It is unfortunate that the word " vindictive " has been used as descriptive of these damages; "exemplary " is much better. For, on the whole, we are satisfied that the courts of this country generally permit a jury to give, in certain cases, damages which exceed the measure of legal compensation, and are justified by the principle that one found guilty of so great an offence should be made an example of, in order to deter others from the like wrong-doing. (b)1 In Vermont, (bb) New Hampshire, (c) Con(a) See vol ii p. *69, note (j).

(b) There are numerous English cases in which it has been held, that juries may give exemplary damages; - as in trespass for assault and imprisonment, under a general warrant issued by the Secre(bb) Nye v. Merriam, 35 Vt 438

(c) Sinclair v. Tarbox, 2 N. H. 135; Whipple v. Walpole, 10 id. 13a necticut, (d) New York, (e) Pennsylvania, (f) Alabama, (g) Louisiana, (h) Mississippi, (hh)* Delaware, (hi) Illinois, (hj) South Carolina, (hk) Texas, (hl) Missouri, (hm) Kentucky, (hn) Iowa, (ho) Wisconsin, (hp) and Maryland, (hq) this has been tary of State: Hackle v. Money, 2 Wilson, 205; - in trespass quart clausum fregit for entering the plaintiff's land, firing at game, and using intemperate language: Merest v. Harvey, 5 Taunt. 442; - in trespass quart clausum fregit for entering the plaintiff's close, and poisoning the plaintiff's poultry: Sears v. Lyons, 2 Stark. 317; - in trespass for debauching the plaintiff's daughter: Tullidge v. Wade, 3 Wilson, 18. In Doe v. Filliter, 13 M. & W. 47, it was said: "In actions for malicious injuries, juries have been allowed to give vindictive damages and to take all the circumstances into consideration." In Brewer v Dew, 11 M. & W. 625. it was held, that vindictive damages might be given in an action of trespass, for seizing the plaintiff's goods under a false and unfounded claim, whereby he was prejudiced in his business, and believed by his customers to be insolvent, and certain lodgers left his house.

1 "All redress in damages must partake of a punitory character to some extent, and the line between actual and what are called exemplary damages cannot be drawn with.

(d) Linsley v. Bushnell, 15 Conn. 225; Huntley v. Bacon, 15 id. 273.

(c) Tillotson v. Cheetham, 3 Johns. 56; Woert v. Jenkins, 14 id. 352; King v. Root, 4 Wend 113, 139; Brizsee v Maybee, 21 Wend. 144, where exemplary damages were allowed in an action of replevin: Tifft v. Culver, 3 Hill, 180; Kendall v. Stone, 2 Sandf 292. And in an action by a father for the seduction of his daughter: Lipe v Eisenlerd, 32 N. Y. 229. See the able argument of counsel in Kendall v. Stone, 1 Seld. 14; and Walker v. Wilson, 8 Bosw. 586.

(f) Sommer v. Wilt, 4 8. & R. 19; M'Bride v. M'Laughlin, 5 Watts, 375; Phillips v Lawrence, 6 Watts & S. 154; Amer v. Longstreth, 10 Pa. 148; Hodgson v Millward, 3 Grant, 406.

(g) Donne11 v. Jones, 13 Ala. 490, 502;

Ivey v. McQueen, 17 id. 408; Mitchell v. Billinglev, 17 id. 391; Deraughn v. Heath, 1 Ala. 523.

(h) Nelson v. Morgan, 2 Mart. (La.) 256; Gaulden v. McPhaul, 4 La. An. 79. Exemplary damages are also allowed in Keutucky: Jennings v. Maddox, 8 B. Mon. 430; - in Illinois: Grable v. Margrave, 3 Scam. 372; McNamara v. King. 2 Gil-man, 432; - in North Carolina: Wylie c. Smitherman, 8 lred. 236; Gilreath v. Allen, 10 lred. 67; - in South Carolina: Spikes a. English, 4 Strobh. 34; - in Delaware: Steamboat Co. v. Whillden, 4 Barring. 228; Jefferson v. Adams, id. 321; Cummings v. Spruance, id. 315; - in Missouri: Milburn v. Beach, 4 Mo. 104. See Chiles v. Drake, 2 Met (Ky.) 146, where the court say, that practice, vindictive, and exemplary, are synonymous terms as applied to damages.

(hh) It is held that exemplary damages may be given against a railroad company for an injury caused by the wilful wrongdoing or the gross negligence of an employe, in Choppin v. New Orleans, etc. R. R. Co. 38 Miss. 242; and in Atlantic, Ac. R R. Co v. Dunn, 19 Ohio St. 162, this is extended (two justices dissenting) to all corporations.

(hi) Bowsall v. McKay, 1 Houston, 520.

(hj) Hawke v. Ridgway, 33 111. 473.

(hk) Greenville R. R. Co. v. Partlow, 14 Rich. L. 237.

(hl) Gordon v. Jones, 27 Texas, 620. (hm) Callahan v. Caparata, 39 Mo. 136. (hn) Bronson v. Green, 2 Da vail, 234. (ho) Hendrickson v. Kingsburg, 21 la. 379.

(hp) Picket v. Crook, 20 Wis. 358. (hq) Baltimore, etc. R. R. Co. v. Blocker, 27 Md. 277.

much nicety In every such case the jury are compelled to determine from their own sense of justice and their knowledge of human nature, what the amount of damages should be. When the amount to be recovered must in all cases rest in their fair and deliberate discretion, the law can give them no precise instructions. It aims to do justice by directing them to distinguish between provoked grievances and those which are unprovoked, or for which the provocation is in great disproportion to the wrong, making adequate compensation in all cases, but giving heavier damages in all cases where the wrong is aggravated by bad motives or malice. It would be of very little use to present the law to a jury upon any theoretical basis. The rule is intelligible, and has not been found to work badly in practice. But whether this rule involves merely compensation, or whether it is based on a theory of punishment, is not very important in practice, and does not come within the domain of law, so long as the jury are obliged to estimate by their own good judgment." Per Campbell. J., in Welch v. Ware, 32 Mich 77, 85. - K.

distinctly asserted, and the Supreme * Court of the United States has positively and emphatically recognized " exemplary damages" as lawful, (i)1 Indeed, it has been held in' Mississippi, that where a principal is sued for the acts of his servant done in his employment, the principal is as liable as the servant, and therefore may be liable for exemplary damages, (ii)l It has been held in Pennsylvania, (J) and in Illinois, (jj) that the jury, and not the court, are to determine whether exemplary damages are proper upon the evidence before them. We should prefer to say, that the court must state, as matter of law, in what kinds or classes of cases such damages may be given, and that the jury may then decide whether the case before them is of that kind or class. And we are not aware of any authoritative and direct judicial decision which declares that such damages are never lawful. But, at the same time, we think there is a growing caution as to the application of this rule, and, perhaps, a tendency to restrict it to cases in which the direct criminal process fails wholly or in a good degree, and not to allow it to justify an excessive and unreasonable enlargement of damages, (k) It has been