(i) In Day v. Woodworth, 13 How. 363, the action was trespass for pulling down a mill-dam. Grier, J., in delivering the opinion of the court, said: "it is a well-established principle of the common law, that in actions of trespass, and all actions upon the case for torts, a jury-may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence, rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct, or lawless acts, by means of a civil action, and the damages inflicted by way of penalty or punish-ment given to the party injured. In many civil actions, such as libel, slander, seduction, etc, the wrong done to the plaintiff is incapable of being measured by a money standard; and the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant's conduct, and may properly be termed exemplary, or vindictive, rather than compensatory. In actions of trespass where the injury has been wanton and malicious, or gross and outrageous, courts permit the Juries to add to the measured compensation of the plaintiff which he would have been entitled to recover had the injury been inflicted without design or intention, something further, by way of punishment or example, which has sometimes been called 'smart money.' This has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case." See also Conard v. Pacific Ins. Co. 6 Pet. 262; Walker v. Smith, 1 Wash. C. C. 152; Boston Manuf. Co. v. Fiske, 2 Mason, 120; Stimson v. The Railroads, 1 Wallace, Jr. 164; Ralston v. The State Rights, Crabbe, 22.

1 In a few States the doctrine of exemplary damages is not adopted Greeley, etc. Ry. Co. v. Yeager, 11 Col. 345; Hawes v. Knowles, 114 Mass. 518; Wilson v Bowen, 64 Mich. 133; (but see Peacock v. Oaks, 85 Mich. 578,582;) Riewe v. McCormick, 11 Neb. 261; Fay v. Parker, 53 N. H. 342 (overruling earlier cases); Bixhy v. Dunlap, 56 N. H. 456. And in other States exemplary damages are not allowed in a case where the act of the defendant which is complained of renders him liable to criminal prosecution as well as to a civil action. Murphy v. Hobbs, 7 Col. 541; Cherry v. McCall, 23 Ga. 193; Farman v. Lauman, 73 Ind. 568. See also Sowers v. Sowers, 87 N. C. 303; Shook v. Peters, 59 Tex. 393. But almost universally exemplary damages are allowed in proper cases. Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512; Jefferson, etc. Bank v. Eborn. 84 Ala. 529; Citizens' St. Ry. Co. v. Steen, 42 Ark. 321; Buudy v. Maginess, 76 Cal. 532; Coleman v. Allen, 79 Ga. 637; Harrison v. Elv, 120 III. 83; Binford v. Young, 115 Ind. 174; Thill v. Pohlman, 76 la. 638; Wheeler,etc. Co. v. Bovce, 36 Kan. 350; Louisville, etc R. R. Co. v. Ballard, 85 Ky. 307; Webb v. Gil man, 80 Me. 177; Newman v. Stein, 75 Mich. 402; Peck v. Small, 35 Minn. 465; Higgins v Louisville, Ac. R. R. Co. 64 Miss. 80; Haines v. Schultz, 50 N. J. L. 481; Bergmann v Jones, 94 N. Y. 51; Bowden v Bailes. 101 N. C. 612; Hayner v. Cowden, 27 Ohio St. 292, Philadelphia Traction Co. v. Orbann, 119 Pa. 37; Kenyon v. Cameron, 17 R I. 116, Quinn v. South Carolina Ry. Co. 29 S. C 381; Bradshaw v. Buchanan, 50 Tex. 492; Camp v Camp, 59 Vt. 667; Harman v. Cundiff, 82 Va. 239; Spear v. Hiles. 67 Wis. 35a Even though the defendant is liable to be or has been punished criminally. Phillips v. Kelly, 29 Ala. 628, Bundy v. Maginess, 76 Cal. 532; Smith v. Bagwell, 19 Fla. 117; Reddin v. Gates. 52 la 210; Slater v. Sherman, 5 Bush, 206; Johnson v. Smith, 64 Me. 553; Elliott v. Van Buren, 33 Mich 49; Boetcher r. Staples. 27 Minn. 308; Sowers o. Sowers, 87 N. C 303; Roberts v. Mason, 10 Ohio St. 277; Barr v. Moore, 87 Pa. 385; Edwards c. Leavitt, 46 Vt. 126; Brown v. Swineford, 44 Wis. 282.

Exemplary damages cannot be recovered, however, unless some actual damage is proved. Meidel v. Anthis, 71 111. 241; Schippel v. Norton, 38 Kan. 567; Stacy v. Portland Publishing Co. 68 Me 279; Ganrnly v. Perkins, 30 Mich. 492; Robiuson tr. Goings, 63 Miss. 500; Jones v Matthews, 75 Tex. 1.

(ii) New Orleans, etc. R. R. Co. v. Bailey, 40 Miss. 395; Southern Express Co. v. Brown, 67 Miss. 260.

(j) Nagle v. Mallisou, 34 Pa. 48.

( jj) Donnelly v. Harris, 41 I11 126.

(k) In Austin v. Wilson, 4 Cush. 273, it was held, that exemplary damages could not be recovered in an action for an injury which is also punishable by indictment. Metcalf, J., in delivering the opinion of the court, said: "Whether exemplary, vindictive, or punitive damages, - that is, damages beyond a compensation, or satisfaction for the plaintiff's injury, - can ever be legally awarded, as an example to deter others from committing a similar injury, as a punishment of the defendant for his malignity or wanton violation of social duty, in committing the injury which is the subject of the suit, is a question upon which we are not now required or disposed to express an opinion. 1 he argument and the authorities on both sides of this question are to be found in 2 Greenleaf, on Ev. tit. Damages, and Sedgwick on Damages, 39 et sea. If such damages are ever recoverable, we are clearly of opinion that they cannot be recovered in an action for an injury which is also punishable by in-dictment, as libel, and assault and battery. If they could be, the defendant might be punished twice for the same act. We decide the present case on this single ground. See Thorley v. Kerry, 4 Taunt 355; Whitney v. Hitchcock, 4 Denio, 461; Taylor v. Carpenter, 2 Woodb. & M. 1,22." But in Cook v. Ellis, 6 Hill. 466; Jefferson v. Adams, 4 Harring. 321, vindictive damages were allowed, although the defendants had been indicted and fined for the same injury. See Jacks v. Bell, 3 C. & P. 316. In Whitney v. Hitchcock, 4 Denio, 461, it was held, that in trespass for assault and battery upon the child or servant of the plaintiff, the measure of damages is the actual loss which the plaintiff has sustained; and exemplary damages cannot be given, though the assault be of an indecent character, upon a female, and under circumstances of great aggravation. The court said: "The present suit is brought for the loss of the services of his servant, which the plaintiff says he has sustained in consequence of the injury which the defendheld, that the rule giving vindictive or exemplary damages in cases of malicious trespass, applies as well to officers of the law, acting under color of process, as to private parsons. (l)