654. pledge, 655. carriers, 655. neglect or delay in delivering 656. injury from neglect, 657. special and prospective damages, 658. miscellaneous points, 659. actions by bailees, 662. telegrams, 663. in case of landlord, &c., 664. by reversioner against third person. 664. lessee against a tliird person, 604. third person against K-ssee, 665. lessee against landlord, 666. 748 INDEX. DAMAGES — continued. in case of landlord, &c., distress, 667. fraud, 667. landlord against tenant, 668. in case of mortgage, 668. for conversion, &c., of negotiable securities, 670. neglect in collection of negotiable securities, 672. refusal to transfer stock, 673. miscellaneous cases of securities, 673. in case of sale, 676. buyer against seller; refusal to deliver; conver- sion, &c., 676. conditional sale, 676. fraud, 677. interest, as, 678. costs and expenses, as, 680. for injuries resulting in death, 684. in case of husband, &c., parent, &c., seduction; abduction, 694.. marine torts, 696. profits of a voyage, 696. collision, 696. capture, 697. liability of master and owner, 698. joint and several, 699. statutory; double, treble, &c., 701. limited by the declaration and ad damnum, 702. remittitur, 703. excessive, new trial for, 704, too small, 707. miscellaneous, 708. DEATH, of party in replevin, 63. injuries causing, pleading in case of, 240 n. damages in case of, 684. DECEIT, damages for, 588. (/See Fraud.) DECLARATION, in replevin, 74. ejectment, 201. trespass, 301. for negligence, 329. slander, 317. special damages, 695. damages exceeding, 702. DECLARATIONS, ■when evidence, 444. {See Evidence.) of party in his own favor, 458. in case of officers, 535. INDEX. 749 DEED, parol evidence as to, 490. title by, in ejectment, 1G2. DEFAULT, damages upon, 551. DEFINITION, of replevin, 1. DE INJURIA, &c., replication of, in trespass, 313. action for assault, 322, 323. DELAWARE, replevin in, 25, 84, 99 n., 101 n., 115, 117 n., 122, 124. pleading in, 320. DELIVERY of goods to plaintiff in replevin, 3. DEMAND, in replevin, 90. DE MINIMIS NON, &c., construction of, 549. DEMURRER, inquiry of damages upon, 334. DENIAL, of what, the general issue is, 277. DEPARTURE, in pleading, 250. DESCRIPTION OF PROPERTY, in replevin, 74, trespass, 302. trover, 336. DESCRIPTIO PERSONJE, in pleading, 263 n. DETAINER, ■whether sufficient to sustain replevin, 3. DETINUE AND REPLEVIN, compared, 5. DEVISEES, ejectment by, 189. DILATORY PLEAS, in replevin, 78. DIRECTNESS, in pleading, 262. DISCLAIMER, in ejectment, 211. DISEASE, declarations as to, when evidence, 445. DISMISSAL OF REPLEVIN, 79. DISSEISIN, 139. (See Ejectment.) as between tenants in common, 198. 750 INDEX. DISTEESS, repl(!vin in case of, 16, 22. justification by, in replevin, 86. damajjes in case of, 6G7. DOCUMENTARY EVIDENCE OF TITLE, in ejectment, 156. DOUBLE PLEADING, in action for slander, 617. replevin, 85. DWELLING-HOUSE, entry of, pleading in reference to, 377. E. EASEMENT, ejectment in case of, 181 n. pleading in i-elation to, 368. EJECTMENT, 139. real action, and writ of entry — synonymous in the United States, 139. substituted for the ancient remedies, 139 n. entry, as connected with, 143. title necessary to, 144. in case of conflicting titles ; claimants under one person, 145. defence to; title of a stranger, 146. whether an equitable title sustains, 148. in case of a mere purchase, 152. founded on documentary title, 156. deed, 162. purchase, 164. execution, 165. adverse title as connected with possession, 167. as connected with adverse possession; ouster; disseisin, 171. founded on constructive possession, 174, possession oxAy prima facie maintains, 180. as depending on possession of the defendant, 181. continuous or successive possession, 182. notice, as aflTecting the title necessary to, 184. estoppel, as affecting the title necessary to, 184. abandonment, as affecting the title necessary to, 185. parties in — the Commonwealth, 187. beneficial owner, 187. in case of death — heirs, &c., 188. persons claiming under the defendant, 192. joint ownei's, 193. pleading in, 201. evidence in, 213. damages in, 218, verdict and judgment in, 220. INDEX. 751 ELEGIT, title by, in ejoctment, 166 n. ENTICING AWAY OF WIFE, evidence in relation to, 542. ENTRY, as relating to seisin and ejectment, 143. what is an adverse, 172. EQUITABLE TITLE, whether ejectment lies upon, 148. a defence in ejectment, 160 ESCAPE, pleading as to, 379. damages for, 647. ESTOPPEL, to deny title, 184. by admission, 459. EVIDENCE, general rules of, 391. proof of the affirmative, and exceptions, 391. in case ot wrong, &c., 393. fraud, 394. official neglect, &c., 395. as to possession, 174, 395. burden of proof, to what it extends, 397. change of, 397. nonsuit for want of, 402. presumptions, 402. of innocence, 403. reasonable doubt, 403. miscellaneous cases of presumption, 405. rebutting, 406. of opinion — experts, 410. in case of the taking of land for railroads, &c., 414. other cases relating to land, 416. as to injuries arising from defective roads, &c., 417. bodily health and disease, 417. predicated upon hypothetical facts, 420. miscellaneous cases, 422. of intention, 428. reputation and character, 429. rumor and report, 432. custom and usage, 433. distinction in the admission of, between general reputation, &c., and particular facts, 434. of admissions, 436. how controlled and construed — implied, 437. by way of compromise, 440. 752 INDEX. EVIDENCE — continued. of admissions of agents, officers, &c., 442. connected or unconnected with acts ; questions of time, 442. declarations — hearsay — res gestcB, 441, 458. in case of bodily injury, &c., 445. boundary and title, 448. legal process, 449. miscellaneous, 450. limitations as to the admission of; must be exjylanatory , not narrative; questions of time, place, motive, and pui-pose, 450. of joint party, 455. in a party's own favor, accompanying acts ; res gestce, 458. estoppel by, 459. of third persons, 460. ' as to possession, 460. pei'sons connected with a party, 461. as to fraud, 463. title, 465. of acts of a party or his agent, 468. written declarations, 470. irrelevant declarations, 473. res inter alios, 474. fraud, 474. neglect, 478. illegality, 478. in actions against towns, railroads, &c., 478. for injuries caused by gas, 481. time, 483. common reputation, 484. value and amount, 485. motive, intent, malice, 487. parol, 489. in case of fraud, 489. as to deeds, 490. leases, 491. contracts, 492. return of officer, 492. in case of loss, 492. as to the application of writing, 494. variance of, from pleadings, 496. of parties, 497. in actions relating to fraud, 501. assault, &c., 323, 507. false imprisonment, 508. injury to health, 509. for libel, &c., 511. proof of other words than those alleged, oil. INDEX. 753 EVIDENCE — conUmied. in actions for libel, &c., understanding of the words, 511. damages, 512. variance, 513. malice, 514. mitigation of damages, 516. repetition, 516. report, 516. character, 517. proof of property, 51S. the truth as a justification, or in mitigation, 519. for malicious prosecution, 523. injury to watercourse, 526. way, 526. negligence, 528. conversion, 528. injury to copyright, 529. patent, 5.30. relating to public officers, 531. being reputed and act- ing as an officer, 531. presumption & burden of proof, 531. officer's return, 533. declarations and admissions, 535. records, writs, executions, &c., 537. miscellaneous cases, 537. relating to husband, &c., 540. proof of marriage, 540. adulter)^ 540. abduction of wife, 542. parent and child — seduction, 542. abduction, 543. n replevin, 89. as to adverse possession, 177. in ejectment, 213. F. FACTS, whether pleading must state, 233. FALSE IMPRISONMENT, pleading in case of, 340. and malicious prosecution compared, 340. evidence in case of, 508. return, damages for, 641. 8 754 INDEX. FEEDING, of cattle impounded, 19. FEELINGS, damages in reference to, 546. FIELD-DRIVER, replevin against, 19, 20. FINE, title by, in ejectment, 136 n. FIRE, loss by, damages in case of, 634. FIXTURES, whether replevin lies for, 11. FLORIDA, replevin in, 122. ejectment in, 194 n. FOREIGN LANGUAGE, slander in, 353. FRAUD, replevin in case of, 64. certainty of pleading in reference to, 257 pleading in case of, 284 variance in case of, 294. •'^■—- must be affirmatively proved, 394. •whether it may be proved by other transactions, 7-4 parol evidence of, 489. evidence in case of, 501. damages for, 588, 610. mitigation of damages for, 707, ,G. GAS, injury caused by, evidence as to, 481. GENERAL, evidence of character must be, 434 damages, 549. issue, plea of, 279. in ejectment, 207. trespass, 307. assault, &c., 321, 323. trover, 337. action for false imprisonment, 342. slander, &c,, 355. GEORGIA, replevin in, 7 n. ejectment in, 208 n. GRANT, title by, in ejectment, 157 n. INDEX. 755 H. HEALTH, evidence of opinion as to, 419. injury to, damages for, 619. (See Evidence, Opinion.) HEARSAY EVIDENCE, 444, 460. HEIRS, ejectment by, 133. HIGHWAY, defective, pleading in case of, 384. evidence of opinion in case of, 417. application of the rule res inter alios in case of, 478. HOLDING OVER, not adrerse, 172. HUSBAND AND WIFE, replevin in case of, 64. ejectment in case of, 196. when proper parties to an action, 266. whether parties in case of fraud, 291, pleading in case of, 389. evidence in case of, 540. damages in case of, 094. HYPOTHETICAL OPINION, whether evidence, 420. I. ILLEGALITY, must be affirmatively proved, 395. proof of, application of the rule res inter alios, 478. ILLINOIS, replevin in, 74 n., 82 n., 85, 99 n.. 101 n., 127. ejectment in, 139 n., 145 n., 156 n., 187 n., 228 n. pleading in, 306. IMMATERIAL AVERMENTS, in pleading, 245. IMMEDIATE INJURY, whether pleadings must allege, 240. IMPLIED POSSESSION, 174. admission, 443. IMPOUNDING, replevin in case of, 16. IMPROVEMENTS, allowance for, in ejectment, 220, 560. 756 INDEX. INDIANA, replevin in, 7 n., 14 n., 28 n., 74 n., 77, 81 n., 114 n. pli-ading in, 232 n., 284 n., 356 u. INDORSEMENT, of replevin writ, 73 n. INFANT, ejectment in case of, 193. INFERENCE, statement of, in pleading, 260, INNKEEPER, pleading in case of, 387. IN PARI DELICTO, -whether declaration must negative, 239. effect of, on damages, 584, 609. INSANITY, declarations whether evidence as to, 446 n. INTENTION, gives character to possession, 172, 177. evidence of, 428, 487. * INTEREST, as damages, 679. IOWA, ejectment in, 151, 192, 218, 222 n. party to suit in, 264. IRRELEVANT DECLARATIONS, 473. ISSUABLE FACTS, in pleading, 233. J. I JOINDER, of actions, 237. tort and contract, 282. counts in case of fraud, 285. parties in case of fraud, 293. causes of action, 294. counts in trespass, 303. causes of action in trespass, 310. case and trespass, 316, 318. JOINT-TENANTS, «&c. replevin in case of, 58. parties, ejectment by, 19L tenants, «&c., ejectment in case of, 193. pleading in case of, 213. parties to actions, 266. declarations and admissions in case of, 455. and several damages, 699. INDEX. 757 JUDGMENT, ejectment founded upon, 157 n. in ejectment, 223. replevin, lOG. JURY, question of possession is for the, 173. whether bound by a measure of damages, 54:7, 550. JUSTICE OF THE PEACE, replevin before, 13 n. pleading in reference to, 372. damages against, G.')S n. jurisdiction of, as to land, 309. ^ JUSTIFICATION, in action for slander, &c., 355, 519. K. KENT, CHANCELLOR, remark of, on pleading, 232 n. KENTUCKY, replevin in, 3 n., 69, 73 n., 74 n., 79, 106 n., 121. ejectment in, 145 n., 218 n. pleading in, 232 n., 284 n., 317. parties in, 265. L. LAND-DAMAGES, opinion as to, whether evidence, 414. amount of, in case of railroad, 634. LANDLORD, &c., pleading in relation to, 389. ejectment in case of, 229. damages in case of, 664. LEASE, parol evidence as to, 490. LEASED PROPERTY, replevin for, 32. LIBEL, &c., pleading in case of, 347. evidence in case of, 511. ' damages in case of, 620. LICENSE, defence of, in trespass, 307, 312, 314. LIEN, replevin in case of, 64, 71. LIGHTS, pleading in relation to, 368. 758 INDEX. LOCAL, replevin is, 12. ■whether action for assault is, 321 n. nuisance is, 327. LOSS OF WRITING, parol evidence, 492. LOUISIANA, ejectment in, 1G7 n. M. MAINE, replevin in, 27 n., 73 n., 74 n., 82 n., 100 n., 129, 218 n. ejectment in, 211 n. pleading in, 317. MALICE, 348, 359, 487, 511, 514, 598. MALICIOUS PROSECUTION, and false imprisonment, 340. pleading in case of, 359. evidence in case of, 523. damages for, 623. arrest, damages for, 73 n., 618. MANUFACTURE TO ORDER, replevin in case of, 33, 46. MARRIAGE, proof of, 540. MARINE TORTS, damages for, 696. MARSHAL OF UNITED STATES, replevin against, 14. MARYLAND, replevin in, 27 n., 77 n., 85. ejectment in, 159 n. MASSACHUSETTS, replevin in, 3 n., 8 n., 12 n., 18, 20, 21, 69, 73 n., 77, 81 n., 115, 123, 127, 220 n. ejectment in, 211 n., 218 n., 228 n. pleading in, 319, 347, 357. MASTER, &c., replevin in case of, 64. pleading in case of, 386. admissions in case of, 442. damages in case of, 654. MEASURE OF DAMAGES, whether jury bound by, 547, 550. MEDICAL WORKS, whether evidence, 419. MESNE PROFITS, action for, 218, 320. deductions from, 560. INDEX. 759 MRXrCAX LAW, as to adverse possession, 177 n. MICHIGAN, replevin in, 3 n., 18, 7-4 n., 81 n., 85 n., 101 n. ejectment in, 221 n. MILL, damages for injury to, G16. MINNESOTA, replevin in, 7 n., 14 n., 27 n., 103 n. ejectment in, 203, 218 n. joint parties in, 267. MISSISSIPPI, replevin in, 8 n., 25, 91 n., 98 n., 103 n. ejectment in, 157 n., 213 n., 218 n., 228 n. pleading in, 232 n. MISSOURI, replevin in, 7 n., 14 n., 27 n., 40 n., 81 n., 98 n., 101 n., 115, 126. ejectment in, 145 n., 151, 218 n. j.leading in, 284 n., 333. MISTAKE, replevin in case ot, 67. MITIGATION OF DAMAGES, 556. pleading in reference to, 276. and partial defence, distinction, 276 n. in trespass — pleading, 307 n, action for assault, 617. slander, 636. against officers, 639, 644, 646. MOLLITER MANVS, &c., plea of, in action for assault, &c., 322. MORTGAGE, replevin in case of, 68. title by, in ejectment, 160 n. damages in case of, 668. MOTIVE, evidence of, 487. N. NARRATIVE DECLARATIONS, incompetent, 448, 453. NEGATIVE and positive evidence — burden of proof, 391, and n. pregnmit, 338. NEGLIGENCE, pleading in case of, 329. must be affirmatively proved, 393. whether provable by other transactions, 478. 760 INDEX. NEGLIGENCE — continued. evidence concerning, 628. damages for, 626. NEW ASSIGNMENT, in trespass, 315. action for assault, 324. nuisance, 327. trover, 338. NEW HAMPSHIRE, replevin in, 6 n., 18, 113. ejectment in, 191 n., 211 n. pleading in, 265. NEVADA, ejectment in, 193 n. ' NEW TRIAL, in ejectment, 229. for excessive damages, 704, 708. too small damages, 707. NEW YORK, replevin in, 7 n., 22 n., 27 n., 55, 74 n., 77, 82 n., 91 n.,98n., 100, 114 n. 126, 132. ejectment in, 139 n., 183 n., 187 n., 192 n., 204, 218 n., 227 n. pleadmg in, 254, 261, 266, 302 n., 328, 335, 336, 343, 351 n., 356. parties in, 267, 268. NOMINAL DAMAGES, 549, 554. {See Damages.) NON CEPIT, in replevin, 81, 108. NON-TENURE, in ejectment, 211. ' NORTH CAROLINA, replevin in, 7 n., 27 n., 103 n., 218 n. ejectment in, 180 n. , 208 n. NOTES, wrongs relating to, damages for, 670. NOTICE, in reference to adverse possession, 184. to one party, effect on burden of proof, 402. NUISANCE, action for, pleading in, 326, 327. damages, 627. o. OFFICER, defence of, in replevin, 48, 85. replevin in case of, 52, 92. pleading in case of, 372. INDEX. 761 OFFICER — continued. evidence in case of, 531. damages in case of, 638, 650. OHIO, replevin in, 7 n., 55, 70, 82 n., 85 n., 98 n., 117 n. pleading in, 220. OPENING AND CLOSING, right of, in trespass, 308. OPINION, evidence of, 410. (See Evidence.) OUSTER. (See Disskisin, Ejkctmkxt.) as between tenants in common, 198. QWNER, plaintiff in ejectment must be, 144. PARENT, &c. evidence in case of, 542. damages in case of, C94. PARISH, replevin in case of, 64. PAROL EVIDENCE, 48U. (.See Evidence.) in ejectment, 217. PART-POSSESSION, in ejectment, 163, 178. of wild lands, 175. PARTICULARS. order for, in case of slander, 354. PARTIES, in replevin, 58. ejectment, 187. action for tort, 202. plaintiffs, who must be — party injured — the legal owner, 262. name and description of, 265. joint-plaintilFs, 266. defendai>ts, 269. pleading in case of, 271. in case of trust, 272. PARTNERS, replevin in case of, 60. ejectment in case of, 196. PARTY, testimony of, 497. as to intention, 428, 487. whose admissions are evidence, 436. PATENT, title by, in ejectment, 157 n. 762 INDEX. PATENT — contimied. pleading in case of, 369. damages in case of, 630. evidence in case of, 530. PENNSYLVANIA, replevin in, 1 n., 3 n., 7 n., 77, 98 n., 101 n., 115. ejectment in, 145 n., 162 n., 189 n., 192 n., 212, 218 n., 223, 224 n., 227 n., 228 n. parties in, 2G7. PEOPLE, title of, presumption as to, 167 n. (See Commonwealth.) PERSONAL PROPERTY, replevin lies for, 9. PHYSICIAN, opinion of, as evidence, 419. {See Evidence.) declarations to and by, whether evidence, 445, 446. action against, evidence in, 509. PLACE, allegation of, in action for nuisance, 327. conversion, 336. in case of false imprisonment, 344. of making declarations as affecting admissibility, 455. of replevin, 12. in the action of trespass, allegation, of, 302. assault, 321 n. PLAINTIFF, "who must be, 262. PLEADING, in replevin, 78. against officer, 48. in ejectment, 201, 207, 231. as connected with damages, 544, 595. general rules of, 231. tort and contract; definition and general purposes of pleading, 231. statute law concerning, 232. must state facts, 233. in case of statutes, 234. in reference to the directness of the injury, 238. absence of fault in the plaintitf, 239. variance between, and evidence, 242, tndli, as a requisite of, 250. departure in, 250. directness, &c., of, 252. in case of fraud, 257. statement in, of a legal conclusion, 260. general issue, &c., in, 274. as a defence, 274. in mitigation, 276. INDEX, 703 PLEADING — continved. general issue, &c., in, wliat is denied by; implied admission; aet and right, 277. miscellaneons points as to, 279. replication, ite., in, 279. distinction ol' tort and contract in reference to ; nii.'^je(juent pleading, 32G. negligence, 329. declaration, 329. subsequent pleading, 332. conversion, 335. declaration, 33G. subsequent pleadings, 337. false imprisonment, — declaration, 310. subsequent pleadings, 342. libel and slander, 347. declaration, 347. counts, 349. joinder of slander and nialieious prosecution, 350. innuendo, 550. 76-i INDEX. PLEADING — coniinued. in action for libel and slander, declaration, colloquium, 351. words in foreign language, 353. mieellaneous points, 353. variance, 354. practice, 354. subsequent pleadings ; the general issue ;' the truth, &c., 355. malicious prosecution, 359. injuries to property, 302. possession, 3G2. watercourse, &c,, 362. lights, 368. other easements, 368. patent, 369. relative rights — officers of the law, 372. against railroads, 379- towns for defective roads, 384. relating to master and servant, 386. against inn-keepers, 386. common carriers, 386. relating to landlord, &c., 389. crim. con. and seduction, 389. PLEAS, in trespass, 305. (*See Tkespass.) trover, 337. action for false imprisonment, 342. PLEDGE, replevin in case of, 71. damages in case of, 652. POLICY OF INSURANCE, damages in case of, 675. POSSESSIO PEDIS, 173. fratris, 200. POSSESSION, of plaintiff, as necessary to replevin, 27. defendant as necessary to rejilevin, 54. allegation of, in replevin, 77. right to, in ejectment, 144, 167. part, in ejectment, 144. allegation of, 362. presumption and burden of proof as to, 395, 402 n. POUND -KEEPER, replevin against, 18. PRACTICE, in action for slander, 354. ejectment, 229 n. PRESCRIPTION, title by, 144 n. INDEX. 765 PRESUMPTIONS, 289, 397, 402. {See Evidence.) in case of oiiicer, 5ol. PRIMA FACIE EVIDENCE, of title, possession is, 180. cbanges burden of proof, 393, 397, 405, and n. in case of officers, 531, PRINCIPAL, &c., replevin in case of, 64. fraud in case of, pleading, 296. damages in case of, 652. PRIVITY, allegation of, whether necessary in case of fraud, 291. PROCESS, justification under, in action for false imjjrisonment, 344. PROPERTY, in case of replevin, 27, 44. what, may be taken in replevin, 41. plea of, in replevin, 82. allegation of, in trespass, 304. trover, 336. evidence of, in case of slander, &c., 518. PROSPECTIVE DA3IAGES, 571, 578. PUBLICATION, allegation of, in slander, 348. PUNITIVE DAMAGES, 598. PURCHASE ON EXECUTION, replevin in case of, 52. PURCHASER, ejectment by and against, 152. possession oi", whether adverse, 164. RAILROAD, injuries by, pleading in case of, 240, 379. taking of land by, opinion in case of, 414. injuries by, opinion in case of, 417. evidence as to, 478. damages against, 631. for injuries causing death, 684. REAL ACTION, 139. {See Eject.mknt, Disseisin.) REAL ESTATE, whether rc])levin lies for, 9. REASONABLE DOUBT, in actions for tort, 405. REBUTTING EVIDENCE, 406, 430. as to declarations, 455. 766 INDEX. RECEirTOR, replevin in case of, 52. RECEIVP:il, in ej(H'tnient, 229. RECORD, admission by, whether evidence, 441. RECOUPMENT, 556. {See Damages.) REJOINDER, 281. in action for assault, 323. RENT, replevin in case of, 22. REPETITION OF SLANDER, evidence of, 514, 516. REPLEVIN, 1. definition and general nature, 1. delivery of goods to the plaintiff, 3. whether tortious taking is necessary to, 3. lies, in general, only for personal property, 9. a local action, 12. in what courts to be brought, 13. successive replevins, 14. in case of distress, impounding, &c., 16. trespass ah initio, 16. practice in different States, 18. for rent, 22. pleading, evidence, &c., 22. miscellaneous points, 25. property, »&c., necessary to maintain, 27. right of possession, 27. qualified possession, &c., 29. the plaintiff must prevail upon his own title, 30. pleading, evidence, &c., in reference to, 31. manufacture to order, incomplete sale, &c., 33. in case of death, 36. title gained by service of a replevin and bond ; sale by the plaintiff in replevin, 3G. property or possession requisite in the defendant, 38. for property taken by process, 40. cv.slody of the law, 40. for goods in the plaintiff's possession, 41. taken on process against a stranger, 41. writ of, wh:;t may be taken on, 42. liability of attaching or execution creditor, 43. title or possession necessary to, in case of legal process, 44. defence of an oilicer sued in — plea, evidence, judgment, &c., 48. in case of successive processes, 49. INDEX. 767 REPLEVIN — continued. ill favor of an officer, 52. against an officer, what possession of the officer is necessary to, 53. successive suits of, justification of the officer under replevin writ, 54. miscellaneous points relating to process, 54. parties in, 5S. joint plaintiffs, 58. defendanls, 61. in case of death, (33. husband, &c., 04. principal and agent, 64. parish, 04. buyer or seller — fraud, 64. cond ioiial sale, 07. mistake, 67. in case of mortgage, pledge, or lien, 68. pleadings and practice in, 73. writ and declaration, 74. description of property, 74. statement of title, 77. plea, &c., 78. motion to disuiiss, 78. avoicry and cognizance, 81. non cepit, &c., 81. title, 81. several pleas, 85. in case of process, 85. replication, &c., 87. amendment, 89. evidence, 89. verdict, 95. damages, 98. verdict and judgment in special cases, 100. judgment for return, lOS. bond, 117. form of — informality, 117. time of suit on, I2ij. damages on, 126. defence to, 129. pleading and evidence, 133. construction of; proi^ecution of suit, final judgment, &c., 133. death, in case of, 137. in case of review, 137. REPLICATION, 279, 281. in replevin, 87. tn-spass, 313. action for assault, 322, 323, 324. 7,68 INDEX. REPLICATION — continued. in action for negligence, 334. conversion, 338. false imprisonment, 344, 345. REPORT, evidence of, 432. REPUTATION, evidence of, 429, 484. BES OEST^, evidence, 444, 458. BES INTER ALIOS ACTA, 474. (.See Evidence.) RESTITUTION IN EJECTMENT, 228 n. RETURN, judgment for, in replevin, 108. of officer, as evidence, 533. property, whether a mitigation of damages for, 566. process, neglect of — damages, 640, 644. RHODE ISLAND, ejectment in, 139. RUMOR, evidence of, 432. s. SALE, by plaintiff in replevin, effect of, 36. damages in actions connected with, 676. SECURITIES, damages in actions relating to, 670. SECURITY, in ejectment, 229. SEDUCTION, pleading in case of, 390. evidence in case of, 540, 542. damages in case of, 694. SEPARATION of the product of land, damages for, 548 n., 589. SERVANT, admission and declaration of, whether evidence, 442. SHERIFF. (See Officer.) SLANDER. (See Libel.) SMALL DAMAGES, new trial for, 707. SON ASSAULT, &c., 322. SOUTH CAROLINA, replevin in, 28 n., 124. SPECIAL PROPERTY, replevin in case of, 28. damages, 549, 695. INDEX. 769 SPECIFIC PERFOR:\rANCE, ejectment to compel, lo3. STATE, no adverse possession against, 172, 187. STATUTE, of limitations, title by, 144 n. pleading in case of, 234. trespass, allegation of, 303. reference to, in pleading, 347. STATUTORY DAMAGES, 594. STOCK, damages in actions relating to, 673. SUCCESSIVE REPLEVINS, occupation, 14. title by, 182. SUPERFLUOUS AVERMENTS IN PLEADING, 245. SURVIVORSHIP, in case of replevin, 63. TAKING OF PERSONAL PROPERTY, damages for, 588. (See Damages.) on execution against a stranger, damages for, 643. TAX TITLE IN EJECTMENT, 157, n. TENANTS IN COMMON, ejectment in case of, 193. TENNESSEE, replevin in, 137. ejectment in, 220 n., 223 n. TEXAS, ejectment in, 192 n. pleading in, 307, 319. TBIE, allegation of, in pleading — variance, 246, and n. trespass, 303. trover, 336. false imprisonment, 342. action for slander, &c., 353. of declarations, as affecting tlieir admission in evidence, 441, 443. as affecting evidence of res infer alios, 483. damages, 570. (See Damages.) TITLE, necessary to replevin, 44. statement of, in replevin, 77. necessary to ejectment, 144, 187. (See Ejectment.) of a stranger, a defence in ejectment, 146. possession, as evidence of, ISO. pleading of, in trespass, 307, 308, 311, 312. 49 T70 INDEX. TITLE — continued. declarations as to, whether eviflence, 448. deeds, damai^es for wrongs relating to, 675. TORT AND CONTRACT, joinder of, 282, 285. distinction between, in reference to joinder, 269. crime, pleading in reference to, 282 n. contract, pleading in reference to, 282. distinction as to measure of damages, 545. crime, in reference to exemplary damages, 602. TORTIOUS TAKING, whether necessary to replevin, 3. TOWN, road, defective, damages in case of, 636. pleading as to, 384. taking of land by, evidence of opinion, 414. action against, for defective road, evidence of opinion, 417. TRADE-MARK, damages in case of, 631. TRANSITORY ACTION, trover is, 336. TREBLE DAMAGES, 700. TRESPASS and replevin compared, 4. ah initio, in case of distress, 16. pleading in, 301. to try title, 307. and case, joinder of, 316, 318. compared, 317, 325, 326. TROVER and replevin compared, 6. pleading in, 335. and case, joinder of, 335. nd case distinguished, 335. damages in, 590. TRUST, parties to suit, in case of, 272. TRUTH, in pleading, 250. defence of, in slander, &c., 355, 519. eflPect on damages, 623. u. UNITED STATES COURT, replevin in connection with, 56 n. INDEX. V71 V. VALUE, evidt'nce of opinion as to, 423. (See Evidence.) bow far the measure of dam.ages, 547, 5G0, 570, 584, 610. (See Damages.) VARIANCE, in i-)k'a{lintj, 242, 496. (See Pleading, Evidenxe.) case of fraud, 294. slander, &c., 513. VERD CT, in replevin, 95, 106. VERMONT, replevin in, 124. ejectment in, 191 n., 208 u. Vr ET JJLMIS, trespass and case, 325. VIRGINIA. replevin in, 22 n., 25 n., 85. e ectment in, 202 n. VOTE, title to land by, in ejectment, 157 n. w. WASTE, in ejectment, 229. WATERCOURSE, pleading in reference to, 363. evidence in reference o, 526. damages in reference to, 62 WAY, evidence as to, 526. WEBSTER, D., on jdeading, 232 n. WILD LANDS, adverse possession of, 175. WISCONSIN, replevin in, 14 n. ejectment in, 151, 203, 208 n., 228 n. WRIT, in action of replevin, 74. of right, 143 n. (See Ejectment.) WRONG, must be affirmatively proved, 393, 403, 405. LAW LIEltART UNIVERSITY r- rMjponNU LOS ANGGLC3 ^lOSANCFlfX/ '5»'tfojnvDjo>' -^.rajnYDjo^' ^.OFCAlIFO% .^OFCAIIFO% .5 '^ONVSOl^ ' %oi\mi^'> AHVHan# ^(?Aav} ^lOSANCnfX> ^5^t•UBRARY•6k. ^jMUBRARYQt "^fliAiNnmv ^ ijf ^ .5!rtFUNIVtRi/A ^tfOJllVDJO^ '^^ &AHvaaii# ^(^Aflvaan^ ^jsudkvsoi^ .^^\E•UNlVERy/A OS ea "^/iaaAi ^UIBRARY6!< 5 " ""-" ^ < < =3 ^lOSANCHfj^, ^VUBRARYQr ^J513DNVS01^ %a3AINn-3V^^ ^(^OJIIVDJO^ ^,^^MIBR %OJIT ^ ^OFCAIIFOI?^ ^(?Aavaan# ^\WEUNrVERJ'/^ •<<^3NVS01'^ ^lOSANC!l£r^ 6 %aaAiNfl3WV^ ^OFCAUFOP^ ^(?Aavaan# ^cIOSAI ^ is ^^ojnv3jo^ '^.Sfojnwjo'^ '^riij^wsov'^^ '^/5a3Aii PC/. .tm.Atir.nrp . nc.rAiir/iB.. f\c.r«iiFnr>. ^LiMiui\;nir<^ ''aujiivjjvj ^OFCAllFOfl-^ "^^ommi"^ Jiujnvwi^ <: 'oajAiniijn>' "QUailVJJU' IJC ;,(JUIHI UN [(I MdNAl I IlKtAHY I ACIl ITV AA (J()(j!ji» /5/ 6 ^^\^uNIVFRy/^ ^lOSAVcnfx^ o "^ajAiNnjuv^ o "^/iaaAiNdJWV ^lOSANCFU^ ^OFCAUFOff^ 3C ..Mi^ I !< £• »/ v^MIBKAKT6// ^.-OFCAlIFOff,^ ^OFCAIIFOI?;^, >&Aavjiaii-^^ ^immr/)^ o .^M^UNIv^?J•/A o r yr— * cb > -< SO 'V/ya3AiNn3V\v' ^^jSl-UBRAfTY/?/ ^OFCAUFOff^ >&>uivjian-# X'rtl UNIVRS-Z/X ^^lOSANCnO^^ ^llIBRAITYQr ^MIBRABYQ^ ^WEUNIVERS•//. vvlOSANCm-jVK dz OS so ^OFCAllFOff^ ^OPCAUF0«t^ ^FUNlVTl?S'/4 s ^&A«v8an# "^JTUDWSm^ A^VUBKAKTC//: OiSfUBNAHttJr^ '^.aojnvjjo^ .f\F.rAiimD<. ^^OJIIVDJO'^ .rvFrAiimo^. ? I Q U. ^lUBKAKTC|r 5 1 ir" ^ -i.OFCAIIFCWav