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of damages. (a) It has been further held, that the jury may, in their discretion, find the value at a subsequent time. Thus, in trover for East India Company's warrants for cotton, where the value at the time of the conversion was sixpence the pound, but it afterwards rose to upwards of tenpence, the jury were left at liberty to find the latter price as the value; for though the plaintiff might with money have replaced the goods at the former price, yet he might not have been in funds for that purpose. And in England, the plaintiff is permitted to recover any special damage which he may allege and be able to prove as the result of the wrongful act of the defendant. Thus, under a count in trover for the conversion of tools, by means whereof the plaintiff was prevented from working at his trade of a carpenter, and was greatly impoverished, they being the implements of his trade, it was held that the special damage directly flowing from the detention of his tools was recoverable. But in the United States, upon consideration of the rule, it has been held safer to adhere to the value at the time of the conversion, with interest. But if the defendant has enhanced the value of the goods by his labor, as, for example, if he has taken logs, and converted them into boards, the plaintiff is permitted to recover the enhanced value, namely, the value of the boards, and is not confined to the value of the material, either at the place of taking, or of manufacture.* Where the subject is a written security, the damages are usually assessed to the amount of the principal and interest due upon it. If the plaintiff has himself recovered the property, or it has been restored to him and accepted, the actual injury occasioned by the conversion, including the expenses of the recovery, will form the measure of damages ;8 (6) and if the property in whole or in part has been applied to the payment of the plaintiff's debt or

1 3 Campb. 477, per Ld. Ellenborough; Pierce v. Benjamin, 14 Pick. 356, 361; Parks v. Boston, 15 Pick. 198, 206, 207; Stone v. Codman, Id. 297, 300; Greenfield Bank v. Leavitt, 17 Pick. 1; Hepburn v. Sewell, 5 H. & J. 212. See Sedgwick on Damages, c. 19.

2 Greening v. Wilkinson, 1 C. & P. 625.
8 Bodley v. Reynolds, 10 Jur. 310. See also Davis v. Oswell, 7 C. & P. 804.

4 Greenfield Bank v. Leavitt, 17 Pick. 3; Baker v. Wheeler, 8 Wend. 505; Rice v. Hollenbeck, 19 Barb. 664.

5 Mercer v. Jones, 3 Campb. 477.
6 Greenfield Bank v. Leavitt, 17 Pick. 3; Hepburn v. Sewell, 5 H. & J. 12.

(a) Wehle v. Haveland, 69 N. Y. 448; Tilden v. Johnson, 52 Vt. 628.

(8) Bates v. Clark, 95 U. S. 204..

otherwise to his use, this may be considered by the jury as diminishing the injury, and consequently the damages.' (a)

§ 277. Joint torts. In all actions for a joint tort, against several defendants, the jury are to assess damages against all the defendants jointly, according to the amount which, in their judgment, the most culpable of the defendants ought to pay.? (6) And if several damages are assessed, the plaintiff may elect which sum he pleases, and enter judgment de melioribus damnis, against them all. But if several trespasses are charged in the declaration, and the defendants plead severally, and are found severally guilty of distinct trespasses, the damages ought to be severed and assessed for each trespass against him who committed it. (c)

$ 278. Alia enormia. The averment of alia enormia, at the end of a declaration in trespass, seems to have been designed to enable the plaintiff to give evidence of circumstances belonging to the transaction which were not in themselves actionable, and which could not conveniently be put upon the record.

And it has frequently been said, that, under this averment, things may be proved which could not be put upon the record because of their indecency;

Pierce v. Benjamin, 14 Pick. 356, 361; Kaley v. Shed, 10 Met. 317. 2 Brown v. Allen, 4 Esp. 158; Lowfield v. Bancroft, 2 Stra. 910; Bull. N. P. 15; Austen v. Willward, Cro. El. 860; Heydon's Case, 11 Co. 5; Onslow v. Orchard, 1 Stra. 422; Smithson v. Garth, 3 Lev. 324; 3 Com. Dig. 348, tit. Damages, E, 6; Elliot v. Allen, 1 M. G. & S. 18.

3 Heydon's Case, 11 Co. 5; Headley v. Mildmay, 1 Roll. 395, pl. 17; 8. c. 7 Vin. Abr. 303, pl. 5; Johns v. Dodsworth, Cro. Car. 192; Doune v. Estevin de Darby, 44 E. III, 7; F. N. B. [107] E; Walsh v. Bishop, Cro. Car. 243; Rodney v. Strode, Carth. 19; 2 Tidd's Pr. 896 (9th ed.); Halsey v. Woodruff, 9 Pick. 455.

4 Prop’rs of Kennebec Purchase v. Bolton, 4 Mass. 419. Where an injury was done by two dogs jointly, who belonged to several owners, it was held that each owner was liable only for the mischief done by his own dog. Buddington v. Shearer, 20 Piek. 477; Russell v. Tomlinson, 2 Conn. 206.

(a) In an action of trover, if the de- (6) When damage results from two diffendant at the time of the conversion had ferent causes, for only one of which the a lien on the goods to a certain amount, defendant is responsible, the burden of the rule of damages is the value of the proof is upon the plaintiff to show the goods, deducting the amount of the lien extent of the damage occasioned by the and adding interest on the balance. cause for which the defendant is liable. Fowler v. Gilman, 13 Met. (Mass.) 267. Priest v. Nichols, 116 Mass. 401. See also So if a plaintiff in a suit makes an illegal ante, vol. i. $ 48, n. attachment of goods, and a few days after- (c) In an action of trover against two, wards makes a legal attachment and gets one of whom is defaulted, and the other judgment and takes the goods on execu- found guilty by the jury, there is but one tion, if he is sued for a conversion in mak assessment of damages, and the judgment ing the first attachment, the measure of is joint. Gerrish v. Cummings, 4 Cush. damages is only the loss caused to the (Mass.) 391; Gardner v. Field, 1 Gray owner of the goods by the original attach. (Mass.), 151. ment and detention. Lazarus v. Ely, 45 Conn. 504.

and that, therefore, in trespass for breaking and entering the plaintiff's house, he might under this averment prove that the defendant, whilst there, debauched his daughter. When this doctrine was first advanced, it was generally understood that no action would lie for this latter injury, unless as an aggravation of the former; and hence, the judges may have been led to find a special reason for admitting this evidence. But since it is well settled, and has become the ordinary course, to sue especially for this injury to a daughter and servant, as well as for criminal conversation with a wife, and to allege the main facts upon the record, no reason is perceived for retaining this anomaly in practice. There is no injury, however indecent in its circumstances, but may be substantially stated with decency on the record; the law permitting and even requiring parties, as well as witnesses, to state in general terms, and with indirectness, those things which cannot otherwise be expressed with decency; and to this extent, at least, every party is entitled, by the settled rules of pleading, as well as by the reason of the thing, to be informed of that which is to be proved against him. The circumstances and necessary results of the defendant's wrongful act may be shown without this averment; and as to those consequences which, though natural, did not necessarily follow, they must, as we have seen, be specially alleged. 3

1 (Post, $8 571 et seq.) ? See supra, § 253.

8 See the observations of Mr. Peake, Evid. p. 505, by Norris; Mr. Phillips, 2 Phil. Evid. 180; Id. p. 136 (2d Am. ed.); and Mr. Starkie, 2 Stark. Evid. 815; 1 Chitty on Pl. 412 (7th ed.); Chitty's Precedents, p. 716, n. (k); Bull. N. P. 89; Lowden o. Goodrick, Peake's Cas. 46; Pettit v. Addington, Id. 62.


§ 278 a. Proof of death in civil and criminal cases. The amount of evidence required to establish the fact of death is somewhat affected by the nature of the case in which the question arises. In trials for homicide, this is, of necessity, to be proved at the outset, in the most satisfactory manner, and beyond any reasonable doubt; such being the rule of evidence in the criminal law. 1 This, therefore, is the highest degree of proof demanded of this fact. In civil cases it is ordinarily sufficient to prove it by the mere preponderance of evidence; and yet here there is a difference in the amount of proof required, according to the materiality of the fact to the subject in controversy. Thus, in a claim of title by descent or succession, or of the right of administration, the party is held to a more strict proof of the death of the ancestor, than in cases where the question arises incidentally and collaterally in the proceedings, as for example, on a motion to read the deposition of a witness, or to give evidence of his testimony at a former trial, on the ground of his subsequent decease ; for these are cases addressed to the discretion of the court, in which the consequences of mistake are comparatively of not much importance, and are without difficulty retrieved.2

§ 278 b. When proof is required. In the United States, the proof of death, in cases not criminal, is required in claiming title to land by descent, as heir, against a stranger; or as dowress, against any tenant of the freehold; or, in the probate courts, in an application for letters testamentary, upon the probate of a will; or of letters of administration; or, in a claim of the insurance-money, upon a policy on the life of another, by the party to whom it was made payable at his death; or in a claim of wages or pension or bounty-money, by the widow or child of one entitled under the laws regulating the military, land, or naval service.

$ 278 c. Direct proof. The direct and most satisfactory proof of the death of a person is the testimony of those who saw him die, or who, having known him when living, saw and recognized

1 See post, vol. iii. 88 30, 130-132. 3 Carrington v. Cornock, 2 Sim. 567.

his body after his decease. In the former of these cases, if the circumstances were of a nature to leave the fact in any degree doubtful, as for instance, in apparent sudden death, whether from the inhalation of noxious gases, or other accident, the testimony of a medical person is desirable, and, if possible, should be obtained.

§ 278 d. Indirect proof. The indirect evidence of death is either documentary or oral. Among the documentary instruments of proof which have been received may be enumerated Parish and other Registers, where such are required by law to be kept;1 Muster Rolls and Returns, in the military and naval service; Coroners' Inquests ;3 Probate of the will of the deceased, or the grant of administration on his estate ; 4 (a) the assignment of the widow's dower upon writ, or other legal proceedings; previous litigation respecting the estate of the deceased, terminated in favor of those claiming as heirs. The identity of the person is, prima facie, inferred from the identity of the name; except where the place of residence was in a large city or town, in which case, proof of some additional circumstances seems to be necessary.5

$ 278 e. Oral evidence. The oral evidence, indirectly proving death, consists of those circumstances from which the death of the person may reasonably be inferred; such as long absence, without any intelligence respecting him, reputation in the family, and their conduct thereupon, and other circumstances. (b) In regard to long absence, this alone, without the aid of other facts, has been said not to furnish any presumption of the party's death;

1 See ante, vol. i. $8 483-485, 493 ; Bull. N. P. 247 ; Doe v. Andrews, 15 Ad. & El. n. s. 756. A consul's certificate is not evidence of the death of a person. Morton v. Barrett, 1 Applet. 109.

8 Ibid. ; Sergeson v. Sealey, 2 Atk. 412 ; 1 Saund. 362, n. (1), by Williams.
4 Infra, &$ 355, 693 ; ante, vol. i. $ 550.
6 Húbback on Succession, pp. 103, 464, 465 (ante, vol i. $$ 38, 512, 575)

(a) In some cases, although holding hend the presumption would be prima that the absence of a person from the State facie in favor of the decease if a plea in without being heard from for any period abatement were interposed, but open to short of seven years is not sufficient to proof that the testator is still living. 2 raise a legal presumption of his death, it Redfield on Wills, 2 ; Lancaster v. Washhas been considered that where letters of ington Life Insurance Co., 62 Mo. 121 ; administration had been granted after an Tisdale v. Connecticut Insurance Co., 26 absence of three years, and a suit had been Iowa, 170. But it is denied in Ins. Co. v. brought upon a promissory note payable Tisdale, that letters of administration are to the intestate without any plea in abate- even prima facie evidence of death. Ante, ment being interposed, a conclusive pre- vol. i. $ 550, n. sumption of the death of the intestate (6) Connecticut Insurance Co. v. Tisarose from the above facts. Newman v. dale, 26 Iowa, 170. Jenkins, 10 Pick. (Mass.) 515. We appre

2 Ibid.

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