*198By the Court —
Benning, J.delivering the opinion.
The first question is, were the sayings of McCall a part of the res gestae.
These sayings were not uttered at the time, or at the place, of the actual fight. The time when they were uttered was afterwards on the same day, but how long afterwards on that day, does not appear; the place where they were uttered was on the opposite side of the public square, two or three hundred yards from the place of the fight.
The time and place of the sayings, were the time and place of the suing out of a warrant, by McCall, to arrest Cherry, the other party to thé fight, the sayings may have been his very statements to the magistrate to whom he was applying for a warrant.
[1.] We think that there does not appear enough to show, that these sayings were a part of the res gestae ; and, therefore, that they ought to have been excluded.
The next question is, was there error in that part of the charge of the Court, which relates to the record that was in evidence ?
That record was the -record of Cherry’s conviction and fine for the same assault and battery on which the action was founded. And it had been put in evidence, by Cherry, that it might be a defence to him, against a verdict for ? exemplary damages.”
The charge of the Court in relation to the record was, in substance, that the record could not be any defence to Cherry, against such damages. The question is, was that charge right ?
What did the Court mean by “exemplary damages ?” It meant such damages, as might be u. punishment to Cherry, for his assault and battery. In another part of the charge, its words in reference to such damages are, — “Such damages as will be a warning to others as well as the defendant: for the *199object of the law, in inflicting punishment on those who violate it, is not to take vengeance upon them, but to make the .punishment an example to others, as well as themselves.”
The question, therefore, is, could this record be any defence to Cherry against punishment in the action?
The record showed, that Cherry had already been once punished for the assault and battery.
And there is not a better settled principle of law than this; a man shall not be twice punished for the same offence.
To say, that the record was no defence to Cherry against punishment in the action, is to say, that Cherry might be punished twice for the same offence; and, therefore, is to offend against the principle aforesaid.
We think, therefore, that the Court below erred in so saying.
It is true perhaps that, in so saying, the Court had the support of a case decided in N. York, (Cook vs. Ellis, 6. Hill, 465;) but if so, we cannot recognize the authority of that ease. The Court in that case say, — “We concede that smart money allowed by a jury, and fines imposed at the suit of the people, depend on the same principle. Both are penal, and intended to deter others from the commission of the like crime. The former however, becomes incidentally compensatory for damages, and at the same time answers the purpose of punishment.” What is meant by this last sentence, to say that “smart money,” i. e. mere punishment money, “ becomes incidentally compensatory for damages,” is to say, what I cannot well distinguish from a contradiction in terms, when in a case, there are given punishment-damages, and also, compensation-damages, can it be said, without a contradiction in terms, that the punishment-damages are compensation-damages. To be sure, we have the word “ incidentally,” and there is no telling what that word cannot do, at a pinch.
The case of Jenks vs. Bell, 3. Car. and Payne, seems to be to the contrary of this New York case.
*200■ [2.] The Court below, we think, ought not to have gone further in its charge to the jury than this, — to tell them, that If they did not think the fine a sufficient punishment, they might-increase the damages by such a sum, as would, in their opinion, make the punishment sufficient. And going as far as this, would be, perhaps, going too far. Is it not to bepresumed, that the punishment imposed by the Court ina ease set on foot solely to bring about punishment, is sufficient ?
I beg to make this remark, for myself. The question* whether what are called, vindictive, or punitive, or exemplary, damages, are authorized by the law, was not raised by the plaintiff in error. He did not except to that part of the charge which assumed, that such damages are allowed by the law. Hence, perhaps, it was not necessary for tbis Court to notice the question, whether such damages are authorized by law. I feel bound, however, to say, that I have a strong conviction, that they are not. I know, that according to some late cases, in some of the Northern States, such damages aro recoverable. But none of these cases go hack to any thing that deserves the name of authority in this State. There is not, I think,-one single English case of any date for them to rest on, and not even an English dictum before the time of Lord Kenyon.
As I understand the' law, the measure of damages is what will be remuneration or compensation, when a man is fully remunerated-for an injury done to him, he has, I think, got all that the law gives him, or ought to give him, a right to demand. There are many cases in which, as I admit, the Injured man does not.get full remuneration, but that is no reason why in any case, he should, get more than full remuneration.
What is the nature of injuries, especially such as seduction, slander, &c., and what is remuneration for them; are questions upon which, I shall not enter. These are questions which, what I take to be the true rulé, viz. compensation, leaves almost without check to the jury; and it *201may, I think, be safely said that the consequences of the observance of this as the rule, have not been such that the injured party was the one to complain of them.
We think there ought to he a new trial.
Judgment reversed.