
    
      J. J. Stallings vs. Isaac Corbett.
    
    1. S. and C. were joint owners of a saw mill, having two saws — each worked a saw. The dam having broken, C. proposed erecting a new mill, but S. insisted on repairing the da m, and going on with the old mill. As to the state of the mill, the evidence was various. Steps were taken by S, for mending the dam, but C. took down the breast opposite his saw, which he never put up, and without which the mill could not operate. It was in evidence, that the breast was in bad condition, and a new one would have cost but little labor. S. abandoned the scheme of repairing either the dam or mill; and C. doing nothing further, the mill remained idle. Held, that in an action brought by S. against C., to recover damages, such compensation as would place him in the same situation he would have been in, if the alleged injury had not been committed, was all that he was entitled to recover.
    2. It is only in actions for injuries affecting character, that malice enters directly into the estimate of damages.
    3. In other actions, the malice of the defendant in committing a tort, is not recognized as an element of damage, though it may, and does, tend to enhance, with the jury, the allowance to the plaintiff for such acts as are properly subjects of damage.
    4. The charge and duty of making indispensable repairs to the common property, devolves equally on the co-tenants. If one refuses to unite with the others, in making the repairs necessary to the use of the property, he cannot maintain an action against them for the loss sustained through want oí such repairs, because no action lies where the damage happens by the negligence or default of the plaintiff himself.
    
      Before Richardson, J. Barnwell, Spring Term, 1844.
    Stallings and Corbett were the joint owners of a water mill of two saws, which usually sawed from 1000 to 2000 feet of inch plank per day. Each party worked one saw to himself, the product of course considerable. Some two years ago, the dam broke, and disputes arose as to the way of repairing the loss. The defendant, it would seem from the evidence, deemed it a proper occasion to build an entirely new mill. But the plaintiff was for repairing the bank, and going on with the old mill. The evidence was various as to the state of the mill. It would seem, according to the opinions presented, pretty good, indifferent, or bad. .Much heat followed between the two partners— Stallings was for mending, and took steps to mend the dam. But Corbett took down the breast work opposite to his saw, and never put it up again. Until restored, the mill could not operate. But the breast-work was in very bad condition, and a new one would have cost but little labor. Instead of doing so, Stallings abandoned the scheme of repairing the dam or mill, and brought this action for damages'; and Corbett doing nothing farther, the mill remained idle. The evidence must be consulted for details.
    The presiding Judge charged the jury that this was a case altogether for them to decide. That it depended on the intentions of the defendant, in taking down the breast work. If he had done it with a view to repair the mill, or build a new one, he had a right to do either. Each party had the same and equal rights. But if he had done it maliciously, in order to oust his partner of his running his saw, or using the mill as it was, then,, and then only, the action lay; and the jury might give vindictive damages, or confine themselves to the nett profits lost to Stallings, by the actual non-use of the mill that followed. That the defendant having taken down the breastwork, but never repairing it afterwards, nor accounting why he so left it, nor erecting a new mill, was a circumstance much against him, in shewing the intention of his conduct. But of this the jury were the proper judges. If either party had wantonly cut the dam, any one might see that an action lay; and any other malicious and injurious act to arrest the use of the mill, came within the same principle.
    The jury returned a verdict for plaintiff, for $150.
    The defendant moved for a new trial, on the following grounds:
    Because the presiding Judge erred,
    1. In charging the jury, that if they believed /the breast of the mill was taken down by the defendant with the intention of making repairs, they might find for the defendant ; but if they believed his intention was malicious, or to injure the plaintiff, they might make him pay smart money.
    2. In charging the jury, that if the intention of the defendant was, in good faith, to make repairs, why did he not put up the breast of the mill, and that it was incumbent on him to show why he did not.
    3. In not charging the jury that they should enquire what damages the plaintiff had actually sustained from the taking down the breast of the mill, and find accordingly-
    4. In not charging the jury that if they believed that the plaintiff in fact sustained no injury by the taking down the breast of the mill, they ought to find for the defendant.
    5. In not charging the jury, that if they believed the plaintiff had refused to assist in repairing the mill dam, the defendant was not bound to repair it, and that to put up the breast under such circumstances, would be idle labor. And,
    6. Because the plaintiff in fact sustained no material damage b.y the taking down the breast of the mill, and the jury, under the charge of the court, were left at liberty to find, if they were not instructed that they might find, vindictive damages.
    7. Because the verdict is contrary to law and evidence..
    
      Patterson & Ayer, for the motion. Aldrich$ contra.
   Curia, per

Frost, J.

The defendant’s first, third, fourth and sixth grounds of appeal, present only one distinct question of law — whether, on proof that, the defendant had removed the breast of the mill maliciously, the plaintiff might recover vindictive damages.

Damages are defined to be pecuniary compensation for an injury, recovered in an action at law. The rules which regulate the amount to be recovered, vary according to the forms of .action and the circumstances of the injury complained of. But in every modification of them, the principle of compensation is observed. In trover, detinue and replevin, in which the recovery of personal property wrongfully withheld is sought, the measure of damages is the value of the property, and of the use of it during the time it has been wrongfully withheld. And in those cases of tort, in which the law has not laid down any certain rule by which to estimate the amount of damages, because they are too vague and uncertain, and depending on too great a variety of facts and circumstances, to be comprehended in any rule, the principle of compensation is still preserved by restraint on the allowance of damages in such cases, that they shall not be unreasonable or excessive.

An action oh the case is said, by Lord Mansfield, in Randall vs. Bird, 3 Bur. 1353, to be “founded in the justice and conscience of the plaintiff s case ; so that whatever will, in equity and conscience, according to the circumstances of the case, bar the plaintiff’s recovery, may be given in evidence by the defendant.” The damages for torts to real and personal property, in this form of action, according to Tidd, “are proportioned to the injury complained of; and when the action will admit of it, they should be such as will put the plaintiff, as nearly as may be, in the same situation as he would have been if the injury had not been committed, or otherwise will afford him a reasonable satisfaction for the loss or inconvenience he has sustained.” Tidd’s Pretc. 884, (9th London edi.) “This rule applies equally, whether the action arises from malfeasance, misfeasance, or nonfeasance.” It is only in actions for injuries affecting character, that malice enters directly into the estimate of damages; in these it is the criterion of actionable wrong, and a measure of the injury the plaintiff has sustained. In other actions, the malice of the defendant, in committing a tort, is not recognized as an element of damage, though it may, and does, tend to enhance, with the jury, the allowance to the plaintiff for such acts as are properly subjects of damage. In an action on the case by one tenant in common, against his co-tenant, for any act destructive of the common property, the extent of the loss may be estimated in money, and the measure of damages is indemnity or satisfaction to the plaintiff. In this case, the operation of the mill was suspended. The pecuniary loss to the plaintiff is easily ascertained. Compensation for that loss will put the plaintiff in the same situation he would have been in if the injury alleged had not been committed, and brings his case within the rule laid down by Tidd.

The fifth ground of appeal presents a mixed question of law and fact. On the point of law, it is sufficient to remark that the charge and duty of making indispensable repairs to the common property, devolves equally on the co-tenants. If one refuses to unite with the others, in making the repairs necessary to the use of the property, he cannot maintain an action against them for the loss sustained through want of such repairs, because no action lies where the damage happens by the negligence or default of the plaintiff himself.

The motion is granted.

Richardson, Q’Neall, Evans, Butler and Wardl4W? . JJ. concurred.  