Barrett, J.
L As to the power of the court to permit, by order, the return of property in mitigation of damages, &c.
That such a power is assumed and exercised by the English courts of common law was very properly admitted by the learned counsel for the plaintiff, in yiew of the reported cases in [645]*645which the subject is involved. The subject came under the consideration of this court in Hart v. Skinner, 16 Vt. 138, and the fact of such a power and of its exercise was clearly evolved and asserted as matter of settled law in Westminster Hall.
In the case of Yale v. Saunders, et al, Ib. 243, Williams, Ch. J., says: “Indeed courts may, on motion of the defendant, order a return of goods in some cases against the wishes of the plaintiff, and such return will reduce the damages to those actu* ally sustained in consequence of the wrongful taking. This was decided at the last term of this court in Chittenden County,” referring to Hart v. Skinner. This must be regarded as a recognition of the power as incident to, and residing in, a common law court as well in this country as in England.
In 2 Hill, 132, CowENj J., says : “It is quite common for the court to make a rule stopping the action on a re-delivery, and payment of costs.” This power would seem to bo of the same character as that which is so commonly exercised, of permitting, by order, money to be paid into court after the day of tender has passed. In actions of trover its exercise is but a mode of attaining an end, as between the parties, analogous to the permitting to be shown in mitigation of damages, that the property converted has come back to the possession and use of the plaintiff, or has been applied by some third person, or by operation of law to the plaintiff’s benefit. See 6 Mass. 20. 24 Wend. 879. The purpose is to invest the plaintiff with all the legitimate fruits of his action, by making him whole in respect of the property for the conversion of which he has brought his suit, with just costs.
We feel fully warranted, now that the point is directly presented, in holding that the county'court has the power, as incident to its character as a court of common "law jurisdiction and authority to permit, by order, the return of the property sued for in mitigation of damages, and, on payment of costs, to order that the plaintiff thereafter shall proceed at his peril as to subsequent costs.
II. It is next to be considered whether the present is a proper case for the exercise of that power.
As matter of course its exercise -would not be proper, when it would result in depriving the plaintiff of full reimbursement for [646]*646the damage caused by the conversion, as depending on the value of the property, nor when the conduct of the defendant in the taking and use of the property should be such as to disentitle him to be favorably regarded by the court.
Though it is said in Rogers v. Crombie, 4 Greenl. 236, by Miller, Ch. J., that the motion for such an order -‘must be considered as addressed merely to the discretion of the Judge, and, of course, one upon which his decision is finalstill it is undoubtedly true that there are well established rules by which it is to be determined whether the particular case is a proper subject for the exercise of that power by th s court. If the case should fall within the rules, then, undoubtedly, the exercise of discretion by the Judge, in determining whether or not to grant the order when applied for, would be final, and not subject to revision on exceptions.
Lord Mansfield, in Fisher v. Prince, 3 Bur. 1363, indicates the ground and the outline of the rules that have become established on this subject. They are substantially embodied in Hart v. Skinner, cited supra, and are well stated in a learned note by the Reporter to the case of Yale v. Saunders, cited supra, in which note the English cases are referred to and collated.
With a slight modification the rules on this subject were well and comprehensively stated in the argument by the learned counsel for the plaintiff. And it is to be remarked that the defendant’s counsel proceeded in the discussion of the case upon a recognition of these rules, claiming that the prerent case falls within them.
In many cases the courts have declined to exercise their power in this respect, — not because the power was lacking, but because the case was either excluded by^the rules of law, or it did not commend itself to favorable regard. The case of Tucker v. Wright, 13 E. C. L. 64, is in point for illustration. In it the power of the court was recognized, but its exercise was denied. It was a motion for obtaining a stay of proceedings on bringing certain cloth into court and paying the costs. The whole matter of damage was open, and involved the question of the identity as well as of the deterioration of the cloth, and of the injury resulting from its detention. In the language of Sergeant Wilde in [647]*647opposing the motion for the rule, “there was a complicated dispute between the parties, and the value of the cloth was not ascertained.” Of course, an order for a stay of proceedings would have been a summary way of ending a complicated dispute ; as to which, I think, Ch. J. Best was well warranted in saying, “such a motion was never made before,”
A distinction is to be taken between cases in which the motion is for an absolute stay of proceedings upon the redelivery of the property and payment of costs, and those in which the motion is that upon the redelivery of the property and payment of costs, the plaintiff shall thereafter proceed at his peril.
When the property is of a fixed value, and from its nature cannot be the subject of deterioration, then, though the plaintiff may claim damages beyond the value of the property, either in the character of general or special, the order may be made as was done in this case.
In Gibson v, Humphrey, 1 Cr. & Me. 544, the motion was for an absolute stay of proceedings. It was properly denied, for the reason that there was contention as to the value of the property, as well as to the necessary consequential damages. This would constitute a good reason why such an order as that in the present case should not be made.
The remarks of the learned Barons were directed to the very motion before them ; and, of course, the order would not be granted where its effect would be to cut off the plaintiff from prosecuting his legitimate claim for damage, whether it was to be measured by an estimated value of the property, or accruing by reason of the unlawful detention of it. This distinction is clearly marked in a note, by the editor, to that case, as follows : “The delivery of the property in question in an action of trover is no bar to the right to recover costs and special damage, (citing Rank v. Rank, 5 Barr 211.) But where no special damages are claimed, the court may stay proceedings on the restoration of the property uninjured, and payment of costs,” (citing Tracy v. Good, 3 Penn.)
This distinction reconciles the seeming incongruity in the cases, and in the language of the judges in passing upon the questions before them.
[648]*648The case of Fisher v. Pyne, 39 E. C. L.
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Barrett, J.
L As to the power of the court to permit, by order, the return of property in mitigation of damages, &c.
That such a power is assumed and exercised by the English courts of common law was very properly admitted by the learned counsel for the plaintiff, in yiew of the reported cases in [645]*645which the subject is involved. The subject came under the consideration of this court in Hart v. Skinner, 16 Vt. 138, and the fact of such a power and of its exercise was clearly evolved and asserted as matter of settled law in Westminster Hall.
In the case of Yale v. Saunders, et al, Ib. 243, Williams, Ch. J., says: “Indeed courts may, on motion of the defendant, order a return of goods in some cases against the wishes of the plaintiff, and such return will reduce the damages to those actu* ally sustained in consequence of the wrongful taking. This was decided at the last term of this court in Chittenden County,” referring to Hart v. Skinner. This must be regarded as a recognition of the power as incident to, and residing in, a common law court as well in this country as in England.
In 2 Hill, 132, CowENj J., says : “It is quite common for the court to make a rule stopping the action on a re-delivery, and payment of costs.” This power would seem to bo of the same character as that which is so commonly exercised, of permitting, by order, money to be paid into court after the day of tender has passed. In actions of trover its exercise is but a mode of attaining an end, as between the parties, analogous to the permitting to be shown in mitigation of damages, that the property converted has come back to the possession and use of the plaintiff, or has been applied by some third person, or by operation of law to the plaintiff’s benefit. See 6 Mass. 20. 24 Wend. 879. The purpose is to invest the plaintiff with all the legitimate fruits of his action, by making him whole in respect of the property for the conversion of which he has brought his suit, with just costs.
We feel fully warranted, now that the point is directly presented, in holding that the county'court has the power, as incident to its character as a court of common "law jurisdiction and authority to permit, by order, the return of the property sued for in mitigation of damages, and, on payment of costs, to order that the plaintiff thereafter shall proceed at his peril as to subsequent costs.
II. It is next to be considered whether the present is a proper case for the exercise of that power.
As matter of course its exercise -would not be proper, when it would result in depriving the plaintiff of full reimbursement for [646]*646the damage caused by the conversion, as depending on the value of the property, nor when the conduct of the defendant in the taking and use of the property should be such as to disentitle him to be favorably regarded by the court.
Though it is said in Rogers v. Crombie, 4 Greenl. 236, by Miller, Ch. J., that the motion for such an order -‘must be considered as addressed merely to the discretion of the Judge, and, of course, one upon which his decision is finalstill it is undoubtedly true that there are well established rules by which it is to be determined whether the particular case is a proper subject for the exercise of that power by th s court. If the case should fall within the rules, then, undoubtedly, the exercise of discretion by the Judge, in determining whether or not to grant the order when applied for, would be final, and not subject to revision on exceptions.
Lord Mansfield, in Fisher v. Prince, 3 Bur. 1363, indicates the ground and the outline of the rules that have become established on this subject. They are substantially embodied in Hart v. Skinner, cited supra, and are well stated in a learned note by the Reporter to the case of Yale v. Saunders, cited supra, in which note the English cases are referred to and collated.
With a slight modification the rules on this subject were well and comprehensively stated in the argument by the learned counsel for the plaintiff. And it is to be remarked that the defendant’s counsel proceeded in the discussion of the case upon a recognition of these rules, claiming that the prerent case falls within them.
In many cases the courts have declined to exercise their power in this respect, — not because the power was lacking, but because the case was either excluded by^the rules of law, or it did not commend itself to favorable regard. The case of Tucker v. Wright, 13 E. C. L. 64, is in point for illustration. In it the power of the court was recognized, but its exercise was denied. It was a motion for obtaining a stay of proceedings on bringing certain cloth into court and paying the costs. The whole matter of damage was open, and involved the question of the identity as well as of the deterioration of the cloth, and of the injury resulting from its detention. In the language of Sergeant Wilde in [647]*647opposing the motion for the rule, “there was a complicated dispute between the parties, and the value of the cloth was not ascertained.” Of course, an order for a stay of proceedings would have been a summary way of ending a complicated dispute ; as to which, I think, Ch. J. Best was well warranted in saying, “such a motion was never made before,”
A distinction is to be taken between cases in which the motion is for an absolute stay of proceedings upon the redelivery of the property and payment of costs, and those in which the motion is that upon the redelivery of the property and payment of costs, the plaintiff shall thereafter proceed at his peril.
When the property is of a fixed value, and from its nature cannot be the subject of deterioration, then, though the plaintiff may claim damages beyond the value of the property, either in the character of general or special, the order may be made as was done in this case.
In Gibson v, Humphrey, 1 Cr. & Me. 544, the motion was for an absolute stay of proceedings. It was properly denied, for the reason that there was contention as to the value of the property, as well as to the necessary consequential damages. This would constitute a good reason why such an order as that in the present case should not be made.
The remarks of the learned Barons were directed to the very motion before them ; and, of course, the order would not be granted where its effect would be to cut off the plaintiff from prosecuting his legitimate claim for damage, whether it was to be measured by an estimated value of the property, or accruing by reason of the unlawful detention of it. This distinction is clearly marked in a note, by the editor, to that case, as follows : “The delivery of the property in question in an action of trover is no bar to the right to recover costs and special damage, (citing Rank v. Rank, 5 Barr 211.) But where no special damages are claimed, the court may stay proceedings on the restoration of the property uninjured, and payment of costs,” (citing Tracy v. Good, 3 Penn.)
This distinction reconciles the seeming incongruity in the cases, and in the language of the judges in passing upon the questions before them.
[648]*648The case of Fisher v. Pyne, 39 E. C. L. 437, was a different proceeding, but bearing some analogy, perhaps, to a stay of proceedings on the bringing in of the property and paying the costs in an action of Trover. So far as it bears such analogy, it seems to have proceeded on the same reason ; and the order was denied on two grounds, one of which was that the subject of damage was open and unliquidated.
In the present case it appears that the bonds sued for came lawfully into the possession of the defendants, and were held under a claim of right, in respect to which we do not discover any lack of good faith. So far,, then, the case is not outside of the rules of law'.' It is to be inquired then, whether th.e value of the property has depreciated. However this might have been in respect to a third person as owner and holder of the bonds, it is difficult for us to see how it can be so as to the plaintiffs.
Whatever they are intrinsically worth, depends, primarily, on the liability of the plaintiffs to pay them. They are designed to constitute a negotiable indebtedness of the railroad company, the value of which to the company, prior to being negotiated, does not consist in the fact of an existing indebtedness which it can convert into money, but in the fact of their being a means of obtaining a temporary use of money upon- the stipulations and securities contained in the bonds themselves.
■ In the hands of a third person, lawfully holding them, they are of value by reason of the liability of the company to pay them according to their terms. When that liability ceases, the bonds cease to be of value or the representative of value. Before negotiation they have no value, because no liability on the part of the company-to pay has become attached to them. After having been negotiated, when again they shall have come lawfully into ¡the hands of the company, they wnll stand the same in respect to value as.they were originally before negotiation. Whatever, therefore, they' are intrinsically worth,- either in respect to the material of them, as printed and written paper, or as instruments of contract, remains the same to the company whenever they are lawfully in its hands without payment. Indeed, it is Very difficult to" apprehend and appreciate the idea of deterioration in value to the company of its own liability to pay. In respect to [649]*649third persons, in favor of whom such liability has accrued, it is quite easy to understand.
So far, then, as the damages are to be measured by the value of the property, the restoration of the bonds to the plaintiff would reimburse them. If the plaintiff has been further damnified, it is by reason of the detention of the bonds by the defendant; and that, not by reason of the use to which the bonds have been put by the defendant, either working an injury to the property itself, or yielding a benefit to the defendant for which the plaintiff is entitled to be compensated; but it is purely in the nature of special damage, accruing by reason of the plaintiff having been prevented from using the bonds for legitimate and beneficial purposes.
In respect to such damages the rule is well understood, requiring them to be specially averred, in order to entitle them to be recovered in any form of action. For present purposes it is not necessary to decide whether special damages may or may not be recovered in this form of an action. It is enough to say that they cannot unless specially averred. Now, within any precedent or rule promulgated in the books, it seems quite clear that special damage is not so averred in this case as to entitle the plaintiff to give evidence of it on the trial. Upon the views thus taken, we are satisfied that this case, as it was before the county court, presented warrantable grounds for the exercise of the power of the court to order, that upon the production of the property and the payment of the costs by the defendants, the suit should thereafter proceed at the peril of the plaintiff as to costs. We have no occasion to criticise the details of the order, inasmuch as it results in giving the plaintiff the right to proceed without prejudice for the recovery of any damage, general or special, which it might show itself entitled to, with full costs, in case it should succeed in showing any that was not reimbursed by the delivering up of the bonds.
The consideration which we have thus given to the case, under the first bill of exceptions, sufficiently indicates that we think the county court committed no error in giving effect to said order on the trial,' and permitting the bonds to be delivered into court to respond to the damages, so far as depended on the value of the bonds themselves. ■
[650]*650But it is claimed that the plaintiff was entitled to recover other and further damage than the mere value of the bonds, and that the court erred in excluding the evidence that was offered and in directing the jury to return a verdict for nominal damages only.
Any damage that was the natural and necessary result of the conversion, the plaintiff would be entitled to recover under the general averment of damage. The case of Hickock v. Buck, 22 Vt. 149, is the type of a large class of cases, and illustrates the application of this rule in a case where the plaintiff was allowed to recover, not the value of the property, but a just compensation for the loss of the use of it, for a period during which he was entitled to the possession and use of it.
He was entitled by contract to the possession and use of the defendant’s horse for a fixed period in the carrying on of a rented farm. He had taken the possession and was in the use of the horse under the contract. Before the term expired the defendant wrongfully took away and kept the horse. There the use gave value to the right of possession, and the loss of that use was the ground of necessary damage to the plaintiff. But in turning from that case to the present, can it be said that it has been both the natural and necessary result of the withholding of these bonds that the plaintiff has sustained actual pecuniary loss ? If so, it is not obvious to us. If they had been lying in the plaintiffs’ safe during the same period, they would have been fruitless of profit. If they had been afloat in market they would also have been fruitless of profit, for they would have borne with them the liability on the plaintiff not only ultimately to pay the principal, but currently to pay the interest at seven per cent. In order for them to have been a source of necessary profit, it should appear that the plaintiff would have commanded a premium upon them in excess of the current rate of accruing interest.
The most that can be claimed in behalf of the plaintiff for these bonds, is that they should be regarded as standing to the company instead of money, say bank bills ; as a kind of special currency authorized by the legislature and the usages of business. Suppose the defendant had received and held a package of ten thousand dollars in current bank bills belonging to the plaintiffs, for which suit should be brought. They would measure their [651]*651own value, and by their restoration the plaintiff would be reimbursed that value. • The remaining general damage would be the interest on the money during its wrongful detention. But in the case of these bonds, the plaintiff’s liability to pay the interest just counterbalances the right that would accrue in respect to interest in the supposed case of the money.
We think it would not be claimed that the plaintiff would be entitled to recover, as general damage, for the loss he had sustained in not being able, for want of his money, to pay his pressing debts, or to avail himself of opportunities for profitable investment or speculation. Nor do we think it would be claimed that, as special damage, under any form or minuteness of special averment, such loss could be recovered, and for the obvious and cogent reason that it would be too contingent, remote and uncertain to be the subject of reliable estimate»
If in the supposed case of the detention of the money, the. same conjuncture of affairs had occurred as was offered to be proved in respect to the debt to the Ogdensburgh Bank, we think the proof would not have been properly admissible under any'' averment in the present declaration, and as at present advised, we think it would not be under any declaration that could be made. But what seems to be specially noticeable in the present case, as distinguishing it from the one supposed, is, that in that case the appropriation of the money to that debt would have operated as a payment of it, while the use of the bonds for that purpose would only have shifted the form without diminishing the obligation or the amount of the plaintiff’s indebtedness. This characteristic incident is not important perhaps, in the view in which the claim for damages was made on the score of the debt to the Ogdensburgh Bank. We think the evidence not admissible, irrespective of this feature of the case.
The proof offered as to counsel fees and expenses incurred in this suit, was properly excluded, because in no view could these expenses be regarded as in the nature of damages either general ^ •or special. They could be brought into consideration, if at all, only as operating upon the judge in exercising his discretion, upon the motion for the order as to the re-delivery of the bonds and payment of costs.
[652]*652The offer of evidence as to the embarrassment caused to the plaintiff in prosecuting its business by reason of being deprived of pecuniary means of which it could -have availed itself, if it could have had the use of the bonds,- was also properly rejected, for the same reason, d multo foHiorij as that which justified the exclusion of the evidence of embarrassment produced in reference to the debt.to the Ogdensburgh Bank.
We do not deem it necessary to cite or comment on the authorities of text hooks and cases bearing on this subject. They are uniform and consistent in the same direction as to what constitutes general as distinguished from special damages, what may be' given in evidence under the general averment of damage, what can only be given in evidence under an averment of special’ damage, and what cannot be given in evidence and recovered for trader either general or. special averments.
We agree with the counsel for the plaintiff that in this action, notwithstanding full effect be given to the special order as to the return of the bonds, the plaintiff would be entitled to recover for any general damage shown to have been sustained beyond the value of the bonds themselves, as well as for any special damage that should have been properly averred and proved. Upon a very careful examination of the case, however, we are not able to discover that the course taken by the county court has deprived the plaintiff of any right to which it was entitled in respect either to general or special damage.
The judgment is affirmed,