In the case of such wrongs as assault, arrest or prosecution, the motives of the defendant naturally affect the amount of general damage awarded, even when not essential elements in the case, and the damages are "at large." Any other rule would enable a man to distribute blows as he can utter curses at a statutory tariff of so much a curse, according to his rank. This position was strongly asserted in the cases arising out of the celebrated "General Warrants" (1763) in the time of Lord Camden, who is reported in one case to have said, "damages are designed not only as a satisfaction to the injured person, but as a punishment to the guilty, and as a proof of the detestation in which the wrongful act is held by the jury." In another case he mentioned the importance of the question at issue, the attempt to exercise arbitrary power, as a reason why the jury might give exemplary damages. Another judge, in another case, said "I remember a case when the jury gave £500 damages for knocking a man's hat off; and the court refused a new trial." And he urged that exemplary damages for personal insult would tend to prevent the practice of duelling.
The right to give exemplary or punitive or (as they are sometimes called) vindictive damages is fully recognized both in England and in the United States, and especially in the following cases. (1) Against the co-respondent in a divorce suit. This right is the same as that recognized at common law in the abolished action of criminal conversation, but the damages awarded may by the court be applied for the maintenance and education of the children of the marriage or the maintenance of the offending wife. (2) In actions of trespass to land where the conduct of the defendant has been outrageous. (3) In actions of defamation spoken or written, attended by circumstances of aggravation, and the analogous action of malicious prosecution. (4) In the anomalous actions of seduction and breach of promise of marriage.
In actions for wrongs, as in those _ex contractu_, the damages may be general or special. In a few cases of tort, the action fails wholly if special damage is not proved, e.g. slander by imputing to a man vicious, unchaste or immoral conduct, slander of title to land or goods or nuisance.