Willful holding over. same action and as one cause of action.-Sullivan vs. Davis, 4 Cal., p. 292; Clark vs. Boynan, 14 Cal., p. 637. In Moody vs. McDonald, 4 Cal., p. 297, "smart money" is not allowed.-De Costa vs. Mass. Min. Co., 17 Cal., p. 613; Chipman vs. Hibbard, 6 Cal., p. 162. Where there is no malice, damages are limited to natural and direct consequences of the act, which may be computed. Damages to mines and mining property.-Galen vs. Fett, 30 Cal., p. 481; Antoine Co. vs. Ridge Co., 23 Cal., p. 219; Maye vs. Tappan, id., p. 306. For a fraud in the sale of a mine plaintiff may recover a larger sum.-Ahrend vs. Alder, 33 Cal., p. 608. One for whose benest in part men are employed, with his knowledge and consent, to remove buildings and fences from lands, turn out the occupants and take possession thereof, is equally liable with the one who actually employed the men.-Treat vs. Riley, 35 Cal., p. 129. Whether defendant may set off improvements made by him against plaintiff's claim for damages depends on peculiar circumstances discussed and decided.-Carpentier vs. Small, 35 Cal., p. 355; Cal. Code of Civ. Pro., Sec. 741. Permanent improvements made by one holding under color of title, in good faith, allowed as a set-off. Ouster being denied, and the damages admitted which were recovered in a judgment for plaintiff, he recovers cost.-Lawton vs. Gordon, 37 Cal., p. 202. When the damages awarded does not specify whether allowed for mense profits or damages, or both, the presumption is that the evidence sustained the judgment.-McCarthy vs. Yale, 39 Cal., p. 585. 3335. For willfully holding over real property, by a person who entered upon the same, as guardian or trustee for an infant, or by right of an estate terminable with any life or lives, after the termination of the trust or particular estate, without the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such holding over. NOTE.-See Title Uses and Trusts, Secs. 847 to 871, inclusive, ante-particularly Sec. 871. 3336. The detriment caused by the wrongful conversion of personal property, is presumed to be: 1. The value of the property at the time of the con of personal version, with the interest from that time, or, where the Conversion action has been prosecuted with reasonable diligence, property. the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and, 2. A fair compensation for the time and money properly expended in pursuit of the property. NOTE.-Presumption of damages from wrongful conversion of personal property. In Chinery vs. Viall, 5 H. & N., p. 288, the plaintiff bought sheep from the defendant upon credit, and left them with the defendant as bailee. The defendant sold them to another person. It was held that although the plaintiff could sue as for a conversion, yet that his damages could not exceed the amount of his loss by the failure of the bargain. And the Court say: "It is not an absolute rule of law that the value of the goods is to be taken as the measure of damages."-Citing Mayne on Dam., p. 215; Read vs. Fairbanks, 13 C. B., p. 692; Brierly vs. Kendall, 17 Q. B., p. 937; Lamond vs. Davall, 9 id., p. 1030. So the return of the property, or of any portion thereof, if accepted by the plaintiff, mitigates the damages.-Hibbard vs. Stewart, 1 Hilt., p. 207; Reynolds vs. Shuler, 5 Cow., p. 323; see Hanmer vs. Wilsey, 17 Wend., p. 91; Vosburgh vs. Welsh, 11 Johns., p. 175; Gibbs vs. Chase, 10 Mass., p. 128. So, if after a conversion, the property is seized under an execution in favor of a third person against the lawful owner, the damages are mitigated (Sherry vs. Schuyler, 2 Hill, p. 204; Higgins vs. Whitney, 24 Wend., p. 379), though it is otherwise where the execution is in favor of the wrongdoer.-Otis vs. Jones, 21 Wend., p. 394; Hanmer vs. Wilsey, 17 id., p. 91; Edmonstone vs. Nuttall, 17 C. B. (N.S.), p. 280. Value of property at time of conversion (Suydam vs. Jenkins, 3 Sandi., p. 614; King vs. Orser, 4 Duer, p. 431; Smith vs. Griffith, 3 Hill, p. 333; Kennedy vs. Strong, 14 Johns., p. 128), with interest (Andrews vs. Durant, 18 N. Y., p. 496); or, where the action is prosecuted diligently, the highest market value, as in text stated.Romaine vs. Van Allen, 26 N. Y., p. 309; Wilson vs. Mathews, 24 Barb., p. 295. To the contrary is Suydam vs. Jenkins, 3 Sandf., p. 614, in which the question is very fully discussed by Duer, J. Without interest, at option of the party, for there does not seem to be any authority for allowing interest where the plaintiff elects to take a verdict for the highest price; nor does it seem Same. Damages of lienor. reasonable to allow it. But there can be little question that he has the option here allowed him. Subd. 2.-Bennett vs. Lockwood, 20 Wend., p. 223; see Miller vs. Garling, 12 How. Pr., p. 203. This text is sustained in Paige vs Fowler, 39 Cal., p. 412, wherein Rhodes, C. J., says: "We are content to follow the general rule announced in Douglass vs. Kraft, 9 Cal., p. 562, which latter case is also approved in Hamer vs. Hathaway, 33 Cal., p. 117, where it is said that this is no longer an open question in this State." Interest is allowed in addition to the highest market value of personal property of fluctuating value, estimated within a reasonable time after the taking, as the measure of damages.-Page vs. Fowler, 28 Cal., p. 605; id., 37 Cal., p. 100; id., 39 Cal., p. 415. In the latter case Justice Temple very elaborately goes over the entire subject, helding that in cases affecting property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages is the highest market value within a reasonable time after the property was taken, with interest computed from the time such value was estimated.--See, also, Cassin vs. Marshall, 18 Cal., p. 689; see note to Sec. 3352, and Scott vs. Rogers, 31 N. Y., p. 676. 3337. The presumption declared by the last section cannot be repelled, in favor of one whose possession was wrongful from the beginning, by his subsequent application of the property to the benefit of the owner, without his consent. NOTE.-See note to preceding section, and Edmonstone vs. Nuttall, 17 C. B. (N. S.), p. 280; Attack vs. Bromwell, 3 Best & Sm., p. 520; Keen vs. Priest, 4 H. & N., p. 236; Gillard vs. Brittan, 8 M. & W., p. 575; compare Johnson vs. Stear, 15 C. B. (N. S.), p. 330. 3338. One having a mere lien on personal property, cannot recover greater damages for its conversion, from one having a right thereto superior to his, after his lien is discharged, than the amount secured by the lien, and the compensation allowed by Section 3336 for loss of time and expenses. NOTE.-Parish vs. Wheeler, 22 N. Y., p. 494; Chadwick vs. Lamb, 29 Barb., p. 518; Seaman vs. Luce, 23 id., p. 240. Against a mere stranger the lienor recovers the full value. Alt vs. Weidenberg, 6 Bosw., p. 176; ante. 3339. The damages for seduction rest in the sound Seduction. discretion of the jury. NOTE. In an action for seduction, the plaintiff must 52-vol. ii. Injuries to animals. plaintiff recovered £400 for the seduction of his niece on slight proof of service. And in the case of Andrews vs. Askey, 31 Eng. C. L. R., p. 270, there was a marked departure from the old rule of "per quod servitia amisit," Tindall, C. J., saying to the jury: "If you find for the plaintiff you will take into consideration the life of the parties, and say what you think, under all the circumstances of the case, is a reasonable compensation." Not only loss of service, but anxiety of mind to the parent, should also be considered. As to damages, ultra the loss of service, the note to the last above recited case (Andrews vs. Askey) fully discusses the question, and authorizes such damages. Justice Chambre, in Selwyn's Nisi Prius (5th ed.), p. 1075, held to the old rule, “per quod servitia amisit;" but in the year 1800, at the Bristol Assizes, Lord Eldon, in strong language, held with Tindall, C. J.; and in 1805 Lord Ellenborough held the same. In the case of Southerwood vs. Ramsden, and again in the case of Irwin vs. Dearman, 11 East, p. 23, "wounded feelings," "dishonor," "loss of comfort in the society of the child," "bad example to the other children," and the like, were considered by the jury. This rule may then be said to have been extended and broadened during all the time since the year 1800. The American cases are too numerous for recapitulation. This action is given now to the person seduced as well as to the father, etc., by Secs. 374 and 375 of the Code of Civil Procedure of California. 3340. For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given. NOTE.-Wort vs. Jenkins, 14 Johns., p. 352. It was held in the case of Selden vs. Cashman, 20 Cal., p. 56, that exemplary damages cannot be recovered, unless the trespass is malicious in its character.-See, also, Dorsey vs. Manlove, 14 Cal., p. 553. Animals are either "domita," tame, or "feræ naturæ," wild; the former, such as horses, kine, sheep, poultry, and the like, absolute property may exist in, as in any inanimate article. Animals "feræ naturæ" are not the subject of absolute property, but a qualified, limited, or special property may be acquired in them by reclamation and taming them; that is, bestowing labor on them; or, by confining them in an inclosure and depriving them of liberty. These comprehend fish in private |