*3. In the Action of Trover.

In the action of trover to which a plaintiff generally resorts for remedy when his personal property has been appropriated by another, the value of the property at the time of the conversion is, in general, the measure of the damages, (b) It is true that this is sometimes no adequate compensation for the injury he has sustained; but then he should have sued in trespass, in which action he might have recovered also compensation for the additional damage he has sustained, if it were the direct and natural consequence of the injury. He must be limited by the action he brings; for if he waives the tort altogether, and brings assumpsit for money had and received, he can recover only the amount which the defendant has actually received by the sale of the property, although this may be much less than its value (c) If an owner bring trover after he has regained the possession of his property, or otherwise had the equivalent benefit of it, he can only recover damages to the extent of the injury he has sustained; as, for * example, for the injury to the chattel, and the value of its use (d)2 If the defendant has a lien

(aa) O'Mara v. Hudson River R. R. Co. 38 N. Y. 465.

(ab) State v. Baltimore, etc. R. R Co 24 Md. 84 See also Tilley v. Hudson River R, R. Co 29 N Y. 252 See;post, p.* 218.

(b) Mercer v. Jones, 3 Camp. 477; Kennedy v. Strong, 14 Johns. 128; Kennedy v. Whitwell, 4 Pick. 466; Sargent v. Franklin Ins. Co 8 Pick. 80; Parks v. Boston. 15 Pick. 198, 207, per Shaw, C.J.

(c) 3 Am. Jur. 288, 289, Bac. Abr. Trover, A., Lindon v. Hooper, Cowp. 419. per Lord Mansfield; Hunter v. Prinsep, 10 East, 278, 391, per Lord Ellenborouqh on the property for a certain amount, that amount may be deducted by the jury from the value, in assessing the damages (e)

(d) Greenfield Bank v. Learitt, 17 Pick.

1 Etherinton v. Prospect Park, & c R. Co. 86 N. Y. 641. The number of the deceased's family, and the amount of property he had accumulated has been held admissible as tending to show that his life was more valuable on account of his possession of the virtues of industry and economy. Beems r. C, etc. R Co. 58 la. 150. In Murphy v. N. Y., etc. R. Co. 88 N. Y 445, it was said to be the prevailing rule in this country to allow the plaintiff to recover the funeral expenses of the deceased, if the law imposed upon the relatives for whose benefit the suit was brought the obligation to bear them. See further as to the rule of damages in such actions. Central R. R Co. v. Thompson, 76 Ga. 770; Ohio, etc Ry Co. v. Voight, 122 Ind 288; Baltimore, Ac. Road v. State, 71 Md. 573: Opsahl v. Judd. 30 Minn 126; Johnson p. Missouri Pac. Ry. Co. 18 Neb. 690; Eames v. Brattleboro, 54 Vt. 471; Kaspari v. Marsh, 74 Wis 562.

2 In an action of trover for goods fraudulently purchased, the measure of damages is the value of the goods at the time of the sale with interest, less the consideration paid to the seller. Warner v Valliljr, 13 R. I. 483. - K.

In trover for a bill or note, or other chose m action, the measure of damages is, prima facie, the value on its face. (f) But the insolvency of the parties liable thereon, payment, in whole or in part, or any other facts tending directly to reduce its value, may be shown in mitigation of damages, (g) And it has been decided that if one, in good faith, purchase and subsequently sell stolen goods, he is liable in trover to the owner, without a demand and refusal (h)

Whether, in this or any action, instead of the actual value, that which the plaintiff puts upon the property, as a gift, perhaps of a dear friend, or for other purely personal reasons, can be recovered, is not perhaps certain. We think it quite clear, however, that this pretium affectionis cannot be recovered, unless in cases where the conversion or appropriation by the defendant was actually tortious; and in that case we should be disposed to hold that the defendant should be made to pay what he would have been obliged to give if he had bought the article; or, at least, that the damages might be considerably enlarged in such a case, on the principle of exemplary damages, (i)

The value of the property being the measure of damages in trover, as this value may be different at different times and in * different places, the question occurs, which of these values is to be this measure. If goods are taken from the owner, and some months afterwards an action is brought, the owner may have lost the opportunity of selling them at the highest price they have reached in the interval. Is he limited to their value when converted; or, if they have a higher value when he brings his action or tries it, may he have that value; or, if they have been higher, and are now lower, may he have the highest price that he could at any time have received for the property, had it remained in his possession? Similar questions arise sometimes in actions for breach of contract to sell for a price payable in specific articles, in replevin, and in some other cases. The answer to these questions, to be deduced from the general current of authority, is, that the value of the property at the time of the conversion, with interest thereon, measures the damages. (j) But it is * certain that the courts

1; Curtis v. Ward 20 Conn. 204; Ewing v. Blount, 20 Ala 694; Sparta v. Purdy, 11 Mo. 219; Hnnt 9. Haskell, 24 Me. 339; Angier v. Tauuton Paper Man. Co. 1 Gray, 621.

(e) Green v Farmer, 4 Burr. 2214, 2223; Chamberlin t. Shaw. 18 Pick. 283; Fowler t. Gilman, 13 Met 267.

(f) Mercer v. Jones, 3 Camp 477. See also Merchants', etc. Bank v. Trustees. 62 Ga- 271; Thayer v Manley, 73 N. V. 308.

(g) Ingalls v. Lord, I Cowen, 240; Roroig v. Romig, 2 Rawle, 241.

(h) Courtis v. Cane, 32 Vt. 232.

(i) Lord Kaimes's Principles of Equity, b. L part 1, ch. 4, § 5, p. 159; Sedgwick, on Damages, p. 474; Suydam v. Jenkins, 3 Sandf. 621, per Duer, J.: "In most cases, the market value of the property is the best criterion of its value to the owner, but in some its value to the owner may greatly exceed the sum that any purchaser would be willing to pay. The value to the owner may be enhanced by personal or family considerations, as in the case of family pictures, plate, etc,; and we do not doubt that the pretium affectionis ' instead of the market price ought then to be considered by the jury or court, in estimating the value." But see contra Sedgwick, Damages, Eighth ed § 251. In Mississippi, in the case of a slave, the owner is permitted to seek equitable relief, and to claim a specific return of the property, where at common law he would have been limited to an action for damages. Butler v. Hicks, 11 Smedes & M. 78; Hull v. Clark, 14 Smedes & M. 187.