Curia,
per Sutherland, J.The measure of damages adopted at the Circuit was the true one. The case of Cortelyou v. Lansing. (2 Caine's Cas. Err. 216,) and of Shepherd v. Johnson, (2 East, 211) are precisely in point. The latter was an action upon a contract to replace a quantity of stock by a given day; and it was held that the plaintiff was entitled to recover the highest value of the stock as it stood, at the time of She trial; and not its value on the day when it should have been delivered. Grose, J. says, “ the true measure of damages in all these ca=es is that which will completely indemnify the plaintiff for she breach of the engagement. If the defendant neglect to replace the stock at the day appointed, and the stock afterwards rise in value, the plaintiff can only be indemnified by giving him the price of it at the time of tria! ; and it is no answer to say that the defendant may be prejudiced by the plaintiff’s delaying to bring his action ; for it is his oWn fault that he does not perform his engagement at the time.” Cortelyou v. Lansing was an action of assumpsit brought by the representatives of a pawnor against the pawnee of a depreciation note, which the pawnee had sold before application was made to redeem; and it was held that the plaintiffs were entitled to recover the value of the note at the time of the application, and not at the time of the pledge. So in trover, if the chattel be not of a fixed and determinate value, its worth at the time of conversion is not the rule of damages ; but they may be enhanced according to the increased value of the chattel subsequent to that time. (Fisher v. Prince, 3 Burr. 1363. Whitten v. Fuller, 2 Bl. Rep. 902.)
Hew trial refused.