from the agreed price, according to the difference at the time of delivery between the ship as she was, and what she ought to have been according to the contract; but all claims for damages beyond that, on account of the subsequent necessity for more extensive repairs, could not have been allowed in the former action, and may now be recovered."* A question analogous to those which we have been considering is presented in the case of conflicting claims for freight, and for damages resulting from bad stowage or other negligence of the carrier. In England the rule is, that the consignee who has received the goods must pay the freight without deduction, and resort to his cross action for the damage. But the inclination of judicial opinion in this country seems to be to allow the injury done by the negligence of the carrier to be set off as an answer, pro tanto, to his claim for compensation. It has been so decided in Illinois and in Pennsylvania. So, also, the consignee of property a part of which is not delivered, may recoup the damage so sustained in an action against him for the freight. The same principle has been applied to the case of an agreement to load a vessel with a stipulated freight, where the defendant failed to comply with his contract, but third persons offered to make up the deficiency. Here it was held that the master was bound to accept the offer of such third persons, and that the defendant was entitled to recoup the freight moneys that they would have paid.[] Nor is the doctrine of recoupment confined exclusively to cases of contract. It is often applied in cases of tort. So in trover. Thus, it has been held applicable, in New York, to a lien for freight, where the goods were sued for in trover.T A question very analogous to this is, how far evidence *For other English cases, see Leggett vs. Cooper, 2 Stark., 98; Kist vs. Atkinson, 2 Camp., 68; Okell vs. Smith, 1 Stark., 107, (86); White vs. Chapman, ib., 118, (91); Denew vs. Daverell, 3 Camp., 451; Sheels vs. Davies, 4 Camp., 119; Caswell vs. Coare, 2 Taunt., 107; Montriou vs. Jefferys, 2 Car. & P., 118; Hamond vs. Holiday, 1 C. & P., 384; Bamford vs. Harris, 1 Stark., 274. Sheels vs. Davies, 4 Camp., 119; and S. C., + Davidson vs. Gwynne, 12 East, 381. 6 Taunt., 65. And see Abbott on Shipping, Edwards vs. Todd, 1 Scammon, 463. Leech vs. Baldwin, 5 Watts, 446. Humphrey vs. Reed, 6 Wharton, 435. Hinsdale vs. Weed, 5 Denio, 172. Hecksher vs. McCrea, 24 Wend., 804; supra, 361, and also, 480. And see, to same point, Costigan vs. Mohawk & H. R. R., 2 Denio, 610. Everett vs. Saltus, 20 Wend., 267 and 278. of payments when not pleaded, or when made after the commencement of the suit, is admissible in reduction of damages; and the more reasonable rule in the latter case would seem to be, that in such case proof of the payment is admissible to show that the plaintiff has not sustained the entire injury for which he claims compensation.* It is well settled, however, that after an action is brought and costs incurred, the defendant cannot bar the plaintiff's suit by paying the debt merely, without also paying the costs. And where such payment is made, the plaintiff will generally be entitled, if the costs are not paid, to take judgment for nominal damages and his costs. But if the payment is made in satisfaction of the debt, damages, and costs, then the verdict will be for the defendant. A plea of payment into court in full satisfaction of all the causes of action in the declaration contained is good, being an answer to the damages as well as the debt.§ But a plea of payment into court in debt, stating that the defendant never was indebted to the plaintiff to a greater amount than the sum paid into court, is bad, as not answering the damage for the detention of the debt. I cannot here omit to say, that the doctrine of recoupment as generally adopted in the United States, appears to me settled on just and philosophical principles, while at the same time there is no doubt that it works a serious innovation in the ancient rules which seek to produce singleness of issues. Those rules are, however, so far modified by the practice of double pleading, set-off, and lastly of recoupment, that it becomes a grave question, whether they are now of any very considerable practical value; and it is at least quite doubtful whether the forms of action are of any great utility, so far as they are supposed, or were originally intended, to produce a single issue. * Shirley vs. Jacobs, 2 Bing. N. C., 88. Lediard vs. Boucher, 7 Car. & Payne, 1. Richardson vs. Robertson, 1 Mees. & Wels., 468. Vide supra, 110. + Belknap vs. Godfrey, 22 Verm., 289. Thames vs. Boast, 12 Q. B. R., 808. § Triston vs. Barrington, 16 M. & W., 60. Lowe vs. Steele, 15 M. & W., 380. CHAPTER XVIII. THE RULE OF DAMAGES IN ACTIONS FOR TORTS Forms of Action prescribed for wrongs-Trover-Case-Trespass-Replevin-Unless Aggravation is proved, the Measure of Damages in actions of Tort is matter of Law-Where Aggravation is shown, the Jury have a discretion to give Exemplary or Vindictive Damages beyond compensation for actual Loss-All the attendant circumstances may be proved-Rule where both plaintiff and defendant are in fault-In Collision-In Cases of Felony. HAVING thus disposed of the subject of contracts, we proceed now to the consideration of wrongs. The forms prescribed by the English law for the redress of wrongs, or as they are technically termed, actions ex delicto, are trover, case, trespass, reple vin, and detinue.* The divisions of our system in this respect are arbitrary; for, as we have already had occasion to notice,† there are many actions nominally in tort, which, in respect to the measure of relief, are treated as virtually actions ex contractu; and in these cases a fixed rule of damages is adhered to. So in an action of trespass without any circumstances of aggravation, the Supreme Court of the United States said that, the case not being one which called for vindictive or exemplary damages, the plaintiff was only entitled to recover for his actual injury.‡ So, there are many cases of tort where no question of fraud, malice, or oppression intervenes; and in those cases the measure * The old action of detinue is of comparatively rare occurrence, and in New York is abolished by statute. Grotius thus begins his chapter De Damno. Supra diximus ejus quod nobis debetur fontes esse tres; pactionem-maleficium-legem. De pactionibus satis tractatum. Veniamus ad id quod ex maleficio naturaliter debetur. Lib. II., Cap. 17, § 1, De Jure Belli et Pacis. Grotius treats only of Damnum, under this head of Maleficium.—De Jur. Bell. et Pac., Lib. II., Cap. 17; vide, also, supra, 21. + Supra, 335 and 355. Conard vs. The Pacific Ins. Co., 6 Peters, 262, 282. See, also, Bell vs. Cunningham, 8 Peters, 69; Tracy vs. Swartwout, 10 Peters, 80, 95. of compensation is matter of law. So the Supreme Court of New Jersey says, in an action of trespass quare clausum fregit, "In actions of trespass, where the plaintiff complains of no injury to his person or feelings; where no malice is shown; where no right is involved beyond a mere question of property; where there is a clear standard for the measure of damages, and no difficulty in applying it,-the measure of damages is a question of law, and is necessarily under the control of the court.* And so again in North Carolina, in an action of trespass for destroying a building by fire, the jury at nisi prius were directed that the measure of damage was not the value of the building, but the amount it would have taken to rebuild it if destroyed. But this, on review, was held wrong; and the court said, "the proper measure in actions of this kind is the real value of the property destroyed, unless the trespass is committed wantonly or maliciously, when the jury may, if they think proper, give vindictive damages. But whether they should have been given or not was a question which ought to have been submitted with proper instructions to the jury."+ But, on the other hand, where circumstances of aggravation are made apparent, where the motive of the plaintiff is grossly fraudulent, malicious, or oppressive, the amount of relief is left largely to the discretion of the jury. In regard to these latter cases, we have already observed the general disregard of the principle of compensation by which they are marked.‡ And I have stated the rule to be, that where gross fraud, malice, or oppression appears, the jury are not bound to adhere to the strict line of compensation, but may, by a severer verdict, at once impose a punishment on the defendant and hold up an example to the community. I proceed now to a review of the cases in which this salutary doctrine has been maintained. *Berry vs. Vreeland, 1 Zabriskie's N. J. R., 183. + Wylie vs. Smitherman, 8 Iredell, 236. Supra, 88. In addition to the cases cited in the text, others will be found bearing on the subject. Leland vs. Stone, 10 Mass., 459; Weld vs. Bartlett, 10 Mass., 470, 473; Stone vs. Codman, 15 Pick., 297; Larned vs. Buffington, 8 Mass., 546; Richards vs. Farnham, 13 Pick., 451. And the doctrine of our law is supported by writers of more than mere judicial authority. Thus says Mr. Rutherforth: "Indeed, in many instances of gross fault, it is so difficult to distinguish between a mere neglect and a malicious design, that besides the demand of reparation for damages done, some punishment may reasonably be inflicted upon the person so offending."—Rutherforth's Institutes of National Law, book i., ch. 17, Reparation, 209. That the intent of the defendant is material in regard to damages, has always been recognized in our law: "damages are graduated by the intent of the party committing the wrong."* Indeed, the rule is, that if the rights of another party are invaded, although without evil design, and even if the act be purely accidental, the trespass must be answered for in damages. The question of intention is only urged in mitigation or aggravation of damages. Thus in an early decision, a case of trespass quare clausum fregit is cited, where the defendant pleaded "he had an acre lying next the six acres (locus in quo), and on it a hedge of thorns: he cut the thorns, and they, ipso invito, fell upon the plaintiff's land; and the defendant took them off as soon as he could, which is the same trespass; and the plaintiff demurred, and it was adjudged for the plaintiff; for though a man do a lawful thing, yet if any damage do hereby befall another, he shall answer for it if he could have avoided it. As, if a man fell a tree, and the boughs fall on another, ipso invito, yet the action lies. If a man shoot at butts and hurt another unawares, an action lies. I have land through which a river runs to turn your mill, and I top the sallows growing on the river-side, which accidentally stop the water so as your mill is hindered, an action lies. If I am building my own house, and a piece of timber fall on my neighbor's house and breaks part of it, an action lies." So in a recent case in the Common Pleas, when in an affray the plaintiff was struck by accident, Bosanquet, J., said to the jury, "The plaintiff is entitled to your verdict whether it was done intentionally or not. But the intention is material in considering the amount of damages." So, also, in New York, in an action against a company for blasting negligently done by their agents.§ The principle that in trespass the intent is not conclusive, is carried so far that a lunatic is held liable for his tortious acts, as an insane justice in an action for false imprisonment. On principle this should never have been permitted. In the case of the compos mentis, although *Krom vs. Schoonmaker, 8 Barb. S. C. R., 651. + Lambert vs. Bessie, Sir T. Raym, 421. James vs. Campbell, 5 Car. & Payne, 372. Hay vs. Cohoes Co., 3 Barb. S. C. R., 42. Krom vs. Schoonmaker, 3 Barb. S. C. R., 647. Morse vs. Crawford, 17 Verm., 499. Bush vs. Pettibone, 4 Comstock, 300. |