plaintiff, who was the son of Thomas Garrett, and not above twelve years of age. Ten years after the first sale the defendant, who was then sheriff, sold the slave again, under fi. fa. against Thomas Garrett; and, in behalf of creditors, he contended that the plaintiff's title was fraudulent and void. Thomas Garrett was insolvent at all times after the first sale. Upon the day of the first sale to Richardson the negro returned immediately into the possession of Thomas Garrett. The bill of sale was not made to the plaintiff until the whole purchase money was refunded. The plaintiff, after the first sale, lived with his father, Thomas Garrett; and the negro remained in the possession of the latter from the first sale until the plaintiff attained his majority, and afterwards until the levy was made by the defendant. To the jury was submitted, besides the other questions of fact, the question whether there was any fraudulent agreement between Richardson and Thomas Garrett before Richardson acquired title; and if not, the jury were instructed that there was a good title in Richardson, and that the transfer of it to the plaintiff was not so affected by a subsequent payment of purchase money by Thomas Garrett that thereby there was vested in Thomas Garrett any legal title subject to execution. Verdict was for the plaintiff. The defendant appealed and moved for a new trial.

Spain, for the appellant.

Blanding, contra.

By Court, GLOVER, J. By the sheriff's bill of sale, Bob was legally transferred to W. E. Richardson, and the purchase money was applied to the satisfaction of judgments against Thomas Garrett. To impeach the title for fraud, the defendant must show that W. E. Richardson purchased with a secret intent of defeating the claims of creditors. But all the facts of this case directly contradict such a conclusion. Richardson was not a creditor, the sale was public, and the possession of Thomas Garrett, which immediately followed, was consistent with fair dealing. That a stranger permits property to go into the possession of another from benevolent motives, cannot be regarded a badge of fraud. After judgment creditors have appropriated the fruits of a first sale, they may not afterwards recapture the property in the hands of bona fide purchasers and resell it in satisfaction of their debts.

While the title continued in Richardson and the possession in Thomas Garrett, the circumstances of this case are in no respect

different from the case of Kidd v. Rawlinson, 2 Bos. & Pul. 59. B became the purchaser of A's goods, which were sold by the sheriff; he took a bill of sale and permitted them to remain in A's possession. A afterwards executed a bill of sale of the same goods to C, a creditor, who took possession; whereupon B brought an action against C, and it was held that he was entitled to recover. Lord Eldon, C. J., says: "It appears to me that this case does not fall within the principle of Treyne's Case, 3 Co. 80, and the other cases on this subject, where the parties stood in the relation of debtor and creditor, and where their object was to defeat other creditors. This seems to me a new case; for here the goods were purchased at a public sale by a person who had never acquired the character of a creditor, and were then lent to the original owner for a temporary and honest purpose."

But it was argued that when Thomas Garrett refunded the purchase money and interest, and at his request Richardson transferred Bob by bill of sale to the plaintiff, it was with a fraudulent purpose to prevent the payment of his debts. It may be that the amount refunded to Richardson was the money of Thomas Garrett; but has the legal title to Bob ever been in Thomas Garrett? and has he ever had such a legal interest in him as would be subject to levy and sale under a fieri facias? His possession, while the title was in Richardson, was never adverse to Richardson's right of property; and his possession after the title passed to the plaintiff, who was an infant, will be intended to be a possession as guardian.

On refunding the purchase money and interest, if Bob had been conveyed to the plaintiff in trust for Thomas Garrett, with the view of protecting him from his creditors, they might reach such a trust in equity, and if within the 29 Car. II., by an execution at law. If a trust resulted in favor of Thomas Garrett, it is not the subject of levy and sale: Bauskett v. Holsonback, 2 Rich. L. 624.

Whether the possession of Thomas Garrett conferred a title, and whether there was any fraud in the transaction which could defeat the legal rights of the plaintiff, were submitted to the jury by the circuit judge, with proper instructions, and we are satisfied with their verdict.

Motion dismissed.

O'NEALL, WARDLAW, WITHERS, WHITNER, and MUNRO, JJ., concurred.

Motion dismissed.

RETENTION OF POSSESSION OF CHATTEL BY DEBTOR AFTER SALE THEREOF ON EXECUTION does not avoid the sale, if it is free from fraud in other respects: Kuykendall v. McDonald, 57 Am. Dec. 212; McMichael v. McDermott, 55 Id. 560; Walter v. Gernant, 53 Id. 491; Garland v. Chambers, 49 Id. 63; Stovall v. Farmers' etc. Bank, 47 Id. 85; Foster v. McGregor, 34 Id. 713; see also Pringle v. Rhame, post, p. 569.

ROWE v. MOSES.

[9 RICHARDSON'S LAW, 423.]

EXEMPLARY DAMAGES MAY BE AWARDED IN ACTIONS FOR ASSAULT AND BATTERY.

PECUNIARY CIRCUMSTANCES OF DEFENDANT MAY BE CONSIDERED IN FIXING DAMAGES in an action for assault and battery.

TRESPASS for assault and battery, made without just provocation. The defendant used much profanity against the plaintiff, and struck him two blows with a cane before the plaintiff returned a blow. Evidence was introduced to the effect that the defendant was a man of substance. The court instructed that the superiority of the pecuniary condition of the defendant over that of the plaintiff was not to be considered, further than that the ability of the defendant to pay was one of the circumstances which formed a just measure of damages. Verdict was for the plaintiff for five hundred dollars. The defendant appealed and moved for a new trial, on the ground that the latter part of the instruction was erroneous, and that the verdict was excessive and contrary to the evidence.

J. S. G. Richardson and Bellinger, for the appellant.

J. S. Richardson, jun., contra.

By Court, O'NEALL, J. The right of the jury in actions for assault and battery to find vindictive damages has never before been questioned within my knowledge. In Chanellor v. Vaughan, 2 Bay, 416, the jury, we are told by the reporter, found heavy damages in the case of a very unprovoked assault. The judges then said: "It was their [the jury's] province to weigh well and consider all the circumstances of the case, and to assess such damages as they thought would be commensurate with the nature of the injury, and such as would effectually check such an evil." This direction has been in all subsequent cases followed, and it may be here remarked that although the party defendant in assault and battery may be liable both civilly and criminally, yet the damages found on the civil side of the court,

if they are regarded as a sufficient punishment, uniformly make the punishment criminally nominal.

But the objection mainly relied upon was that the judge should not have said to the jury that "the ability of the defendant to pay was one of the circumstances which formed a just measure of damages." I think there was nothing erroneous in this. For certainly damages might be oppressive, excessive, and ruinous to a poor man which would be a mere trifle out of the treasury of a rich one. Can the law be so absurd as to call that redress which would be laughed to scorn by a defendant of wealth?

I do not intend to follow the learned counsel through the mazes of the labyrinth of legal learning in which they involved themselves. All this may be well enough for lawyers, but judges are to decide, not talk. Hence a few reasons derived from a few cases will answer my purpose. The general rule is very well stated in a recent work: 3 Graham & Waterman on New Trials, 1120. "In actions of assault and battery, or of slander, there is no rule by which the damages may be measured, but the same must be left to the discretion of the jury." To exercise that discretion properly, must they not know not only the rank and condition in life of the parties, but also, as a part of it, the ability of the defendant to pay? In Bump v. Betts, 23 Wend. 85, the court, in deciding on the question of excessive damages, turn to the facts that the defendant had the command of great wealth, and that the plaintiff was a poor man, as two of the circumstances justifying the heavy verdict. In McConnell v. Hampton, 12 Johns. 235, proof was received that General Hampton, the defendant, was in the receipt of an annual income of sixty thousand dollars. Such evidence was received to justify a heavy verdict, and to show the ability of the defendant to pay.

In my long experience as a lawyer and a judge, I never knew an exception taken in actions for assault and battery, slander, malicious prosecutions, and malicious torts, generally, to evidence of the defendant's wealth; and if such proof could now be excluded, or the judge restrained from commenting on it as a measure of damages, it would be in fact to reverse a course of justice coeval with the administration of it by the courts of this state.

The motion is dismissed.

WARDLAW, WITHERS, WHITNER, GLOVER, and MUNRO, JJ., concurred.

Motion dismissed.

AM. DEC. VOL. LXVII-36

PECUNIARY CIRCUMSTANCES OF PARTIES AS AFFECTING Measure of DAMAGES-PECUNIARY CIRCUMSTANCES OF DEFENDANT.-Evidence of the pecuniary circumstances of the defendant are admissible in two classes of cases: 1. Where the case is one in which exemplary damages may be awarded; 2. Where the case is of such a nature that the wealth of the defendant increases the wrong inflicted. And a third class might perhaps be made in actions for breach of promise of marriage, where the wealth of the defendant is admissible to show the extent of the plaintiff's loss; though this class may properly fall under the second of the above classes.

Admissible in Awarding Exemplary Damages.-Notwithstanding the efforts of Mr. Greenleaf, exemplary damages are very generally awarded at the present day in cases of malicious and wanton torts, and the like. And in such cases as these, since part of the damages are avowedly awarded for the purpose of punishing the defendant, if he is a man of large means and great pecuniary resources, he will not be punished adequately by a money verdict which would be fully sufficient for this purpose when rendered against a defendant of little means. An amount that might be extremely punitive to a defendant of small or moderate means would be light and trivial to a defendant of very much larger means: Brown v. Evans, 8 Saw. 491; S. C., 17 Fed. Rep. 912; Sloan v. Edwards, 61 Md. 101; Meibus v. Dodge, 38 Wis. 300. Therefore, in such cases and upon this ground, the pecuniary circumstances of the defendant become material and relevant, and may be considered by the jury in determining the amount of their verdict: Brown v. Evans, 8 Saw. 488; S. C., 17 Fed. Rep. 912; Sloan v. Edwards, 61 Md. 89; McCarthy v. Niskern, 22 Minn. 90; Belknap v. Railroad, 49 N. H. 358, 373, 374; Brown v. Swineford, 44 Wis. 282, 291-294; Clem v. Holmes, 33 Gratt. 722; S. C., 36 Am. Rep. 793; see also cases cited infra. In Bump v. Betts, 23 Wend. 85, which was an action for malicious prosecution, it was held that the damages were not excessive, considering the wealth of the defendant and the poverty of the plaintiff.

But if there are no aggravating circumstances, such as will authorize exemplary damages, then evidence of the pecuniary circumstances of defendant will not be admissible, for they are not relevant or material in a case for compensatory damages where the plaintiff is to be compensated for his actual damage and the defendant is not to be punished otherwise for the wrong done: Morgan v. Durfee, 69 Mo. 469; Dush v. Fitzhugh, 2 Lea, 307; Belknap v. Railroad, 19 N. H. 358, 373, 374; Taber v. Ilutson, 5 Ind. 322; S. C., 61 Am. Dec. 96. Though where only compensatory damages are awarded, if the defendant's wealth contributes to the injury, it will then become relevant, as we shall see. But even in a case calling for exemplary damages, the wealth of the defendant is not a legitimate subject of argument by counsel if no evidence has been introduced concerning it: Brown v. Swineford, 44 Wis. 282, 291–294.

In Iowa, evidence of the defendant's pecuniary circumstances is not admitted, even with a view to exemplary damages: Hunt v. C. & N. W. R. R. Co., 26 Iowa, 363; Guengerech v. Smith, 34 Id. 348, overruling Karney v. Paisley, 13 Id. 89, Beck, C. J., dissenting.

Admissible when Injury Increased by Wealth of Defendant.—The rule that in cases of malicious and wanton torts, where exemplary damages may be awarded, evidence of the defendant's pecuniary circumstances is admissible, must be considered as settled in view of the numerous authorities. But Mr. Greenleaf, owing to his hostility to the principle of exemplary damages, has said: "Nor are damages to be assessed merely according to the defendant's ability to pay; for whether the payment of the amount due to the plaintiff as compensation for the injury will or will not be convenient to the defendant