(k) Counsel fees and other expenses were allowed in Boston Manuf. Co. v. Fiske, 2 Mason, 120; Pierson v. Eagle Screw Co 3 Story, 402; Allen v. Blunt, 2 Woodb. & M. 121. But the authority of these is much shaken, if not overthrown, in Stimpson v. The Railroads, 1 Wallace, J., 164, and by a dictum in Day v. Woodworth, 13 How. 372, where Grier, J., said: "The only instance in which this power of increasing the ' actual damage is given by statute, is in the Patent Laws of the United States. But there it is given to the court and not to the jury. The jury must find the ' actual damages' incurred by the plaintiff at the time his suit was brought, and if, in the opinion of the court, the defendant has not acted in good faith, or has been stubbornly litigious, or has .caused unnecessary trouble and expense to the plaintiff, the court may increase the amount of the verdict, to the extent of trebling it. But this penalty cannot and ought not to be twice inflicted; first at the discretion of the jury, and again at the discretion of the court. The expenses of the defendant, over and above the taxed costs, are usually as great as those of the plaintiff; and yet neither court nor jury can compensate him, if the verdict and judgment be in his favor, or amerce the plaintiff pro falso clamore beyond taxed costs."

(l) Hutchins v. Adams, 3 Greenl. 174; Gould's Pleading, c. 4, § 37.

Another effect is, that circumstances may be shown, in mitigation or in aggravation of the damages, which did, or do, in fact, mitigate or aggravate the injury; and, as we think, only these. (n) We are not now speaking of exemplary or vindictive damages. And in cases which do not raise this question, evidence of the defendant's motives, or of anything which affects only the moral character of the transaction, ought not to be admitted, or to have any weight with the jury. The intention, therefore, is not an element in the case, unless it belongs directly to the issue. That is, the intention should not be shown by either party, to increase or lessen the damages, unless a bad purpose is one of the allegations of the plaintiff, expressly, or by implication of the law because necessarily involved in the allegations, (o)1 Or, perhaps, unless a part of the case consists of words or acts which are harmless, if they are said or done as the manifestation of one intention or feeling, and injurious, if of another, (p)

Compensation for injuries to property, or for a breach of contract in relation to property, is far more easily measured by money, than when it is sought for an injury to the person or reputation. Nevertheless, it is compensation only which is to be given; and the jury must measure this as well as they can, taking into consideration the whole injury which was sustained, and all its parts; as suffering, bodily and mentally, loss of time, or of money, or of labor, and the many mischiefs which ensue * from a loss of reputation, in a community where one without a reputation is in effect an outlaw.

The bodily pain resulting from an injury is always to be considered in estimating damages. (q) But mere mental suffering seems, in many cases, to be disregarded, (qq) unless the injury be wanton and malicious; but not always, as our note will show, (r)1 It has been held that a claim for mental suffering is confined to the person injured. Thus, a husband could not bring an action in his own right, for mental suffering caused by injury to his wife, (rr) Where a contract is broken under aggravating circumstances, these may sometimes be given in evidence to increase the damages. (s) In general, however, the intention is not regarded; for it seems to be the rule of the common law, that a man suffers the same injury from an actual trespass, whether it was intentional or not; that is, the same amount of what the law calls injury, when inquiring what shall be compensated, (t) Hence, a lunatic has been held liable for the injury he inflicted, (u) But, in such a case, nothing can enter into the damages which savors of a vindictive or exemplary character, (v) If circumstances are admitted in aggravation of damages which did not aggravate the injury, a wrong is * done. But there are cases in which circumstances may be admitted, that show the true character of the facts which

(m) Hoblins v. Kimble, I Bulst. 49; Bac. Abr. tit. Damages; Curtiss v. Lawrence, 17 Johns. Ill; Fish v. Dodge, 4 Denio, 311; Foamier v. Faggott, 3 Scam. 347; Cameron v. Boyle, 2 Greene (la), 154; Palmer v. Reynolds, 3 Cal. 396; Day v. Berkshire Woollen Co. 1 Gray, 420; De Costa v. Mass. Mining Co. 17 Cal. 613.

(n) See 3 Am. Jurist, 287, where this question is discussed with great learning and ability, by Mr. Justice Metcalf.

(o) As in actions for malicious prosecution. Jones v. Gwynn, 10 Mod. 148; Wiggin v. Coffin, 3 Story, 1.

(p) Weatherston v. Hawkins, 1 T.R. 110; Rogers v. Clifton, 3 B. & P. 587. See Bromage v. Prosser, 4 B. & C 247.

(q) Morse v. Auburn & S. R. R. Co. 10 Barb. 621; Beardsley v. Swann, 4 McLean, 333.

{qq) Flemington v. Smithers, 2 C. & P. 292; Blake v. Midland R. Co. 18 Q. B. 93, 10 Eng. L. & Eq. 437; Caldwell v. Brown. 53 Pa. 453. See Morse v. Auburn & S. R. R. Co. 10 Barb. 621.

1 Jones v. Marshall, 56 la. 739. It is the settled law in Wisconsin, that while proof of the defendant's good faith is admissible to mitigate punitory damages, it cannot be considered to mitigate compensatory damages, inclnding those allowed for injury to the feelings. Fenelou v. Butts, 53 Wis. 344; Corcoran v. Harran, 55 Wis. 120. - K.

(r) In suits against common carriers, damages for pain of mind are said to be recoverable, in Fairchild v. Cal. Stage Co. 13 Cal. 599. See contra. Masters v. Warren, 27 Conn. 298. They were allowed in a suit against a physician for malpractice, in Smith v. Overby, 30 Ga. 241; in a a suit against a railroad company, in Cooper v. Mullins, 30 Ga. 146; and in Bannon v. Baltimore, etc. R. R. Co. 24 Md. 106.