the jury were to take into consideration the amount of damage, from the risk of the notes getting into circulation again; from the delay and inconvenience in obtaining vouchers to settle the accounts; and from the want of evidence at the department that the notes had been redeemed.*

In New York it has been held, that where the property of a party is sold under illegal process, and the sum demanded is raised by a bid at the sale of the property, made by an agent of such party, who purchases for the benefit of his principal, and pays for the same with the money of the principal, the measure of damages, in an action of trespass against trustees of a school district, in such case, is the amount of the bid and the interest thereof, and not the value of the property sold.+

The questions examined in this chapter may arise, as in the instances which we have been considering, in suits brought by the aggrieved party against the officer directly; or, otherwise, on the bond given by him for the faithful discharge of his duty; or, again, they may be brought against the sureties of the officer. In the case of the suit being brought on the bond, much depends on the form of the instrument and the statute under which it is given. So in Ohio, an action of debt being brought on a sheriff's bond for neglect to sell property levied on, the rule of damages was held to be the value of the property and not the amount of the judgment, and execution was only allowed to issue for the former sum, the language of the statute under which the bond was given being, that "execution might issue for such sum as it might be ascertained would be sufficient to indemnify the person so suing."+

Where the suit is brought against a surety, the measure of damages often presents very nice and complicated questions, growing out of the fact that the inquiry involves an investigation of the violation of duty of the principal as well as breach of contract of the surety. In these cases it seems to be well settled, that judgment against the principal is prima facie evidence of negligence in the suit against the surety, at all events where he has had no notice of the suit being brought.

*U. S. vs. Morgan, 11 Howard, 154.

+ Baker vs. Freeman, 9 Wend., 36. See to same point, Clark vs. Hallock, 16 Wend., 607.

Ohio, use of Morgan vs. Myers et al., 14 Ohio, 588. § Supra, 808, and cases there cited.

SUITS AGAINST SURETIES OF PUBLIC OFFICERS.

527

In a case in Massachusetts, brought against the sureties of a constable's bond, where the breach assigned was an illegal levy, and it appeared doubtful whether all the property in question was taken colore officii, a verdict being taken for the penalty of the bond, the court said, "If it appears that any of the property was taken by color of office, as it no doubt does here, that shows an official misfeasance, which is a breach of the bond, and entitles the plaintiff to judgment as for such breach. But when it comes to the assessment of damages, and it is open to question whether the trespass, for which judgment was recovered in the action of trespass, was done by color of office, it will no doubt be competent to the court or jury who assess the damages to ascertain what part of the property was so taken; for it is that part only which is in question in the suit." It was also held that the fact that the goods levied on had been mortgaged by a previous owner before the levy, and that they had been delivered by the constable to the mortgagee on his demand, was no defense to the action, but that upon a hearing in equity, this evidence would be admissible in reduction of damages.*

City of Lowell vs. Parker, 10 Met., 309. As to cases in other States, see State Treasurer vs. Weeks, 4 Verm., 215. Governor vs. Matlock, 1 Hawks., 425. Duncan vs. Klinefelter, 5 Watts, 144. Hazard vs. Israel, 1 Binn., 240. Shewell vs. Fell, 8 Yeates, 17. S. C., 4 Yeates, 47. Eaton vs. Ogier, 2 Greenleaf, 46. Riggs et al. vs. Thatcher, 1 Greenleaf, 68. Gibson vs. The Governor, 11 Leigh, 600. Brugh vs. Shanks, 5 Leigh, 598. Rootes vs. Stone, 2 Leigh, 650. Smith vs. Hart, 2 Bay, 395. Patten vs. Halsted, 1 Coxe, 277. Gerrish vs. Edson, 1 N. H. R., 82. Webster vs. Quimby, 8 N. H. R., 382. Bruce vs. Pettengill, 12 N. H. R., 341. Peverley vs. Sayles, 10 N. H. R., 356. Sawyer vs. Whittier, 2 N. H. R., 815. Sanborn vs. Emerson, 12 N. H. R., 58. Richards vs. Gilmore, 11 N. H. R., 498. Runlet vs. Bell, 5 N. H. R., 433. Perkins vs. Thompson, 8 N. H. R., 144. Cady vs. Huntington, 1 N. H. R., 138. Taylor vs. Commonwealth, 3 Bibb, 356. Ackley vs. Chester, 5 Day, 221.

CHAPTER XXII.

THE MEASURE OF DAMAGES IN CASES OF TRESPASS TO PERSON OR TO PROPERTY.

In every case of trespass, damages are recoverable whether the act was intentional or accidental. But if no aggravation is shown, the rule of damages is generally a question of law-Case or Trespass for injuries to property-Decisions examinedMitigation Case or Trespass for injuries to person-Decisions examined--Mitigation-Case or Trespass where Fraud is averred-Fraud in sale of lands-Mitigation and Recoupment-General Principles.

I PROCEED now to examine the measure of damages for those remaining wrongs, either to the person or personal property, which are redressed by the actions of case and trespass; proceedings which are so closely allied to each other, and the line which separates them so difficult to define, that for our present purpose it will be more convenient to treat them together.

We have already had occasion to notice* that in all cases of trespass, although purely unintentional, unless caused by absolutely inevitable accident, the party in default must respond in damages; and that the intent is only material in aggravation or mitigation of damages. We have seen that in cases of contract the motive of the defendant is not inquired into to augment the remuneration to be made by him. On the other hand, in cases of trespass the absence of evil motive cannot be set up as an excuse so far as to bar the action. "I had learned," says Lord Kenyon, "from Lord Bacon's maxims, that there is a distinction between answering civiliter and criminaliter for acts injurious to others; in the latter case the maxim applied is, actus non facit reum nisi mens sit rea; but it is otherwise in civil actions, where the intent is immaterial if the act done be injurious to another." And so says Mr. Chitty, "Where

* Chapter, XVIII., 455.

Haycraft vs. Creasy, 2 East, 90.

the act occasioning an injury is unlawful, the intent of the wrongdoer is immaterial."*

It follows, from what has been said, that in the cases of wrongs such as we now proceed to consider, the measure of relief does not depend on the form of the action; whether case or trespass be employed, if no aggravation be proved, the rule of damages is a question of law; and it is competent in either proceeding, to show those circumstances of evil motive which, as we have already seen, go to place the subject of relief largely within the control of the jury.

In regard to this class of cases generally, it will be noticed that the object is to limit relief to compensation, as that term is legally understood; and we shall find, therefore, that while the power of the jury over the subject in cases of aggravation is fully recognized, still, even where such facts are presented, if evidence has been admitted or directions given at the trial, which, had the intention of the jury been to give compensatory and not vindictive damages, would have been incorrect, the court, assuming that such was the purpose of the jury, will exercise their control over the subject. "We consider the law," says the Superior Court of New York, " as properly and wisely set'tled that the quantum of damages, with the exception of cases in which exemplary or vindictive damages may properly be given, is strictly a question of law; so that the jury are bound by the rule which the judge directs them to follow.' This will appear by the cases which we now proceed to examine.

And a convenient division of the subject appears to be produced by grouping together, first, those actions where case or trespass is brought for injuries to personal property; secondly, those where redress is claimed for injuries to the person; and lastly, where actual fraud is complained of.

It may not be improper to make some preliminary observations as to the right in which the action is brought, so far as it affects the question of damages. In all cases the absolute or general owner of personal property, whose rights are infringed, can maintain the action. So can the special owner. And in this country the rights of another class of parties interested

* Chitty on Pleadings, Vol. I., 147.

+ Suydam vs. Jenkins, 3 Sandford, 628, per Duer, J. See, also, Baker vs. Wheeler, 8 Wendell, 505.

have been recognized. So where a defendant fraudulently removed buildings of a judgment debtor from certain premises on which the judgment was a lien, with intent to defeat the lien of the plaintiff's judgment, it was held that the plaintiff was entitled to recover. And so a mortgagee can recover against a party for wrongfully removing buildings from the mortgaged premises, or for any fraudulent injury to the value of the premises. But in cases of this description, the plaintiff must show that he necessarily suffered damage by the act complained of; in other words, that there was not property enough left to satisfy the execution, or the mortgage.

We proceed now to notice the general rules which govern in trespass for taking personal property, or as it is technically called, trespass de bonis asportatis. And, as we have said, although this is eminently an action where, in case of evil motive, the damages are under the control of the jury, and although for that purpose all the circumstances of the transaction may be given in evidence, still the determination of which I have spoken, to adhere to the rule of compensation, has been frequently made manifest.

So it has been often decided, that where trespass is brought for personal property and no circumstances of aggravation are shown, the action is to be regarded as one of trover, and the value of the property with interest furnishes the measure of damages.

As to the plaintiff's title, it has been held at nisi prius, where he was a collector and transmitter of small parcels and responsible for their safe delivery, that he could recover the full value against a railway company, in an action of case for negligence, on the ground of his liability to pay their value to the true owner whether he had actually paid it or not.t

In Maine, in an action of trespass de bonis asportatis, it was ruled at the trial, that the jury should give the value of

* Yates vs. Joyce, 11 J. R., 186. Lane vs. Hitchcock, 14 J. R., 213. Marsh vs. White, 3 Barb. S. C. R., 518. Gardner vs. Heartt, 8 Denio, 232; but not for mere negligent injury. In Barber vs. Matthews, 1 Denio, 835; it was held that the principle allowing a recovery in cases of this kind must be limited to real property; and that for similar injury to personal property levied on, the suit must be brought in the name of the party making the levy.

+ Crouch vs. Railway Co., 2 Car. & Kir., 790.