#### Anthony *v.*Gilbert.

In trespass for taking away a yoke of oxen, the jury, in estimating the damages actually sustained by the plaintiff, ought not to add to the value of the oxen any amount for their services.

If the trespass have been committed with malice;, insult, or deliberate oppression, the jury may join exemplary damages to the pecuniary loss.

Under a plea, in such suit, of property in a third person, evidence of such ownership at the time of the taking is admissible.

The defendant may show in mitigation of damages, under the general issue in this suit, that the goods, at the time of the taking, belonged to a third person, and that the plaintiff was not liable for them to the owner.

And *semble,*that, under such issue, evidence in bar of the suit may be adduced, showing that a third person owned the property, and that the defendant acted under his authority.

*Tuesday, November*28.

APPEAL from the *Delaware*Circuit Court.

Dewey, J.

Trespass for taking and carrying away a yoke of draught-oxen; There is also a count of *quare clausum fregit,*from which no point arises. Pleas, general issue; property of the oxen in one *Probus;*property in one *Green.*Verdict and judgment for the plaintiff.

On the trial, after proving the trespass by taking and canning away the oxen, and establishing their value, the plaintiff was permitted; against the objection of the defendant, to prove the value of the services of the cattle from the time of the taking to the institution of the suit. The Court instructed the jury, that the value of the oxen, and the value of their services from the time of committing the trespass to the commencement of the action, should be the measure of damages. The defendant excepted to the admission of the testhnony, and to the giving of the instruction.

But one question arises from these two decisions of the Court. Was the plaintiff, in addition to the value of the oxen, entitled to the value of; their services from the time of taking up to the commencement of the suit?

*349We know of no standard, by which damages in actions of trespass can at all times be measured* The nature of injury complained of renders it impracticable to establish such a rule. The first inquiry should be,—-the amount of injury actually sustained; which, together with interest, is a good general measure of damages, in the absence of circumstances of aggravation. But to limit the investigation to the pecuniary -loss of a plaintiff would frequently'do him injustice, and always to extend it beyond such loss would, as often, be unjust to the defendant. . '

The assessment of damages is a matter which must be, unavoidably, in a great measure left to the discretion of the jury. It is proper for them to take into consideration all the circumstances under which a trespass may have been committed; and wherever malice, insult, or deliberate oppression, has been an ingredient in the wrongful act, to award, in addition to the actual loss sustained, such exemplary damages as shall tend to prevent a repetition of the injury. *Bracegirdle*v. *Orford,*2 M. & S. *77.—Merest*v. *Harvey,*5 Taunt. *442.—Sears*v. *Lyons,*2 Stark. 317.— *Woert*v. *Jenkins,-*14 Johns. *352.—Churchill*v. *Watson,*5 Day’s Rep. 140. This species of damages, which is sometimes called “smart money,” is distinct from special or consequential damages. And neither of them-was contemplated by the evidence, or the instruction to the jtiry, in this case; the design of Avhich was to ascertain the amount of actual injury sustained by the plaintiff. We' think a wrong rule of admeasurement was applied for the ¿ccbmplishment of that object. The value of working oxen consists, in part, of the value of the services which they are capable of performing. Therefore, the charge to the jury,—that to the price or worth of the cattle, they should add the value of their subsequent services, was directing them to make, in some degree, a double assessment of damages against the defendant, for the pecuniary loss of the plaintiff. The jury might, Avith propriety, have been instructed, that if, in their opinion, the trespass was marked Avith any of the features of aggravation above stated, they Avere at liberty to join exemplary damages to the pecuniary loss.

The Court erred in admitting evidence of the value of the services of the cattle, as a distinct matter from the value of *350the oxen themselves; and in instructing the jury to assess damages accordingly.

*J. Rariden*and *J. S. Newman,*for the appellant.

*D. Kilgore*and *M. M. Ray,*for the appellee.

-An attempt has been made to present another point in this case-' We are informed by the bill of exceptions, that the defendant offered to prove the rendition of a judgment in favour of the plaintiff against one *Probus,*the issuing an execution upon it, and a sale of the oxen in dispute, under the execution, to some person other than the plaintiff, and that the Court rejected the testimony. But we do not learn whether the defendant offered to make his proof by parol evidence, or by the production of the papers. If the former was attempted, the testimony was correctly rejected; if the latter, we have no means of judging of the correctness of the decision, because the documents are not spread upon the record.

As, however, the legality of the same- testimony may ¿gain be a question in the future progress of the cause, it may be desirable to settle the matter now. 'Under the special pleas, it is competent for the defendant to prove that the oxen belonged, at the time of taking, to either of the persons named in the pleas. Under the general issue, it is his right to show to the jury, in mitigation of damages, that the property in the oxen, at the time of the taking, was in a third person, and that the taking was under such circumstances as not to render the plaintiff liable to such third person for the value of the cattle. 9 Pick. Rep. 551. And it may be added that, probably, under that issue, evidence in defence or bar of the action may be adduced, that the property taken belonged to a third person, and that the defendant acted under authority derived from him (1).

*Per*Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.

(1)

 In trespass for seizing goods in the possession and apparent ownership of the plaintiff, the defendant cannot set up the title of a *third person*to defeat the action. *Nelson*v. Cherrill, 1 M. & Scott, 452; 7 Bingh. *663.—Demick*v. *Chap*man, 11 Johns. *132.—Cook*v. Howard, 13 *id. 276.—Hanmer*v. Wilsey, 17 Wend. *91.—Squire*v. Hollenbeck, 9 Pick. *551.—Walpole*v. Smith, ante, 304.