
    Peshine v. Shepperson.
    April Term, 1867,
    Richmond.
    [94 Am. Dec. 468.]
    I. Pleading and Practice — General Issue — Special Pleas. —A cause is tried upon the general issue, and there is a verdict and judgment for the plaintiffs, whilst there is a demurrer to one special plea, and an objection to the admission of another, not acted on fay the court. If these pleas present no faar to the action, the failure of the court to pass upon them affords no ground for reversing the judgment,
    2. Depositions — No Exception — Admission on Another Trias. — if depositions are read on a trial without objection, or if objection is made, without an exception taken to their admission, upon another trial of the cause, they will not be excluded for the failure to prove notice to take them, unless the party objecting has given notice to the other party of his intention to object to them in time to enable the party offering them to take them again and •the witnesses are alive at the time of such notice.
    3. Sale of Goods by Agent — No Authority — Liability of Purchaser. — A salesman of a merchant agrees with a creditor of his principal to sell him goods in payment of his debt; and at night, without the knowledge of the principal and against his wishes, known to both of them, the goods are selected and sent off by the purchaser. The purchaser acquires no title to the goods by his purchase, and is liable to the merchant for the value of the goods, and for any damages he has sustained by the taking and carrying away the goods.
    4. Same — Same—Same.—In such a case, if the salesman, at the same time packs up and sends off other goods, to pay other creditors of his principal, the purchaser is not liable for the value of these goods, unless he aided, assisted and concurred in their being so taken and carried away for the other creditors: and the burthen is on the plaintiff to prove this.
    5. Same — Same—Damages—Measure of. — In such case, no special damage being laid, the merchant is entitled to recover for all such damages as are the natural, proximate *and necessary result of the act of the purchaser ; and injury to the credit and business standing of the merchant. and the injury to his business, resulting therefrom, are properly recoverable as the natural, proximate and necessary consequences of the acts of the purchaser.
    
      6. Same — Same—Same—Same.—In such case to ascertain such damages, the nature and extent of the merchant's business, and whether profitable or unprofitable, are proper subjects of inquiry.
    7. Same — Same—Same—Probable Profits. — In such a case the probable profits of the business are not the measure of damages; but they may be proved by general evidence, as well as the extent and character of the business, as affording the best guide to the jury of which the nature of the case admits.
    8. Aggravation — Provable under General Allegation.— When the act complained of is accompanied by circumstances of aggravation, they maybe proved under the general allegation of alia enormia, without further specification, when they do not afford a substantial ground of action.
    9. instructions — Two Distinct Matters Embraced.§- If one instruction asked embraces two distinct matters, one of which should not, and the other should be given, the court should not reject the whole, but should separate them, and refuse to give the one and give the other.
    10. Same — Partially Incorrect — Action of Court.— Though an instruction as asked is not wholly correct, yet if the general refusal of it may mislead the jury, the court should accompany the refusal with an explanation to the jury, or should give them an instruction stating the correct proposition.
    11. Oath of Insolvency by Plaintiff — Effect on Suit.— After a suit is instituted the plaintiff, being in custody at the suit of a creditor, confesses judgment and takes the benefit of the act for the relief of insolvent debtors, surrendering his interest in the suit he had brought. This is no bar to the action ; but it may still be prosecuted in bis name.
    This was an action of trespass brought in 1845, in the Hustings court of the city of Richmond, by Ijlisha Shepperson, a merchant of Richmond, 'against John S. Peshine and Adam B. Gouldthwait, merchants doing business in Newark, New Jersey.
    The declaration charges that the defendants, on the 26th day of May, 184S, with’force'and arms, at the city *of Richmond, &c., without the knowledge and against the consent of the plaintiff, entered the store of the plaintiff, and then and there and from the said store took and carried away a large quantity of the goods and chattels of the plaintiff, to wit, &c., all of great value, viz: of the value of $5,000; and other wrongs to the plaintiff, then and there did; to the damage of the plaintiff $10,000.
    The defendants appeared and demurred to the declaration, in which the plaintiff joined; and the demurrer was overruled by the court. The defendants also filed a special plea — that since the institution of this suit, the plaintiff had taken the benefit of the act for the relief of insolvent debtors, at the suit of several of his creditors named ; and that afterwards executions of fieri facias had been issued on the judgments obtained by these creditors, and that divers of the goods, &c., in the declaration mentioned, had been taken in execution by virtue of these writs, by and for the creditors aforesaid; and that by virtue of the act aforesaid and the oath so taken, the interest of the plaintiff in the subject in controversy in this suit, was vested in the sergeant of the city, for the benefit of the said creditors; and as to the residue of the said goods in the declaration mentioned the defendants were not guilty. To this plea the plaintiff demurred, and the defendants joined in the demurrer. This demurrer, though argued after the case went to the Circuit court, was not passed upon by the court. They also, at the same time, filed the plea of “not guilty;” on which issue was joined.
    The cause was continued in the Hustings court until July, 1848, when the death of the defendant Gouldthwait was suggested, and the defendant Peshine tendered to the court another special plea — that the plaintiff had been taken into custody by virtue of the writs of capias ad respondendum, at the suit of certain of his creditors, named, and being so in custody had confessed judgments, and *taken the benefit of the act for the relief of insolvent debtors, and had surrendered in his schedule his interest in the subject matter of this suit. That by force of the said act and the discharge of the plaintiff all his estate and interest in the said cause of action, as well as all his other estate, was vested in the sheriff of Henrico, in trust for the purposes declared in the act.
    The reception of this plea was objected to by the plaintiff; and the court, without passing upon it, upon the motion of the defendant, removed the cause to the Circuit superior court of law and chancery for the county of Henrico and city of Richmond.
    In December, 1851, the cause came on for trial, but the jury could not agree upon a verdict, and were discharged ; and the cause was continued from term to term, until May, 1859. At this term of the court, the defendant having been ruled into a trial, before the jury was sworn he moved the court to exclude certain depositions, which had been taken by the plaintiff, and which he proposed to read to the jury. These were the depositions of persons living in the state of New Jersey; and the defendant moved to exclude them on the ground that no commission had been issued for taking them, and no notice had been given to the defendant. In opposition to the motion the plaintiff introduced his affidavit made on the 18th of March, 1846, before the clerk of the Hustings court, where the cause was then pending, that these parties were material witnesses for him, and that they were not residents of the state of Virginia. He also introduced a commission by the said clerk, bearing the same date, to any two justices of the peace for the city of Newark, in the state of New Jersey, authorizing them to take the depositions; but the paper, upon, inspection, did not appear to have been attached at any time to the depositions. Two persons signing themselves as justices of the peace for Newark, *New Jersey, certified the taking the depositions in Newark, in pursuance of a commission issued from the Court of Hustings of the city of Richmond; and it was proved by one of the counsel of the plaintiff, that the said depositions were read on the former trial of the cause, and no objection appears upon the record to have been made to the reading of them, but it was not proved or stated that they were then read without objection by the defendant, except so far as appears by the absence of any exception on the record. The court thereupon overruled the motion, and decided that the said depositions should be read to the jury; and the defendant excepted.
    On the trial an immense mass of testimony was introduced, all of which, either in the form of depositions, or if oral, reduced to writing, with the papers and accounts referred to by the witnesses, is set out at length. It is only necessary to state enough to show the relevancy of the instructions asked.
    The defendant Peshine was a merchant of Newark, in the state of New Jersey, and dealt in boots, shoes, trunks, &c. Prior to July, 1844, he had formed a partnership with Ejnos M. Leonard, of the same city, to do a similar business in' the city of Richmond, to be conducted by Leonard. In July, 1844, they determined to wind up their business; the partnership was dissolved, the stock being the property of Peshine, and Leonard was left in Richmond to wind up the business as the agent of Peshine. About the 1st of September Leonard sold to Shepperson a part of this stock of goods; and Leonard was employed by Shepperson to attend to that branch of his business; he having previously carried on a hat store, and intending' to combine the two. During the year Shepperson seems to have paid in part for the stock he purchased, and in January, 1845, he executed to Peshine eight notes,amounting together to $2,366.53, the first ^payable in four months from the 1st of February, 1845, and the others being payable a month apart, making the last at eleven months.
    In September, 1844, Leonard was sent north bjr Shepperson to purchase goods for him, and Leonard seems to have purchased leather goods from several persons in Newark and the neighborhood, who were acquaintances of his, but strangers to Shep-person, upon their confidence in him.
    Shepperson failed in May, 1845, and Peshine°and Gouldthwait came to Richmond with-authority from his Newark creditors, to arrange their debts with him. Not being able to agree upon an arrangement for the creditors, Leonard seems to have proposed to them to sell them goods to the amount of their debts; and they having been advised by counsel, as they said, that this might be clone, on the night of the 26th of May, 1845, after Shepperson had left the store, they were admitted by Leonard, and they proceeded to select and pack the goods, being boots, shoes, &c., and early in the morning they were sent away and deposited with a mercantile house in the city. At the same time other goods were selected, and packed, and sent away, in satisfaction of the debts due to some other parties from whom Leonard had purchased goods for Shepperson. The defendant denies that he and Gouldthwait had anything to do with this part of the transaction. All the goods were sent away before Shepperson arrived at the store in the morning, and Leonard went to meet him and informed him what he had done, and gave him the account of sales which he had made off. This whole proceeding was without the knowledge or consent of Shepperson, and ivas immediately repudiated by him.
    When all the testimony had been introduced, the plaintiff moved the court to give three instructions to the jury, *and the defendant moved for two. The plaintiff’s first instruction was as follows:
    If, from the evidence, the jury shall believe that Leonard, who was the clerk and salesman of the plaintiff, in the usual course of his business, without the knowledge and against the consent of the plaintiff, introduced the defendant to the store of the plaintiff in the night, after the usual hours of business had passed, and"the plaintiff had left his store for the night, believing that the business of the day was over; that the purpose so to introduce him was concealed from the plaintiff by Leonard and the defendant; and that during the said night, between the hours of 9 o’clock P. M. and 4 A. M., the defendant, with the assent of Leonard, took the goods and carried them away, in violation of the known wishes of the plaintiff — then the defendant acquired no title to the said goods by such taking and carrying away, and is liable to the plaintiff in this action for the value of the said goods, and such damage as the jury may believe the plaintiff to be entitled to for such taking and carrying away of his goods, notwithstanding they may believe that the defendant was a creditor of the plaintiff, and when he took the said goods professed to purchase them in satisfaction of his debt.
    The other instructions asked by the plaintiff need not be stated. The instructions asked by the defendant are as follows:
    1. If the jury shall believe from the evidence that the goods in the declaration mentioned were, at the time it is alleged they were taken by the defendants, in the possession of L. M. Leonard as the agent of the plaintiff; that the said Leonard had at the time a general authority as such agent to sell said goods by wholesale or retail to such persons as were responsible for the amount sold; that such general authority had not been restricted *by any prohibition to sell said goods to the defendants or either of them; that then as to such of said goods as were so sold to the said defendants respectively and delivered by said Leonard to said defendants, the plaintiff cannot recover in this action, and the jury ought to find for the defendant.
    And as to the residue of the said goods, if the jury shall believe from the evidence, that they were taken and packed up by Leonard, and sent away by the said Leonard for other creditors of Said Shepperson, that as to said residue of said goods the defendants are not liable, and the jury, as to said residue, ought to find for the defendants, unless the plaintiff proves to the satisfaction of the jury that the defendants aided, assisted and concurred in their being so taken and carried away for the other creditors.
    2. The plaintiff cannot recover damages in this action for injury to his credit or business standing, or for loss of the profits which might have been- made in his business, even though the jury should think that such injury or loss resulted from the act of the defendant.
    The court gave the instructions asked for by the plaintiff, and refused to give those asked for by the defendant; and the defendant excepted. There was a verdict for the plaintiff for $10,000 damages, upon which the court rendered a judgment; and thereupon the defendant obtained a writ of error to this court.
    Crump, for the appellant, and Lyons, Daniel and Howard & Sands, for the appel-lees, submitted the case.
    
      
      Depositions — No Exception — Admission on Another Trial. — in Electric, etc., Co. v. Consolidated Light Co., 42 W. Va. 584, 26 S. E. Rep. 188. it is held: “One assignment of error is that the court allowed the plaintiff to read a deposition of a witness whose deposition had already been taken, the objection being that no leave of court was given to retake the deposition ; but this objection ought to have been made the ground of an exception before the trial, and not first made when offered at the trial. This would work a surprise. Dickinson’s Ex’rs v. Clarke, 5 W. Va. 280; Jones v. Lucas, 1 Rand. (Va.) 268 ; Foster v. Sutton, 4 Hen. & M. 401; Long v. Perine, 23 S. E. 611, 41 W. Va. 314 ; Peshine v. Shepperson, 17 Gratt. 472; Bart. Ch. Prac. 758 ; Bart. Law Prac. 439 ; Doane v. Glenn, 21 Wall. 35.”
    
    
      
      Damages — Measure of- -What Considered. — In Gerst v. Jones, 32 Gratt. 526, and note, it is said : “It is well settled, that the plaintiff is entitled, as a general rule, to recover such damages as are a natural and proximate result of the wrongful act of the defendant. Peshine v. Shepperson, 17 Gratt. 472, 485.”
      
      The principal case is also cited and followed in Burruss v. Hines, 94 Va. 416, 26 S. E. Rep. 875; Fishburne v. Engledove, 91 Va. 558, 22 S. E. Rep. 354. That the question of the amount of damages is one for the jury, see foot-note to Daingerfield v. Thompson, 33 Gratt. 136, where the principal case is cited with a large number of others.
    
    
      
      Aggravation — Provable under General Allegation.— In Fishburne v. Engledove, 91 Va. 558, 22 S. E. Rep. 354, it is said : “There are no allegations in the declaration of such facts as would show that the alleged trespass was accompanied by circumstances of aggravation, nor is there the general allegation of alia enormia, under which circumstances of aggravation might be proved as they may when they do not afford a substantial ground of action, but are mere incidents of the trespass complained of. Faulkner v. Anderson, Gilmer, at page 226-7; Peshine v. Shepperson, 17 Gratt. 472-3, 489.”
      
      Instructions — Partially Incorrect — Action of Court. —For the proposition that, though an instruction as asked is not wholly correct, yet if the general refusal of it may mislead the jury, the court should accompany the refusal with an explanation to the jury, or should give them an instruction stating the correct proposition, the principal case is cited as authority in the following cases: Johnson v. R. & D. R. Co., 86 Va. 979, 11 S. E. Rep. 829 ; Alexandria Sav. Inst. v. McVeigh, 84 Va. 46, 3 S. E. Rep. 885; Rosenbaums v. Weeden, 18 Gratt. 800; Ward v. Churn, 18 Gratt. 816 ; Womack v. Circle, 29 Gratt. 207. See, in accord, B. & O. R. Co. v. Polly, Woods & Co., 14 Gratt. 447. See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 207.
    
   JOYNLS, J.

This is an action of trespass brought by Shepperson, a merchant doing business in the city of Richmond, against Peshine and Gouldthwait, merchants of the city of Newark, New Jersey, which abated, before *the trial as to Gouldthwait, by his death. The declaration alleged that the defendants on, &c., “with force and arms,” and without the knowledge and against the consent of the plaintiff, entered the store of the plaintiff, and then and there from the said store took and carried away a large quantity of the goods and chattels of the said plaintiff, to wit, &c., of the value, &c., and other wrongs to the said plaintiff, then and there did, ..to the damage of the plaintiff $19,000. To this declaration there was a demurrer, which was overruled. There was a trial on the plea of not guilty in 1857, when the ju^ did not agree, and a subsequent trial in 1859, upon which there was a verdict and judgment for the plaintiff for $10,000.

The first error assigned is; that the case was tried while there' were pending and undisposed of a demurrer to a special plea filed, by the defendant, and a motion to exclude another special plea subsequently tendered bjr him.

The substantial matter of these pleas are the same. They set up in bar of the further prosecution of the suit, the fact that the ■plaintiff had, after the institution of the suit, taken the oath of insolvency, by virtue of which 'his interest in the subject matter of controversy' had become vested, as alleged in the first 'plea, in the sergeant of Richmond, and as alleged in the second, in the sheriff of Henrico. But these pleas presented no bar to the action. The action was properly brought in the name of the plaintiff before he took the oath of insolvency, and it might properly proceed.in his name afterwards, whatever rights in respect to the subject matter vested, by the insolvent proceedings, in the sergeant of Richmond or sheriff of Henri co. The irregularity in failing to dispose of the questions raised upon these pleas, affords, therefore, no ground to reverse the judgment. Creel v. Brown, 1 Rob. R. 255, and cases cited. *The next error assigned is the refusal of the court to exclude certain depositions. When the case' was called for trial in 1859, the counsel for the defendant moved the court to exclude these depositions, on the ground that they had been taken without a commission (being taken out of the state) and without notice. A commission was produced, which had not been annexed to -the depositions, but no notice was proved. One of the counsel for' the plaintiff made affidavit tbat these depositions had been read on the former trial, but it was not proved or stated whether they were read without objection, except so far as appeared from the fact that no exception was then taken on the ground of their admission.

If the defendant allowed these depositions to be read on the former trial without objection, as may be inferred to be the fact, he must be considered as waiving objection to them. If the objection was made and overruled, the failure of the defendant to except to the opinion of the court was equally a waiver of the objection. If the defendant desired to renew the objection afterwards, which he might do unless the death of the witnesses or some other reason made it unjust to the plaintiff to allow it, he should have done so in convenient time, and made it known to the plaintiff, so as to enable him to supply the proof of notice, if he could, orto take the depositions again. To spring the objection upon the eve of a second trial, eight years after it has been thus distinctly waived, and when nothing had been done in the meantime to indicate that it was to be relied on, was a surprise upon the plaintiff, and tended to defeat the ends of justice. The object evidently was to delay the trial, and not to protect the just rights of 'the defendant. Hnder these circumstances, the Circuit court did not err in overruling the motion to exclude the depositions.

Upon the final trial sundry instructions were given to *the jury, on motion of the plaintiff, and excepted to by the defendant. These require no particular notice; for while they are assigned as error, no objection is specified, and the assignment of error is evidently not relied on. And-I do not think that any valid objection can be made to either of these instructions.

The defendant also excepted to the refusal of the court to give two instructions moved by him. The first of these instructions consists of two parts, which must be considered separately, as they relate to distinct subjects. The first part relates to the goods which were obtained by Peshine and Gould-thwait from Leonard by purchase in payment -of their own debts. In respect to these goods, the court was asked to say to the jury that the defendant was not liable if the goods were in the possession of Leonard, with authority from the plaintiff to sell them, not restricted by a prohibition to sell to the defendant and Gould-thwait, and if they bought them from Leonard.

But this instruction was not appropriate to the evidence before the jury, and was calculated to mislead them, by confining their attention to the mere form of the transaction, without regard to its real character and substance. For the evidence tended to prove that the defendant and Gouldthwait entered the store of the plaintiff by an arrangement with Leonard, his clerk, after it had been closed for the night, and without the knowledge of the plaintiff, and that during the night they made the purchase from Leonard in payment of their debts, after the failure of their efforts to effect a settlement with the plaintiff. The' jury might well have believed that this whole transaction was a fraud upon the plaintiff, and that whatever authority Leonard had to make sales of the plaintiff’s goods in general and in the course of trade, he had none to make this particular sale, and that the defendant knew it.

*The other part of this instruction relates to the goods that were designed for other creditors of the plaintiff, and it asked the court to say that if these goods were packed up and sent off by Leonard, the defendants are not liable on account of them, unless the plaintiff proves to the satisfaction of the jury that they aided, assisted and concurred in their being- so taken and sent away.

[This instruction speaks of the “defendants,” when there was but one defendant then before the court, but that does not affect the principle.]

As we have heard no argument in this case, we do not know the ground upon which the propriety of this part of the instruction was objected to. It may be that the court treated the first instruction as an entirety, and refused to give it in consequence of the defect in the first part of it. But the two branches of the instruction are really independent of each other. They relate to different subject matters. The propositions embraced in them are as distinct as if they had been propounded as distinct instructions, and the fact that they are grouped together as one instruction cannot prevent the court from regarding them in their true character. If, therefore, this latter branch of the instruction stated the law correctly in relation to the subject to which it applied, it should have been severed from the other part and given to the jury.

At first this part of the instruction seemed to me to require the plaintiff to prove the express concurrence and co-operation of the defendant with Leonard in respect to these particular goods, and to imply that, in the absence of such proof, his presence and general complicity in the transactions of that night would not have authorized the jury to hold him responsible. But upon further consideration, I do not think this is the true meaning of the instruction. It does not indicate what sort of evidence is necessary to prove that the defendant *aided, assisted and concurred in the act of Leonard; it only affirms that the defendant is not liable for that act, unless it is shown in some way that he aided, assisted or concurred in doing it. I can see no objection to this proposition. And as the burden was on the plaintiff to make out his case, it. was for him, of course, to prove such aid, assistance and concurrence by the defendant as was necessary to make him responsible for the act of Leonard.

The court erred, therefore, in refusing to give the second part of the first instruction.

The second instruction asked for by the defendant declares that the plaintiff cannot recover in this action for injury to his credit or business standing, or the loss of profits which might have been made in his business, even though the jury should think that such injury or loss resulted from the acts of the defendant.

It does not appear how far the counsel for the defendant thought the jury could properly go in awarding damages in this case. It may be inferred from this proposed instruction that they insisted on restricting the damages to the value of the goods taken by the defendant, or by Leonard with his concurrence. Such is the rule of damages in an action of trespass to property committed without circumstances of aggravation, as for example in trespass de bonis asportatis, for goods taken under a bona fide claim of title. Sedgwick on Dam. 454; Knight v. Egerton, 7 Excheq. R. 407. Where that rule applies, no right of the plaintiff is violated except the right of property, and, therefore, the value of the property measures the full extent of the injury.

When the trespass is committed -without fraud, malice, oppression or other special aggravation, the object of the law, it is generally said, is to give compensation for injury suffered, and damages are restricted to that object. *Where the loss is merely pecuniary, and admits of definite estimate, it is proper enough to speak of compensation, which implies the notion of equivalents. But that word becomes inappropriate, where the injury is not merely pecuniary, and does not admit of definite estimate. The use of this word has, I apprehend, been productive of no little confusion in discussions relating to this branch of the law. It would be more appropriate to say that the object of the law is to give amends or reparation.- The injury done depends upon the rights that are violated, and the extent of the violation, and the amends or reparation in damages must be measured accordingly. This view of the subject, however, is rather curious than important in the present case.

Whatever be the true theory of damages in such a case, it is well settled that the plaintiff is entitled to recover all such damages as are the natural and proximate result of the wrongful act complained of. But where special damages, as in the present case, are not claimed, he can only recover such damages as are not only the natural and proximate result, but also the necessary result of the act complained of. The law implies from the statement of the injury, that it produced all such consequences as náturally and necessarily flow from such an act. And the real object of the evidence is not to prove the existence of the damage but to ascertain its extent.

The question, then, is whether such damages as are contemplated in this instruction, fall within the description of natural and necessary consequences of the acts complained of. That such acts are well calculated to injure the credit and business standing of a merchant, and that such will always be their effect, to a greater or less extent, seems too obvious to require proof by argument or illustration. They involve an imputation, in the harshest form, upon his credit and also upon his integrity. And *to take away a large part of a merchant’s stock of goods, if it does not break up and destroy his business, must, to a greater or less extent, injure it, by impairing the means of carrying it on and diminishing its profits.

The damages resulting from injury to the credit and business standing of the plaintiff, and from the injury to his business, were, therefore, properly recoverable, as natural,, proximate and necessary consequences of the acts of the defendant. In Downell v. Jones, 13 Alab. R. 490, such damages were held to be recoverable as general damages for maliciously suing out an attachment against a merchant, which was levied on his .stock of goods.

In order to ascertain the damages resulting from the interruption or embarrassment of the plaintiff’s business, the nature and extent of the business, and whether profitable or unprofitable, are proper subjects of inquiry. Without information on these points, the jury would be without any guide to their discretion in the assessment of damages. But in such a case the probable profits of the business are not the measure of damages. The}’ are necessarily dependent on contingencies, and, therefore, as a general rule, not recoverable as damages. 8 Gratt. 16; 7 Cush. R. 516; 13 How. U. S. R. 307.

But while the probable profits of the business do not furnish the measure of damages, they may be proved to the jury by general evidence, as well as the extent and character of the business, as affording the best guide to the jury of which the nature of the cáse admits, in the exercise of their judgment in the assessment of damages. Such evidence tends to show the character and degree of the injury for which amends is to be made. Ingram v. Lawson, 6 Bing. N. Ca. 212 (37 Eng. C. L. R. 350); Downell v. Jones, 17 Alab. R. 689; Wade v. Leroy, 20 How. U. S. R. 34; Nebraska City v. Campbell, *2 Black’s U. S. R. 590; Brown v. Smith, 12 Cush. R. 366.

When the act complained of is accompanied by circumstances of aggravation, they may be proved under the general allegation of alia enormia, without further specification, when they do not afford a substantial ground of action. They give character and quality to the act complained of, and show the degree of the injury, and could not be redressed at all if not allowed to be proved as incidents of the trespass complained of. 2 Saund. Pl. & Evid. 1121; Sampson v. Coy, 15 Mass. R. 493; Faulkner v. Alderson, Gilm. 221. Thus, the facts that the defendant entered the store of the plaintiff in the night and' by collusion with his clerk, not to mention other facts which might have been found by the jury from the evidence in this case, were admissible in evidence, and proper subjects for the consideration of the jury’ in estimating the damages.

When the trespass is accompanied by circumstances of aggravation, which are proper to be considered by the jury, the theory of compensation, properly speaking, fails as a rule of damages. The injury arising from these circumstances does not, in its nature, admit of definite estimate, and it is impossible to fix its equivalent in damages. But even those who contend for the theory of compensation as the rule of damages in all cases, concede that damages may be given, in such cases, in the discretion of the jury’, proportionate to the character and extent of the injury and the circumstances of aggravation ; though they insist that they must be restricted to what is necessary’ to compensate the plaintiff: a restriction, in the nature of things, wholly indefinite. Others contend that the jury in such cases are not limited by the rule of compensation, but may’ give what are called indifferently exemplary, punitive or vindictive damages,- for *the sake of punishment and example. The discussion as to the theory of damages has been conducted with great learning and ability by Prof. Greenleaf in favor of the rule of compensation and by Mr. Sedgwick against it. 2 Greenl. Ev. § 253; Bost. L. Rep. April, 1847; Id. June, 1847; Sedgwick on Damages. Prof. Parsons agrees with Prof. Greenleaf. 3 Parson’s Cont. chap. 8. The views of Mr. Sedgwick are sustained by the Supreme court of the United States and by the courts of most of the states.

But if the jury’ are allowed to give damages for causes of aggravation which do not admit of definite estimate, which all admit, and if the court will not interfere unless the damages are so excessive as to indicate that the jury were actuated by partiality or prejudice, which is a well settled rule, it does not seem to be a matter of any practical importance whether the damages are given with a view to compensation, or with a view to punishment. If compensation is the rule, there is no measure for it except the discretion of the jury’, and if punishment and example are the rule, the damages are equally within the discretion of the jury. Upon whatever theory it rests, this right of the jury to give damages in proportion to the circumstances of aggravation and outrage, is necessary to secure full reparation and amends to the party injured, and exerts a wholesome influence upon society. The law confides in the integrity and good sense of the jury, under the supervision and control of the court, to prevent abuse upon the one hand and to secure justice upon the other.

I have made these general remarks upon the subject of damages, because this case is to go back for a new trial. Nothing that I have said, however, is intended to indicate an opinion as to the conduct of the defendant. That is a matter for the consideration of the jury alone.

The result is, that the second instruction asked by the ^defendant ought not to have been given. But the refusal to give it without explanation was calculated to mislead the jury, by creating the impression that they might enter into a conjectural estimate of the profits lost by the plaintiff, and make that the measure of damages. The court should, therefore, either have accompanied the refusal with an explanation of the purpose for which the profits of the plaintiff’s business were to be considered by the jury’, or should have given an instruction embodying the proper rule of damages.

It is unnecessary to notice the questions raised by the last bill of exceptions. I am of opinion that the judgment should be reversed.

The other judges concurred in the opinion of JOYISIDS, J.

Judgment reversed.  