Gardner v. Field , 67 Mass. 151 ( 1854 )

Thomas, J.

Two questions arise upon the report of the assessor; first, whether any but nominal damages can be recovered; and secondly, what are the rule and measure of damages.

The action is trespass de bonis asportatis, the declaration alleging a joint trespass; all the defendants were defaulted by-agreement, and the case referred to an assessor to ascertain the damages. The only question open before the assessor was the amount of damages. Who were liable, for such trespass as might be proved under the declaration, was settled by the admission upon the record. The plaintiff was not required to prove the joint liability of the defendants, and the defendants not at liberty to contest it. The trespass proved must be taken to be that declared on; and his joint liability with the other defendants Gibbs had admitted. The rule de melioribus damnis applies, and Gibbs is liable for the whole damage, not upon the evidence, but upon his admission.

As to the measure of damages; it seems to us very clear that neither of the rules suggested in the assessor’s report can be adopted. The question is not what is the value of the sheep to A. because he has facilities for keeping them, ór to B. because lie has not, but what is their fair market value as articles of sale and merchandise. The report must be recommitted that the assessor may find and report such market value.