The opinion of the court was delivered by
Redfield, J.In regard to the right of the defendant in actions of trover and trespass de bonis, in the English courts, at the present day, to surrender the property taken, in specie, in mitigation, or, in many cases, in satisfaction of damages, there can be no manner of *142doubt. How this right has grown into its present constant use, in these forms of action, it may not be necessary minutely to inquire; although it would, I apprehend, be not wholly void of interest to the student to examine the process by which the courts of that country continue to mould and modify the arbitrary and cumbrous formulas of the common law procedure, so as to meet the absolute justice of the complex and multiform incidents and relations to which, in the way of business, the greatly extended and multiplied facilities of modern commercial intercourse have given rise.
While the action of detinue continued in use, no such right of return was allowed in trover or trespass, except by consent of the plaintiff. But after that action fell wholly into disuse, the courts were almost constantly pressed to receive the surrender of the thing, for the taking or conversion of which damages were claimed, — the same as had been practised in the action of detinue. And feeling, perhaps, the convenience and justice of such a course, they felt called upon to tax their ingenuity, not to say invention, to find some good excuse for the refusal which they had predetermined. The absurdity of the reason, as in many other cases, served but to show more clearly the fallacy of the conclusion. They answered that “ they did not keep a warehouse,” and so could not order a surrender of the property, except in the case of money in numero; one would think the fact that they did not keep a bank would be as good a reason why they should not receive money.
But it seems soon to have been perceived that, in making this concession, they had yielded the whole ground. Accordingly, (very soon,) the same rule was extended to pictures, and other goods not cumbrous, or perishable. This was the case as early as the middle of the last century; Buffer’s N. P. 49; — which is a book of extraordinary authority, as well as accuracy, in regard to the state of the law at the time it was written, and indeed contains the most authentic reports of many of the early cases. 6 Bac. Ab. 483, 484, 708, —'which is a very accnrate digest, — recognizes the same principle in regard to all cases of trover, when there is no ground to claim special damage, and no wilful misconduct on the part of the defendant. The rule seems finally to have been first established in the King’s Bench in Fisher v. Prince, 3 Burr. 1363, where Lord Mansfield takes occasion to be somewhat facetious, if not severe, *143in regard to the former practice. His Lordship seems to me, in that case, to put the matter upon the true ground. “ Such motions ought neither to be refused nor granted of course; they must depend upon their own circumstances. No injury is done the plaintiff, if the court should think he ought not to proceed for damages beyond the specific thing, because he may still proceed for more, at the peril of costs ; and so he ought.” “But,” says his Lordship, “in this particular case, the goods are altered and their value changed.” The same rule was, by a very able court, extended to the case of goods taken by way of trespass, where the defendants, officers of the excise or revenue on leather, by mistake, made the seizure and where the goods had suffered no damage. Pickering v. Truste et al., 7 T. R. 54. The same rule seems to have been recognized as the settled law in Westminster Hall, in Earle v. Holderness, 15 E. C. L. 41, and Cook v. Hartle, 34 E. C. L. 528.
We do not think our statute, allowing a tender to be made in all actions until three days before the term of the court, can be made to reach this class of cases. That statute has been considered as extending only to those cases in which a tender might have been made before suit brought, without the aid of the statute. It was, in Powers v. Powers, 11 Vt. 262, considered that ejectment on mortgage did come within that statute, as the action was actually for the recovery of the money.
But we know no reason why the right to costs, and the extent of costs to be taxed, is not as much under the control of the courts in this state as in England. This principle seems to have been recognized in Clark v. Rice, 6 Vt. 33. The fact, too, that we have no statute giving costs, as of right, to the recovering party, would seem to favor this view. The only provisions in our statute, which now occur to us, in regard to the recovery of costs, are, where the plaintiff abandons his suit, or it is abated for want of jurisdiction in the court, — and here the court are to allow reasonable costs. Costs, too, it is well known, were not recoverable at common law. The right, therefore, of the prevailing party to recover his costs rests upon an English statute, early adopted into our practice by statute, and not discontinued with the repeal of that statute. It is not very obvious, then, why the court should not have the same discretion here, in allowing or refusing costs, which is exercised by the *144courts in England. There it is every day’s practice for the defendant to pay money into court, (which had not been previously tendered,) under a rule that the plaintiff accept the same and discontinue his suit, or proceed at his peril as to costs. This sum, paid into court, is supposed always to cover the costs already accrued, and a specified amount of debt, or damage.
I am not prepared to say that this practice obtains in trover, or trespass de bonis, where the taking was wilful, or where the thing has been essentially injured. This court think such a rule could not be allowed in either of the last named cases. In the present case,
1. No rule was moved for. That should always be the case. The matter rests primarily in the discretion of the court, before whom the trial is had. Whether that discretion is absolute, and arbitrary, it is perhaps not necessary now to inquire. Most matters of discretion now, occurring in the course of a trial, are considered subject to revirsion in the court of errors. The interest of witnesses, and the loss of original papers, so far as they depend upon facts, are not subject to revision; but the facts being conceded, an erroneous determination of the county court may be revised in this court. So, too, in regard to the challenge of jurors. But here no rule was moved for.
2. The abuse of the thing loaned, or hired,- and which constituted the conversion, that is, the putting it to a different use from that for which it was hired, which always amounts to a conversion, must have been wilful; — there could have been no mistake in the matter.
3. The thing was essentially injured. The fact that it was repaired shows that it must have been out of repair. And the defendant’s causing these repairs to be made shows that he considered himself the cause of the damage.
In this particular case, as says Lord Mansfield, in Fisher v. Prince, the thing has been altered, its value changed, and it was not taken and put to this use by mistake, as in the case of Pickering v. Traste. The judgment is affirmed.