of damages, in these cases. is the value of the goods, at the time and place of conversion, (e) though it is always proper to allow interest by way of damages upon that value, from the time the goods were taken, or wrongfully converted. A bailee, or one having a special property in chattels, being answerable to the general owner, unless he takes good care of them, may recover their whole value in damages, against the wrong doer, who takes them away ;(f) and this, though the bailment is merely gratuitous.(g) In trover for a bill of exchange, the measure of damages is the principal and interest due thereon, at the time of the conversion.(h).

Where a man takes actual possession of my land, I can only recover damages for his first entry, whilst i continue out of possession, but after I obtain possession by an action of ejectment, or otherwise re-enter, I can then recover for all, his mesne occupation, as well as his first entry, (laying the trespass, as having been continued, from the first entry down to the time of bringing the action,) which distinction is the foundation of the common action of trespass for the mesne profits, consequent upon an action of ejectment.(i) The measure of damages in this action is, the value of the land from the time of the demise laid in the declaration in ejectment ;(j) and where the judgment is by default, the costs of the ejectment are also a proper item of damages, as well as the use of the land.(k) And a recovery of damages in the ejectment, is no bar to an action for the mesne profits. (1) But this action for mesne profits is an equitable action, and will allow of every kind of equitable defence.(m) Of course, the plaintiff can recover no more, than the value of the land, deducting all reasonable improvements and repairs made by the defendant, during the time for which the plaintiff has a right to claim the profits, in which he can be confined to six years, next before action commenced, provided the defendant pleads the statute of limitations, as he has a right to do.(n) la an action for encroaching on the plaintiff's wharf or landing, the rule of damages is the current value of the landing, during the time of the encroachment.(o)

In an action against a sheriff for an escape from mesne process, (and by parity against a constable, for an escape from a warrant,) the plaintiff is entitled. prima facie, to recover his

(e) 14 John. 128, Anthon's N. p. Rep. 156.

(f) 5 Binney, 457.

(g) 1 Barnwell & Alderson's Rep.

59.

3 Campb. Rep. 477. Co. Litt. 257.

() 1 John. 281.
(k) 3 id. 481.

1 John. cas. 281.

(m) 2 id. 438.

(n) 9 id. 324.

Anthon's N. P. Rep. 85.

whole demand, as it stood against the original defendant; and it lies with the defendant in the action for the escape, to show that the plaintiff's damage is less than his whole debt, by proving the inability of the defendant to pay. And it seems, that if the original defendant has property at the time of the escape, the plaintiff is entitled to recover the whole value of such property, as damages in the action for an escape, if it do not exceed the debt due from the one who escaped, with the costs of the action from which he escaped. This is upon the presumption, that the confinement of the defendant would have coerced the appropriation of such property to the payment of the debt.(p)

SECTION IV.

OF DAMAGES IN REFERENCE TO THE TIME WHEN THE ACTION IS COMMENCED, AND THE FORM OF PROCEEDING IN THE SAME.

We have before seen, that the plaintiff can recover no more damages than he claims by his declaration.(1 Caines, 593.) If the jury find more, he must relinquish the excess ;(9) and this must be done before the justice renders judgment; if not done till afterwards, it is too late to save the judgment from a reversal for the error. (Vide 4 John. 414.) (r) So, where the jury find damages for the defendant, when he is entitled to none; as where no set off is claimed or allowable; the defendant may remit, and the justice may strike out the damages found, and give judgment for the defendant, generally. (4 John. 414.)

It is, moreover, a general rule, that the plaintiff cannot, in a personal action (and this kind of action alone is cognizable before a justice) recover any damages, except those which arose before the commencement of the suit.(s) But, wherever a duty is incurred, pending the suit, incident to, or growing out of the cause of action for which the suit is brought, for which no satisfaction can be had by a new suit, such duty shall be included in the judgment to be given in the action already depending. Thus, in an action of assumpsit for principal and interest, the latter should be brought down to the time of the judgment, the interest being a mere accessary to the principal, for which no

1300.

9 John. 300.

Bac. Ab. tit. Damages, (D) 2.
2 Str. 1110. 2 Blac, 79 Rep.

(s) 10 Co. 116, 117.

separate action will lie.(t) But when a new action will lie for any duties or demands arising since action brought, they cannot be included in the first suit. Thus, in an action of covenant for the non-payment of rent, if any rent fall due after action commenced, it must be made the subject of a subsequent suit. And in trespass, and indeed, in torts, generally, new actions may be brought as often as new injuries and wrongs are repeated, and hence damages ought to be assessed only up to the time of the wrong complained of.(u) Upon this principle it is, that where the plaintiff declares that the defendant enticed away his servant, by which he lost his service, from such a time, (before the commencement of the suit,) to such a day, (after the commencement of the suit) and judgment is given for the plaintiff, generally, without distinguishing that damages are allowed for the time only which preceded the commencement of the sait, such judgment is erroneous. (v) And it is a general rule, that where a declaration claims damages, as arising from some matter, either previous to the plaintiff's having any cause of action, or subsequent to the commencement of the suit, and a verdict or judgment is rendered upon such a declaration for damages generally, it is erroneous; for it appears from the face of the proceedings, in such a case, that the plaintiff's whole claim was allowed, or if it was not so allowed in fact, it is impossible to know this from any thing appearing in the verdict or judgment, by which the damages are assessed. (w) To remedy this, the jury who give their verdict, or the justice who gives judgment for the damages, may, in such verdict or judgment, state specially, that damages are given only for the particular time allowable.

SECTION V.

OF ASSESSING THE DAMAGES, WHERE THERE ARE SEVERAL DEFENDANTS.

If several defendants are, in the same action, charged with a joint wrong, and all are found guilty, the damages must be joint, and one cannot be found guilty in so much damages, and another in another ;(x) for, in such case, we have seen that the act of one defendant is the act of all ;(y) and is not, therefore, sus

(1) 2 Burr. 1086 & 7.3. John. 229. (u) 2 Burr. 1087.

(v) 2 Saund. 169.

(w) Vide 2 Williams' Saund. 171. (x) id.

(9) Ante, 576.

ceptible of severence. Where there are several defendants, one or more of whom join issue, and the others either confess the action, generally, thus leaving the damages to be assessed, or where they demur and have judgment against them, or do not plead at all, so that no issue is joined as to them; in this, or the like cases, where a jury is demanded for trial, the damages should still be assessed all at one time, and the venire should run in these words, "as well to try the issue joined, as to inquire of the damages, between James Jackson, plaintiff, ond A, B, C, D, and E, defendants." In such cases the jury, where those who plead are acquitted, may, in an action for a tort, assess damages against the others. And it is the nature of a tort, that one defendant may be found guilty, and another acquitted, according to the truth of the case, excepting the instance noticed ante, 491. But this is generally otherwise in assumpsit, covenant and other actions, sounding in contract, where the plea of one, if found true, shall acquit all, even though the others do not plead, or where they have judgment pass against them upon demurrer; for, in these cases, the plea generally goes to the whole cause of action Yet to this there are exceptions, as where one pleads the insolvent act, bankruptcy, infancy, or other defence merely personal in its nature.(z) Here, though the plea be found true, it is a defence strictly confined to the person who pleads it; and does not go, like defences in most other cases, to destroy the right of action in respect to all the defendants.(a)

(*) 3 Caines, 4. 2 John. 279. 5 id. 160.

(a) Vide Bac. Ab. tit. damages, D. 4.

CHAPTER XII.

OF JUDGMENT.

A justice, having no power to arrest a judgment or awarda new trial, (a) the next subject I shall consider, is, the different kinds of judgment he is to give, upon the various matters litigat ed before him, premising, however, that in whatever language or form the judgment may be given, the law will, notwithstanding, consider what should have been the judgment in the given case, and ascribe the proper effect to it, whether it be worded or conceived in proper form or not. waited the four days and then gave judgment of non-suit, against the plaintiff, not having a right so to do, the Supreme Court Thus, where a justice considered it the same as though a judgment on the merits had been rendered, and held it a bar to another suit.(c) So, where no judgment was rendered by the justice on the verdict of a jury, the Supreme Court considered what ought to be done in this respect, as done, overlooking this lack of form, and making the verdict a bar to a subsequent suit.(d) And so, by a parity of reasoning, where a final judgment, as on the merits, is given, when it ought to be a non-suit, &c. it can only have the effect of a non-suit, whatever the magistrate may call it.

It is then material to consider the different kinds of judgment, in order to determine their nature and operation only; without regard to the form of their entry, which is no where preserved in practice among the proceedings of the justice, except, perhaps, when he sets it forth in a return to a writ of certiorari.

Judgments are the sentence of the law, pronounced by the court, upon the matter contained in the record. This record is drawn up with a good deal of formality, in the higher courts, and sets forth the pleadings, continounces, jury process, verdict, judgment, &c. and though the form is hardly known in a justice's court, yet the substantial roles of proceeding therein, rest upon the same principles, as in the highest Courts of Common Law. These judgments are of four sorts. are confessed by the parties, and the law determined by the 1. Where the facts court; as in case of judgment upon demurrer. 2. Where the law is admitted by the parties, and the facts disputed; as in case

(b) 2 John. 181.

(c) 11 id. 457.

() id. 181, 191.