8. Elements of damages in actions for malicious prosecution. 9. Elements of damages - Examples, etc. Applications of the law. (1) Evidence of treatment in prison - When not competent. damages. (3) Pecuniary circumstances of the parties may be shown by the (4) Attorney's fees an element of damages. Attending trial — (7) Insanity and mental aberration, when an element of dam ages. (8) Mental anxiety, trouble and distress an element of dam ages. (9) Character of the plaintiff an element of damages. II. ASSESSMENT OF DAMAGES. 10. Assessment of damages - The term defined. (1) Upon the trial of the issue. (2) Upon default or demurrer. 11. What the defendant may show upon default or demurrer. 12. Assessment of damages - Discretion of the jury. Applications of the law. An inquest set aside for allowing evidence in justification, etc., after default. 13. The rule in actions for false imprisonment. 14. Damages must be assessed jointly. III. MITIGATION OF DAMAGES. § 15. Mitigation of damages - The term defined. 16. Mitigation of damages — Circumstances may alter the case. Applications of the law. (1) What matters attending the arrest may be shown in mitiga tion of damages. (2) Motives in making an affidavit for the arrest. (3) Persuaded by another to make an affidavit, etc. (4) Persons making an arrest under a void warrant. 17. Facts tending to show probable cause in mitigation of damages. 18. Plaintiff's general bad reputation in mitigation of damages. Applications of the law. (1) Plaintiff's general bad reputation proper to mitigate damages. (2) Plaintiff's character in regard to particular traits inadmis- 19. Plaintiff's bad character competent in mitigation. What kind of damages are subject to mitigation - Circum- (1) Imprisonment under two commitments - One valid, the other void. (2) Illegal arrest made through misleading statements of the person arrested. (3) Nominal damages - When proper. VI. COMPENSATORY DAMAGES. 26. Compensatory damages - The term defined. VII. EXEMPLARY DAMAGES. 27. Exemplary damages The term defined. 28. The law stated by Justice Grier. 29. The law stated by McAllister, J. 30. The general rule. 31. Exemplary damages — A question for the jury - The law stated by Walker, J. 32. No exemplary damages where no actual damages exist. 33. Corporations liable in exemplary damages. $ 34. The right to exemplary damages does not depend upon the existence of malice in its ordinary sense. Applications of the law. (1) Two thousand seven hundred and fifty dollars, not excess ive. (2) One thousand dollars sustained. (3) Pecuniary condition of the defendant, etc. 35. The rule in some states. A. In cases where the damages have been held to be excessive. (1) $1,000 On a technical arrest. (2) $1,055.55 - Prosecution for malicious mischief. (3) $6.000 — Illegal arrest. (4) $9,000 Arrest on a charge of treason. (5) $20,000-Illegal arrest on a charge of stealing coal. B. Cases where the damages have been held not to be excess ive. (1) $125 For false imprisonment. (2) $750-Wrongfully causing an attachment to be levied on exempt goods. (3) $825 — Justice perverted for purpose of private oppression. (4) $900-Larceny of a saw handle - value $0.25. (5) $1,000— Arrest without reasonable grounds of suspicion. (6) $1,000 (7) $1,000 (9) $1,200 Arrest upon a charge of burglary. (10) $1,272-Malicious arrest and imprisonment for larceny. (11) $1,500 Malicious prosecution. (12) $1,700-An aggravated false imprisonment. (13) $2,000 — Maliciously suing out a writ of attachment. (14) $3,000 Illegal arrest for refusing to give up a child. (15) $4,000-Illegal arrest for forcibly entering a house. (16) $5,000- On charge of burning warehouses. (17) $8,000— Prosecution of witness against the company in damage suits for perjury. (18) $10,000-Illegal arrest for embezzlement. 38. New trials for excessive damages. IX. CONSEQUENTIAL DAMAGES. 39. Consequential damages. 40. The rule in actions for malicious prosecution and false imprison ment. Applications of the law. (1) Attorney's fees not consequential. (2) Imprisonment of pregnant woman too remote. Effect on offspring, (3) Disposition of assets after dissolution of attachment too re mote. X. MEASURE OF DAMAGES. § 41. Measure of damages. 42. The law stated by Greenleaf. Applications of the law. (1) Voluntary submission to imprisonment under a void writ. (2) Measure of liability - Prosecutors acting in good faith. § 1. Damages. The term defined: A sum of money adjudged to be paid by one person to another person as compensation for a loss sustained by the latter in consequence of an injury committed by the former1 or the violation of some legal right. The measure of damages: The test by which the amount of damages is ascertained is called the measure of damages.2 3 § 2. Damages, right of recovery - The law stated by Greenleaf. Whether the plaintiff has been prosecuted by indictment, or by civil proceedings, the principle of awarding damages is the same, and he is entitled to indemnity for the peril occasioned to him in regard to his life or liberty, for the injury to his reputation, his feelings, and his person, and for all the expenses to which he necessarily has been subjected; and if no evidence is given of particular damages, yet the jury are not therefore obliged to find nominal damages only. Where the prosecution was by suit at common law, no damages will be given for the ordinary taxable costs, if they were recovered in that action; but if there was a malicious arrest, or the suit was malicious and without probable cause, the extraordinary costs, as between attorney and client, as well as all other expenses necessarily incurred in defense, are to be taken into the estimate of damages. Whatever was admissible in evidence to defeat the original malicious suit is admis 1 Coke on Littleton, 257a; Mayne on Damages, 1; Rap. & L. Law Dic., tit. Damages (1888). 21 Rap. & L. Law Dic., 336 (1888). 32 Greenl. Ev., §-; Buller's Nisi Prius, 13, 14; Thompson v. Mussey, 3 Greenl., 305. 4 Trip v. Thomas, 3 B. & C., 427. 5 Sandback v. Thomas, 1 Stark., 306; Gould v. Barratt, 2 M. & Rob., 171; 3 Greenl. Ev., § 456. And see Doe v. Davis, 1 Esp., 358 (—); Norvell v. Roake, 7 B. & C., 404 —); Sinclair v. Eldred, 4 Taunt., 7(—); Webber v. Nicholas, Ry. & M., 417 (1825). sible for the plaintiff in this action to maintain his right to recover for the injury sustained.1 § 3. Damages in actions for malicious prosecutions.-The elementary books in treating of damages in actions for malicious prosecution lay down the rule that there are three descriptions of damages, either of which is sufficient to support the action, and some one of them must appear or the action will fail. These different kinds kinds of damages are I. To the person by imprisonment. II. To the reputation by scandal. III. To the property by expense. This rule of damages was evidently established after the enactment of the statute of Marl bridge, giving to a defendant his costs in the event the plaintiff was nonsuited or failed in his action, for at common law prior to that enactment, actions for malicious prosecutions could always be maintained, whether the property of the defendant had been seized or not, or whether he had incurred expense in defending it; and regarding them as now, the bringing of a civil action to be a matter of right, the plaintiff was liable in damages for the malicious institution and prosecution of such an action without probable cause." § 4. Damages in actions for false imprisonment. The injured party, in actions for false imprisonment, even though the act complained of be done without malice, is entitled to recover the expenses reasonably incurred to procure his discharge from the restrairt, for his loss of time, interruption of his business, and the suffering, bodily and mental, which the wrong may have occasioned. Where the arrest is unlawful it is unnecessary to prove malice, and probable cause is only admissible in mitigation of damages. 5 1 Hadden v. Mills, 4 C. & P., 486 Wis., 344 (1881); 3 Sutherland on Damages, 732 (1883). 2 Woods v. Finnell, 13 Bush (Ky.), 628 (1878); 2 Cooley's Blackstone, 126 and notes; Selwyn's Nisi Prius; Saville v. Roberts, 1 Ld. Raymond, 374. 3 Kindred v. Still, 51 Ill., 401 (1869); Abrahams v. Cooper. 81 Pa. St., 232 (1876); Fenelon v. Butts, 53 4 Painter v. Ives, 4 Neb., 122 (1874); Chesman v. Carney, 33 Ark., 316 (1878). 5 Brown v. Chadsey, 39 Barb., 253 (1863); Norman v. Marsciette, 1 Sawyer, 484 (1871); Sleight v. Ogle, 4 E. D. Smith, 445 (1855). |