
    Luther Spear Junior versus John Hubbard.
    Where the plaintiff, being desirous of purchasing certain mortgaged land, paid to the mortgagee the value of his interest therein, and the mortgagee reconveyed to the mortgager to enable him to give a deed to the plaintiff of the whole estate, but immediately afterwards and before the deed to the plaintiff was executed, attached the land in a suit against the mortgager, the attachment was held to be fraudulent and void as against the plaintiff.
    It was also held, that in an action of trespass by the plaintiff against such mortgagee for subsequently levying on the land, the plaintiff was not entitled to damages on account of the fraud of the defendant, and that no actual injury having been done to the land, he should recover nominal damages only.
    This was trespass quare clausum fregit. The trial was, before Putnam J.3 upon the general issue. The defence was, that the locus in quo was the soil and freehold of the defendant. The plaintiff claimed under a deed from James Conant, of April 2, 1824. The defendant claimed by virtue of an attachment made on the 30th of March, 1824, and a levy in 1825, in a suit against the same Conant. It appeared that the defendant being the assignee of a mortgage of the land, and the plaintiff being desirous of purchasing the land, the defendant agreed to sell his interest to the plaintiff for 175 dollars, and upon receiving that sum from the plaintiff’s agent on the 29th of March, 1824, he conveyed his right to Conant for the purpose of enabling Conant to convey the whole estate to the plaintiff on the 2d of April; but in the mean time he made his attachment as before stated. The trespass complained of consisted in the subsequent levy. There was no evidence of any actual injury done to the land.
    The counsel for the defendant contended, that the jury could not legally infer from these facts that the defendant acted fraudulently in making his attachment; but the jury were instructed, that if the defendant had agreed to convey his interest to the plaintiff by this form of conveyancing, he had no right to interfere in his own behalf to prevent it, and that such conduct was fraudulent and rendered his attachment of no avail against the plaintiff.
    The counsel contended also, that the jury should give nominal damages, if any ; but they were instructed, that they could find a verdict for the plaintiff only on the ground that the defendant had conducted himself fraudulently, and that they might give such damages as they were satisfied the plaintiff had sustained in consequence of the wrongful act of the defendant, not including in their estimate any thing paid for counsel fees, or services which are compensated in the bill of costs.
    
      Oct. 4th.
    
    
      April term 1827
    The jury returned a verdict for the plaintiff for 45 dollars.
    If, in the opinion of the Court, the plaintiff was not entitled to recover, he was to be nonsuited; if he was entitled to recover, but only nominal damages, he was to release the excess and have a judgment on the verdict for nominal damages.
    
      E. SI Mills contended,
    that although the defendant’s conduct was unfair and fraudulent, yet that as the whole estate in the land was revested in Conant, it might be attached by any of Conant’s creditors.
    But he insisted chiefly on the point, that the damages should have been nominal only ; as to which, he cited 3 Stark. Ev. 1450, 1451, 1454; Bennett v. Allcott, 2 T. R. 166 ; Taylor v. Cole, 3 T. R. 292 ; Bracegirdle v. Orford, 2 Maule & Selw. 77.
    
      Lee, contra,
    
    said, that where the act of the defendant is malicious, or morally fraudulent, there might be more than nominal damages ; and that unless the damages assessed were outrageous, the Court would not set aside the verdict. He cited Tillotson v. Cheetham, 2 Johns. R. 63 ; 3 Bl. Com. 209 el seq.; Newman v. Smith, 2 Salk. 642 ; Dix v. Brookes, Str. 61 ; Bull. N. P. 89 ; Hoyt v. Gelston, 13 Johns. R. 141, 561 ; Woert v. Jenkins, 14 Johns. R. 352.
   Parker C. J.

delivered the opinion of the Court. This is trespass quare clausum, and by the evidence reported the case is well maintained for the plaintiff. The fraud of the defendant in relation to his attachment is palpable and gross and his counsel has wisely pressed but very feebly any genera defence.

But the point of damages is questionable. There is no evidence of any injury done to the soil or to the buildings, or to the trees, or any other product of the soil. The tres pass, for aught that appears, and probably in fact, was a simple entry ; so that there is no ground for any but nominal damages, unless the jury had a right to consider the fraud practised, and to give arbitrarily what they might suppose was proper either as punishment or compensation. We do not think they had any right in this action to assess damages upon any such principle. If the soil had been disturbed, or the trees been cut down, then, in such case, they would give the utmost value of the property injured or destroyed; but because the defendant acted fraudulently, the plaintiff is not entitled to his money, unless he suffered by the fraud. *3It looks like an attempt, either to punish the defendant, or to reimburse the plaintiff for the expenses of his suit, in a way different from that provided by law. There is no more reason for giving 45 dollars, than there would be for giving 500; indeed it is going without rule or compass. We think therefore the plaintiff must remit all the damages above one dollar, or a new trial will be granted. 
      
       See Morgan v. Bliss, 2 Mass. R. 112. The principle, that fraud accompanied with damage is a good cause of action, has been repeatedly recognised, and is now well settled, both in the English and American jurisprudence. Baily v. Merrell, 3 Bulst. 95; S. C. Cro. Jac. 386; Com. Dig. Action upon the Case for a Deceipt, A 1; Pasley v. Freeman, 3 T. R. 56; Ward v. Center, 3 Johns. R. 271; Upton v. Vail, 6 Johns. R. 181; Young v. Covell, 8 Johns. R 23, Russell v. Clark, 7 Cranch, 92; Gallagher v. Brunel, 6 Cowen, 346; Moore v. Tracy, 7 Wendell, 229; Addington v. Allen, 11 Wendell, 374; S. C, 7 Wendell, 1; Adams v. Paige, 7 Pick. 542; Pierce v. Jackson, 6 Mass. R. 242; Whittier v. Smith, 11 Mass. R. 211.
      And it is not necessary to prove any moral fraud on the part of the defendants. Adams v. Paige, 7 Pick. 542; Bird v. Randall, 3 Burr. 1353 ; 3 Bl. Com. 122; Foster v. Charles, 7 Bingh. 105; S. C. 6 Bingh. 369; Tapp v. Les, 3 Bos. & Pul. 371.
      As to representations of credit by which a person suffers damage, see Revised Stat. c. 74, § 3; 2 Kent’s Com. (3d ed.) 488, 489, notes.
     