market value at which they can be replaced at any time; and hence, with regard to them, the ordinary measure of damages is their value at the time of conversion, or, in case of sale and purchase, at the time fixed for their delivery. But the application of this rule to stocks would, as before said, be very inadequate and unjust.

The rule of highest intermediate value as applied to stock transactions has been adopted in England and in several of the States in this country; whilst in some others it has not obtained. The form and extent of the rule have been the subject of much discussion and conflict of opinion. The cases will be found collected in Sedgwick on the Measure of Damages [479], vol. 2, 7th ed. 379, note (b); Mayne on Damages, 83 (92 Law Lib.); 1 Smith's Lead. Cas. (7 Amer. ed.) 367. The English cases usually referred to are Cud v. Rutter, 1 P. Wms. 572, 4th ed. [London, 1777], note (3); Owen v. Routh, 14 C. B. 327; Loder v. Kekule, 3 C. B. (N. s.) 128; France v. Gaudet, L. R. 6 Q. B. 199. It is laid down in these cases that where there has been a loan of stock and a breach of the agreement to replace it, the measure of damages will be the value of the stock at its highest price on or before the day of trial.

The same rule was approved by the Supreme Court of Pennsylvania in Bank of Montgomery v. Reese, 26 Penn. St. (2 Casey), 143, and Musgrave v. Beckendorff, 53 Penn. St. (3 P. F. Smith) 310. But it has been restricted in that State to cases in which a true relation exists between the parties,-a relation which would probably be deemed to exist between a stock-broker and his client. See Wilson v. Whitaker, 49 Penn. St. (13 Wright) 114; Huntingdon R. R. Co. v. English, 86 Penn. St. 247.

Perhaps more transactions of this kind arise in the State of New York than in all other parts of the country. The rule of highest intermediate value up to the time of trial formerly prevailed in that State, and may be found laid down in Romaine. v. Van Allen, 26 N. Y. 309, and Markham v. Jaudon, 41 N. Y. 235, and other cases,-although the rigid application of the rule was deprecated by the New York Superior Court in an able opinion by Judge Duer, in Suydam v. Jenkins, 3 Sandford, N. Y. 614. The hardship which arose from estimating the damages by the highest price up to the time of trial, which might be years after the transaction occurred, was often so great, that the Court of Appeals of New York was constrained to introduce a material

modification in the form of the rule, and to hold the true and just measure of damages in these cases to be, the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. This modification of the rule was very ably enforced in an opinion of the Court of Appeals delivered by Judge Rapallo, in the case of Baker v. Drake, 53 N. Y. 211, which was subsequently followed in the same case in 66 N. Y. 211, and in Gruman v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y. 368; and Wright v. Bank of Metropolis, 110 N. Y. 237.

It would be a herculean task to review all the various and conflicting opinions that have been delivered on this subject. On the whole it seems to us that the New York rule, as finally settled by the Court of Appeals, has the most reasons in its favor, and we adopt it as a correct view of the law.

The judgment is reversed and the cause remanded to the Supreme Court of Utah with instructions to enter judgment in conformity with this opinion.

A race-horse was killed at Panama, where there is no market for such property. Held that market value at San Francisco, the place of destination, could be shown. Harris v. Panama R. R., 58 N. Y. 660. The same doctrine was announced in a case of the conversion of a ship. Glasby v. Cabot, 135 Mass. 435. The risk of getting the ship to the market should be considered also.

But the general rule of damages in case of conversion of personal property is the value at the time of conversion and interest on its fair value from that time. Redmond v. Am. Mfg. Co., 121 N. Y. 415. In estimating the value of a life estate the Carlisle tables are admissible in evidence, in connection with expert testimony of computations thereunder. City of Joliet v. Blower, 155 Ill. 414. See, too, Kerrigar v. Penn. R. R. Co., 44 Atl. Rep. 1069.

Where sawmill property was wrongfully attached and bankruptcy resulted, the measure of damages was held to be the loss of its use, not injury to credit. Union Nat. Bank v. Cross, 100 Wis. 187.

Where through mining operations permanent injuries to land result from failure to give surface support, the measure of damages is the depreciation of the value of the land. Weaver v. Berwind, 216 Pa. 195. Where a railroad company has been cutting timber on the lands of the United States, the defendant must pay as damages the value of the timber at the time and place of the cutting, not of the delivery. U. S. v. St. Anthony R. R. Co., 192 U. S. 541. So where an animal is killed as having tuberculosis, the value of the animal is estimated as an animal in a diseased condition. Tappen v. State of New York, 146 N. Y. 44. Where shade trees have been destroyed, the rule of damages is to ascertain the difference between the value of the land before and after the injury. Evans v. Keystone Gas Co., 148 N. Y. 112.

XII. MITIGATION OF DAMAGES.

CURRIER v. SWAN.

Maine, 1874. 63 Me. 323.

PETERS, J. An affray took place between the plaintiff and one of the defendants, at a railroad depot in the afternoon, and on the evening of the same day that defendant with the others proceeded to the plaintiff's house, and inflicted violence upon him there. The defendants desired to show what took place in the afternoon, in mitigation of damages for the assault committed afterwards. The justice presiding admitted in evidence the fact that there had been an affray, but excluded evidence of the details of it.

The ruling, both as to the admission and exclusion of evidence, was right. The admission was right, because it was to show the object and purpose of the second assault, or the state of mind with which it was done. Otherwise, there would have been nothing to indicate to the jury but that the house was entered for the purpose of robbery and plunder, or something of the kind. The fact of a previous affray might have some weight upon the question of the amount of damages recoverable, and might legitimately be regarded as a part of the transaction to be investigated in this suit. But the further evidence, offered and excluded, was not fairly a part of the facts involved in this investigation. The assault complained of here was committed at another time and at another place, and mostly by other parties. It was immaterial whether the fault of the previous affray was in the one or the other party concerned. If the defendant was ever so right in the first affray, he should have resorted to proper legal remedies, and not assume to take the law into his own hands. If he is permitted to show the merits of the controversy in the afternoon, then the plaintiff would have as much right to show the provocation that led him into that affray, and the result would be, the trial of several causes in one; and, as said in Mathews v. Terry, 10 Conn. 459, "the jury would be distracted with a multiplicity of questions and issues." The early and leading case of

Avery v. Ray, 1 Mass. 12, decided in 1812, has been recognized as a correct authority upon this subject, in most of the courts in this country, ever since. It has been invariably followed in Massachusetts, in many subsequent cases. Of course, the general principle there enunciated may be modified by controlling circumstances in other cases; as in Prentiss v. Shaw, 56 Me. 437, cited and much relied on by these defendants. That case was decided upon its peculiar facts. The evidence introduced in mitigation there was mainly to show the innocent intention of the parties sued. They supposed (as they claimed) that they were acting under an official right to act. They had received (although improperly) an order, from persons in authority, to make the arrest. Their own motive and good faith in obeying the order, had much to do with the question as to how far punitive damages should be recovered. So in the case at bar, as much evidence was admitted as would fairly show what the motive of the defendants was in the assault committed by them, and with what coolness and deliberation, or otherwise, the act was done. The other exception in this case can not be sustained. But one verdict could be rendered. Therefore the damages must be joint, and not several. The question is, what damages has the plaintiff sustained? For those, whatever they are, all the participants in the assault are liable. There are no degrees of guilt. These principles are clearly settled and stated in the cases cited in argument. The general verdict must stand. Exceptions and motion overruled.

All concur.

GOLDSMITH v. JOY.

Vermont, 1889. 61 Vt. 488.

TRESPASS for assault and battery upon plaintiff's intestate, who at the time of the affray was suffering from Bright's disease and subsequently died of it. It was claimed that his death was materially hastened by the assault. Verdict and judgment for plaintiff. Exceptions by the defendant.

In instructing the jury, the court, among other things, said: "Now, then in respect to that question, mere words made use of by one person to another are no legal excuse whatever for the infliction of personal violence. It makes no difference how violent

the language used may be, no man has the right to use personal violence upon another when he is induced to simply by the use of words. That is no defense to the action. But when you come to the question of whether a particular case is one that deserves the awarding of exemplary damages, then you are to consider all the circumstances in the case, the provocation, if any, that the defendant had, and everything that is calculated on the one hand to aggravate his act, and on the other hand to palliate his act, are to be considered.

"As I have already said on the main question of compensatory damages, there is no defense here whatever. No matter what was said, no matter how much provocation the defendant had, he is bound to answer for the compensatory damages at any event. As to exemplary damages, in the exercise of a wise discretion you will not allow them unless you are satisfied that the act of the defendant was high-handed, wanton and inexcusable, and in determining that question you are to take into view all the provocation that he had. Now, then, gentlemen, if the provocation was slight, it is quite different, and it should have less weight in determining the question whether you shall award exemplary damages than it would have if the provocation was great."

TYLER, J. The court instructed the jury that there was no defense to the claim for actual or compensatory damages; that words were no legal excuse for the infliction of personal violence; that no matter how great the provocation, the defendant was bound in any event to answer for these damages.

It is a general and wholesome rule of law that whenever, by an act which he could have avoided and which cannot be justified in law, a person inflicts an immediate injury by force, he is legally answerable in damages to the party injured.

The question whether provocative words may be given in evidence under the general issue to reduce actual damages in an action of trespass for an assault and battery has undergone wide discussion.

The English cases lay down the general rule that provocation may mitigate damages. The case of Frazer v. Berkeley, 7 C. & P. 789, is often referred to, in which LORD ABINGER held that evidence might be given to show that the plaintiff in some degree brought the thing upon himself; that it would be an unwise law if it did not make allowance for human infirmities; and if a per