The opinion of the court was delivered by
Wheeler, J.
1. Exemplary damages are not given in lieu of punishment. The fact that in a civil action founded on a criminal act, the guilty party had been compelled to pay exemplary damages to the party injured on account of the act, would be no bar to a prosecution in a criminal proceeding for the same act, nor to any part of the fine imposed by law upon such offenses. Neither should the liability to, nor the actual imposition of, a fine in a criminal proceeding, bar any portion of the liability in a civil action for the same act. This was the doctrine announced by the very able court in Cook v. Ellis, 6 Hill, 466, and approved in Sedgwick on Damages, 462. The liability to both criminal punishment and to such damages as a jury may impose in a civil suit, is the consequence of any act that is criminal, and also creates a civil liability.
2. Exemplary damages grow entirely out of the nature of the act of the defendant for which the plaintiff recovers. They are given in enhancement, merely, of the ordinary damages, on account of the bad spirit and wrong intention of the defendant manifested by the act, and are recoverable with the ordinary damages, under the common allegation that the act declared for was. done to the damage of the plaintiff.
3. The charge in this case in respect to the object of exemplary damages, is similar to that in Earl & wife v. Tupper, heard at the same term with this case, and is considered to be erroneous for the same reasons, and .for that error the judgment must be'reversed.
Judgment reversed and cause'remanded.
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