Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-03-23

elects not to return it, the defendant il
entitled to the benefit of the increased
value. 1t is true that if IN such case the
plaintiff should elect to return the proper
ty, the defendant would secure the adj
vantage of receiving it with its increased
value, and also the amount of
the increase in value by way of
damages. But as it is uncertain
whether the plaintiff will elect to
return the property or not, and it is not
in the power of the defendant to compel
him to do so, there is no mode in which
to protect and indemnify the defendant,
except to allow him the increase in price
as damages and it is presumable that in
himself by retaining the property.
If, however, there has been mere tenn
| porary increase in the market value of
the property between the time of the
seizure and the trial, the value at the trial
being no greater than at the time of the
seizure, it must be left to the discretion Of
the jury whether they viii allow this tenn
porary appreciation as damages. Il is an
advantage of which the defendant might
or mightnot have availed himself, had the
property remained in his possession.
In reference to this point, the jury may
take into consideration the nature of the
property whether perishable or other
wise, and whether adapted to, and kept
or intended for sale as an article of
commerce.; the degree of probability
that the defendant has been deprived of
the opportunity to make profitable dis
position of it; and in that connection
whether the plaintiff has himself sold the
property at profit which the defendant
should be entitled to the benefit of; and
other circumstances tending to show that
the defendant has in fact suffered loss or
damage by the wrongful seizure and de-
tention of his property, and that in equity
and good conscience the plaintiff should
pay him the temporary increase of price
as damages.
While remote, imaginary, and merely
speculative damages ought not to be al
lowed, the jury may, and If in their
opinion justice demand, it ought to allow
the defendant as damages the loss of near
and probable profits arising from tempo
rary rise in market values.
Our statutes expressly confer a large
discretion upon the jury. Some of the |
authorities recognize the necessity for the |
exercise of such a discretion upon general |
principles, and we are satisfied that in |
many cases much must, and safely may, |
be intrusted to the sound discretion and |
sense of equity of the jury.
If the proceeding is vexatlOus and the |
property is seized by the plaintiff in bad |
faith, and without a bona fide claim of |
right, or if under circumstances of ag- |
gravation or outrage, this would furnish |
proper case for the exercise of the dis |
erection of the jury in the allowance of
exemplary damages.
Without reciting here the charge of the |
Court at length, it is sufficient to say that
while it properly fixes the time at which /
the value of the property should be as
certained at the time of its seizure under |
the writ of replevin, it does not give to |
the Jury those instructions for their guild |
ance in estimating the value and assess
ing the damages, to the benefit of which |
the defendant was entitled. The Jury |
must have understood from the ruling of |
the Court, that they were not at liberty to |
look to the rise in value after the seizure |
of the property in estimating the dam
ages. The verdict also is erroneous in
falling to give interest upon the value of |
the property as found by the jury |
Whatever the jury may find in regard to
the damages for the detention, the de- |
PENDANT is entitled to interest upon the |
value as matter of law.
As the judgment must be reversed, and |
new trial awarded, we do not think it |
necessary to decide whether the Circuit |
Court erred in permitting the addition of |
a new party plaintiff upon the trial.
GEORGE ANDREWS, Judge.