There have been presented several distinct grounds on which tiie court is asked to reverse tiie judgment in this case; but it is believed that everything material can be noticed under the objection to the amendment of tiie plaintiff’s petition, and that therefore it is not essential to a correct decision that those points should be separately and distinctly examined; and it may well be remarked here that all tiie embarrassment thrown around this case arises from an attempt to engraft tiie common-law forms of action upon our system, when it is so clear, and has been so often announced in judicial opinions, that neither the action of trover nor detinue is known to our forum, and that our petition, in its structure, is more analogous to a bill in chancery or to a special action on the case than to any other forms known in other systems of jurisprudence.
The petition as first framed, though very objectionable in this, that it had too many of the fictions to be found in a common-law declaration in trover, was more in conformity with what our petition ought to be than the amendment-, and there can be but little doubt that the plaintiff could have achieved the same result, had it not been amended, which was afterwards given to him by the verdict of the jury. Whatever may have formerly been the difficulty in settling tiie.rule of damages for an injury done, when that injury is susceptible of judicial cognizance in a civil suit, if the damage is immediate, and not too remotely consequential, that it should be commensurate with the injury sustained, is a principle that is now believed to obtain even in courts where they are fettered, and in some measure controlled, by long-established judicial usages under particular forms of actions. It is so in trover, in detinue, and in trespass; and what seems a little strange is, that this doctrine of extending the amount of damages to make it adequate to the injury, in its early growth, received more encouragement in the English courts than in the common-law courts of the United States. (See cases referred to in Sedgw.'on the Measure of Damages, p. 3, Burr., 1303; 1 Car. & Payne, 625.) And there can be no doubt that it may safely lie assumed that the old rule in the action of trover, that the value of the thing at the time of conversion and interest thereon up to the judgment, if not entirely abolished, has been subjected to so many exceptions as to leave it not worth preservation, and the amount of the damage will vary according to the particular property to which it may be applied; a workman would be allowed damage, not limited to the value of his tools at the time *218of conversion, and interest thereon, but such amount as the jury might believe from tlie evidence would be more adequate to the loss he* sustained in being deprived of their use in the exercise of his trade. (I -Johns. It., (;j.) And, doubtless, on the same principle, the owner of a negro would be allowed to recover not only his value but damages for the value of his services from the lime of the demand up to the time oi the trial; and such, no douiil. would be 1 he correct rule, and in practice has been acted upon in our courts on a petition setting forth an injury like the one complained of in tins suit.
Note 83. — Anderson v. Dtlifleld, ante, 237.If the party injured and deprived of his property has a particular fancy or preference for the specific property instead of recovering its value and damages for tlie detention, there is no change in tlie narration of facts of l lie injury for which lie seeks redress. In the concluding part, instead of asking damages to be. adjudged to him, he will ask for the specific property to be delivered'up and damages for its detention, and tlie jury would then find for file plainti.i' the property sited for, fixing ail alternate value on the same and damages equal fo tlie actual injury sustained for its detention. On such finding ilie judgment would be that the defendant should deliver up the properly ami pay tlie damages assessed for its detention, and on failure to deliver the’ properly the plaint ill' should have judgment and execution for tlie value found by the jury and the damages assessed for its detention. Tu the case under consideration the jury have found the value of the slave $800, and specific damages $1.30. This would have been a good verdict if tile original pef.il ion liad stood alone, without its hybrid associate presented by the amendment, it would have been no objection to the verdict that the jury bad two distinct sums, that when added together formed the aggregate of the damages to which the plaint iff was entitled. Their finding the different sums only shows the rule by which they arrived at the result, and tlie judgment of the court could well have thrown together tlie two sums, as it has been done in this case. The verdict and the judgment are both just sneli as might well have been returned and rendered on the original petition, and both tlie jury and tlie judge seem to have disregarded the amendment.
Can we presume from tlie record before us that the court did disregard the amendment? I think we can, because the record nowhere siiows that it bad been acted on and approved by the court, nor was there any action on the defendant’s exception to it; it seems to have been passed over in silence, and never brought to Lhe notice of the court. The evidence introduced and all the rulings of ‘ the court, as shown by the bill of exceptions, might just as well have occurred on a trial upon tlie original as upon the amended petition; hence it may well be concluded that it was disregarded.
To the objection so well presented by the counsel for tlie plaintiff in error, on the hypothesis that the amendment bad received the sanction of the court, that a party ought not to be permitted to amend his petition in such way as to subject the defendant to answer a new cause of action — and be illustrated it by supposing- that an amendment might introduce new matter, which, if it related back to the commencement of tlie suit, would deprive the defendant of the benefit of the statute of limitations, that had completed the bar before the amendment — it is readily admitted an amendment drawing with it snob consequences ought not tobe received. The amendment offered, however, in this case would not have, as it is believed, been attended with such grave results if it had been received ; and should an amendment in any case have such an effect, so far at least it would lie error to receive so much of it.. An amendment should not be permitted to substitute a new cause of action, but under our praciice we arc not prepared lo say that we must look to the prayer of judgment for the designation of the grounds of action; onr practice has never been so stringent.
We believe that there is no error in file record that can authorize a reversal of the judgment, and it is therefore affirmed.
Judgment affirmed.